R v Woodman [2001] NSWCCA 310 | Case summary

JUDGMENT 1 WOOD CJ AT CL: The applicant seeks leave to appeal against the sentences imposed upon him by Nield DCJ in the District Court on 19 January 2001, following his pleas of guilty to five offences of dishonesty. Four of those offences involved counts of fraudulently omitting to account for a deposit, or for rent, received by him from a prospective purchaser and tenants respectively in his capacity as a real estate agent. The fifth related to a count of fraudulently converting property to his own use, namely monies received by way of rental bond. 2 In relation to the count relating to the fraudulent omission to account for the deposit, a further eighteen matters were taken into account on a form one, including ten offences of fraudulently converting rent or rental bond monies to his own use; four offences of fraudulently omitting to account for rental bond money, and four counts of fraudulently misappropriating rental bond monies. 3 The various offences in the indictment were charged under s 88(a)(i) and s 88(b)(i) of the Property Stock & Business Act 1941,each of which provides for maximum sentences of imprisonment for ten years. 4 Fourteen of the matters in the form 1, similarly came within these provisions, while the four offences of fraudulent misappropriation came within s178A of the Crimes Act 1900 and as such were offences which potentially attracted maximum penalties of imprisonment for seven years. 5 In relation to the offences involving the omission to account for the deposit in the amount of $18,625, in respect of which the form 1 matters were taken into account, the applicant was sentenced to imprisonment for three years and nine months with a non parole period of one year and three months, a period representing approximately thirty three percent of the head sentence. For each of the remaining counts on the indictment the applicant was sentenced to fixed terms of one year and three months to be served concurrently with the sentence last mentioned. 6 The total amount involved in the various offences, including those in the form 1 was $62,231.83. The offences were committed over a period of four years between 24 June 1994 and 8 July 1998. 7 In addition to the sentences of imprisonment the applicant was ordered to pay compensation, for the full amount involved in the various offences, to the Department of Fair Trading by way of recoupment of the monies which it had paid out to the victims of the applicant's dishonesty. Those victims, naturally enough, were either tenants, landlords or prospective purchaser. 8 All of the offences were committed during the period when the applicant was self employed as a real estate agent at Kirribilli. Although the proceeds of the four offences were not specifically traced, it was assumed that they were used to meet the various debts of the business, which apparently was not particularly successful. 9 The offences came to light following a complaint to the Department of Fair Trading in August 1997. At a meeting with a departmental inspector in September of that year the applicant acknowledged his criminality. 10 For reasons which have not been satisfactorily explained the investigation was not completed for a further sixteen months. The applicant, however, entered a plea of guilty in the Local Court, once charged; and that circumstance, along with his contrition which his Honour accepted as genuine, properly led to him receiving a discount of twenty five percent. 11 The applicant was forty five years of age when he appeared for sentence and was otherwise accepted to have been of impeccable character, having no prior convictions and being the recipient of a number of favourable references. He was divorced but was providing support for his three children, who were living with their mother. He was, at the time of sentence, holding down two jobs, one a full time position as a coaxial cable installer and the other a part time position as a night time attendant at a service station. The latter position he had held over the preceding two months. 12 Although the question of reparation had been discussed with him, it was not until he appeared for sentence that he offered to make payments to the Department in the sum of $200 per week, to be made from his earnings which then amounted to $868 net per week. 13 There was evidence to the effect that he had been suffering from depression, following the separation from his wife, as well as from pressures to pay the various monies owed in connection with his business. His Honour accepted that he was unlikely to reoffend and that he had the support of his fiance. 14 In passing sentence his Honour appropriately noted that the offences were very serious, that they had been committed over a relatively long period of time and that they involved serious breaches of trust. While specific deterrence was not regarded as important as it might have been in another case, his Honour emphasised the importance of general deterrence observing: "People in the position of the prisoner, having control over the money of other people, their clients and their principals, must be made aware of the obligations in relation to those clients and those principals. People in the position of the prisoner must be deterred by the punishments imposed on offenders from breaching the trust imposed in them by their clients and principals." 15 Clearly his Honour was correct in stating the seriousness of the offences, it being particularly apposite in the case of a real estate agent whose business involved the regular receipt of monies from tenants and purchasers to be held on trust for landlords and vendors. Their business depends upon their clients reposing trust in them and in having that trust respected. 16 His Honour rejected the submission that the circumstances of the case were exceptional and as such justified a sentence which would have been other than one involving imprisonment on a full time custodial basis. To the contrary of that submission, his Honour found that the circumstances were the same as those which regrettably are usually seen in cases such as the present, where the offender having use of someone else's money misapplied it, converted it or misappropriated it either to his own use or to his own ends. 17 His Honour also made it clear that he had not misunderstood or misapplied the principle of totality in specifying a sentence appropriate for the count involving the largest amount of money, being the last in point of time, in respect of which the matters on the form 1 were to be taken into account; and in then specifying the sentences which were considered appropriate and which were to be served concurrently, for the remaining counts in the indictment. 18 Special circumstances were found referable to the need of the applicant to be supervised and assisted on his return to society. The findings made in this regard were, in my view, unduly favourable to the applicant in the light of the assessment which was made that he was unlikely to reoffend, and in light of the circumstances that he had no particular problems of health or otherwise that needed to be addressed, that he had a supporting partner, and that he had employment available. Properly assessed I have difficulty, as a matter of law, in seeing why special circumstances were found to exist. However, since any error in that regard operates in favour of the applicant and has not been the subject of a Crown appeal, that circumstance can be ignored for the purposes of this appeal. 19 In substance, two grounds of appeal were addressed when the matter came on for hearing this morning, a third ground having been abandoned by reason of the circumstance that the applicant has served a good proportion of the non parole period. SENTENCE OUTSIDE THE RANGE. 20 This submission largely turned upon the proposition that a large proportion of offenders convicted of similar offences had been dealt with by way of a sentence of a non custodial kind, and upon the further proposition that of those cases attracting a sentence of full time imprisonment the great majority had received a lesser sentence than that imposed here. 21 I observe that reference to the Judicial Commission's statistics in relation to this submission is of no value whatsoever since the case population for a fraudulent omission to account offence is one, that being a case which in fact attracted a head sentence of three years and six months. No case is recorded for a s88(a)(i) offence. For what it is worth, in relation to the offence of fraudulent misappropriation under s 178A of the Crimes Act, the statistics show that sixty-one percent of all offenders receive prison terms (out of a case population of seventy-six) and of those sixty-four percent received full terms of three years or more. 22 In any event, reference to statistics is of limited value in the case of this form of criminality, given the enormous variation in objective and subjective circumstances involved (see Brown NSW CCA 1 August 1994). A similar problem also arises when an attempt is made, as it was here, to compare a specific offence of dishonesty with other cases involving dishonesty of a different kind. 23 In the present case reference was made to a "schedule of fraud appeals" between 9 July 1999 and July 2001. Examination of that schedule and of the attached cases shows that many of them involved offences with a lesser maximum penalty and some were Crown appeals involving the principle of double jeopardy and/or the discretion which attaches to that form of appeal. In fact closer examination of the cases included in the schedule does point up the significant variations in the objective and subjective circumstances involved. 24 In Hawker (2001) NSW CCA 148, that being one of the cases included in the schedule, I drew attention at paragraph 17 and 18 to the danger involved in attempting to extract a range of sentences from an exercise of this kind. I see no reason to resile from the observations there made. In any event I do note that the cases in the schedule by no means bear out the submission which is here sought to be advanced. 25 Far greater assistance is derived by reference to general sentencing principles in relation to white collar crime. In Pantano (1990) 49 A Crim R 328 at 330 I said: "Those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences." 26 Those remarks are equally applicable to the case of a sole employee who does not have anybody looking over his or her shoulder. In Regina v El-Rashid (NSW CCA 7 April 1995) Gleeson CJ said: "Considerations of general deterrence are of particular importance in sentencing for crimes of this nature. Such crimes frequently involve...a serious breach of trust. Such breaches of trust are usually able to be committed because of the previous good character of the person who has been placed in a position of trust." 27 The principles identified in these cases are reflected in many other decisions of this court, for example see Halabi (NSW CCA 17 February 1992); Pont (2000) NSW CCA 419; Corner NSW CCA 19 December 1997; Law NSW CCA 7 October 1993 and Tyrrell NSW CCA 25 November 1994). 28 Also of relevance in the present case is the decision of this Court in Hawkins (1989) 45 A Crim R 430 where the court said: "In considering the gravity of the offences objectively as is required...the amounts of money involved are a significant matter for consideration. The amount of money involved in cases of pre meditated planned deception and fraud are of necessity an important factor in the question of determining the degree of criminality for they are an indication of the extent to which a prisoner is prepared to be dishonest and to flout the law and to advance whatever are his own purposes". 29 In citing that case with approval, this court in Regina v Mears (NSW CCA 14 March 1991) added: "There are a number of cases as well as that one, which make it clear that the period of time over which the offences are committed is also a relevant factor in determining the extent of criminality. The motive of the persons involved is also a relevant factor". 30 The present is a case involving a considerable period of time, a not insignificant amount of money and more than a handful of victims. It was also not an impulsive offence. I am quite unpersuaded his Honour overlooked any relevant circumstance or overstated the seriousness of the present offences. Nor am I persuaded that the sentence imposed was out of range. As Kirby ACJ, (as he then was) said in Law: "This court sits to correct error of law not to substitute the sentence which it might have imposed itself". 31 No error has been shown in this respect.

INSUFFICIENT WEIGHT GIVEN TO THE OFFER OF REPARATION. 32 The offer by the applicant to make reparation was of limited value to him, particularly in the absence of any earlier attempt to do so. It is not the case that an offender found guilty of fraud offences can purchase mitigation by way of a voluntary repayment. While the degree of sacrifice involved can be taken into account it cannot be overlooked that an order for compensation, or reparation does no more than require the return of illgotten gains to which the offender had no entitlement. 33 Moreover, as Hunt CJ at CL pointed out in Phelan (1993) 66 A Crim R 446: "It is more of a matter of aggravation when there has been a loss which is effectively irretrievable than a matter of mitigation where the loss has been made good". 34 In the light of these considerations I reject as unfounded the argument that there would be some utility in reducing the applicant's sentence, or to deal with him on a non custodial basis, so that could continue to work and thereby fund the repayments ordered. He is of course perfectly able to resume those payments once released upon parole. 35 While it may be accepted that the applicant had limited means before he acquired the second job, and while it may also be accepted he was suffering from a degree of depression, it remains the fact that he had made no real attempt, before appearing for sentence, to offer anything by way of reparation. The explanation offered to the effect that he was waiting to be approached by the Department, and that he did not realise that he could make payments directly to the victims himself is unconvincing. 36 I am unpersuaded that his Honour relied upon this matter as something operating in aggravation of sentence as distinct from a matter that might otherwise have demonstrated a degree of contrition. His Honour's observation "it was unfortunate there had been no reparations" does not carry with it the inference that it was regarded as a matter increasing the sentence. No error has been shown in that regard and accordingly this ground has not been made out. 37 I finally observe that although a submission was originally made that a non custodial sentence would have been open in this case, that ground has not been pursued having regard to the period already served. While it has not been dealt with I would make it perfectly plain that I would not have considered this case to have been exceptional, and as such one that might have attracted a non custodial option. 38 For those various reasons therefore I am unpersuaded that any error occurred, and although I would grant leave to appeal I would dismiss the appeal. 39 SPERLING J: I agree. 40 WOOD CJ AT CL: The order of the court therefore will be as I proposed.

R v Woodman

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Judgment (8 paragraphs)

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