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[2005] NSWCCA 113
Court of Criminal Appeal (NSW)
2005-03-31
Giles JA, Hoeben J, Johnson J
Original judgment source is linked above.
CITATION: Regina v Jason Andrew DOWD [2005] NSWCCA 113
JUDGMENT OF: Giles JA at 1; Hoeben J at 61; Johnson J at 62
DECISION: (1) Grant leave to appeal; (2) Appeal dismissed.
Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; R v Armstrong [2000] NSWCCA 94; R v Elachi [2003] NSWCCA 24; R v Finn [2002] NSWCCA 86; R v Hanslow [2004] NSWCCA 163; R v Johnstone [2004] NSWCCA 307; R v Newman [2004] NSWCCA 113; CASES CITED: R v Ramirez [1999] NSWCCA 406; R v Scott [2003] NSWCCA 286; R v Spiridonov (CCA, 1 May 1998, unreported); R v Stevens [2000] NSWCCA 324; R v Thomson and Houlton (2000) 49 NSWLR 383; R v Tomich (2002) 127 A Crim R 234; R v Whyte [2002] NSWCCA 343.
D Woodburne - Crown COUNSEL: R Hulme SC - Applicant
S Kavanagh - Crown SOLICITORS: S E O'Connor - Applicant
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 2004/3172 DC 04/11/0065
GILES JA HOEBEN J JOHNSON J
Wednesday 6 April 2005 R v Jason Andrew DOWD Judgment 1 GILES JA: The applicant pleaded guilty to three counts of making a false statement with intent to obtain financial advantage (s 178BB of the Crimes Act 1900) and two counts of using a false instrument (s 300(2)). He asked that six offences listed on a Form 1 be taken into account. He was sentenced on the three counts to concurrent terms of imprisonment for 18 months commencing on 13 August 2003, and on the two counts to concurrent terms of imprisonment for five years commencing on 13 August 2004 with a non-parole period of three years. From the partial accumulation of the two groups of sentences, the effective sentence was six years imprisonment with a non-parole period of four years. 2 The applicant applied for leave to appeal against the sentences, on the grounds - "1. The sentencing judge erred by giving an inadequate (10%) discount for the utilitarian value of the applicant's early plea of guilty.
(a) February 1992; four charges of fraudulent misappropriation, dismissed pursuant to s 556A of the Crimes Act.
(b) March 1994; goods in custody, fined $400, plus driving offences relating to an unregistered vehicle.
(c) July 1994: stealing, fined $200, and false pretence, fined $100, plus driving offences relating to registration, cancelled licence, no insurance and "Plates calculated to deceive".
(e) November 1996; twenty-seven charges of obtaining financial advantage by deception and five charges of receiving, periodic detention for twelve months.
(f) April 1997; goods in custody, two year bond, plus more driving offences.
(g) August 1997; breach of periodic detention, 32 weeks minimum term and additional term 6 weeks.
(h) January 1998; two charges of goods in custody, one charge of receiving stolen property, 16 charges of obtaining credit by fraud, 13 charges of obtaining money by deception, 3 months minimum term and additional term 9 months.
(i) August 1999; 3 charges of making false statement to obtain money, 6 months fixed term.
(j) October 2000; having false documents, using a false document, obtaining property by deception and stating false name when arrested, 4 months imprisonment.
(k) November 2001; apparently on appeal from (i) 6 months imprisonment suspended on entering into a bond.
The discount for utilitarian value 18 The applicant was arrested on 13 August 2003, and was in custody from that time onwards. He entered the pleas of guilty in the Local Court on 27 January 2004. The judge said - "The offender pleaded guilty shortly after his arrest. He is entitled to have a discount from his sentence by reason of the plea and its utilitarian value. The prosecution of the offender for these matters would have involved considerable court time and a number of witnesses. I propose to discount the sentence which would otherwise have been imposed on the prisoner by ten per cent. Apart from contrition, which is sometimes said to be inherent in a plea, there was no evidence of any contrition or remorse, or indeed any awareness of the impact of the victims of his crime, contained within the plea made on behalf of the offender, that would warrant a greater discount from his sentence." 19 The applicant accepted that the judge was not obliged to grant a discount of any particular percentage, but submitted that there was an expectation that in the circumstances of this case there should be a discount at the top of the range indicated in R v Thomson and Houlton (2000) 49 NSWLR 383, or that it should be explained why a lesser discount was thought appropriate. He submitted that there was error in an inadequate discount and that a discount in the vicinity of 25 per cent should have been allowed. 20 At the sentencing hearing it was submitted for the applicant that it had been "indicated quite early to the Crown that this was likely to be a plea", that the plea had been held up by "service of the brief", that when the brief was available there was "a short negotiation as to how it was to be balanced in terms of the Form 1 and so on", and that "the plea was on the table early, once all the documentation was in and he had appropriate legal advice". The representative of the Crown responded, "Perhaps I can assist just by conceding that the plea is at the earliest opportunity". While there was reference in submissions to R v Thomson and Houlton, neither the applicant nor the Crown made a more explicit submission as to the appropriate discount. 21 In a number of cases it has been said, in answer to a submission that a plea of guilty at the earliest opportunity should bring a discount of 25 per cent, that the submission converts a guideline into a rule, and that the discount for the plea is discretionary and there is no entitlement to any particular discount: R v Scott [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12]; R v Hanslow [2004] NSWCCA 163 at [24]. As was said in R v Thomson and Houlton at [160], in some cases regard to other relevant factors means that a plea of guilty will not lead to any discount at all, and it follows that in some cases a plea of guilty regarded with other relevant factors will not attract the discount which would be appropriate in isolation. In particular, it is necessary that the sentence be that warranted for the offence, and a discount may properly be lessened or declined if that fundamental principle would be infringed. 22 The Crown submitted that the plea had been preceded by an investigation of some scale, the gathering of much material, and the preparation and service of the statements comprised in the brief, as I understand it suggesting that this diminished the utilitarian value of the plea. In R v Newman at [12]-[13] Wood CJ at CL observed that the utilitarian value of a plea should be assessed "in the continuum of the justice system", and referred to the considerable time, expenditure and inconvenience which might be occasioned in the assembly of evidence and in mentions, as well as other matters later in the continuum. 23 That said, it is not obvious that the work to which the Crown drew attention would have been obviated significantly by an earlier plea, or was unnecessary for the sentencing process. The Crown's present submission is somewhat at odds with the bald concession made at the sentencing hearing, without a submission by the Crown that (for example) getting the documentation in before a plea reduced the utilitarian value. It was not suggested that the judge was in error in saying that the prosecution of the applicant would have involved "considerable court time and a number of witnesses", and I do not think it can be said that any reduction in utilitarian value would have been great. 24 Notwithstanding that the discount for a plea is discretionary, it remains that the guidance of R v Thomson and Houlton is that the utilitarian value of a plea should generally be assessed in the range of 10 to 25 per cent discount on sentence. The discount at which the judge arrived was at the bottom of that range. Given the Crown's concession that the plea was at the earliest opportunity, why did her Honour exercise her discretion in that manner? 25 The judge gave no explanation, and in my opinion there comes into play the remarks of Sully J, with whom Mason P and Sperling J agreed, in R v Johnstone [2004] NSWCCA 307 at [28], that - " … the thrust of the guideline judgment in Thomson and Houlton does entail that in a case of the present kind a sentencing Judge might well come to the conclusion that there were factors, whether individual factors or a number of factors taken in combination, justifying a discount of less, and even significantly less, than the guideline maximum of 25 per cent; but it seems to me to be in accord with relevant principle that a sentencing Judge who has concluded that a just discount is at the lower rather than at the higher end of the guideline range, ought to give at least a brief, clear and simple explanation of the process of reasoning that has led the Judge to that conclusion." 26 The Crown submitted that R v Johnstone was decided on 10 September 2004, after the sentencing of the applicant on 14 May 2000, and that the judge therefore did not err by failure in explanation. Sully J's remarks were, however, an application of the general principle that reasons should be given for a judge's decision. That was not a new principle. In these circumstances the decision was to allow a discount at the bottom of the range notwithstanding that the plea was at the earliest opportunity and the utilitarian value was considerable. In the absence of explanation by the judge, or more telling justification provided by the Crown before us, in my opinion it should be concluded that there was error on the judge's part in failing, without explanation, to allow a greater discount than the 10 per cent.
The offences in the Form 1 27 The applicant submitted that there was error in two respects.
(a) The principal offence 28 Section 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 provided for taking other offences into account when dealing with an offender for a principal offence. The other offences were to be listed in a document, which was to be signed by the offender and by or on behalf of the Director of Public Prosecutions. 29 In accordance with the prescribed form of document at the time, the Form 1 in the present case began - "To Jason Andrew DOWD, charged with the offence of Use False Instrument on 7/9/00 re the sale of 23,316 St George Bank shares [s 300(1) Crimes Act] before the District Court at Sydney on 19 March 2004.",
and went on to refer to the offences in the Form 1 being taken into account "in dealing with you for the offence mentioned above". 30 The principal offence so stated was that in count 1 in the indictment. The applicant submitted that the judge erred in taking the Form 1 offences into account not only in dealing with the applicant for that offence, but also in dealing with the applicant for the offence in count 2 of the indictment. He submitted that this led to the imposition of a sentence or sentences which would not otherwise have been imposed. 31 Early in her remarks on sentence, after referring to the counts in the indictment, her Honour said, "The offender asks that a further six matters contained on form 1 be taken into account." This was not specific, but there was no occasion to be specific at that point in the remarks on sentence. 32 After describing the offences and discussing a number of sentencing considerations, the judge said - "I propose to approach the sentences as two broad groups: the first two charges on the indictment, which relate to the fraudulent sale of shares; and the matters on the form 1 attached to the first charge on the indictment . It is appropriate to consider them together as they relate to the same series of transactions. Some of the form 1 relate to these transactions . The matters on the form 1 increase the objective gravity of those offences . I propose then, to deal with the remaining three charges on the indictment. Each is the same and each relates to the obtaining of credit cards in false names." (emphasis added) 33 This gave a mixed message. The words first emphasised pointed to taking the offences in the Form 1 into account only in dealing with the applicant for the offence in count 1. The words secondly and thirdly emphasised pointed to taking the offences in the Form 1 into account in dealing with the applicant for the offences in both count 1 and count 2. 34 Her Honour then said - "In relation to the first group of offences, that is the first two on the indictment and taking into account the matters on the form 1, I am of the view that an appropriate total sentence is 5 years. In relation to the second group of offences, an appropriate sentence for each is 18 months imprisonment. I propose to make the sentence for those three matters concurrent. I do not intend to set a non-parole period, given the sentence which I will impose in relation to the first group of offences. Having regard to the issue of totality, I propose to make the sentences for the two groups of offences partially concurrent." 35 In formally pronouncing the sentences, the judge said - "On each of the first two charges on the indictment, you are convicted and, taking into account the matters on the form 1, you are sentenced to a period of imprisonment of five years … ". 36 These passages pointed to taking the offences in the Form 1 into account in dealing with the applicant for the offences in both count 1 and count 2. They did not do so conclusively, as the words could possibly be read distributively so that the matters in the Form 1 were taken into account in relation to the offence to which they "attached", although that is not a natural reading. If that were so, however, different sentences on the offences in the two counts would have been expected. 37 It may be added that the certificate endorsed on the Form 1 signed by the judge said - "This is to certify that, in dealing with Jason Andrew DOWD, for the offence Use False Instrument on 7/09/00 re the sale of 23,316 St George Bank shares [s300(1) Crimes Act], of which the person has been found guilty, the Court has taken into account the offences admitted by the person numbered 1-6 in the list on the back of this document." 38 The Crown submitted that the judge had not erred in the manner suggested, relying on the reference to the offences in the Form 1 attaching to count 1. The applicant relied on the contrary indications, in particular that the judge had imposed the same sentences for the offences in the two counts. The applicant referred to R v Tomich (2002) 127 A Crim R 234, in which Smart AJ, with whom O'Keefe J agreed, referred to the need to take the Form 1 offences into account in dealing with the offender for the principal offence. 39 In my opinion, the better view is that the judge did take the offences in the Form 1 into account in sentencing the applicant on the offences in the two counts. In this she was in error. 40 The Crown submitted that this did not mean error in the sentencing outcome. It was submitted that any effect of the error was to increase the penalty for the offence in the second count in the indictment, but that a lesser sentence imposed for that offence would be subsumed within the greater sentence for the offence in the first count. There might be a formal adjustment, but the applicant's incarceration would be unchanged. 41 The submission presupposed that the judge would have imposed no less a sentence for the offence in the first count if she had taken the offences in the Form 1 into account only in dealing with the applicant for that offence. That may well be correct. The submission also accepted that (if there were the error) the applicant was erroneously sentenced on the offence in the second count, and I do not think that can be swept aside, particularly where the sentence on the first count is itself under challenge. For the reasons I have given, that challenge has thus far been made good to the extent of other error as to the discount. The sentencing error should be recognised. 42 The consequence could be, of course, that if the sentence on the offence in count 1 was otherwise correct it should have been greater.
(b) Objective gravity 43 The applicant submitted that the judge erred in that she said that the matters on the Form 1 "increase the objective gravity of those offences", see [32] above, because an increase in objective gravity was not the approach identified in Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. The approach there identified was that greater weight could be given to the need for personal deterrence and to the community's entitlement to exact retribution for serious offences when there were other offences for which no punishment had been imposed. The applicant acknowledged that her Honour's reference to increase in objective gravity was unclear, but submitted that it suggested that she had imposed greater sentences than otherwise for a reason which was impermissible and possibly to his detriment. 44 The Crown submitted that whether or not the judge "explicitly enunciated the correct approach to Form 1 matters", she was entitled to give the greater weight to which Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 referred; from there, the submission seemed to leap to the sentence(s) not being manifestly excessive, or more likely to no other sentence(s) being warranted in law within s 6(3) of the Criminal Appeal Act 1912. It is necessary, however, to consider whether there was the error asserted. 45 The judge did not otherwise refer to objective gravity, but earlier described the applicant's crimes as "objectively serious". In the absence of an acceptable alternative, which I can not discern, I conclude that she meant much the same thing in referring to objective gravity. The judge did not express her regard to the offences in the Form 1 in a manner reflecting the approach described in Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, and the unfortunately preferable reading of her remarks on sentence is that she impermissibly treated the offences in the Form 1 as increasing the objective seriousness of the principal offence(s). 46 This means that the challenge to the sentence on the first count has also been made good to the extent of the error so identified.
Manifestly excessive 47 It is not necessary to consider the ground of appeal as such. The sentencing errors thus far upheld can not be accommodated by simple adjustment for a different discount. The account properly to be taken of the offences in the Form 1 must also be considered, and any adjustment would re-open the question of totality and the partial accumulation of the sentences. It is preferable to address afresh the sentences appropriate to be imposed, including the Crown's submission that no other sentences than those in fact imposed were warranted in law within s 6(3). 48 In doing so there should be regard to the submissions on whether the sentences were manifestly excessive, and the submissions can conveniently be described and in part dealt with at this point. 49 The applicant submitted that the sentences for the credit card offences were excessive because the applicant obtained within New South Wales from transactions on the cards only a net amount of $15,400, or if the Form 1 offences were excluded only a net amount of $6,702. The Crown responded that it was wrong to focus on the amount obtained by the applicant from transactions on the cards, and in any event wrong to confine what the applicant obtained to what he obtained within New South Wales. Under s 178BB the offence was constituted by making a false statement "with intent to obtain … any money or valuable thing or any financial advantage of any kind whatsoever". The credit cards were valuable things, and for the three counts in the indictment the total credit limit was $50,000. The amount obtained by transactions on those cards was $35,890. In my opinion, the Crown is correct. 50 The applicant submitted that the sentences for the share theft offences were excessive because the maximum penalty was ten years imprisonment, and the sentences were for half that period after discount for the plea of guilty and regard to relevant subjective considerations. He referred to statistics from the Judicial Commission data base, recognising that they encompassed a wide range of circumstances but submitting that for "all offenders" sentenced for using a false instrument only 6 per cent of those receiving a term of imprisonment were sentenced to a term greater than five years and that most received non-parole periods of three years or less. It was submitted that the sentences imposed on the applicant were "amongst the most severe that have been imposed in the past seven years". The applicant also referred to a number of cases which he said involved significant degrees of credit fraud but sentences no greater than three years and six months, namely R v Spiridonov (CCA, 1 May 1998, unreported); R v Ramirez [1999] NSWCCA 406; R v Stevens [2000] NSWCCA 324; R v Finn [2002] NSWCCA 86; R v Armstrong [2002] NSWCCA 94; and R v Elachi [2003] NSWCCA 24. 51 The Crown responded that the statistics provided little assistance when it was not known, for example, whether the offenders cooperated with the police, whether they gave assistance to the authorities, whether the frauds were planned and sophisticated, or whether there were strong subjective circumstances. It was submitted that the cases to which the applicant referred were all not on a par with the circumstances of the applicant's offending and, referring to R v Whyte [2002] NSWCCA 343 at [176]-[177], that in any event a marked difference from sentences in other cases was not of itself indicative of error. 52 I take these submissions into account in what follows.
The sentences appropriate to be imposed 53 I have described the applicant's conduct involved in these offences as thoroughly dishonest. I agree with the judge's description of the offences for which he was sentenced as objectively serious, but those words are inadequate unless amplified. The offences all involved planning, preparation and detailed implementation to obtain and take advantage of the shareholding and identities of real persons, and the amounts involved, measured by the values of the shareholdings and the credit card limits and the amounts obtained, were large. I do not think that the seriousness of the offences is diminished by the fact that discovery of the applicant's frauds prevented him from enjoying the full fruits of his dishonesty. 54 The judge noted that apart from the contrition "sometimes said to be inherent in a plea" there was no evidence of any contrition or remorse, or "any awareness of the impact of [sic: on] the victims of his crime". No reparation or attempt at reparation was made. An affidavit of the applicant read before us in the event of re-sentencing asserted his deep remorse for his crimes and the victims of his crimes. I view this late assertion askance; I do not think it counts for much. 55 The applicant's criminal history of itself marked a need for personal deterrence, the more ample description of that history showing a long and complete disregard for obedience to the law and the money and property of others. In relation to the first count in the indictment, regard to the offences in the Form 1 called for a meaningful increase in the penalty of the nature described in Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002. The offence took advantage of business practices vulnerable to the dishonesty, and there significantly added to the need for general deterrence through substantial penalties. 56 The applicant told the author of the pre-sentence report that his offending was due to his gambling addiction and cocaine. The judge rejected a submission that the applicant suffered from a psychiatric condition to which his gambling was referable, and did not think that he was "in some way driven to gamble in a way which diminishes his moral culpability for the crimes for which he is to be sentenced". Assistance in coping with problem gambling and the accumulation of sentences caused the judge to find special circumstances. The affidavit to which I have referred provides hope that the applicant will not relapse into gambling and drug use. The finding of special circumstances should be maintained, but that the occasion for the applicant's offences lay in gambling addiction and cocaine use does not diminish the seriousness of his criminality. 57 In the case of the share theft offences, it may be added that considerable anxiety must have been caused to Mr Burcher. For the offence in count 1, taking into account the offences on the Form 1 and apart from a discount for the plea of guilty, I consider that an appropriate overall sentence is 7 years imprisonment. There should be a discount of 1 year 6 months, arriving at a sentence of 5 years 6 months. The discount is a little over 21 per cent, but in my view a discount of 25 per cent to which the applicant's submission referred would result in a sentence less than that warranted for the offence. I have had regard to the statistics and cases to which the applicant drew attention, but the circumstances of this case in my opinion call for no less penalty. For the offence in count 2, on a similar approach and without taking into account the offences on the Form 1 I arrive at an overall sentence of 4 years 6 months. Thus in my opinion the sentences imposed by the judge were no greater than those warranted by the offences and s 6(3) applies. 58 In the case of the credit card offences, it may be added that one offence was committed while the applicant was under a 6 month suspended sentence for making a false statement, the conditions of his bond including that he attend Gamblers Anonymous. There could be an increased sentence for that offence, but in exercising the sentencing discretion I consider that for the offences in each of the counts, apart from a discount for the plea of guilty, an appropriate overall sentence is two years imprisonment. The discount could not be more than 25 per cent, and thus again in my opinion the sentences imposed by the judge were no greater than those warranted by the offences and s 6(3) applies. 59 No submissions were put against the concurrency and accumulation adopted by the judge. I consider that, having regard to principles of totality, it is appropriate to do as she did in that respect. The judge's finding of special circumstances were in my view appropriate and should be adopted.
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Regina
Jason Andrew DOWD