Regina v Robert Cameron Martin

Applicant's Grounds of Appeal 34 As originally filed, the Applicant's Grounds of Appeal were as follows: (1) the learned sentencing Judge erred in failing to find "special circumstances" ;

(2) the sentence was manifestly excessive. At the hearing on 29 April 2005, Counsel for the Applicant sought and was granted, leave to add a third ground of appeal as follows: (3) his Honour erred in finding that the offence was aggravated by virtue of s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 . It is appropriate to consider Ground 3 first.

Ground 3 - Error in Application of s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 35 Section 21A(2) Crimes (Sentencing Procedure) Act 1999 relevantly provides: "(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (k) the offender abused a position of trust or authority in relation to the victim, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence."

Section 21A was introduced in its present form by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000 which commenced on 1 February 2003. The new s.21A applies to any determination of a sentence after that date, whenever the offence was committed, unless the offender has been convicted before that date: clause 45(2), Schedule 2, Crimes (Sentencing Procedure) Act 1999 . In the present case, the offence took place between 1992 and 1996, but the Applicant was not convicted until August 2004. Section 21A therefore applied. 36 Counsel for the Applicant submitted that the sentencing Judge had "additional regard", as an aggravating factor under s.21A(2)(k), to the fact that "the offender abused a position of trust". It appears from the transcript of the sentencing proceedings that the Crown submitted that his Honour should have regard to this factor as an aggravating factor on sentence and referred to s.21A(2)(k) in this respect. Before this Court, the Crown conceded that his Honour had "additional regard" to this factor contrary to the express limitation contained in the concluding paragraph of s.21A(2) Crimes (Sentencing Procedure) Act 1999. The elements of an offence under s.172 Crimes Act 1900 include the fact that the accused was "a trustee of property" who acted "in violation in any such case of good faith". In this way, the abuse of a position of trust is an express element of an offence under s.172. 37 The learned sentencing Judge took into account, in characterising the offence as being of a "very serious nature", the fact that "the offence involved a continuing serious breach of trust" (see paragraph 26 of this Judgment). It was entirely appropriate that his Honour have regard to this feature, which included reference to an element of the offence, in characterising the objective seriousness of the offence. However, the closing paragraph in s.21A(2) did not allow his Honour to have "additional regard" to the factor in s.21A(2)(k) if it was an element of the offence. From the passage set out in paragraph 29 of this Judgment, it appears that his Honour had "additional regard" to this factor. 38 This Court has emphasised the need for sentencing judges to keep in mind the limitations upon the use of aggravating factors contained in s.21A(2): R v Wickham [2004] NSWCCA 193 at paragraphs 22-23; R v Tadrosse [2005] NSWCCA 145 at paragraphs 17-21; R v Johnson [2005] NSWCCA 186 at paragraphs 21-22. Factors which are elements integral to the offence are not to be taken, of themselves, as aggravating factors: R v Way (2004) 60 NSWLR 168 at 189 (paragraph 106). With respect to the closing paragraph in s.21A(2), Howie J (Bell and Hislop JJ agreeing) observed in Wickham at paragraph 22: "The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence."

In Tadrosse , Howie J (Grove and Hall JJ agreeing) said at paragraph 18: "When turning to consider s 21A and in particular subsection (2), a sentencing court must remain conscious of these limitations upon the scope of the aggravating features listed. If a court finds itself considering an aggravating feature that would not have been taken into account before s 21A was enacted, then it is very likely that the court has misconstrued the section." 39 In Johnson, Hunt AJA (Hulme J and myself agreeing), said at paragraph 22: "In any event, the provision in section 21A(2) does no more than reflect the common law. A matter is taken into account by way of aggravation of sentence when, by reason of that matter, the judge imposes a sentence more severe than he or she would otherwise have imposed: The Queen v De Simoni (1981) 147 CLR 383 at 388. In my view, it is a fundamental principle of sentencing which needs no statute to support its existence that a matter may not be taken into account in aggravation of sentence if it is already an element of the crime, for that would necessarily amount to double counting of the same matter. The importance of the inclusion of that principle in section 21A(2) is to remind judges who inevitably use the provisions of the section as a 'check list' applicable to all offences to ensure that any particular matter listed as an aggravating factor is not already an element of the offence." 40 With respect to general fraud or dishonesty offences, where breach of trust is not an essential element of the offence, common law sentencing principles have recognised that abuse of a position of trust, where it exists on the facts of a particular case, is an aggravating factor on sentence. Examples of this include the following: (a) larceny as a servant contrary to s.156 Crimes Act 1900 by a senior accounts clerk: R v Pantano (1990) 49 A Crim R 328 at 330;

(b) fraudulently omitting to account contrary to s.178A Crimes Act 1900 by a real estate agent: R v Woodman [2001] NSWCCA 310 at paragraphs 14-15;

(c) making false accounting entries contrary to s.158 Crimes Act 1900 and using a false instrument to the prejudice of another contrary to s.300 Crimes Act 1900 by a bank employee: R v El-Rashid (CCA(NSW), 7 April 1995, BC9504681 at page 4); (d) defrauding the Commonwealth Bank contrary to s.29D Crimes Act 1914 (Cth) by a bank loans manager: R v Chaloner (1990) 49 A Crim R 370 at 375; and

(e) offences by a solicitor comprising forging of documents contrary to s.67B Crimes Act 1914 (Cth) , defrauding the Commonwealth contrary to s.29D Crimes Act 1914 (Cth) , forging and uttering bills and notes contrary to s.273 Crimes Act 1900 , fraudulent misappropriation contrary to s.178A Crimes Act 1900: R v Hawkins (1989) 45 A Crim R 430 at 436.

In cases such as these, where breach of trust is not an element of the offence, there is scope for s.21A(2)(k) to permit a court to have "additional regard" to the abuse of a position of trust or authority in relation to the victim as an aggravating factor on sentence. This reflects the position at common law. 41 Regrettably, in the present case, the Crown representative in the District Court directed his Honour's attention to s.21A(2)(k), but did not draw attention to the words of limitation in s.21A(2) of the Act. As a result, "additional regard" has been paid to this factor contrary to the limitation contained in the closing words of s.21A(2) of the Act. 42 Accordingly, the Applicant has established error on the part of the learned sentencing Judge in this way. It will be necessary to determine, in due course, what flows from this error having regard to s.6(3) Criminal Appeal Act 1912.

Ground 1 - Error Alleged in Failure to Find "Special Circumstances" 43 With respect to Ground 1, Counsel for the Applicant (who did not appear in the District Court) contended that error had been demonstrated in the failure by the learned sentencing Judge to make a finding of "special circumstances" for the purposes of s.44(2) Crimes (Sentencing Procedure) Act 1999 and to vary the statutory relationship between the non-parole period and the full term. 44 The Applicant contended that the length of time between the commission of the offence and sentence, the Applicant's good conduct in that intervening period and the fact that he was being sentenced to imprisonment for the first time and was otherwise a first offender, all were capable of constituting "special circumstances" so that a variation in the statutory proportion under s.44(2) ought to have been made. 45 All of these factors were taken into account by His Honour Judge Armitage QC in the fixing of sentence. His Honour had regard to the Applicant's good behaviour in the period between 1996 and 2004 and took that factor into account in his favour. His Honour took into account, as mitigating factors under s.21A(3) the Applicant's absence of prior criminal history, his prior good character, the unlikelihood of the Applicant re-offending, and his excellent prospects of rehabilitation illustrated by the fact that he had occupied positions of trust since the commission of the offence without any question being raised concerning his honesty. 46 Counsel for the Applicant in the District Court submitted that a finding of "special circumstances" ought not be made in this case. Nevertheless, the learned sentencing judge proceeded to consider possible areas of "special circumstances" during the course of the Crown submissions (transcript, pages 25.5-28.41). During the course of these submissions, the Applicant's Counsel again submitted that a finding of "special circumstances" should not be made in this case (transcript, page 27.49). 47 His Honour concluded that, in his view, there were no "special circumstances" in this case. This conclusion should be examined against the background of his Honour's consideration of possible areas of "special circumstances" during submissions. 48 In approaching the question of "special circumstances", it has been emphasised that "double counting" for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, ought be avoided: R v Simpson (2001) 53 NSWLR 704; R v Fidow [2004] NSWCCA 172 at paragraph 18. As Spigelman CJ (Hulme and Adams JJ agreeing) observed in Fidow at paragraphs 18 and 22: "Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur. … Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation." 49 In Simpson, it was observed at 719-720 (paragraph 73) that, as a practical matter, there are unlikely to be many cases in which this Court will interfere upon a "special circumstances" ground unless the non-parole period is found to be manifestly inadequate or manifestly excessive. 50 There is no obligation to provide reasons for refusing to find "special circumstances": Simpson at 721 (paragraphs 86-87). However, the Court has found error in the failure of a judge to explain why no "special circumstances" were found where there were, in the evidence, matters that manifestly would have justified such a finding: R v Novakovic [2004] NSWCCA 437; Tadrosse at paragraph 21. 51 His Honour was not bound to make a finding of "special circumstances" in this case. His Honour had taken the matters advanced as "special circumstances" in this Court into account in the Applicant's favour, at least once in the sentencing process, in a manner that operated to reduce the term of imprisonment and non-parole period to be imposed. All but one of the particular circumstances referred to in paragraph 44 of this Judgment are in fact common to many (if not most) persons guilty of this particular offence. The remaining circumstance, being the Applicant's good conduct between 1996 and 2004, was not something by itself which could amount to "special circumstances". The existence of these circumstances did not manifestly require a finding of "special circumstances" in favour of the Applicant, and the absence of reasons for not making that finding does not disclose any error. 52 The fact that the Applicant's Counsel in the District Court did not urge a finding of "special circumstances" does not foreclose the advancing of such an argument before this Court. However, it is apparent that, despite the position of the Applicant's Counsel before him, his Honour proceeded to turn his mind independently of any submission from Counsel to the question of whether "special circumstances" existed in this case. His Honour concluded that there were no factors that were "special" so as to call for a variation in the statutory proportion between the non-parole period and the full term. 53 This is not the case where the learned sentencing Judge put from his mind the "special circumstances" issue upon the Applicant's Counsel declining to submit that such circumstances existed in this case. Nor is it a case where the sentencing judge did not turn his mind at all to the issue of "special circumstances": Simpson at 721 (paragraph 87). Rather, his Honour considered matters which emerged from the evidence to ascertain whether they were "special" in this case so as to constitute "special circumstances". The transcript of submissions, including exchanges between the Bench and Counsel concerning this issue, sheds light upon his Honour's conclusion in the remarks on sentence that there were no "special circumstances" in this case. In so concluding, no error is demonstrated on the part of the learned sentencing Judge. 54 In my view, this ground of appeal should be rejected.

Ground 2 - Sentence was Manifestly Excessive 55 The Applicant's written submissions contended that the sentence was manifestly excessive by reference to sentences imposed in some 11 cases between 1990 and 2000 for various fraud and dishonesty offences (ss. 156, 173, 176A, 300 Crimes Act 1900; ss.29D, 71(1) Crimes Act 1914 (Cth)). No sentence for an offence under s.172 was referred to, such prosecutions being comparatively rare. 56 This Court has observed that reference to sentencing statistics is of limited value in the case of fraud offences, given the enormous variation in objective and subjective circumstances involved, and the Court has expressed concern when an attempt is made to compare sentences for a specific offence of dishonesty with other cases involving dishonesty of a different kind: R v Hawker [2001] NSWCCA 148 at paragraphs 17-18; Woodman at paragraphs 22-24; R v Swadling [2004] NSWCCA 421 at paragraphs 29, 54. In each of those cases, the Court has emphasised that far greater assistance is derived from reference to general sentencing principles with respect to white-collar crime. 57 In any event, the analysis of sentencing decisions contained in the Crown's written submissions demonstrates that the sentence imposed upon this Applicant was well within the range of sentencing discretion for offences of a broadly similar type committed in the 1990s. 58 The Applicant has not demonstrated a foundation in this case for application of the principle in R v MJR (2002) 54 NSWLR 368 that, in passing sentence for an offence, it is proper for a court to take into account the sentencing practice as at the date of the commission of the offence when sentencing practice has moved adversely to the offender since that time. In this case, the evidence does not demonstrate such a movement. 59 In one part of his written submissions, Counsel for the Applicant contended that, as the offences were committed between 1992 and 1996, his Honour ought to have approached the determination of sentence in accordance with s.5 Sentencing Act 1989. This is not correct. By the time the Applicant stood for sentence in August 2004, the Sentencing Act 1989 had been repealed and replaced by the Crimes (Sentencing Procedure) Act 1999. Because the Applicant's offence was committed before 1 February 2003, it was necessary for his Honour to first set a term of the sentence and then set a non-parole period for the sentence under repealed s.44(1) and not the current s.44(1): clause 45(1), Schedule 2, Crimes (Sentencing Procedure) Act 1999. In oral submissions, Counsel for the Applicant contended that his Honour applied the current s.44(1), and not the repealed s.44(1), and thereby fell into error. The order made by his Honour was in the following terms (remarks on sentence, page 12.5): "… I sentence you to a non-parole period of imprisonment of 3 years to date from 3 June 2004 to expire on 2 June 2007. I sentence you to a total term of imprisonment of four years. That sentence will commence on 3 June 2004 and will expire on 2 June 2008. On 3 June 2007, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999, you will be eligible for release on parole." 60 As this Court has made clear, a sentencing court will have regard to both the non-parole period and the full term and reach a concluded view about those matters before making the sentencing order itself: R v Hampton (1998) 44 NSWLR 729 at 732; R v Simpson (2001) 53 NSWLR 704 at 719 (paragraph 68); Way at 190 (paragraphs 112-113). General sentencing principles guide all relevant steps in the process, and a two-stage or sequential process is not required: Hampton at 732; Simpson at 719 (paragraph 68); Way at 190 (paragraphs 111-113). These general sentencing principles apply whether sentence was being imposed under s.5 Sentencing Act 1989 or the repealed or current versions of s.44(1) Crimes (Sentencing Procedure) Act 1999. 61 The observations of Spigelman CJ in Fidow at paragraph 13 are pertinent to this case: "Although his Honour's mode of expressing the actual sentence he imposed may appear to suggest that he turned his mind to the non-parole period in the first instance rather than to the total sentence, I am not convinced that that is what his Honour did in fact do in the reasoning process which led him to the ultimate result. It was just his mode of expression, which was inexact, rather than his reasoning process. His Honour chose to express the sentence in terms of a 'non-parole period' and 'an additional term', but that followed what he described as a total 'term' which was said by his Honour to 'comprise' the two elements. In my opinion, his Honour did not commit the legal error identified (cf Regina v Hansen [2002] NSWCCA 321; Regina v Mako [2004] NSWCCA 90). 62 In my opinion, the Applicant has not demonstrated that his Honour fell into the legal error alleged in this regard. However, even if it is accepted that his Honour applied the current s.44(1) and not the repealed s.44(1), it has not been demonstrated that this approach had any impact upon the calculation or length of sentence itself in this case. No basis for intervention by this Court under s.6(3) Criminal Appeal Act 1912 would exist.

63 In any event, as was observed in Fidow at paragraph 14, such a ground of appeal is of limited, if any, significance in circumstances where the head sentence is not challenged. Counsel for the Applicant accepted at the hearing before this Court that a head sentence of imprisonment of four years could not be characterised as manifestly excessive. His submissions in support of Ground 2 before this Court were directed to the non-parole period. 64 The offence here was objectively serious. It involved a very substantial amount of money, dishonest conduct over a protracted period of three years and nine months with at least 35 separate fraudulent acts on the Applicant's part. As was acknowledged by the Applicant's Counsel in the District Court, the offence charged was a "rolled up" one. 65 When the Applicant's crime appeared to have been detected, he wrote a suicide note and fled, in the hope that people would assume he was dead. He abandoned his car with another suicide note a short time later. Some seven years later, he was detected living in Victoria and was apprehended. He fled the jurisdiction to avoid his responsibilities with respect to his criminal conduct. His action in this regard cannot assist him by way of reference to the passage of time between the commission of the offence and sentence, apart from the fact that he was of good behaviour in this intervening period. The learned sentencing Judge took this factor into account in his favour on sentence. A range of other findings favourable to the Applicant were made and taken into account on sentence. 66 In my opinion, neither the non-parole period nor the full term of imprisonment was manifestly excessive. This ground ought be rejected.

Section 6(3) Criminal Appeal Act 1912 67 The Applicant has established error in that "additional regard" was had to an aggravating factor under s.21A(2)(k) which was an element of the offence under s.172 Crimes Act 1900. However, the Applicant has not demonstrated that the sentence was manifestly excessive. It is necessary to consider whether another sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. In Johnson, Hunt AJA (Hulme J and myself agreeing) said at paragraphs 33-34: "33. What all of these cases emphasise is that the mere existence of error in the sentence imposed does not permit this Court to substitute another sentence for it unless such substituted sentence is warranted in law. Section 5(1)(c) of the Criminal Appeal Act permits a person convicted to appeal with leave against the sentence imposed. Section 6(3) permits the Court to impose another sentence in substitution for that sentence only if it is of opinion that such other sentence is warranted in law and should have been imposed. Neither provision requires this Court to identify any particular error before exercising that power. Indeed, as House v The King (1936) 55 CLR 499 at 504-505 says, even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the sentencing discretion.

34. In such a situation where the precise nature of the error is not apparent, the Court will inevitably have concluded that the sentence imposed was outside the appropriate range for the circumstances of the particular case, and it must determine for itself what sentence is warranted in law in relation to those circumstances. In cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence." 68 Adopting that approach, I am not satisfied that the non-parole period or the full term of imprisonment were outside the appropriate range of sentence for the circumstances of this case, unaffected by the s.21A(2)(k) error. I am not of the opinion that some other sentence is warranted in law and should have been passed.

Conclusion 69 It was for these reasons that I joined in the order at the conclusion of the hearing on 29 April 2005 that leave to appeal be granted, but that the appeal be dismissed. **********

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