Regina v SPELLING

COUNSEL : D N Howard (Crown) R Burgess (Appl) SOLICITORS : C K Smith (Crown) T A Murphy (Appl) CATCHWORDS : DECISION : Appeal dismissed

60295/98 NEWMAN J BELL J

JUDGMENT 1 NEWMAN J: This is an application for leave to appeal against the sentence imposed by Delaney DCJ in the District Court on 29 May 1998. 2 The applicant had pleaded guilty before his Honour to an indictment containing four counts: obtaining a benefit by deception contrary to the provisions of s 178BA of the Crimes Act 1900. That crime carries a maximum penalty of five years imprisonment. He also asked his Honour to take into account nine matters consisting of eight matters of passing valueless cheques and one count, as it is described, perhaps inaccurately, of failing to pay for liquor and accommodation. 3 The matters contained in the indictment proper amounted to some $41,000 in the first three counts. The fourth count involved the attempt to obtain a BMW car from a North Shore car dealer. That car had been recovered so no compensation was sought. 4 In respect of the first three counts there was about $41,000 sought in compensation and in relation to the matters contained in the Form 1 the amount involved totalled in all some $14,600-odd. Accordingly, approximately $56,000 was involved altogether. 5 The sentencing judge imposed a sentence consisting of a head sentence of three years and four months, consisting of a minimum term of two and a half years to commence on 2 September 1997 and expire on 1 March 2000 and an additional of ten months to commence on 2 March 2000 and expire on 1 January 2001. Of course, that represents the proportion stipulated by the Sentencing Act in the absence of a finding of special circumstances. His Honour did consider the matter of special circumstances but declined to find that any existed. 6 The principal challenge made to his Honour's sentence was in relation to a finding made by his Honour that he did not accept evidence given by a psychologist, a Mr Taylor, that at the relevant time the applicant was suffering from a condition known as post traumatic stress disorder. That post traumatic stress disorder was said by Mr Taylor in his report to be linked to an episode in 1992 where the applicant was a witness to a singularly unpleasant hit and run episode, in which a person was killed and, indeed, as one understands the matters put before this Court, the driver of the motor vehicle in question was ultimately charged with murder. Not only might I say did Mr Taylor come to that conclusion, but also included in the matters tendered to his Honour was a report from another psychologist, a Dr Gary Fulcher, a report of 8 July 1996, in which Dr Fulcher came to the self same diagnosis as Mr Taylor of post traumatic stress disorder. 7 His Honour's reasons for rejecting Mr Taylor's views - he made no reference I should add to the views of Dr Fulcher - were that on the lay evidence before him, particularly the lay evidence given by a former employer of the applicant, a Daphne Lewis, and a Mr Leigh Glaser that his Honour was of the view that the existence of the post traumatic stress disorder had not influenced the applicant in the commission of his crimes of dishonesty. 8 It is not, in my view, necessary for me to detail the matters involved in the crimes on the indictment. Suffice it to say that what he had done in relation to the first count was to obtain by fraudulent means a loan of a credit card from the Commonwealth Bank and the loss ultimately suffered by that institution was $28,179.56. 9 In relation to the second count, again by using similar fraudulent means, he managed to obtain credit from St George direct and, in the upshot, he caused a loss to this institution of $9435.32. 10 The third count again involved St George direct, this time using a false name, and this time he managed to obtain some $4156.46. 11 The fourth count involved the obtaining by deception of the BMW motor vehicle from the North Shore car dealer. As I have already said, that car was recovered and, accordingly, no claim for compensation was made. 12 The matters in the Form 1 principally involved the passage of valueless cheques and I do not believe that in the circumstances I need detail the background of those offences. 13 The applicant has a very unfortunate criminal history. He had first been sentenced to a term of imprisonment in 1994 on charges of false pretences, cheque not being met, obtaining benefit by false or misleading statement and for the charge of obtaining benefit by deception. He was sentenced to a term of imprisonment of six months by Port Kembla Local Court. He successfully appealed against that sentence of imprisonment and was sentenced to a community service order of some 250 hours and was also given a bond. He broke his recognisance on that occasion and served a fixed term of one month in June 1995 for that breach of recognisance. 14 He then, on 24 August 1995, came before the District Court charged with no less than thirteen counts of making false statements. On that occasion he was sentenced by Court DCJ to a minimum term of fifteen months from 9 May 1995 to 8 August 1996. 15 He also appeared, no doubt at the end of his term of imprisonment for that offence, before the Wagga Wagga Local Court on a charge of making false instrument, a second charge of obtaining benefit by deception and received a sentence - of which the legality might be questioned - of one month, which meant he would be released at the expiry of the minimum term imposed by Court DCJ. 16 He had also been seen by a psychiatrist, no doubt for the purposes of providing expert evidence for his appeal before the Wollongong District Court before Bell DCJ, being a Dr Neil Schultz. Dr Schultz was of the view with regard to the applicant, who was then known as Walton, which I gather was his original name, that the applicant's personality was characterised by low self esteem and attempts to cover up by behaving in an egocentric manner. Dr Schultz was of the view that there would be no changes to his underlying personality, he would not expect any changes in personality which traits are, by definition, enduring. Dr Schultz was of the view that the applicant was suffering from depression at the time as well as anxiety. 17 Dr Schultz's view was adverted to by Delaney DCJ during the course of his reasons and was one reason why his Honour, in the circumstances, did not accept the evidence of Mr Taylor and, of course, no reference was made by his Honour to the view of Dr Fulcher. 18 It seems to me that his Honour should have given attention to those views. However, the difficulty which emerges, in my view, is that Mr Taylor adverted to personality problems which the applicant had and, as Dr Schultz said, those personality traits are, by definition, enduring. 19 The applicant has, as I have detailed, a criminal record involving crimes of a similar nature. He has received a relatively substantial period of imprisonment from Court DCJ and, in fact, the crimes in question were committed obviously a great time after his release. I am not suggesting they were committed while he was on parole. I just make the observation they were committed at a time which was quite close to the time of his release from the prison system. 20 It was submitted that in the circumstances his Honour should have found that there were special circumstances, particularly having regard to the diagnosis of post traumatic stress disorder which had then, as I have said, been diagnosed by Mr Taylor and Dr Fulcher. His Honour, in declining to find special circumstances having considered the matter, did so, principally on the basis that he did not accept a word the applicant said about his rehabilitated attitude. It is not difficult to understand why his Honour would make such a finding. 21 Here we are dealing with a person who has committed in the past and on this occasion crimes of dishonesty. It is very difficult, I would have thought, for anybody to accept, in the absence of powerful, corroborative evidence, anything such a person would say, particularly when what that person is saying is said in his own interest. 22 We have also been referred to a number of cases relating to persons who have committed fraud perhaps of a similar nature to those committed by the applicant. As indeed it is rightly conceded by counsel, it is difficult to gain much guidance from those cases. 23 Here we have a person who has had a number of convictions in the past, has been in prison in the past for similar offences and, as I have said, having been out of prison for only a relatively short time, again embarks upon a fraudulent course of conduct involving the stealing, as I would put it, of quite a lot of money. 24 In my view, his Honour was not in error in rejecting the applicant's claim that he was intent on reform and, having considered the matter, I am of the view that his Honour was not in error in declining to find special circumstances. 25 If, as far as the head sentence is concerned, I were considering the matter, even taking into account the diagnosis and accepting the diagnosis of post traumatic stress disorder, I find it difficult to see how a lesser sentence than that imposed by his Honour could be imposed. 26 In the circumstances, I am of the view that even on a discretionary basis I cannot see how the applicant could succeed on an appeal because the sentence imposed by the court would be no less than that already imposed. 27 Because of the importance of the matter, I am of the view that leave to appeal should be granted but the appeal should be dismissed. 28 BELL J: I agree. 29 NEWMAN J: The order will be as I proposed.

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