REGINA v SWEET [2001] NSWCCA 445 | Case summary

JUDGMENT 1 SPIGELMAN CJ: The Applicant seeks leave to appeal from a sentence imposed on him by Judge Shadbolt on 24 April 2001, with respect to twenty-four offences of defrauding the Commonwealth, pursuant to s29D of the Crimes Act 1914 (Cth). 2 The maximum penalty for an offence under s29D is imprisonment for a period of ten years and/or a fine of $110,000. On 24 April 2001, Shadbolt DCJ sentenced the Applicant with respect to each of the twenty-four offences to imprisonment for four years, with a non-parole period of three years. The Applicant wishes to appeal from the alleged severity of this sentence. 3 Between 23 January 1998 and 8 June 2000, the Applicant was paid a Newstart Allowance by the Commonwealth Services Delivery Agency to which he was entitled. This followed his release from custody after serving a term of imprisonment for dishonesty offences. During this period, he applied for and was paid Newstart allowances in twenty-four different names. Over the period between September 1998 and June 2000, he was paid a total of $125,065 to which he was not entitled. When he was arrested, the Agency was paying him $7,320 per fortnight to which he was not entitled. 4 The obtaining of these payments required the Applicant to lodge false applications supported by forged documentation and to attend at Agency offices throughout Sydney for the purposes of ensuring the continuation of payments. It also involved the creation of bank accounts in false names to which monies could be paid. 5 Shadbolt DCJ described the scheme as: "… A systematic fraud on the system carried out in a business like manner." His Honour was amply justified in drawing this conclusion. 6 The Applicant had obtained a number of forged identification documents, including birth extracts, "proof of age" cards issued in Queensland, driver's licences, a Marriage Certificate, a Certificate of Dissolution of Marriage, a Baptismal Certificate, telephone accounts and medical bills. He opened numerous bank accounts in false names and gave various false addresses, causing mail to be re-directed to a post office box of which he was the lessee. When he was arrested, the police found in his possession an expandable file in which had systematically organised the false documentation, grouped according to the particular false identity to which the documents related. 7 The Applicant had a substantial criminal history to which his Honour referred in the following terms: "… He has convictions since 1972 in three States in the Commonwealth including 44 convictions for theft or criminal deception of some sort or another. He has been imprisoned on 8 occasions, the most recent in 1996 and the longest period, for one of 5 years in 1992. It is clear that it is a record which would not permit leniency to be extended to him by this court." 8 The criminal history tendered before his Honour revealed many offences involving deception. This included the offences which led to the term of five years imprisonment from December 1992 in Queensland, being for nine counts of misappropriation, which term he served concurrently with sentences for fifteen counts of stealing, seven counts of receiving and a count of bringing stolen goods into Queensland. After his release in August and September 1996, he was convicted in Queensland of three further counts of receiving stolen property. 9 There was nothing remarkable about the subjective circumstances of the Applicant. The principal factor entitling him to a significant discount on sentence was the fact he pleaded guilty at the earliest opportunity and also he had given assistance to the police, which Shadbolt DCJ correctly described as both "timely and useful". 10 There is a tendency in severity appeals for applicants to regard a trial judge's determination as some kind of "starting point" so that if some form of criticism can be directed to one particular element in the judge's remarks on sentence, that should lead to a favourable result to an applicant. This tendency should be discouraged. The exercise of the sentencing discretion necessarily involves the interconnection of a number of different elements. It cannot be and should not be assumed that the end result would have been different at first instance, and should be different on appeal, if criticism with respect to one element can be sustained. 11 A sentencing judge, and this Court, must, in the end, be satisfied that the final sentence - both the head sentence and any non-parole period - appropriately reflect the degree of criminality involved in the offence given the particular circumstances of the offender. An error by a sentencing judge will not lead this Court to reduce a sentence where the re-exercise of the discretion would lead to no lesser result. That is the case here. 12 In Dinsdale v The Queen (2000) 202 CLR 321 at [3], Gleeson CJ and Hayne J said: "It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised." 13 In the case of New South Wales, s5(1)(c) of the Criminal Appeal Act 1912 provides that a person may appeal with the leave of a court against sentence. Section 6(3) provides: "On an appeal under s5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 14 It is pertinent to note that even on a severity appeal, the Court has an express statutory power to impose another sentence "whether more or less severe" than that which is appealed from. As a matter of practice, rather than power, the Court does not increase the sentence on a severity appeal. (See Neal v The Queen (1982) 149 CLR 305.) Nevertheless, the Court must, in order to exercise its statutory power, form an opinion to the effect that "some other sentence … is warranted in law and should have been passed". In the present case, I am of the view that the Court should not form any such opinion. 15 In my opinion, the appeal should be rejected. No complaint is made, nor could any such complaint be made, that the sentence itself was in any way manifestly excessive and suggestive of error. Indeed, given the objective circumstances of the offence and the substantial criminal record of the offender, I would myself regard the sentence as towards the lower end of the permissible range. The appeal should be rejected on the basis that, if this Court did quash the sentence of the District Court and came to exercise its discretion afresh, it would impose no lesser sentence than that actually imposed by the trial judge. 16 Furthermore, and alternatively, I would reject the bases upon which his Honour's exercise of discretion was challenged in this Court. The Applicant identified three alleged errors in his Honour's reasons: (1) Failure to make sufficient allowance for the absence of remissions in this State, pursuant to s16G of the Commonwealth Crimes Act. (2) Failure to make adequate allowance for the combined effects of the plea of guilty and the assistance provided by the Applicant. (3) Fixing the non-parole period at 75 percent of the total sentence. 17 The Applicant submitted that his Honour failed to properly take into account the fact that remissions are not available in New South Wales, pursuant to s16G of the Crimes Act (Cth). His Honour indicated that a sentence of eight years was appropriate and that it would be reduced to six years having regard to s16G. There are statements in the authorities that a one-third reduction is an appropriate starting point, indeed that it is the norm. It is not, however, in any way a rule or a fixed ratio (see e.g. DPP v El Karhani (1990) 21 NSWLR 370; R v Beeforth (NSWCCA, 24 November 1995, unreported). 18 It is over a decade since this Court identified that the usual practice throughout Australia for remissions was something of the order of one-third. It is by no means obvious that this continues to be accurate. 19 In the present case, an experienced sentencing judge, who is well aware of the practice, departed from it in the exercise of his discretion. The norm should not be treated as some sort of rule or ratio applicable on a mathematical basis. It remains a question of discretion as to what the appropriate discount should be in all of the circumstances. In my opinion, his Honour was entitled to come to the view that he did. 20 I can see no proper basis for interfering with his Honour's discretion in that regard. 21 As to the second matter, his Honour took into account the plea and assistance together, reducing the figure of six years by one-third to four years. It was submitted that this was an inadequate recognition of the value of the two elements. 22 This submission was based on the proposition that in R v Thomson & Houlton (2000) 49 NSWLR 383 this Court had indicated that a discount of ten to twenty-five percent was appropriate to reflect the utilitarian value of the plea. It was submitted, correctly, that the utilitarian value of the plea in this case was high as the plea was entered at the earliest opportunity. It was submitted that in this case the Applicant was entitled to a discount at the top of the range, i.e. of twenty-five percent, and therefore the discount for assistance of only eight and a third percent was inadequate, given the trial judge's findings that the assistance was "timely and useful". Alternatively, the "combined discount" was inadequate. 23 For the reasons given in Thomson & Houlton, the Court has determined that, for New South Wales State offences, it is appropriate to quantify and separately articulate in terms of quantum the utilitarian value of a plea. This Court has not held that it is necessary to separately identify and quantify a discount in the case of Commonwealth offences. However, in R v Bugeja [2001] NSWCCA 196 at [24]-[28], Hodgson JA found that the range identified in Thomson & Houlton was a reasonable range to adopt for the purposes of Commonwealth offences. Nevertheless, the scheme of s16A of the Crimes Act (Cth) contains a somewhat different approach for Commonwealth offences. A plea of guilty is one of a list of matters required to be taken into account under s16A(2). 24 It is not the case that everyone who pleads guilty at the earliest opportunity must be given a twenty-five percent discount and nothing in Thomson & Houlton suggested it was. The matter remains one of discretion, not mathematical precision. To say something is permissible or appropriate is not to say that it is required. Nothing in R v Carter [2001] NSWCCA 245, to which the Applicant referred, suggests the contrary. I see no error in the trial judge assessing the combined value for the plea and assistance as a substantial discount of one-third. 25 Finally, it was submitted that his Honour erred in setting the non-parole period at seventy-five percent of the head sentence. The Applicant relied on the authorities which indicate that the norm for non-parole periods is in the range of about sixty to sixty-six percent of the head sentence (see e.g. R v Drazkiewicz (NSWCCA, 23 November 1993, unreported); R v Bernier (1998) 102 A Crim R 44 at 49 and R v Behar (NSWCCA, 14 October 1998, unreported)). 26 In the present case, the sentencing judge said: "… Because of his previous record and the seriousness of these offences, I set a non-parole period of three-quarters of that period, namely three years on each". 27 The Applicant submitted that his Honour erred in approaching the matter in this way in that each of the matters to which his Honour referred, i.e. previous record and seriousness of offence, had already been taken into account in fixing the head sentence and, accordingly, to take into account by way of an increase in the non-parole period was, in effect, some form of double counting. 28 This issue has been considered by this Court recently in Bugeja. Hodgson JA said at [31]: "In my opinion the circumstance that the offence as a repeat offence, and a conclusion by the sentencing Judge that the prospects of rehabilitation are small, are relevant factors in fixing the proportion for the non-parole period. In my opinion a sentencing judge is not precluded from taking those matters into account in fixing the proportion, simply because they have also been taken into account in fixing the head sentence." 29 Adams J disagreed with this approach. He said at [36] and [37]: "[36] So far as setting a non parole period is concerned, there can be little doubt that his Honour imposed a term whose relationship with the head sentence was well within the upper range. That head sentence had already been set with regard to the need for personal deterrence being demonstrated by the offender's earlier convictions. Thus, if the non-parole period were to be set by reference to the conventional two-thirds relationship with the head sentence the need to deal with the issue of personal deterrence was already catered for.

[37] On this basis, while there might theoretically be cases where the application of the conventional relationship would produce a non parole period that was too low having regard to the objectives of sentencing law, there would be very few where this was so and the circumstances justifying a significant departure from the usual proportion would need to be comprehensively set out." 30 Greg James J appears also to have expressed a view closer to that expressed by Adams J, in this respect. His Honour said at [34]: "[34] For myself, I would have inclined to the view that his Honour had also fallen into error in the way in which his Honour came to assess the non-parole period, perhaps because his Honour appears, arguably, to have increased both the non parole period and the head sentence because the applicant was a repeat offender." 31 In the event, his Honour did not decide the issue. 32 This case is distinguishable from that considered by Adams J in Bugeja. While Shadbolt DCJ acknowledged there was some prospect of rehabilitation, the head sentence in this case did not impose a term at the upper level of the appropriate range. Where, as here, a head sentence was at the lower end of the appropriate range, a larger than usual ratio for a non-parole period may, in my opinion, be appropriate. As Badgery-Parker J said in Drazkiewicz: "There is no tariff which dictates what should be the non-parole period but it is important to remember in determining a non-parole period that it must be of sufficient length to ensure that the sentence reflects the criminality involved and does not lose the very important significant effect of general deterrence …" 33 The matter was addressed directly in a joint judgment of this Court in R v Bernier at 49 where the Court, after acknowledging that no fixed ratios were involved in matters of this character, said: "Subject to those caveats, the norm for non-parole periods is in the range of about 60 per cent to 66 and two-thirds per cent. One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods . The process is not mathematical or rigid, and often requires a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached with the caution and flexibility enjoined by Hunt CJ at CL in Lawson (at 324-325; 464-465)." [Emphasis added] 34 The reference to "flexibility" in matters of this character must be acknowledged in all such cases because the court is dealing with the exercise of discretion. To suggest that there is some form of "double counting" involved in taking into account matters on both the head sentence and the fixing of the non-parole period is, in my opinion, to wrongly suppose that mathematical precision is involved in the sentencing exercise and to introduce an undesirable form of inflexibility into the sentencing exercise. A norm is not a rule or fixed ratio. 35 The appropriateness of taking into account the matter which his Honour took into account is indicated in the statutory scheme itself. Section 19AB of the Crimes Act (Cth) provides in subs (1) for the fixing of a non-parole period and in subs (3) for an exemption from that obligation. 36 Subsection 19AB(3) provides: "Where, but for this subsection, a court would be required by this section to fix a non-parole period, or make a recognizance release order, in respect of a person, the court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate." 37 Subsection (4) requires the Court to state and record its reasons for refusing to fix a non-parole period. 38 Where the legislative scheme permits a court to refuse to fix any non-parole period by reason of "the nature and circumstances of the offence … and … the antecedents of the person", then such matters may be taken into account when fixing the relationship between the non-parole period and the head sentence. While a non-parole period of seventy-five percent will be infrequent, and indeed perhaps rare, it is not impermissible, let alone itself indicative of error. 39 I refer again to Bernier at 49. In R v Stitt (1998) 102 A Crim R 428 at 432, in a passage referred to with approval in R v Meloh [2001] NSWCCA 211 at par [10], the Court indicated that non-parole periods of seventy-five per cent may be "limited to the more serious cases where the prospects of rehabilitation have not been considered good". I do not understand that the Court was there propounding a comprehensive list of all circumstances in which a non-parole period outside the sixty to sixty-six per cent norm can be justified. Indeed, any such suggestion would be inconsistent with the reasoning in Bernier about flexibility and the specific example, directly applicable to the present case, referred to in the joint judgment of the Court. 40 The Applicant also referred the Court to the decision in R v Acosta [1999] NSWCCA 334 where his Honour Kirby J, with whom Meagher JA and James J agreed, referred to a seventy-five per cent non-parole period as being "reserved for the worst class of case". His Honour made reference to R v Paull (1990) 20 NSWLR 427 and R v Behar. In neither of those authorities is the phrase "worst class of case" used. 41 The phrase "worst class of case" is terminology that is used in criminal sentencing with respect to circumstances in which the maximum penalty for an offence is appropriate. However, in that context there is a fixed, identifiable and quantified amount, to which terminology such as "worst class of case" is clearly appropriate. In the case of a non-parole period, on any view, there is a range of permissible percentages within which the exercise of the discretion can occur. 42 As I understand Kirby J, his Honour was saying that seventy-five per cent would be a rare case. What his Honour identified as a "worst class of case" cannot be limited to the circumstances in which a maximum penalty is imposed. Any suggestion that the Court cannot impose a ratio greater than seventy-five percent would be contrary to the express legislative provision in s19AB(3) of the Crimes Act (Cth), which permits the Court in certain circumstances not to fix a non-parole period of any kind at all. 43 Shadbolt DCJ identified the reasons which made him exercise the discretion in the way he did. The matters to which his Honour referred were, in my opinion, pertinent to the decision that his Honour had to make. The question of the weight that his Honour attached to those matters was a matter for his Honour. I can see no error in his Honour's exercise of the discretion. 44 In my opinion, leave to appeal should be granted and the appeal dismissed. 45 STUDDERT J: I agree with the orders proposed by the Chief Justice and I also agree with the reasons expressed by him. 46 IRELAND AJ: I also agree. 47 SPIGELMAN CJ: The orders are: Leave to appeal is granted and the appeal is dismissed.

REGINA v SWEET

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