Regina v Tadrosse

CATCHWORDS: Criminal Law - Sentencing - Application of s 21A of Crimes (Sentencing Procedure) Act - vulnerability of victim - multiple victims and series of criminal acts - erroneously taking into account aggravating factors.

Crimes (Sentencing Procedure) Act 1999 - s 21A(2) Criminal Appeal Act 1912 - s 6(3) LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25 Crimes Act 1900 - ss 66EA, 178B, 178BA

R v Wickham [2004] NSWCCA 193 R v Pont (2001) 121 A Crim R 302 R v Johnson [2004] NSWCCA 307 CASES CITED: R v Dowd [2005] NSWCCA 113 R v Novakovic [2004] NSWCCA 437 R v Walker [2005] NSWCCA 109 Pearce v The Queen (1998) 194 CLR 610

D. Frearson SC - Crown COUNSEL: C. Smith - Applicant

S. Kavanagh - Crown SOLICITORS: S.E. O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2004/3301 CCAP

GROVE J HOWIE J HALL J

WEDNESDAY 20 APRIL 2005 REGINA v TONY PHILLIP TADROSSE Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant, Tony Tadrosse, seeks leave to appeal against sentences imposed upon him by Delaney DCJ (the Judge). He pleaded guilty in the Local Court to eleven offences of dishonesty and was committed for sentence to the District Court where he adhered to his pleas. He asked the Judge to take into account another 22 matters of a similar kind on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. The offences all arose from the fraudulent use made by the applicant of documents providing him with false identities. The Judge imposed upon the applicant a total sentence of imprisonment for 6 years with an overall period that the applicant must serve before being eligible for release to parole of 3 years 6 months. I will return to consider the sentences imposed in more detail shortly. 3 There were three clear errors made by the Judge when sentencing the applicant. The Crown concedes so much. The first error arose from his Honour's reference to the offences occurring over a period amounting to 18 months when in fact the offences took place over a period of 6 months. This was obviously a mere slip and could not have affected his Honour's discretion. The other two matters are more significant. The second error arose during the course of the remarks on sentence when his Honour took into account two matters of aggravation under s 21A(2) of the Crimes (Sentencing Procedure) Act, neither of which arose from the facts of the offences committed by the applicant. The third error occurred in the sentences imposed by the Judge for two offences, those sentences each exceeding the maximum sentence prescribed for the offence in question. This Court must re-sentence the applicant but the extent to which it is necessary to do so will depend upon whether the Court is persuaded that, notwithstanding these errors, no lesser sentence is warranted: see s 6(3) of the Criminal Appeal Act. 4 The facts can be dealt with relatively briefly. The applicant's cousin gave him at least three sets of false identity documents, including driver's licences and banking cards, for the purpose of perpetrating frauds in order to obtain property, some of which he gave to his cousin in return for cash. Between December 2002 and April 2003 the applicant used those documents to obtain property in one of two ways: he used them directly to obtain goods, such as mobile telephones or rental property, by entering into a contract using the false identity or indirectly by obtaining the use of credit facilities and a cheque account in the false identity then using those facilities to obtain property that he appropriated for himself. 5 The property obtained included the following: mobile phones; a DVD player and television valued at $3,999; a Yamaha motorcycle valued at $12,265; a Polaris All Terrain Vehicle valued at $11,900; a ride-on mower valued at $14,536.36; and a laptop computer and accessories to the value of about $6,000. The applicant obtained rental equipment that he never returned including the following: a Rock Breaker valued at $10,710; an excavator with a replacement value of $87,500; and a Laser Level. 6 The applicant also used the false identity documents to establish himself in a business called Sydney Wide Concreting and Landscaping. Under this business name the applicant secured work with members of the public and was paid in advance for carrying out that work. The work was never commenced or never completed and the applicant did not return any money to his customers. In one case he received the sum of $39,000 for work that was never completed. 7 The Judge during his sentencing remarks commented on the degree of planning involved in the commission of the offences and described them as "a calculated course of criminal conduct". He found the criminality involved to be "of a very high order" and that the offences were "at the very least, towards the top of the middle range of criminality". 8 As a result of this fraudulent conduct carried on for a period of about six months the applicant obtained property and cash to the value of over $200,000. None of the property or money obtained by the applicant has been recovered. The applicant became the target of media attention because of his fraudulent landscaping business and eventually surrendered himself to police. He entered into a recorded interview admitting the offences committed by him. 9 As a result of this course of conduct the applicant came to be sentenced for the following offences under the provisions of the Crimes Act:

Obtaining property by deception contrary to s 178BA (x2)

The offences concerned with false instruments carried a maximum penalty of imprisonment for 10 years, those concerned with obtaining by deception imprisonment for 5 years and those involving valueless cheques imprisonment for 12 months. 10 The Form 1 matters were taken into account when sentencing the applicant for one of the offences of using a false instrument. These matters involved similar criminal activity to that covered by the committal charges and occurred during the period from 1 December 2002 to 7 March 2003. There were seven offences under s 178BA of the Crimes Act, eight under s 300(1), six under s 300(2) and one offence under s 302. 11 The Judge applied a discount of 25 per cent for the pleas of guilty and found that the applicant was remorseful for his offending. 12 The applicant was aged 39 years at the time of sentencing and, although he had a minor criminal record, the Judge treated him as if he had lived a blameless life prior to commencing the course of fraudulent conduct that brought him before the court. He had an unremarkable upbringing as part of a caring and structured family. The applicant had been married for twenty years but was separated from his wife and family at the time of sentencing. However, there was some prospect of a reconciliation. There were four children of the marriage and the youngest child was suffering from a medical condition called Lupus that required intensive treatment including periods of hospitalisation. There were character references placed before the court and the applicant and his wife gave evidence. 13 The explanation for the offending was that the applicant had been in business with his brother in Bilpin, where he lived with his family, when the brother suffered serious head injuries in an accident in 1997 disrupting the business and causing the applicant considerable distress. Eventually the business was placed into receivership and the applicant left his wife and family to enter into a relationship with another woman. He commenced using cocaine and gambling in order to escape his depression. The applicant used the money that he obtained for the property given to his cousin to finance his drug addiction and gambling. In early 2002, however, he decided to get his life back together and ceased using drugs. He wanted to start a business and used the false identity documents to obtain equipment and materials he needed. However the business failed on his arrest and, by the time he came for sentence, he was in full-time employment with a concreting company. He had not gambled for about 8 months prior to sentencing. 14 There was in evidence reports from a psychologist setting out the applicant's background and the circumstances in which he came to commit the offences for which he was sentenced. The reports indicates that the applicant is in good physical health but that he has dependent and depressive aspects of his personality. There is little in the report that was relevant to the Judge's task of determining the appropriate sentence to impose upon the applicant and nothing to indicate that his criminal responsibility was diminished or that normal sentencing principles should not be applied in sentencing him. Although some explanation for the offending might be found in the applicant's involvement with drugs and gambling, it is clear that he continued to offend even after he addressed those issues, simply so that he could re-establish himself in a business of his choosing. 15 The Judge's sentencing remarks were extensive and during the course of it he referred in detail to the various considerations that he took into account in determining both the objective seriousness of the offence and relevant subjective considerations. However towards the end of his remarks and shortly before indicating the sentences he was about to impose his Honour stated:

I now turn briefly to some of the principles of sentencing the court is required to take into account by the legislation. Section 21A of the Crimes (Sentencing Procedure) Act provides a framework upon which to judge to some extent the aggravating and mitigating factors relating to an offence or a series of offences. And whilst I do not apply that section to each individual offence, I propose to indicate generally the aggravating and mitigating features that I have found in this case.

When one goes to s 21A(2), the aggravating factors, the factors that I find that are present are: (g), (l), (m) and (n). In relation to mitigating factors I find that the mitigating factors that are set out in subsection (3) are (e), (f), (h), (i), and (k). I also consider that there are some elements in (m), being the assistance provided. Section 21A says that any other objective or subjective factors that affect the relative seriousness of the offences are to be taken into account and I refer to all of those matters I propose should be taken into account.

16 It is this passage that gives rise to the second error to which I referred at the start of this judgment. The aggravating factors listed in s 21A(2) that his Honour took into account were as follows: (g) "the injury, emotional harm, loss or damage caused by the offence was substantial"; (l) "the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant)"; (m) "the offence involved multiple victims or a series of criminal acts", and (n) "the offence was part of a planned or organised criminal activity". The Crown concedes that his Honour was in error in taking into account factors (l) and (m). 17 In R v Wickham [2004] NSWCCA 193, in a judgment with which Bell and Hislop JJ agreed, I noted the limitations to be placed upon the aggravating features listed in s 21A(2) as follows:

22 When a sentencing court is about to consider matters of aggravation or mitigation under s 21A it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides:

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence.

23 The second limitation is that found in s 21A(4), which provides:

The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law.

18 The significant part of that quote for present purposes are the last two sentences. 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. 19 In my opinion a sentencing judge would be prudent to raise with the parties during addresses whether any of the factors listed in s 21A(2) apply to the particular sentencing exercise being undertaken. If the sentencing judge considers that any of the aggravating factors listed are present, it seems to me that, in fairness to the offender and as a matter of good common sense, the judge should indicate to the offender's legal representative that he or she is considering taking that matter into account so that, if necessary, the court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the particular case. 20 That is not a course that was adopted in the present case. The Crown submitted to the Judge that, in accordance with the decision in R v Pont (2001) 121 A Crim R 302, the relevant features of offences such as those committed by the applicant were breach of trust, planning and repetition of offending, all of which, it was submitted, were present in the offences before his Honour. Quite exactly how there was a breach of trust was not made clear and his Honour apparently did not accept that submission. But his Honour did find that the victim or victims were vulnerable, a matter not raised during addresses, and certainly not by the Crown. 21 His Honour did not give reasons to explain why he found that the aggravated features he nominated were present. Of course in many cases one or more aggravating factors would be obvious and it may be that a failure to do any more than identify the factors as being taken into account would hardly amount to an error in the exercise of discretion. But there have been a number of recent decisions of this Court that stress the importance of reasons being given by sentencing judges for reaching findings, especially where they are adverse to the offender. For example, the Court has held that it is an error for a judge to fail to explain why a discount in the order of 25 per cent has not been given for a plea of guilty made in the Local Court: see R v Johnson [2004] NSWCCA 307, R v Dowd [2005] NSWCCA 113. The Court has also found error in the failure of a judge to explain why no special circumstances were found to reduce the non-parole period where there were in the evidence matters that manifestly would have justified such a finding: R v Novakovic [2004] NSWCCA 437. More relevantly perhaps the Court has expressed its concern about the failure of a sentencing court to indicate how it has taken into account the aggravating factor mentioned in s 21A(2)(d), "the offender has a record of previous convictions": see R v Walker [2005] NSWCCA 109. 22 In the present case the Judge stated that he was not applying s 21A to each individual offence but was indicating generally the aggravating and mitigating factors he was taking into account. With respect I do not understand what his Honour meant by that remark. If there was a general aggravating feature that applied to all the offences, then it operated in determining the sentence to be imposed for each of the offences. As the principle enunciated in Pearce v The Queen has been taken as requiring that the court determine the appropriate sentence for each offence before considering the question of totality, so his Honour was required to consider the effect of any aggravating or mitigating factor when determining the appropriate sentence to be imposed for each offence before him. If an aggravating factor applied to one or more of the offences but not all of them, then clearly his Honour was required to indicate in respect of which offence or offences that aggravating feature was being taken into account. 23 The aggravating or mitigating factors do not necessarily apply globally to all the offences for which sentence is being passed: they may do so or they may not. For example, in the present case it was clearly a general aggravating factor applicable to all the offences that they were part of a planned or organised criminal activity and so that factor was to be taken into account when determining the sentence for all offences. But it is less certain that the aggravating factor under (g), that the injury, emotional harm, loss or damage caused by the offence was substantial, applied generally to all the offences: it depends upon the facts of any particular offence. However, I accept that this criticism of the unspecific nature of the approach taken by the Judge to aggravating and mitigating factors may generally speaking be a somewhat technical one having no practical significance in the determination of the overall sentence in respect of most of the factors mentioned by him. But with respect it is not a principled approach and is one that could lead to error particularly in the case of aggravating factors that very often will be offence specific. 24 However, because of the general approach taken by his Honour to the factors in s 21A and because of his failure to give reasons for his findings that any particular aggravating factor was present, it is impossible to know whether his Honour was applying the aggravating factor in (l) to all the offences or to only some of them, and if the latter which ones. But there was no evidence that any of the victims fell within the examples of the categories of victims given in s 21A(2)(l) or that they came within any analogous category. They were either persons working in unremarkable businesses who just happened to have acted on the false documents shown to them, or they were private individuals who parted with their money because they happened to believe the applicant's promise to carry out the work that they paid to have performed. It may be, although there is no evidence of it, that one or more of them were more easily persuaded to part with property or money than some other members in the community might have been, but that fact would not make them vulnerable for the purpose of the section. 25 Before s 21A(2) was enacted, the common law recognised that there were certain categories or classes of persons who needed to be especially protected because they were particularly vulnerable to criminal offences generally or a criminal offence of a particular type. Of course the purpose of sentencing is to protect the community generally and this is achieved by each of the aims of sentencing such as deterrence, denunciation and rehabilitation. But an aggravating factor is something that operates over and above the general considerations that indicate that a particular class of offending should generally be dealt with in a particular way. 26 It may well be the case the persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents such as a driver's licence because it is common to rely upon such documents as proof of identity. But that fact does not give rise to an aggravating factor under s 21A(2)(l). That provision is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender. 27 In R v Williams [2005] NSWCCA 99 this Court held that a sentencing judge was in error in taking into account as an aggravating factor under the section that the victim of a manslaughter offence was vulnerable. Buddin J with whom the other members of the Court agreed stated:

[40]……………The sentencing judge concluded that the deceased was vulnerable, as I understand his Honour's reasons, upon the basis that the applicant was a powerful man who had violent tendencies, whereas the deceased did not have those characteristics. That was clearly a matter that was relevant to an assessment of the objective gravity of the offence. It should not however have been treated as a factor which further aggravated the offence.

[41] In any event all victims of a homicide can be said to be vulnerable. In my view, s 21A(2)(l) is not directed to vulnerability in that generalized sense. Indeed, the examples set out in the subparagraph suggest that it is vulnerability of a particular kind that attracts its operation.

The Judge in the present case was in error into taking into account in any manner that the victims of the applicant's offences were vulnerable. 28 His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) "the offence involved multiple victims or a series of criminal acts". Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court. 29 Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s 25 of the Drug Misuse and Trafficking Act. Of course there are offences that have, as an element of the offence, multiple acts of criminality, such as an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act or an offence of persistent sexual abuse of a child under s 66EA of the Crimes Act. When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged. 30 As I indicated at the outset of this judgment, the judge also erred in imposing a sentence for two of the offences that exceeded the applicable maximum penalty. In respect of each of the offences under s 178B of the Crimes Act, his Honour imposed a fixed term of two years whereas the maximum penalty for such an offence is imprisonment for 12 months. However, those two sentences were made concurrent with sentences of imprisonment for 2 years for two offences under s 178BA of the Crimes Act, the maximum penalty being 5 years, and sentences of 3 years for six offences under s 300(2), where the maximum penalty was imprisonment for 10 years. The error was a technical one and could not have made any difference to the overall sentence imposed upon the applicant in light of the number of offences for which sentence was imposed. 31 However, error has been shown in that the Judge took into account aggravating factors under s 21A(2) that were not relevant. The question, therefore, is whether this Court should conclude that no lesser sentence was warranted. In my view, notwithstanding the seriousness of the applicant's criminal conduct over a period of more than 6 months, a total sentence of six and a half years was excessive in light of the fact that the applicant had no relevant prior criminal history, that the offending was part of a single course of criminal conduct and the applicant's rehabilitation. Still the sentence must be a relatively lengthy one. 32 His Honour found special circumstances. I would sustain that finding with some reservations but the diminution of the overall non-parole period cannot be great as there appears to be little need for the applicant to undergo an extensive period of parole supervision and there is no other reason to reduce the appropriate non-parole period. The sentences I propose have been discounted by approximately 25 per cent for the pleas of guilty. 33 I propose that the appeal be allowed in part. The sentences in respect of the two offences of passing a valueless cheque should be quashed and in lieu the applicant sentenced to a fixed term of imprisonment for six months to date from 18 June 2004 and which expired on 17 December 2004. The sentence for the offence of using a false implement and taking into account the Form 1 matters should be quashed and in lieu the applicant sentenced to imprisonment for four years and six months. That sentence should date from 18 December 2004. There should be a non-parole period specified of 2 years 6 months from the same date and to expire on 17 March 2007, the date upon which the applicant is eligible to be released to parole. 34 HALL J: I have read the draft judgment and with respect agree with the reasons and orders proposed.

35 THE COURT: Since orders were made in this matter on 20 April 2004 it has come to the Court's notice that there is an incongruity between the order made specifying the length of the non-parole period for the offence of using a false implement and the specification of the date upon which that period expires. The order states that the non-parole is a period of 2 years 6 months to date from 18 December 2004 and is to expire on 17 March 2007. However, a period of 2 years and 6 months from 18 December 2004 would expire on 17 June 2007. The Court intended that the period of the non-parole period should be as specified and, therefore, the expiry date is incorrect.

36. The order sentencing the applicant for the offence of using a false implement should be amended to read:

The sentence for the offence of using a false implement and taking into account the Form 1 matters should be quashed and in lieu the applicant sentenced to imprisonment for four years and six months. That sentence should date from 18 December 2004. There should be a non-parole period specified of 2 years 6 months from the same date and to expire on 17 June 2007, the date upon which the applicant is eligible to be released to parole. **********

22/04/2005 - Additional paragraphs added - Paragraph(s) paras 35 and 36 22/04/2005 - Additional paragraphs added - Paragraph(s) paras 35 and 36

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.