Ryan v R

Court of Criminal Appeal (NSW)|2011-10-18|Before: Bathurst CJ, Simpson J, Harrison J

Judgment 1BATHURST CJ: I agree with the orders proposed by Simpson J and with her Honour's reasons. 2SIMPSON J: The applicant seeks leave to appeal against the severity of a series of sentences imposed upon him in the District Court on 12 February 2010 following his pleas of guilty (entered in the Local Court) to a number of charges of offences of dishonesty. 3The charges to which the applicant pleaded guilty were:

four counts obtaining financial advantage by deception (offences against the Crimes Act 1900, s 178BA(1), which provides for a maximum penalty of imprisonment for 5 years);
one count of obtaining financial advantage by false or misleading statements (an offence against s 178BB(1) of the Crimes Act , which also provides for a maximum penalty of imprisonment for 5 years);
one count of attempting to obtain financial advantage by deception (also, pursuant to ss 178BA(1) and 344A) carrying a maximum penalty of imprisonment for five years);
one count of knowingly dealing in the proceeds of crime (an offence against s 193B(2) of the Crimes Act , carrying a maximum penalty of imprisonment for 15 years). 4In addition, the applicant asked that a further 34 offences listed on a Form 1, pursuant Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act "), of which he admitted his guilt, be taken into account. These were nine offences of obtaining financial advantage by deception, 13 offences of having in his custody goods reasonably suspected of having been unlawfully obtained, 11 offences of fraudulent personation, and one count of impersonating a police officer. In all, therefore, the applicant admitted his guilt of 41 separate offences. 5Pursuant to s 527C of the Crimes Act , the goods in custody offences (if charged separately) carry, on conviction in the Local Court, maximum penalties of imprisonment for 6 months; pursuant to s 184 of the Crimes Act , the fraudulent personation offences (if charged separately) carry maximum penalties of imprisonment for 7 years; pursuant to s 546D of the Crimes Act the offence of impersonating a police officer (if charged separately) carries a maximum penalty of imprisonment for 2 years. 6Ainslie-Wallace DCJ sentenced the applicant as follows:

The facts 10Two agreed statements of facts were put before the court, one of them containing considerable detail about both the offences charged, and those listed on the Form 1. It is not necessary to detail the facts and circumstances of every offence. In general, an overview will suffice. It is, however, necessary to make specific reference to some of the offences. 11The majority of the offences were committed over a period of less than four weeks, commencing on 27 October 2008. The last was committed on 20 November of that year. On that day the applicant was arrested. (There is some inconsistency in the materials provided to the sentencing judge, and to this Court, concerning the dates of some of the offences. One was said to have been committed as early as 6 April 2009, others in July.) 12The offences were part of what was described in the agreed statement of facts as an "organised large scale credit card and identity takeover", and involved credit and identity card and banking fraud. By means that were not disclosed, the applicant obtained credit cards belonging to account holders, credit card numbers and bank account numbers. By using the credit cards, he purchased or attempted to purchase goods. One of the items he purchased in this way was a Rolex watch, valued at $32,155, and obtained by him on 31 October by fraudulently transferring funds in a bank account belonging to another person). He also purchased two second hand Rolex watches, for $5,900 and $7,200. The purchase of one of these was the offence said in the statement of facts to have been committed on 6 April. In a telephone call intercepted on 12 November, the applicant is recorded as saying that he had "got a new rolly", that it was "easy", "like taking candy from a baby", and offering to obtain one for the person to whom he was talking. (This was taken to be a reference to the $32,000 watch.) 13The first and second offences of dishonestly obtaining a financial advantage by a false or misleading statement, and attempting dishonestly by deception to do so, were committed by using a stolen credit card, causing it to be activated, and attempting to use it to purchase, for almost $10,000, a printer and laminator. The attempt failed because the applicant was unable satisfactorily to answer a number of security questions. These two offences alone involved a sustained course of conduct on the part of the applicant, in telephoning the credit card company and using it on the Internet. 14On other occasions, the applicant used Internet banking facilities in the name of bank customers and transferred sums of money from their accounts to other accounts, from which he subsequently withdrew sums of money. In this way he obtained cash in amounts of $8,500, $4,500, $8,700, $2,000, $15,000 and $20,000. On one occasion, he transferred $8,500 to an account in the name of Ahmed Ibrahim. This fraud was discovered before the money had been withdrawn from that account and it was recovered. 15Using the same account, the applicant transferred $9,500 in American currency, and made an arrangement that it be collected from a suburban post office. This attempt failed because the person who attempted to collect the money (not the applicant) could not provide sufficient identification. 16The fraudulent personation offences were committed by the applicant communicating with financial institutions, in person, by telephone, or by Internet, representing himself as the legitimate cardholder, and conducting the financial transactions. 17On one occasion, the applicant telephoned an account holder, identifying himself falsely as a police officer. He told the account holder that some stolen property of his had been recovered, and that he needed some personal details. The account holder disclosed his date of birth; the applicant used this and other information in a conversation with employees of a bank. (The statement of facts does not disclose any completed fraudulent transaction relating to this offence.) 18On 20 November 2009, the applicant was arrested at a city serviced apartment. Later, a search of the premises undertaken pursuant to a search warrant yielded the $32,000 Rolex watch, bankcards, credit cards and drivers' licences in various names, and other mail and identity documents. 19Over the course of the offending the applicant fraudulently obtained money or goods to the value of $147,780. $60,000 was recovered.

The applicant ' s personal circumstances 20Evidence of the applicant's personal circumstances was quite extensive. The sentencing judge had available to her a pre-sentence report, a detailed report from a psychologist employed by the Department of Corrective Services (the applicant has been in custody since his arrest), an additional psychological report prepared by Mr Tim Watson-Munro, letters written by the applicant's mother, two sisters, brother-in-law and former fiance. The applicant gave oral evidence, largely confirming the contents of these various documents, and also providing some lengthy explanation for his involvement in the offence. To this last I will return. 21From the other material the following emerges. The applicant was born in New Zealand in September 1972. He was 36 years of age at the time of the offending. He comes from a high achieving family, his father having been an Olympic athlete, and later a successful businessman, his siblings functioning successfully in their various occupations. The family moved to the USA when he was still at school, and it was in that country that he completed his schooling. He undertook some tertiary education (the evidence about the nature of the tertiary education is not entirely consistent) but did not complete it. This was because he became involved in illicit substance abuse. 22In 1991 he returned from the United States to New Zealand, where he undertook various forms of employment, predominantly (it seems) of an unskilled nature. From 1990 he used illicit drugs; he began to use methylamphetamine in 1996. He quickly became addicted to this drug, and became involved in criminal activity to finance his habit. While in New Zealand the applicant met and became involved with a woman ("Linda") to whom he subsequently became engaged. The relationship continued over ten years. In 1999 the couple relocated to Australia, where her family were resident. He nevertheless continued to use drugs. They had made arrangements to marry, but, in 2006 and before the marriage took place, Linda terminated the relationship, apparently quite suddenly. This had a profound impact on the applicant. He returned to New Zealand for a time. According to his evidence, the termination of the relationship precipitated an escalation in his use of methylamphetamine, and also a severe deterioration in his psychological condition, to the point that, at one stage, members of his family arranged for his admission to a psychiatric hospital. 23The applicant has a criminal history in New Zealand, which includes entries in 1996, 1997 and 1998, of offences which appear to be generally of a similar kind to those the subject of the present proceedings. Indeed, the applicant said in his evidence that at least some of the New Zealand offences involved credit card fraud, which he also attributed to his use of drugs and to "a very bad relationship" (with Linda). None of those offences resulted in a sentence of imprisonment. In 2007, at Parramatta, the applicant was again convicted of various offences involving the use of, and having in possession, false instruments, and of being in possession of goods reasonably suspected of having been unlawfully obtained. Again, these offences resulted in non-custodial penalties. On each of 7 counts he was subjected to a bond to be of good behaviour for a period of 12 months, conditional upon his accepting the supervision of the Probation and Parole Service, imposed and commencing on 16 May 2007. The 6 April offence, assuming that to be the correct date, was committed while the applicant was still subject to those bonds. 24The applicant has established a relationship with a new partner, who is supportive, as are all members of his immediate family. 25Since his incarceration he has suffered from depression, for which he is now prescribed medication.

The psychological evidence 26The author of the pre-sentence report began by observing that the applicant's response to the supervision imposed in respect of the 2007 offences had been poor, "somewhat superficial" and that the applicant had failed to "engag[e] willingly" with the Probation and Parole Service. She then recounted something of the applicant's history, obtained from him and from his mother. Notwithstanding her reference to the applicant's poor response to his earlier supervision, the author of the report appeared to take a more favourable view of his current response. She reported that he had attended nine Narcotics Anonymous meetings over a period of four months and had successfully completed a self-management and recovery treatment program, in which he had been "a willing participant" and had "appeared to have progressed in the cycle of change to the decision stage". She reported that he "presented in an open manner ... and displayed appropriate levels of regret for his actions", and did not seek to minimise his offences. She made no mention of the New Zealand offences. 27The psychological report obtained from the Department of Corrective Services was written by Ms Julie Leighton, a forensic psychologist, on 21 October 2009, by which time the applicant had been in custody for almost one year. Ms Leighton also recounted a family history consistent with that in the pre-sentence report, as well as a history of his drug use. She also took a favourable view of the applicant's prospects of rehabilitation and acceptance of responsibility for his criminal behaviour. She considered that he had "reasonable insight into his offending behaviour", and that: "While he apportions primary responsibility for his involvement in illegal activity on methamphetamine dependence he admitted that he ultimately made the conscious decision to engage in criminal behaviour." However, she reported that the applicant had no prior criminal history, which is plainly incorrect. She also recorded that the applicant's amphetamine use commenced in 2006, on a holiday in New Zealand, which is quite inconsistent with the evidence given by the applicant (see [32] below). 28Mr Watson-Munro's report is dated 23 November 2009. He described the applicant as "a highly anxious somewhat tearful man". He considered that the applicant suffered "a significant Adjustment Disorder" as a result of which he became "highly unstable at a psychological level", and that this impacted upon his judgment at a significant level. He considered this relevant to "the dynamics" surrounding the offending. He described the applicant's use of amphetamines as reflecting "a very serious level of addiction", and described the physical and psychological effect of that degree of use of amphetamines. Like Ms Leighton, he recorded this use as having commenced following, and as a result of, the termination of the relationship with Linda. He considered that the addiction "blurred" the applicant's appreciation of his criminal conduct. 29Mr Watson-Munro, too, took a history of the applicant's early life, his involvement with his former fiance (Linda), and the impact on the applicant of the termination of that relationship. He expressed the view that the failure of this relationship caused the applicant to "significantly decompensate at a psychological level", drifting into the pattern of amphetamine use which rapidly became addiction. He noted that the applicant expressed "profound regret" for his actions, which Mr Watson-Munro considered to be genuine. He said that the applicant has now "detoxified" and could be considered to be in "Partial Remission". 30However, although Mr Watson-Munro referred to "a prior forensic history" (which senior counsel took to be a reference to the New Zealand psychiatric issues, but which was possibly a veiled reference to the criminal history) he said that this "was against a backdrop" of the 2006 termination of the relationship with Linda. Mr Watson-Munro does not appear to have had a history of the 1996, 1997, 1998 New Zealand offence, or the 2007 NSW offences, 31He attributed the applicant's criminality to his accumulating debt and extortion by the suppliers of the drugs.

Other material 32The family members who wrote letters in support were unanimous in their description of the applicant as "caring", "caring, emotional, generous", and "caring, loving, generous". 33That brings me to the applicant's evidence. He said that at the time of the 1996 and 1998 offences, he had had "a problem" with methylamphetamine, but that the problem did not reach the level of addiction. He gave an account of the termination of the relationship with Linda, and his subsequent and consequent development of an addiction to amphetamines. He said that following that termination, and his drug use, he accumulated very substantial debts, both on credit cards and by the purchase of drugs. As a consequence of his drug debts, the applicant said, his home was invaded and his property stolen. On another occasion he was violently assaulted, as was his girlfriend. (AB 122). The import of his evidence was that he committed these offences as a result of threats made against him by members of an outlaw motorcycle club (in an attempt to recover the money he owed), and that he received some of the funds for living expenses, but that the majority was handed over to the members of the motor cycle club. He said that he used the money that he received either for gambling or for the purchase of drugs. At one point in his evidence he said that, at the time of his arrest, his drug habit was costing him "$1,000 twice a day"; later, he said that (at the same time), his habit was costing him $1,000 a day. 34Of some significance, having regard to the argument in this Court, the applicant denied that the expensive Rolex watch was obtained for his own use. He said that this was a purchase for one of the members of the motorcycle club. He also said that, at the time of his arrest in the serviced apartment (which he had not rented or paid for), a member of that club was also present, (presumably for the purpose of taking possession of the watch). He said that because of the presence of that person, he told arresting police that all the property in the apartment was his, but that this was untrue. 35He said that on occasions, when he purchased items, members of the motor cycle club accompanied him, and waited outside while he conducted the transaction. 36He said that, notwithstanding his participation in the offences, and the amount of money obtained, his own possessions were limited to what was contained in two suitcases.

The remarks on sentence 37Her Honour briefly recounted the facts of each of the offences, including those listed on the Form 1. She expressed considerable scepticism about some aspects of the evidence. Inter alia , she said: "The offender's criminal history of crimes of dishonesty including similar offences to those to which he had pleaded guilty, demonstrates an attitude of disobedience to the law and calls for a sentence that speaks strongly to specific deterrence. I make this finding notwithstanding what appears to be a break in his criminal offending between 1998 and 2006." 38She outlined the evidence given by the applicant concerning the intimidation by members of the motorcycle club. She considered that the applicant had been: "at pains to minimise his criminality and paint himself as a drone acting on the instructions of others", and that the effect of his evidence was: " ... to distance himself from the criminal offending and to portray himself as a mere pawn of bikies who stood over him and compelled him to commit the crimes while all the time he said that he was hoping to get caught." 39She plainly rejected this attempt and said that she formed the view that the applicant wished to apportion blame for his criminal offending elsewhere, blaming his use of amphetamines and subsequent addiction to the emotional distress of a relationship breakdown. In contrast to the opinions expressed by Mr Watson-Munro and Ms Leighton, she thought that the extent to which he accepted the level of his criminality was minimal. 40She noted that the applicant's participation in the offences: " ... required poise, confidence and a degree of intelligence [to be] able to persuade credit providers that he was the cardholder." 41Her Honour paid particular attention to the role of the applicant in the enterprise, concluding that it was: " ... important because it was he who provided the front for the fraudulent activities. He rang the bank or credit provider and persuaded the person on the phone that he was the authorised cardholder. It was he that went into the shops and purchased the Rolex watches and signed for them using stolen credit cards." 42Her Honour was also sceptical of other opinions expressed by Mr Watson-Munro. She was, in fact, critical of the absence of factual basis or explanation to support those opinions, and she stated that she would give little weight to his conclusions. In particular, she noted that Mr Watson-Munro had made no mention of the New Zealand offences or the applicant's use of drugs in association with these earlier offences. She made a similar observation of the report of Ms Leighton, considering that her opinion was based on a false premise, that is that the applicant had no prior convictions. This error undermined the validity of the opinion concerning the applicant's prospects of rehabilitation. 43In all of the circumstances her Honour assessed the applicant's prospects of rehabilitation as "fair". 44Her Honour proceeded to impose the sentences I have outlined above.

The grounds of the application 45Two grounds for the application were pleaded. They are: "1. That the learned sentencing judge failed to adequately consider motive, duress and remorse; 2. The sentence was manifestly excessive."

Ground 1: motive, duress, remorse 46Section 21A(3) of the Sentencing Procedure Act sets out mitigating factors, which, if present, a sentencing judge is required to take into account. These include: "(d) the offender was acting under duress, ... (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her action or made reparation for such injury, loss of damage (or both) ..." 47On behalf of the applicant it was also submitted that motive may be a mitigating factor where it impacts upon moral culpability. Senior counsel pointed to "the tension between need and greed" as an illustration of that point. With respect to motive, the criticism that was made was that her Honour did not expressly make findings that the applicant:

was caught in a downward spiral of drug abuse and;
was therefore motivated to commit the offences as a consequence of addiction as distinct from greed and;
not the beneficiary of the fraud. 48With respect to his motivation for participating in the offences, there was a lack of clarity in the evidence given by the applicant. On the one hand, he said: "It all stemmed from my drug use" (AB 116); but in the next answer, to a question about what his debts were for, he said: "A lot of it was from my relationship when my partner left. We had outstanding debts, you know credit card bills and I spent a lot of money on my credit cards trying to mend things with my partner and then on drugs." (AB 117) He said that his debts (including one related to a motor vehicle) amounted to: " ...$60,000, maybe ... $80". (AB 116) Very shortly after that, in answer to a question from the judge about any relationship between the motorcycle gang members and his offences, he said: "I owed them money. I owed money for drugs." (AB 118) and later he said (AB 122) that he did not owe money to "those people", but to their friends, for drugs. 49In later answers, he spoke of the directions he was given by motor cycle gang members concerning purchases and collection of cash money, and said that he himself "didn't receive really much of anything". He then said that he did receive some money for "living expenses and so forth", and that he used that for gambling or the purchase of drugs. 50Her Honour recounted, in some detail, the evidence given by the applicant, in terms that did not expressly say that she disbelieved what he said. Her scepticism, to which I have referred, was as to his preparedness to accept responsibility for his own criminality. 51The submissions made on behalf of the applicant with respect to his motive fell short of explicitly stating what that motive was contended to be. At one point (para 24) they referred to the applicant's evidence of: "pressure exerted upon him ... to repay drug (and gambling) debts." But later reference was made to his $1,000 per day drug habit. At para 32 it was submitted that it could be "divined" from the applicant's account:
"he had drug debts to people involved in the offences;
that he committed the offences because of his need for drugs." 52Reference was made to the distinction between "need and greed" (para 36) and it was suggested that he was not the beneficiary of the moneys defrauded. 53In my opinion, her Honour's scepticism about the applicant's attitude to the offences was justified. It appears that he did not disclose his earlier offences to Ms Leighton or to Mr Watson-Munro. Although the author of the pre-sentence report was aware of the 2007 NSW offences, she made no reference to the New Zealand offences. That history was of considerable significance in the sentencing decision, and in the assessment of the applicant's attitude to his offending, and his rehabilitation. 54The extent to which drug addiction as a motive for crime is a mitigatory circumstances has been the subject of considerable discussion: see R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [195] et seq , per Spigelman CJ; [273] et seq , per Wood CJ at CL. I adhere to the views that I expressed in that case at [335] et seq . 55I note that the Chief Justice also considered motive as a mitigating factor at [177] et seq . Significantly, he considered that that should be confined to cases where motive impinges upon the moral culpability of the offender. 56Given the state of the evidence, I do not accept that any error has been exposed in her Honour's approach. Her Honour made no express finding about motivation; had she done so, in the context of the applicant's criminal history, and her express findings about his (lack of) acceptance of moral responsibility, it is hardly to be thought that she would have found that that motivation in any way diminished his moral culpability. 57Nor do I see any error in her approach to the question of duress. She clearly had in mind the evidence given by the applicant, and took it into account. That the applicant had, by reason of his drug use, become involved with a criminal element did not excuse or mitigate the course of seriously fraudulent activity upon which he embarked. 58Remorse is the third aspect of this ground. The observations made by the sentencing judge set out above ([36] - [37]) amount to a clear indication that she did not consider that the applicant had either accepted responsibility for his actions, or acknowledged the injury, loss or damage so caused (within the terms of s 21A(3)(i) of the Sentencing Procedure Act ). It was therefore not an error for her to omit remorse from the relevant mitigating circumstances. 59Remorse is, after all, relevant only if indicative of rehabilitation and a willingness to leave criminal life behind. The applicant's past history, and her Honour's findings concerning his non-acceptance of responsibility are not indicative of rehabilitation, and, indeed, her Honour expressly found that his prospects of rehabilitation were only fair. 60I would reject ground 1 of the application.

Ground 2: manifestly excessive? 61The principal argument addressed to this ground concerned the first two sentences imposed. These were for the offences of obtaining a financial advantage by false and misleading statements (constituted by activating a fraudulently obtained credit card) and attempting to obtain financial advantage by deception (constituted by attempting to use the same credit card to purchase a $10,000 printer/laminator). Each of these sentences was of a fixed term of 2 years, to be served concurrently with one another, but upon which the later imposed sentences were specified to be served wholly cumulatively. The submission was that these sentences were manifestly excessive, and that a sentence as little as 6 months would have been adequate punishment. 62I am unable to accept this proposition. It is true that offences constituted by a single course of conduct might, in other circumstances, have attracted a lesser sentence. Unless, however, the other circumstances included a complete absence of prior criminal history, and other favourable personal circumstances, I do not accept that a sentence of 6 months could have been adequate. I do accept that a sentence less than was imposed could have been adequate; but I am not persuaded that the sentence imposed was outside the range legitimately open to her Honour. 63No specific complaint was made about any other individual sentence, but a general complaint was made that the aggregate was manifestly excessive. 64The court's attention was not drawn to any comparable cases, and it may be that there are none with sufficient points of similarity to be of value. I have, however, had regard to a decision of this Court ( Stratford v R [2007] NSWCCA 279) in which McClellan CJ at CL considered, briefly, a number of cases of cumulative fraud offences. These were: R v Carr [2002] NSWCCA 434 135 A Crim R 171; R v Wong [2001] NSWCCA 444; R v Jackson [2001] NSWCCA 355; R v Houghton [200] NSWCCA 62; R v Brillo (unreported, NSWCCA 26 May 1997); R v Egerton (unreported, NSWCCA 8 August 1997); R v Giam (No 2) [1999] NSWCCA 378; 109 A Crim R 348; R v Scott [2005] NSWCCA 152; R v Martin [2005] NSWCCA 190. 65Superficial examination of these cases reveals a surprisingly low range of sentences. That is particularly so when regard is had to the maximum penalties applicable in each of those cases - 10 years, as against 5 years for the comparable offences now under consideration. And in some cases the amount defrauded was significantly higher than that the subject the applicant's conduct. In some cases the sentence imposed followed a Crown appeal, and was subject to the principles then (but no longer) applicable in those circumstances (see Crimes (Appeal and Review) Act 2001, s 68A). There are, however, significant points of distinction. Most importantly, in each of those cases, the offender was a first time offender. Although, in each case (except Carr and Wong ) the criminality was constituted by multiple individual offences, the offending was in fact a single course of conduct (sometimes over a considerable period of time) and against one victim. 66I am unpersuaded that the sentences, either individually or in the aggregate, have been shown to be outside the range properly available to the sentence judge. I would grant leave to appeal but dismiss the appeal. 67HARRISON J: I agree with Simpson J

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