Sabra v Regina

Court of Criminal Appeal (NSW)|2015-03-09|Before: Meagher JA, Schmidt J, Bellew J

Judgment

MEAGHER JA: I agree with Bellew J.
SCHMIDT J: I agree with Bellew J.
BELLEW J: On 3 October 2013 Marcus Sabra ("the applicant") pleaded guilty to: 1. two (2) counts of dishonestly obtaining a financial advantage from a Commonwealth entity, contrary to s. 134.3(1) of the Criminal Code 1995 (Cth) ("the Code"); and 2. three (3) counts of attempting, by deception, to dishonestly obtain a financial advantage from a Commonwealth entity, contrary to ss. 11.1(1) and 134.2(1) of the Code.
Pursuant to s. 16 BA of the Crimes Act 1914 (Cth), the applicant asked the Court to take into account on sentence: 1. two further counts contrary to s. 134.3 of the Code; and 2. one further count contrary to ss. 11(1) and 134.2(1) of the Code.
On 11 April 2014 the applicant was sentenced by Syme DCJ as follows: 1. in respect of each of the counts in 3(i) above, imprisonment for 2 years and 7 months commencing 11 April 2014; 2. in respect of each of the counts in 3(ii) above, imprisonment for 2 years and 7 months commencing 11 July 2014.
The total term of imprisonment imposed by her Honour was one of 2 years and 10 months. Her Honour ordered that the applicant be placed on a recognizance release order after serving a period of 2 years imprisonment, such order being conditional upon the applicant: 1. being subject to the supervision by the Probation and Parole Service; and 2. entering into an agreement to forfeit a sum of $1,000.00 in the event that the order was breached.
In addition, her Honour ordered that an amount of $84,000.00 be paid to the Commonwealth by way of reparation.

THE APPLICANT'S CASE ON SENTENCE

The applicant did not give evidence before her Honour and no oral evidence was called on his behalf. However a number of documents were tendered in his case on sentence, including: 1. a pre-sentence report; 2. a psychological assessment prepared by Mae Abu Mahmoud, psychologist dated 10 March 2014; 3. a report of Colleen Hirst, clinical psychologist; 4. a letter written by the applicant to the sentencing judge dated 12 March 2014; and 5. testimonial material touching upon (inter alia) the applicant's work history.

HER HONOUR'S FINDINGS ON SENTENCE

Her Honour noted that in his handwritten letter to the court the applicant had expressed regret for his offending and had said that he took full responsibility for it. However her Honour found (at ROS [27]; AB49) that even though the applicant had been employed in the period leading up to being sentenced, he had made no effort to repay any of the money which he had illegally obtained. This caused her Honour to express some doubt as to whether or not the applicant's stated remorse was genuine.
Her Honour made reference (at ROS [28]; AB49) to the applicant's lengthy criminal history, in light of which she concluded that his prospects of rehabilitation were "hopeful rather than confirmed". In expressing that view, her Honour did acknowledge that the applicant deserved recognition for the fact that he had attended counselling to address various issues in his personal life (at ROS [29]; AB49).
Her Honour considered (at ROS [30]-[32]; AB45-50) the evidence of the applicant's traumatic childhood at the hands of his father. However she found (at ROS [32]; AB50) that the applicant had the support of the remaining members of his family. She concluded that there was no causal connection between any aspect of the applicant's background and his offending.
Her Honour's attention was drawn to sentences imposed in a number of other cases which were said to have involved comparable offending. She concluded (at ROS [37]; AB52) that amongst the considerations relevant to the determination of sentence were: 1. the amount of $84,000.00 which the applicant obtained; 2. the additional amount of $258,000.00 which he attempted to obtain; 3. the period of the offending; 4. the fact that the applicant did not cease his activity voluntarily; and 5. the absence of any identifiable remorse or contrition.
Her Honour noted (at ROS [38]; AB53) that it was necessary for any sentence to reflect both deterrent and punitive considerations. Ultimately her Honour concluded (at ROS [39]-[40]; AB 53): "[39] In my view a full-time custodial sentence is the only appropriate way to deal with this matter. Taking into account the appropriate discount for a plea of guilty I propose to sentence the charges separately allowing for a short accumulation to reflect the course of conduct over a short period of time. Specific and general deterrence considerations require that a reasonable portion of that be served in a full time custodial setting. A period of supervision on his release will assist in his rehabilitation, by targeting his particular needs including addressing his reported gambling and drug issues, and ensuring employment in a legitimate industry. [40] I propose to set a single recognisance release order that he be release (sic) and subject to supervision after serving 2 years."

Ground 1 - Her Honour erred in failing to give due weight to the delay in sentencing.

Ground 2 - Her Honour erred in finding that the applicant suffered no detriment due to the delay.

Ground 3 - Her Honour erred when considering the issue of delay, by imposed (sic) and evidentiary burden on the applicant in respect of employment.

The parties dealt with these three grounds together, and I will adopt a similar course.

THE EVIDENCE BEFORE THE SENTENCING JUDGE

It was not in dispute before her Honour that the last of the offences committed by the applicant was on 5 February 2010. Thirteen months later, on 2 March 2011, a search warrant was executed on the applicant's residential premises. In this regard, paragraph [54] of the agreed facts which were before her Honour (at AB 60) was in the following terms: Statements made during the search warrant [54] Unrecorded conversation with the offender during execution of a search warrant at the offender's home on 2 March 2011 included the following conversation with Federal agent Tim Stainton: Sabra: I was wondering when this would catch up with me. Stainton: Tell me what you know about the insulation fraud. Sabra: I didn't make much money compared to other people, others made millions. Stainton: How much did you make from it? Sabra: Just over $200,000 I'll plead guilty. Stainton: Where is all the money now? Sabra: I gambled it all away on pokies. I only started doing it to gamble on the pokies. Pokies music is the last thing I hear at night and the first thing I hear when I wake up in the morning. Stainton: How did you find out about the scheme? Sabra: The Lebanese community in Guildford. I started insulation as a legitimate job - but then found out there was good money in it. Stainton: Do you have any documentation in relation to the work you claimed that you did? Sabra: No, I threw it all out last year."
On 28 January 2012 the applicant was arrested and charged with a number of offences contrary to the Drug Misuse and Trafficking Act 1985 (NSW) and the Crimes Act 1900 (NSW). Those charges arose from items seized in the course of the execution of the search warrant on 2 March 2011. The applicant was refused bail in respect of those matters and appeared at the District Court for sentence on 22 June 2012, having spent almost 5 months in custody. The sentence imposed on that day was backdated to the date of the applicant's arrest, and he was released.
On 6 August 2012, approximately 17 months after the execution of the search warrant, the applicant was issued with a Court Attendance Notice ("CAN") in relation to the offending which is the subject of the present appeal. On 3 October 2013, more than 12 months later, an indictment was presented in the District Court. 5½ months after that, the matter first came before the sentencing judge.
It appears that the slow progress of the matter after the issue of the CAN was attributable to the fact that despite his admissions at the time of the execution of the search warrant, the applicant initially pleaded not guilty. In these circumstances counsel for the applicant in this Court made it clear that the period of delay relied upon in support of Grounds 1, 2 and 3 was the period of approximately 17 months which elapsed between the execution of the search warrant and the issue of the CAN. When asked by the sentencing Judge to explain that delay, the Crown Prosecutor responded in the following terms (AB 23): "CROWN: I'm instructed your Honour that after the scheme was ceased there were 3,818 installers suspected of having made fraudulent claims and the department responsible for the investigation has 13 staff. That in my submission - that's as far as I can put that. HER HONOUR: Okay, so lack of resources in the investigation department. CROWN: Yes. We certainly agree with my friend its certainly not Mr Sabra's fault. It's a consequence of the type of offence if I can put it that way. HER HONOUR: Sure."
The evidence of the effect of the delay upon the applicant was limited to the following part of his statement to the sentencing judge (AB 113): "I still remember that when the police came to my house I was terrified as I knew I was going to prison. I remember looking at my mother who was so disappointed in me and my brother Ahmed, telling me off for causing nothing but problems for the family and being nothing but a junkie. My feelings only got worse when police charged me for some Ice and other items that they found in my bedroom when they were searching my house. Not a day went by when I didn't regret my actions and wait for the police to come and charge me for these offences. Eventually, once I was released from prison and finished my court cases for supplying Ice the police charged me for these offences."

HER HONOUR'S FINDINGS IN RESPECT OF DELAY

Her Honour dealt with the issue of delay commencing at ROS [22] (AB 46): "Delay 22. It took considerable time for the Commonwealth to investigate these fraudulent claims and payments. The last claim was lodged in February 2010 when the scheme shut down, due to various concerns, including fraud. On 2 March 2011 a search warrant was executed at the offender's premises. Not much of relevance was located it seems, but drugs for which he has since been charged, convicted and served a sentence were discovered. He admitted his involvement in this offence and told investigators that he had not kept any documents relative to the claims and that he'd spent all of the money that he had received. He did not otherwise participate in an interview. 23. In August 2012, 2 1/2 years after lodging the last claim the offender was charged with these offences. He claims that delay has caused difficulty. It is submitted that if he was dealt with at the same time as he was dealt with for the drug matters referred to above, there would have been a potential for an accumulation of sentences to be considered. The offender received a 9 month sentence for the drug supply matters and was released on the day of sentence, having then served nearly 5 months. I have had access to his Honour Judge Keleman's reasons for decision. The offender was the beneficiary of a finding of special circumstances. I do not consider that if these matters had been dealt with at the same time accumulation of sentences would have resulted in a different outcome in terms of time served. 24. The delay in charging the offender in this matter is not well explained. Even taking into account the very long delay between the offender committing the offences and being discovered (and there is no viable explanation for that) there was a further 18 months delay in between the search warrant being executed and the charges being laid. The Commonwealth's only explanation is that there were numerous offences committed by many people and very few investigatory staff allocated. While I do not doubt the accuracy of the explanation, it is not satisfactory. I do not understand how or why a fraud of such proportions, apparently part of a series of frauds committed by others, was not the subject of intense and proactive investigation. 25. It was submitted that the delay has caused the offender to become anxious and concerned. I accept this would be a natural response. On the other hand the delay has given him the opportunity to provide evidence to the court that he has really changed his way of life, as it was submitted he has. In proceedings before Judge Keleman in June 2012, he provided evidence that he then could be employed as a motor trimmer on his release from custody. He was released that day. There is no evidence of employment in that or any other capacity and only evidence I have of employment is as a concreter, from January this year. 26. The delay, while unsatisfactory and against the interests of justice, has not been of detriment to the offender" (emphasis added in each case).

SUBMISSIONS OF THE APPLICANT

Counsel for the applicant submitted that in concluding (at ROS [26]; AB n48) that the delay had not been of detriment to the applicant, her Honour had erred. It was pointed out, in particular, that her Honour had previously found that the delay had caused the applicant anxiety and concern. It was further submitted that her Honour had erroneously ignored those matters when determining sentence.
It was further submitted that the overall effect of her Honour's conclusions was that in order for delay to be taken into account as a mitigating factor on sentence, it was necessary for an offender to demonstrate that such delay had caused something more than mere anxiety and concern. It was submitted that such approach disclosed error and was contrary to authority. Counsel submitted that the fact that the applicant had not established any greater degree of detrimental effect arising from the delay did not mean that such detrimental effect as he did establish was irrelevant and of no weight. It was submitted that in all of the circumstances, the period of delay, and the consequences to the applicant which were found by her Honour to have resulted from it, ought to have resulted in a substantial degree of leniency being afforded to the applicant on sentence.

SUBMISSIONS OF THE CROWN

The Crown accepted that the sentencing judge found that the delay had caused the applicant to be anxious and concerned. However, the Crown submitted that in concluding that this was not a factor which mitigated an otherwise appropriate sentence her Honour had not erred.
The Crown submitted that anxiety, suspense and concern arising from delay were properly regarded as "generic" bases for mitigating a sentence. It was submitted that her Honour had correctly concluded that consequences of that nature were not generally a reason to mitigate a sentence, in the absence of evidence that the delay had brought about some substantial additional change in an offender's circumstances, be it in terms of an interruption to rehabilitation or otherwise.
In support of that position the Crown relied upon the decision of the Full Court of the Supreme Court of South Australia R v Pickard [2011] SASCFC 134, and in particular upon the judgment of Blue J (commencing at [95]). I have considered this judgment below.

CONSIDERATION

In R v Todd [1982] 2 NSWLR 517, Street CJ said (at 519): " … where there has been a lengthy postponement, whetherdue to an interstate sentence or otherwise, fairness to the prisoner requiresweight to be given to the progress of his rehabilitation during the term of hisearlier sentence, to the circumstance that he has been left in a state ofuncertain suspense as to what will happen to him when in due course hecomes up for sentence on the subsequent occasion, and to the fact thatsentencing for a stale crime, long after the committing of the offences, callsfor a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often leadto considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
The decision in Todd was referred to by the plurality (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v R [1988] HCA 70; (1988) 166 CLR 59 in the following terms (at 66): "The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence."
The decisions in both Mill and Todd considered the impact and relevance of delay arising from the fact that an offender had served a sentence in one state, at the expiration of which he was sentenced for offences in another state. Those circumstances are obviously quite different from those in the present case. However, later decisions make it clear that the relevance of delay on sentence is not confined to circumstances of that nature.
In Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303 a delay arose solely as a consequence of tardiness on the part of the authorities in proceeding to arrest the offender and charge him. Wood CJ at CL said (at [16]-[17]; 306): "[16] The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: See, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (Court of Criminal Appeal NSW, 24 February 1998)." [17] The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of his ways. However, it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them. I will return to this fact later, because it does seem to me that insufficient weight was given to it in the sentencing process."
Ultimately, with the concurrence of Bell J (as her Honour then was) and Smart AJ his Honour found (at [26]; 308) that the sentence imposed was "outside the legitimate range once allowance (was) made for the inordinate and unexpected delay in the prosecution of the appellant".
In expressing those conclusions, his Honour made reference (at [16]) to another decision of this Court in King v R (1998) 99 A Crim R 288 where Hunt CJ at CL said (at 294): "The fourth matter argued was that the judge failed to take into account the lengthy delay which had occurred between the offence and the sentence. Such delay, for whatever reason, requires weight to be given to the state of uncertain suspense as to what will happen to the prisoner when in due course he comes up for sentence on the subsequent occasion, and it calls for a measure of understanding and flexibility of approach."
The proposition that delay which gives rise to uncertainty, suspense and anxiety is a matter deserving of weight on sentence was adopted by Vincent AJA in the Victorian Court of Appeal in R v Schwabegger [1998] 4 VR 649 at 659: "Delay which is not attributable to the offender, of course, constitutes "a powerful mitigatory factor": R. v Liang and Li (1995) 124 F.L.R. 350 at 356; 82 A. Crim. R. 39 at 45. It can have relevance at a number of levels. In Duncan v R. (1983) 47 A.L.R. 746; 9 A. Crim. R. 354 the Court of Criminal Appeal of Western Australia stated at A.L.R. 749; A. Crim. R. 356-7: '… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation. … The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.' Further, there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion."
In R v Gay [2002] NSWCCA 6 Mason P (with the concurrence of R S Hulme and Hidden JJ) expressly agreed (at [17]) with the observations of Vincent AJA in Schwabegger before saying (at [18]): "[18] One hopes that the present circumstances are fairly unique. If they are not, then the practice of the Australian Taxation Office and/or the Office of the Commonwealth Director of Public Prosecutions must change. … The public interest as well as the legitimate private interests of the offender require a matter such as this to be brought to justice quickly. A failure by the authorities to do so will mitigate an otherwise appropriate sentence."
The delay considered by the Court in Gay was substantially greater, and the admissions made by the offender far more extensive, than in the present case. However what is significant is that Mason P, with the concurrence of the other members of the Court, expressly agreed with the proposition that for the purpose of sentencing, delay can have relevance at a number of levels, including situations in which it has resulted in matters "hanging over the head" of an offender for a long period.
More recently, in Giourtalis v R [2013] NSWCCA 216 Bathurst CJ considered the relevance of delay on sentence in a case involving allegations of complex fraud. His Honour said (at [1787]-[1788]): "[1787] There is no doubt that delay in the prosecution of an offence in many cases will be a matter to be taken into account in imposing sentence on the convicted person. As stated in Todd supra, weight needs to be given in those circumstances to the progress of rehabilitation during the period of the delay and the uncertainty imposed on the convicted person during such period. Each of Todd and Mill were cases where the delay was occasioned by the offender serving sentences for cross border crimes of the same nature and committed at around the same time as the offences the subject of the sentence proceedings. In those circumstances principles of totality were also relevant. [1788] However, the principle is not limited to those circumstances: R v Schwabegger (1998) 4 VR 649 at 655, 659; R v Gay [2002] NSWCCA 6; (2002) 49 ATR 78 at [15]-[18]."
His Honour proceeded to cite the decision in R v Scook [2008] WASCA 114 where Buss JA (at [57]-[65]) summarised a number of principles governing the relevance of delay on sentence. In doing so, Buss JA pointed out that whilst such principles were not intended to be exhaustive or inflexible, they included the principle that delay will ordinarily be a mitigating factor on sentence where: 1. it has resulted in significant stress for the offender, or left him or her, to a significant degree, in uncertain suspense; or 2. during the period of delay, the offender has adopted a reasonable expectation that he or she would not be charged, or that a pending prosecution would not proceed, and the offender has ordered his or her affairs based on the faith of that expectation.
As I have previously noted, the Crown before this Court relied upon the judgment of Blue J in Pickard (supra) where his Honour said (at [95]): "[95] The following general principles have been established as to whether or not unnecessary delay in the investigation and prosecution of an offence is a factor to be taken into account in favour of the defendant. 1. Mere unnecessary delay, without being coupled with relevant changes occurring during the delay, is not usually a reason in itself to reduce or suspend a sentence if otherwise indicated (although this will obviously depend on the length of the delay and the particular circumstances) 2. Where, during the period of the unnecessary delay, the defendant has taken major steps in the progress of his or her life resulting in a substantial change in his or her personal circumstances, the combined effect of the unnecessary delay and the changed life circumstances may play a dominant role in the determination of an appropriate sentence. 3. Where, by the time of sentencing, the defendant has undergone rehabilitation, the combined effect of the unnecessary delay and rehabilitation will usually be taken into account in favour of the defendant. 4. The existence of genuine remorse and contrition are taken into account in conjunction with, or as part of, rehabilitation"(emphasis in original).
The Crown submitted that the present case fell squarely within the first principle set out by Blue J. However the Crown accepted that even allowing for the level of generality at which his Honour had approached the matter, there may be some tension between that first principle and other decisions of this Court to which I have referred.
In the terms in which Blue J articulated it, the first principle tends to suggest that as a general proposition, a period of delay is unlikely to operate to mitigate a sentence unless an offender can demonstrate that it has caused some particular change in his or her circumstances, over and above mere suspense or anxiety. It must be acknowledged that his Honour pointed out that much would depend upon the circumstances of the case, and specifically spoke in general terms, consistent with the flexible approach and that the authorities emphasise must be taken. That said, in my view the suggestion conveyed by the first of the principles his Honour set out is not wholly consistent with the decisions of this Court in Blanco, King, Gay and Giourtalis. Generally speaking, those decisions support the proposition that delay can be relevant at a number of levels, and that it can operate to mitigate an otherwise appropriate sentence in the absence of evidence that it caused a particular change in an offender's circumstances.
In oral submissions before this Court, the Crown conceded that in the present case her Honour had found that the delay had caused anxiety and concern to the applicant. The Crown accepted that in those circumstances the delay was a relevant factor on sentence. However it is clear from her Honour's judgment that she effectively dismissed delay as a relevant consideration and afforded it no weight. In my view, having found that the delay had caused the applicant anxiety and concern, her Honour should have had regard to it when determining sentence. Her failure to do so was an error. It follows that Ground 1 is made out.
In my view, a further error arises from her Honour's reasons. Her Honour concluded (at ROS [25]; AB47) that the delay had caused the applicant to become anxious and concerned. In reaching that finding, her Honour must have accepted the applicant's assertions in his statement (set out at [20] above), that being the sole evidence of the effect of the delay upon him. Having accepted that evidence, her Honour then concluded (at ROS [26]; AB48) that the applicant had failed to establish that the delay was to his detriment. In my view, those two conclusions cannot sit comfortably together. Given what the applicant had said (which her Honour must have accepted) the anxiety and concern brought about by the delay must have been detrimental to him, at least to some degree.
For these reasons Ground 2 is made out.
In light of the submissions made before this Court, there is one further matter arising from Grounds 1 and 2 to which I should refer. Her Honour's reasons (at ROS [25]-[26]; AB 47-48) suggest that she may have tended to the view that before delay could be taken into account, consequences greater than the anxiety and concern which she had found needed to be established. That approach may be consistent with the first principle enunciated by Blue J in Pickard (supra). However, is not wholly consistent with previous judgments of this Court. The resolution of the present appeal does not depend upon interpreting her Honour's reasons in that way. However, in light of the submissions made by the parties, the Court's position on the issue of the relevance of delay on sentence, where such delay is not attributable to the offender, should be clearly stated.
Delay which is not attributable to an offender may be relevant on sentence at a number of different levels. Ordinarily, such delay will be a mitigating factor if (as in the present case) it has resulted in significant stress to the offender, or has left him or her, to a significant degree, in a state of uncertain suspense. Where there is evidence that delay has led to consequences being visited upon an offender which are adverse to his or her circumstances and which are over and above stress and anxiety, be those consequences in the nature of interrupted rehabilitation or otherwise, then the weight to be given to such delay in the sentencing process will obviously be greater. But that is not to say that an offender must be able to establish consequences of that kind before delay can become relevant at all. To so conclude would be contrary to the weight of previous authority in this Court.
Ground 3 asserts that her Honour erred by imposing what was described as an "evidentiary burden" on the applicant in respect of employment when considering the issue of delay. How the applicant put this ground was not entirely clear, although it was apparent that it had its genesis in ROS [25] (AB47) in which her Honour made references to the applicant's employment.
If her Honour did impose some evidentiary burden upon the applicant in respect of the issue of delay generally, she did not err in doing so. Delay was plainly a matter which was relied upon by the applicant as a mitigating factor. If there are mitigating circumstances which a judge proposes to take into account in favour of an offender on sentence, those matters must be established by the offender on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27].
For these reasons Ground 3 is not made out.
Because I have found error in respect of Grounds 1 and 2, the Court's power in s. 6(3) of the Criminal Appeal Act 1912 is enlivened. I have considered this issue further below.

GROUND 4 - Her Honour erred in failing to reduce the total sentence on principles of totality.

GROUND 5 - Her Honour erred in imposing a non-parole period of approximately 70% of the total sentence.

GROUND 6 - Her Honour erred in partially accumulating the sentences

Once again, the parties dealt with these grounds together and I have adopted the same course.

HER HONOUR'S FINDINGS

At ROS [23]; AB 47 her Honour said: "23. In August 2012, 2½ years after lodging the last claim the offender was charged with these offences. He claims that delay has caused difficulty. It is submitted that if he was dealt with at the same time as he was dealt with for the drug matters referred to above, there would have been a potential for an accumulation of sentences to be considered. The offender received a 9 month sentence for the drug supply matters and was released on the day of sentence, having then served nearly 5 months. I have had access to his Honour Judge Keleman's reasons for decision. The offender was the beneficiary of a finding of special circumstances. I do not consider that if these matters had been dealt with at the same time accumulation of sentences would have resulted in a different outcome in terms of time served."
Subsequently, her Honour said (ROS [37] and following; AB 52-53): "[37] The sentencing considerations in this case relate to the amount of the fraud, which was substantial. A total of $84,000 was paid to Mr Sabra and a further $258,000 was approved to be paid. Each and every one of his claims was false. The amount of time over which the offences occurred was relatively short. The offender did not cease his activity voluntarily. The scheme was stopped because of the level of concern about the operation of the scheme. The offender has expressed remorse and contrition but there is no identifiable evidence of that. [38] In tax fraud cases, the deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody (Hili v The Queen at 41). [39] In my view a full-time custodial sentence is the only appropriate way to deal with this matter. Taking into account the appropriate discount for a plea of guilty I propose to sentence the charges separately allowing for a short accumulation to reflect the course of conduct over a short period of time. Specific and general deterrence considerations require that a reasonable portion of that be served in a full time custodial setting. A period of supervision on his release will assist in his rehabilitation, by targeting his particular needs including addressing his reported gambling and drug issues, and ensuring employment in a legitimate industry. [40] I propose to set a single recognisance release order that he be release and subject to supervision after serving 2 years."

SUBMISSIONS OF THE APPLICANT

As to Ground 4, the applicant submitted that her Honour's conclusion that no different outcome would have resulted had all matters been dealt with at the same time was an error. It was submitted that the applicant had lost the opportunity for one sentence to be passed in respect of all matters, and had also lost the opportunity for consideration of what was said to be an appropriate apportionment between the non-parole period and the total sentence.
As to Ground 5, whilst acknowledging that there was no "normal" ratio between a head sentence and the period of release on a recognizance release order, counsel for the applicant submitted that her Honour's approach was inconsistent with the general ratio adopted when sentencing for Commonwealth offences.
As to Ground 6, it was submitted that in circumstances where the applicant had engaged in essentially the same conduct over a continuous period, her Honour had erred in accumulating, even to a minimal degree, the sentences which she imposed. Counsel for the applicant acknowledged that questions of accumulation are necessarily discretionary. However, he submitted on behalf of the applicant that there was no reasonable basis for any accumulation at all, and that the sentences ought to have been wholly concurrent.

SUBMISSIONS OF THE CROWN

In terms of Ground 4, the Crown pointed out that the offences dealt with in June 2014 had been brought to light as a consequence of the execution of the search warrant in relation to the investigation of the present offences. The Crown submitted that the fact that evidence was located at that time which resulted in discreet charges being laid against the applicant was largely, if not completely, irrelevant to the question of how any sentence(s) for those and any other offences might be structured. The Crown pointed to the fact that the offences which are the subject of this appeal, and those dealt with in June 2014, were completely unrelated in any factual sense.
As to Ground 5, the Crown submitted that no error had been established. It was submitted that part of her Honour's function was to impose a sentence which incorporated a minimum term which was to be served, and that the mere fact that the sentence imposed by her Honour required the applicant to serve 70 per cent of the head sentence before being released did not, of itself, reflect error.
In respect of Ground 6, the Crown relied on the fact that the sentences imposed were largely cumulative in any event. It was submitted that any sentence imposed was required to reflect the total criminality for which the applicant was to be sentenced. It was submitted the structure of the sentences, and the sentences themselves, met that test and that it remained within her Honour's discretion to partially accumulate the sentences as she did.

CONSIDERATION

In R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38, Hall J (at [52]) made reference to the decision of Howie J in R v Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41 in which his Honour (commencing at [27]) articulated a number of general principles regarding the structure of sentences. Amongst those principles are the following:
(i) questions of accumulation are, subject to the application of established principle, discretionary;
(ii) whether sentences in respect of two or more offences committed in the course of a single episode, a criminal enterprise or a particular day, should be concurrent or cumulative is to be determined by principles of totality, and the relevant factors to be taken into account in the application of those principles;
(iii) in applying principles of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other; (iv) if the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences; (v) if not, the sentences should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality.
In terms of Ground 4, what may or may not have happened had the entirety of the charges laid against the applicant following the execution of the search warrant been dealt with together is largely speculative. So much was conceded by counsel for the appellant before this Court. However, as the two sets of offences related to quite separate criminality, there is a reasonable expectation that consistent with the principles in 60 and (v) above, there would have been at least some accumulation. In these circumstances Ground 4 is not made out.
As to Ground 5, in determining the period in which the applicant would be required to remain in custody before release, her Honour was doing no more than determining the minimum term which she considered was required to be served in accordance with Part 1B of the Crimes Act 1914 (Cth): Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [40]-[44]. The submissions advanced on behalf of the applicant in support of Ground 5 assume that there is some starting point in terms of setting a ratio between the head sentence and the period during which an offender will be subject to a recognizance release order. Such an approach is directly contrary to the judgment of the plurality in Hili (supra) at [44] where it was said: " … there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. … It is wrong to begin from some assumed starting point and then seek to identify "special circumstances". Rather, a sentencing judge should determine the length of sentence to be served before a recognizance release order takes effect …"
In these circumstances, Ground 5 is not made out.
As to Ground 6, I am not satisfied that any error has been made out. In Cahyadi (supra) Howie J said (at [26] and [27]): "[26] The Crown accepts that there were some common features of the three offences in that the applicant was in the business of being able to provide and use false documentation for the purposes of illegal banking transactions. However, the assertion on behalf of the applicant that it was a relevant factor that all of the documentation relevant to the offending which was found in the search of the applicant's premises should be rejected. The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed. [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
More recently in Panchal v R; R v Panchal [2014] NSWCCA 275 this Court (Leeming JA, Fullerton and Bellew JJ) said (at [81]):
"It is well recognised that, subject to the application of established principle, questions of accumulation and concurrency are discretionary and that sentencing judges may exercise their discretion in differing ways without either being wrong: LG v R [2012] NSWCCA 249 at [24]. It is equally as well recognised that while separate offences committed in the course of the one criminal episode may point to concurrent sentences being imposed, this will not be the inevitable sentencing result. The critical question in every case is whether an order for concurrency is productive of a sentence that reflects or comprehends the totality of the criminality involved in a single episode of offending or a single course of criminal conduct".
Having referred to the decision in Cahyadi, the Court (citing the decision of Rothman J in JT v R [2012] NSWCCA 133) then observed (at [83]):
"The question in any given case as to whether there ought to be an order for concurrency in whole or in part, calls for a discretionary judgment".
It is evident that by reference to principles of totality, her Honour considered it appropriate to marginally accumulate the sentences for the offences of attempt upon the sentences for the offences of obtaining a benefit. It was clearly within her Honour's discretion to approach the matter in that way, and no miscarriage of that discretion has been established. For all of these reasons Ground 6 is not made out.

SUBMISSIONS OF THE APPLICANT

Whilst acknowledging the objective seriousness of the offending, counsel for the applicant placed significant reliance upon sentences imposed in other cases of what was said to be comparable offending, in order to demonstrate what was said to be the manifest excess of the sentence imposed by her Honour. In addition, he pointed to what he submitted was the significant effect of the delay, something to which her Honour had ascribed no weight.

SUBMISSIONS OF THE CROWN

The Crown submitted that the objective criminality of the applicant's offending was high and the amount of money involved was significant. Whilst the Crown acknowledged that the sentences imposed on the applicant were greater than those imposed in the suggested comparable cases, it was pointed out that each of those other cases involved fewer acts of fraudulent conduct. Implicit in this submission was the proposition that each case must be determined on its own facts, and that there are necessarily restrictions upon using, for comparative purposes, the outcomes of other cases.
The Crown submitted that taking into account all relevant factors, the sentence imposed by her Honour was within the appropriate range of sentencing discretion.

CONSIDERATION

In order to make out this ground, the applicant must establish that the sentence was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.
The applicant's offending resulted in a sum of $84,000.00 being dishonestly obtained. He also submitted claims which, had they been processed and paid, would have resulted in a further $258,000.00 being paid to him. In offending of this nature, the amount involved is a significant consideration on sentence: R v Hawkins (1989) 45 A Crim R 430 at 435 per Lee J, Newman and Loveday JJ agreeing.
It is also relevant to consider the period over which the offending occurred. In the present case, although the period was one of only 7 weeks, the applicant lodged almost 300 fraudulent claims in that time, 70 of which resulted in the payment of money. The offending was consistent and persistent over that period of time: Hawkins (supra) at 435 per Lee J. Further, as the sentencing judge correctly pointed out (at ROS [37]; AB52) the applicant did not cease his offending voluntarily. Rather, the offending ceased because the scheme under which the claims were being made was itself discontinued. Moreover, no issue has been taken with her Honour's finding that the applicant showed little or no remorse.
The applicant's offending necessarily involved some degree of planning. Businesses seeking the payment of the relevant rebate were required to register and provide proof of various matters before any claims could be lodged. Upon successful registration, a business was issued with a unique user id together with a password, both of which were required to be entered when lodging a claim for payment (see agreed facts at para [14]-[16]; AB 56). The applicant applied to have his business approved as a registered installer and in accordance with the above procedure, was sent the material necessary to enable him to make claims. The necessary password was sent to him on 17 December 2009. Although the applicant stated in his letter to the sentencing judge (AB 113) that he had started undertaking insulation work as a "legitimate business", the first of the offences occurred less than three weeks after he had been sent the password which he needed to be able to make claims.
The applicant has a lengthy criminal history dating back to 2001 which contains repeated entries for various offences of dishonesty including: 1. robbery in company; 2. stealing; 3. receiving stolen property; 4. obtaining money by deception; 5. knowingly dealing with the proceeds of crime.
Further, and on his own admission, the applicant used the money to fund his drug and gambling habits, and saw his offending as an easy way to make money. In his letter to the sentencing judge he stated: "I realised that it would be easy to cheat the home insulation program by simply lodging claims on line for work which I didn't do. After all, I thought I was only stealing from the Government who had plenty of money and no one would ever really find out".
The only available conclusion is that the applicant's offending was motivated by greed. In light of his criminal history, and his motivation, there was a clear need for any sentence to reflect a strong measure of specific deterrence: R v Alimic [2006] VSCA 273 at [26] per Nettle JA (as his Honour then was), Warren CJ and Redlich JA agreeing. General deterrence was also an important consideration given the nature of the offending: Director of Public Prosecutions v Milne [2001] VSCA 93 at [12]-[13] as was the difficulty of detecting such offending: R v Purdon CCA (NSW) 27 March 1991, unreported. On the applicant's own admission, the difficulty associated with detecting offending of this kind formed part of his motivation.
The applicant's position in support of this ground was based, to a large extent, upon comparing the sentences imposed in other cases involving what was said to be comparable offending. This Court has repeatedly warned of the difficulties which are prone to arise from a comparison of a number of cases in an attempt to show some established sentencing range for particular offences: Eriyo v R [2015] NSWCCA 16 at [31] per Davies J (Hoeben CJ at CL and Johnson J agreeing) citing MLP v R [2014] NSWCCA 183 at [41]-[44] per Bellew J (Macfarlan JA and Adamson J agreeing) and Briouzguine v R [2014] NSWCCA 264 at [74]-[78] per Gleeson JA (Bellew and Schmidt JJ agreeing). I do not propose to engage in any lengthy analysis of the cases which were before her Honour. As the Crown pointed out, the cases are fundamentally distinguishable in any event.
I accept, as her Honour did, that the delay caused the applicant anxiety and concern over a significant period of time. For at least part of that period he was incarcerated on other charges, no doubt wondering when he would be charged with the present offending. For the reasons I have already expressed, the applicant was entitled to have those factors taken into account on sentence. There was also evidence before her Honour that the applicant had taken some steps towards rehabilitation. In her report of 10 March 2014, Ms Mahmoud found (AB 101) that the applicant was moderately depressed but had formulated some "defined goals for his life". However, even when full weight is given to those observations it is difficult, in light of the applicant's criminal history, to cavil with the assessment of the sentencing judge that his prospects of rehabilitation were "hopeful rather than confirmed" (ROS [28]; AB 49).
In all of the circumstances, and particularly given the seriousness of the offending, the amount involved, the absence of remorse and the need for both general and specific deterrence, I am not persuaded that the sentence is unreasonable or plainly unjust. It follows that Ground 7 is not made out.

IS SOME OTHER SENTENCE WARRANTED IN LAW?

Notwithstanding the view I have reached in respect of Ground 7, given that I have found error in respect of Grounds 1 and 2, s. 6(3) of the Criminal Appeal Act 1912 is enlivened.
The decision of the High Court in Kentwell v R [2014] HCA 37 makes it clear that once error is established, the sentencing discretion is to be exercised afresh by this Court, taking into account all relevant considerations. The Court's power was explained this way (at [42]): "[42] Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion."
The Court went on to say (at [43]): "[43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the court required to re-sentence. Nor is the court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal."
The applicant does not have to establish that the sentence was manifestly excessive in order for the Court to exercise its discretion in his favour under s. 6(3). The judgment in Kentwell makes it clear that it is the function of this Court to exercise the sentencing discretion afresh when error is established.
An affidavit of the applicant of 13 February 2015 was tendered before the Court. I have taken the contents of that affidavit into account. The applicant has clearly continued his efforts towards rehabilitation whilst in custody. He has managed to obtain employment and undertake an associated course of study. He has not come under notice for any disciplinary offence.
However, giving weight to all of the relevant factors which I have considered in the context of Ground 7, and in the exercise of my independent discretion, I am satisfied that the sentence imposed is the appropriate one. I am not satisfied that any other sentence is warranted in law and should have been passed. This was serious offending, involving a substantial loss to the revenue. It was motivated by greed, and committed by a person with a substantial history of offences of dishonesty.
Although the observations of the plurality in Hili (at [63]) were made in the context of a taxation fraud, they are necessarily applicable to revenue fraud in general. They are particularly apt in the present case: "[63] The applicants' offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this kind is not easy. Serious tax fraud, which this was, is offending that affects the whole community. As was pointed out in Ruha the sentences imposed had to have both a deterrent and a punitive effect, and those effects had to be reflected in the head sentences and the recognizance release orders that were made."

ORDERS

In view of the above I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

Amendments 26 March 2015 - Correction to paragraph numbers 13 April 2015 - Decision date corrected 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. Decision last updated: 13 April 2015

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