SANCHET v DIRECTOR OF PUBLIC PROSECUTIONS

Crimes Act 1914 (Cth), ss 16A, 16G, 19, 21E, 29B LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 Criminal Code Act 1995 (Cth), s 135.1 Judiciary Act 1903 (Cth), ss 68, 79

Director of Public Prosecutions v Milne [2001] VSCA 93 Harding v Moreland [2006] WASC 8 Markarian v The Queen (2005) 79 ALJR 1048 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 CASES CITED: Putland v The Queen (2004) 218 CLR 174 R v Gallagher (1991) 23 NSWLR 220 R v Geddes (1936) 36 SR(NSW) 554 R v White (unrep, 20 August 1998) R v Thompson and Houlton (2000) 49 NSWLR 383 Ralph v Nawrojee [2003] WASCA 5 Wong and Leung v The Queen (2001) 207 CLR 584

PARTIES: Ricardo Sanchet - Appellant Director of Public Prosecutions (Commonwealth) - Respondent

COUNSEL: Mr M. Dennis - Appellant Mr L. Crowley - Respondent

SOLICITORS: Legal Aid Commission of NSW - Appellant Commonwealth Director of Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL CCA 2006/1615 DC 04/11/0444

BASTEN JA WHEALY J HOWIE J

11 September 2006 SANCHET v DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) Judgment 1 BASTEN JA: On 17 November 2005 the Applicant was sentenced by Judge Williams in the District Court to a period of six years imprisonment, with a four year non-parole period, in relation to 61 separate charges of fraudulently obtaining social security benefits. The sentence (and the non-parole period) commenced on 3 October 2003, being the day the Applicant was taken in to custody. He seeks leave to appeal against the severity of the sentence. 2 The offences revealed, as the trial judge stated (Judgment, p 3) "a degree of planning and sophistication that would put them at the highest category of offending". That was because the fraudulent conduct was carried out over a period of four years, from September 1999 until October 2003, involved 22 false identities and resulted in the acquisition of payments of $402,967. 3 Forty of the charges related to offences under s 29B of the Crimes Act 1914 (Cth) which provided: 29B False representation Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence. Penalty: Imprisonment for 2 years. 4 The relevant offences under this provision occurred between 28 September 1999 and 23 May 2001. On 24 May 2001, the provision was repealed and effectively replaced by s 135.1 of the Criminal Code Act 1995 (Cth). Subsection (5) provided: 135.1 General dishonesty … (5) A person is guilty of an offence if: (a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and (b) the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and (c) the other person is a Commonwealth entity. Penalty: Imprisonment for 5 years.

There are other similar offences set out in other parts of s 135.1, all of which carry a penalty of imprisonment for 5 years. Twenty-one offences were charged under this provision. 5 The trial judge treated the maximum penalty in respect of each offence as being one of 2 years, presumably because they constituted part of a course of conduct which commenced before the change in the law. That view may have been unduly favourable to the Applicant, but as it gives rise to no issue in these proceedings, it will not be considered further. 6 The Applicant arrived in this country on 26 July 1996 on a Dutch passport. Three months later he applied for a protection visa in the name Munier Ayman Jamil Hammed, giving his date of birth as 30 August 1971. He was thus almost 25 years of age when he arrived in Australia and was 28 years of age when he embarked on the present course of fraudulent conduct. He was granted a protection visa on 29 April 1998 and applied for and was granted payments of New Start Allowance on 25 May 1998. 7 The personal history of the Applicant, as he provided it to the Court, must evoke considerable sympathy and may provide some explanation for his embarkation on this course of conduct. He told the trial judge that he was born in Kuwait to Palestinian and Algerian parents, one of whom was Jewish. He said that the family suffered a significant degree of discrimination. When he was 18, his family became victims of the Gulf War, an explosion killing all except himself and his mother who is a paraplegic and is now looked after by her sister in Morocco. The Applicant stated that he had left Kuwait for Egypt, where he was arrested and sexually assaulted in custody. After being released, he made his way to South Africa, where he lived for about five years. He claims further periods of discrimination and unhappiness in South Africa which led him to migrate to Australia. 8 He has been diagnosed as suffering from post traumatic stress disorder and depression, conditions which may have encouraged him to take illegal drugs. He claimed that drugs had been provided to him by a man identified as Jamal Kader, whom he met at a casino. At first the drugs were provided free but, following his addiction, Kader began to demand payment. He and Kader then set upon the course of creating false identities and making false claims for social security benefits. He said that Kader received half of the proceeds of the claims, although whether as a participant in the fraudulent enterprise or as payment for drugs (or both), is not entirely clear. 9 The Applicant also claimed that he was assisted by another man, known as Brahim Lamzili, who apparently had skills as a computer hacker and was alleged to have been involved in setting up the false identities used with Centrelink. 10 In considering the Applicant's account of the commission of the offences, the trial judge noted that "for the Court to place any reliance on the evidence that that person gives needs a fairly significant leap of faith to accept what is being said at face value without any proof to the contrary": Judgment on sentence, p 6. That was particularly so in relation to Mr Lamzili, who appears to have entered Australia on 26 March 2000, by which date all but two of the 22 false identities had been established. (Two other identities were established on 18 and 19 December 2000 respectively.) Indeed, when the Applicant was first interviewed on 3 October 2003, he made no mention of Mr Lamzili. His name appears to have arisen for the first time in a second interview recorded on 27 January 2004. 11 The trial judge dealt with the sentencing exercise by addressing considerations relevant to the course of conduct over the four year period as a whole. No distinction was sought to be drawn between particular offences. However, the structure of the total sentence of imprisonment involved breaking down the 40 charges which arose prior to 24 May 2001 into four groups, imposing a two year sentence in respect of each group and making each sentence partly concurrent with another. The first sentence was back-dated to 3 October 2003, when the Applicant was taken into custody. Each sentence was for two years, but each commenced one year into the previous sentence. Thus, the five sentences imposed in relation to charges under s 29B of the Crimes Act, ran from 3 October 2003 until 2 October 2008. That period was effectively extended by one year in relation to the 21 offences committed under s 135.1 of the Code. This structure conformed to s 19(2) of the Crimes Act, but the reason for adopting the structure is unexplained and is to a degree arbitrary. It is, accordingly, necessary to consider globally the correctness of the sentence imposed. 12 The matters which the trial judge was required to take into account included (but were not limited to) those of the following matters which were relevant and known to the Court, as required by s 16A(2) of the Crimes Act: (a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, cultural background, age, means and physical or mental condition of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

In the present case, paragraphs (b), (c) and (p) had no direct relevance; all of the other paragraphs were apposite. 13 No complaint is made about the matters set out by the sentencing judge in his reasons. The various personal factors, the nature of the offences, the plea of guilty at the earliest opportunity, the provision of assistance to the authorities and the assertion of contrition are all identified and addressed. After setting out all of these matters, and assessing the extent to which they might be seen to favour the Applicant, or otherwise, his Honour concluded (Judgment, p 14): "In dealing with the overall criminality of these sixty-one separate charges the appropriate sentence without deductions in my view would warrant a total term of imprisonment of at least nine years allowing for the fact that s 16G of the Commonwealth Crimes Act has now been repealed. I would reduce that sentence to one of six years for the plea of guilty, the assistance, the contrition and the other personal factors relating to the offender. However, the minimum non-parole period that should be spent in custody of course still has to reflect the serious nature of this offending and in my view that should be one of four years." 14 The reference to s 16G was a reference to a provision which required that the sentencing judge, in the case of a sentence to be served in a State where sentences were not subject to remission or reduction, must take that fact into account and "adjust the sentence accordingly". His Honour was merely reminding himself that no such adjustment was now required. The correctness of that approach is not in doubt. 15 The only matter raised on the application for leave to appeal by way of criticism of the result reached by the primary judge was the contention that his Honour failed to give appropriate weight to the provision of assistance by the Applicant to federal authorities. Had he done so, it was argued, he must have given a discount of more than one-third for the various matters set out as justifying the reduction from the otherwise appropriate sentence of 9 years imprisonment. 16 This challenge requires consideration of the process by which his Honour commenced with a period of 9 years "without deductions", but reduced the period by approximately one-third on account of the four factors expressly identified. The first and second factors, namely the plea of guilty and the assistance provided to the authorities, are commonly dealt with as separate matters justifying a reduction of an otherwise appropriate sentence. The Director accepts so much. However, he submits with some justification that the inclusion of elements of contrition and "other personal factors" in that assessment leads one to ask how the overall criminality, assessed as justifying a total term of 9 years, was derived. The explanation given lacks that quality of "transparency", absence of which is sometimes equated with legally inadequate reasons for judgment. It is precisely that lack of transparency, in purporting to adopt a two-stage approach, where the nature of the considerations taken into account at the first stage was inadequately explained, which was said to reveal error in Markarian v The Queen (2005) 79 ALJR 1048 at [31]-[37] (Gleeson CJ, Gummow, Hayne and Callinan JJ). In the same case, McHugh J, quoting Jordan CJ in R v Geddes (1936) 36 SR(NSW) 554 at 555-556 noted the diversity of the considerations to be taken into account and their inevitable inter-relationship: Markarian at [65]. The same point was made in the joint judgment at [37] referring to a judgment of Gleeson CJ in this Court in R v Gallagher (1991) 23 NSWLR 220 in which his Honour had stated: "It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical." 17 The same comment applies, with equal force, to the assessment of the "overall criminality" involved in the offences. It gives support to the view that sentencing, while requiring transparency, involves a synthesis of inter-related considerations. It involves a value judgment, which should be articulated so far as possible. That attempt should not be avoided by describing the outcome as "instinctive". It is inevitably instructed by a knowledge of comparable cases and relevant sentencing principles. A result based on knowledge and experience is the antithesis of "instinctive". Nevertheless, the term is used to describe the effect of weighing a number of disparate elements to reach a considered conclusion. 18 In R v Thomson and Houlton (2000) 49 NSWLR 383, Spigelman CJ noted that whilst the "instinctive synthesis approach" is the correct general approach to sentencing, that did not mean that "there is no element which can be taken out and treated separately, although such elements ought to be few in number and narrowly confined": at [57]. In that case, it was accepted that the utilitarian value of a plea should be recognised as such a factor and the appropriate range for a discount in respect of such a factor is " 10-25 percent": [152] and at [160]. A guideline was formulated at the request of the State attorney and by reference to the express terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires a court to take into account the fact of a guilty plea and empowers the court to impose a lesser penalty than it would otherwise have imposed. 19 One possible explanation of the approach taken by his Honour is that he had, in assessing the overall criminality, taken into account everything relevant up to the time of arrest. That would involve reference to all the personal circumstances of the Applicant as they existed at that time, including his personal history, physical and mental condition and drug usage. The factors which then went in reduction of the sentence so assessed, were subsequent events, including the plea of guilty and the offer of assistance to the authorities. That would also explain the reference to contrition, which was clearly not a state of mind achieved by the Applicant over the four years leading up to his arrest. It would require the reference in the remarks on sentencing to "other personal factors relating to the offender" to be limited to the adverse effects of incarceration on a person suffering from his psychological conditions. There would be some logic to that approach but it would be novel and the Court heard no argument as to whether it should be accepted as appropriate in the circumstances of the case. The real difficulty is to know whether that approach was in fact adopted. As Howie J explains, the lack of transparency as to critical aspects of the reasoning process constitutes legal error. 20 Had there been a reduction of the sentence "because the offender has undertaken to co-operate with law enforcement agencies" it would have been necessary to specify the sentence which would have been imposed but for that reduction: Crimes Act, s 21E(1). With respect to such assistance, the trial judge noted (Judgment, pp 7-8): "Mr Sanchet has provided two names of persons apparently known to exist and who were in Australia at relevant times. If those persons are arrested he promises to give evidence against them. … … What seems unlikely at this point of time is that the other alleged co-offenders will ever be arrested in regards to these matters." 21 The effect of this last comment, together with the absence of compliance with s 21E, indicates that the trial judge was not reducing the sentence on account of any promise of future assistance. To the extent that assistance was taken into account, it was by reference to that which had been provided already. The value of that assistance was rated by Australian Federal Police officers as "low" and as having "minor value from an intelligence perspective". 22 This challenge invites attention to the manner in which the factors identified in s 16A(2) should be applied. Although the issue was not the subject of detailed submissions, the operation of principles of sentencing established in State jurisdiction must be approached with caution in considering a sentence imposed in federal jurisdiction. The State sentencing court (and this Court on appeal) undoubtedly have jurisdiction conferred pursuant to s 68(2) of the Judiciary Act 1903 (Cth). The laws of the State with respect to sentencing are "at least potentially picked up and applied as federal law by s 68(1)": Putland v The Queen (2004) 218 CLR 174 at [4] (Gleeson CJ); see also at [34] (Gummow and Heydon JJ, Callinan J agreeing at [121]); c.f. Kirby J dissenting at [66], his Honour concluding that whether or not s 68(1) picked up sentencing laws, they were picked up by s 79: at [78]-[79]. The difference between the language of ss 68 and 79 of the Judiciary Act, the latter having an exception in cases where a law of the Commonwealth otherwise provides, might have been thought to give rise to a difference in approach, but an implication to similar effect was assumed in the joint judgment of Gummow and Heydon JJ in Putland and, the matter not having been debated in this Court, should be approached on the same basis. 23 It does not follow, however, that either the trial judge or this Court is bound to apply principles of sentencing established by guideline judgments prepared in the exercise of State jurisdiction. Although the context is not that which arose in Wong and Leung v The Queen (2001) 207 CLR 584, the operation of a guideline judgment in federal jurisdiction might give rise to the question of disconformity between the State legislation picked up and applied by s 68 of the Judiciary Act and Chapter III of the Constitution, a question put to one side by the joint judgment in that case at [49]. 24 Given the fact that there is no explanation of how the initial sentence is arrived at (prior to reduction) there is a significant risk of double counting, in favour of the Applicant. That being so, it is appropriate that this Court approach the matter on the basis of the facts as found by the trial judge (which, despite the expression of doubts, involved an acceptance of the history and explanation given by the Applicant) in order to determine, for itself, whether the sentence imposed was within an appropriate range. 25 The submission on behalf of the Director was, in effect, that the sentencing exercise did not miscarry if the 9 years starting point were reached after taking account of all objective and subjective considerations other than the guilty plea and the provision of assistance by way of co-operation with the authorities. The combined reduction which might be allowed for those two factors, namely one-third, was well within the appropriate range in the circumstances of the case. 26 The principles to be applied in relation to such offences have been explained by Wood CJ at CL (Sully and Ireland JJ agreeing) in Regina v White (unrep, 20 August 1998); in Victoria, by Winneke ACJ (Ormiston and Buchanan JJA agreeing) in Director of Public Prosecutions v Milne [2001] VSCA 93 at [12]-[14], and in Western Australia by Anderson J (Murray and Templeman JJ agreeing) in Ralph v Nawrojee [2003] WASCA 5 at [25]-[34] and by Hasluck J in Harding v Moreland [2006] WASC 8 at [17]-[34]. The relevant principles were not addressed in argument and need not be discussed here. The established principle that the Court should determine a sentence for each offence for which an offender is convicted and then consider whether, to the extent that the sentences are made consecutive, the totality is no longer commensurate with the gravity of the criminal conduct taken as a whole, is well-established: see, s 16B, Postiglione v The Queen (1997) 189 CLR 295 at 308-309 (McHugh J) and Mill v The Queen (1988) 166 CLR 59 at 62-63. However the principle is difficult to apply in a circumstance such as the present, where there are 61 separate offences charged. On the other hand, the case cannot be seen as one falling into the not uncommon category of social security frauds where an untrue statement is made and repeated to obtain a benefit to which the recipient is not entitled. The manufacture of 22 false identities puts the case in quite a different category. Further, the concept of contrition must have a more limited role to play in relation to a course of conduct extending over four years than it would in relation to a single event or even a series of events within a short period of time. There was no discussion in the remarks on sentence as to what precisely the Applicant meant in saying he was "deeply ashamed" of his conduct: shame which follows upon detection is unlikely to be of the same character as shame which follows insight, absent detection. 27 The harm done by the continuing fraudulent conduct is the diminution of government resources by $400,000. That is not an insignificant sum. Although the Applicant indicated a willingness to make reparation, the realistic likelihood of such payments being made within the foreseeable future must be low. 28 The Director asserted that the trial judge should properly have given a limited reduction on account of the critical element, namely the assistance provided. The Applicant complains that, contrary to the submissions for the Director, the sentencing judge made no assessment of the assistance given to police as of limited or "low" value. It is true that his Honour did not make that assessment: nor did he make one more favourable to the Applicant. The two police officers who gave the assessment referred to above were called to give evidence and were cross-examined. The thrust of the cross-examination was that more could have been done to follow-up the information provided. It was not squarely put to them that their assessment of the value of the information was misconceived. His Honour made no such finding and it must be accepted that the value of the information was at least limited. 29 As part of that assessment, it may be noted that, despite the execution of search warrants, few of the fraudulent documents were recovered. Such inquires as were made by the police partly confirmed the information supplied by the Applicant, but by no means in all respects. For example, Mr Kader was apparently unknown to South African authorities, despite the Applicant's assurance that he was wanted in South Africa for offences committed there. 30 The submission of the Director in relation to assistance must be accepted. Taking into account all of the factors addressed by his Honour, it is not possible to conclude that a term of imprisonment of 9 years was inappropriate as a reflection of the total criminality of the Applicant, even accepting his description of his personal circumstances as they existed at the times of the offence. 31 Assuming that the matters taken into account in reduction of the offence included each of the elements identified by his Honour, in so far as it arose from conduct subsequent to his arrest, or reflected the effect of a term of imprisonment upon him, it is not possible to treat the reduction of one-third as manifestly insufficient. Given the uncertainty as to the approach in fact followed by the sentencing judge, leave to appeal should be granted. But because the conclusion which his Honour reached was not shown to be an improper exercise of the sentencing discretion, the appeal should be dismissed. 32 WHEALY J: I agree with the reasons of Howie J. I also agree that the appeal should be dismissed. 33 HOWIE J: I have had the benefit of reading the judgment of Basten JA in draft. I agree with the orders proposed by him but differ in the reasons for making those orders sufficiently to cause me to shortly state why I would dismiss the appeal. 34 All of the relevant facts and circumstances of the offending behaviour are set out in the judgment of Basten JA, as are the relevant subjective factors taken into account by the sentencing judge. There is no need for me to repeat them and I gratefully adopt what his Honour has written in that regard. 35 The applicant's sole ground of appeal was that the sentencing judge erred in failing to give any, or appropriate, weight to his co-operation with law enforcement authorities. I am quite unable to determine that ground of appeal because I do not understand the manner in which the judge exercised his sentencing discretion as revealed by his sentencing remarks. Basten JA has quoted the crucial portion of the remarks in paragraph 13 of his judgment but I should set out the relevant part of it again.

In dealing with the overall criminality of these 61 separate charges the appropriate sentence without deductions in my view would warrant a total term of imprisonment of at least 9 years allowing for the fact that s 16G of the Commonwealth Crimes Act has now been repealed. I would reduce that sentence to one of 6 years for the plea of guilty, the assistance, the contrition and the other personal factors relating to the offender……… 36 Quite frankly I do not understand what this passage of the sentencing remarks was meant to convey about the process undertaken by the judge in arriving at what he thought was the appropriate sentence to impose upon the applicant. I do not understand what "the appropriate sentence without deductions" was meant to signify or what matters the judge had taken into account in reducing that sentence by "the other personal factors relating to the offender". Without comprehending precisely how the judge determined the starting sentence and what specifically he took into account in reducing that sentence to arrive at the six years, I cannot form any view as to what part of the one third discount was due to the proffered assistance and, therefore, can make no assessment of its appropriateness. 37 During the course of argument before this Court, counsel for the applicant submitted that "the other personal factors" was a reference to the hardship experienced by the applicant in serving his sentence by reason of his psychological condition. The use of the plural "factors" would tend against that correctness of that submission. In any event I do not understand why the phrase should be limited to that factor when another relevant factor might be the prospects of rehabilitation as mentioned in s 16A(2) of the Crimes Act (Cth). The Crown submitted that the sentencing judge must have taken "personal factors relating to the offender" into account when determining the "overall criminality" of the offences and, therefore, double counted by taking at least some of them again into account when discounting the sentence. 38 Basten JA puts forward in his judgment a possible explanation for what the Judge meant to convey in this passage. His Honour suggests that the sentencing judge might have taken into account in assessing the overall criminality "everything relevant up to the time of arrest" and then discounted that sentence by taking into account events subsequent to the arrest. As the Presiding Judge appears to accept, this is a highly speculative explanation that finds no tangible support in anything said by the judge. So far as I am aware, such an approach would be a completely novel way of determining an appropriate sentence and one that does not have its genesis in anything said by this Court or the High Court as to the proper approach to be taken in exercising the sentencing discretion. 39 However that might be, when the parties and an appeal court are left to speculate about what matters the judge did, or did not, take into account when determining the starting sentence or the discount applied to that sentence in order to arrive at the sentence imposed, it seems to me that the judge has failed sufficiently to expose his reasons for sentence such that the discretion must be taken to have miscarried. This is particularly unfortunate in the present case because the judge reserved before passing sentence and, presumably, the remarks were not made ex tempore. I understand that the ground of appeal relied upon was not based upon a failure to give reasons. But in considering the ground argued by the applicant it becomes apparent to my mind that the reasons given are sufficiently flawed that this Court should find that error is disclosed in the exercise of the discretion of the sentencing judge. 40 However, this error does not mean that the Court should interfere so as to impose a new and lesser sentence. For the reasons given by Basten JA, the discount for the assistance to the authorities could not have been substantial because of the limited value of the information provided, especially coming as it did from a person who as a fraudster had little credit. There is no justification, in my opinion, for giving a discount that involves the element of contrition, as this is a factor that operates in a number of overlapping ways in the process that determines an appropriate sentence. In my opinion the overall sentence imposed was a very lenient one having regard to the considerable criminality of the conduct in which the applicant was involved over a period of four years. 41 The applicant filed an affidavit as to events that have occurred since sentencing in case it might be necessary for the Court to re-sentence him. The affidavit refers to employment that the applicant has been engaged in while in custody, courses that he has completed and counselling he has received in relation to his heroin addiction. The applicant has not been in good health and has suffered from a peptic ulcer and rheumatic heart disease. None of this material indicates to me that this Court should interfere to reduce the sentence imposed upon him in the District Court. 42 Because error has been shown leave to appeal should be granted. But as no lesser sentence is warranted in law, the appeal should be dismissed. **********

12/09/2006 - Amending matter number - Paragraph(s) Coversheet

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