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[2012] WASCA 17
Court of Appeal (WA)
2012-01-27
Martin CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SAYED -v- THE QUEEN [2012] WASCA 17
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - One count of fraud and one count of dishonestly obtaining a financial advantage by deception - Whether the trial judge erred by failing to leave to the jury the defence of mistake under s 24 of the Criminal Code (WA) - Whether the trial judge erred by failing to leave to the jury the defence of mistake under s 9.1 of the Criminal Code (Cth) - Whether the trial judge misdirected the jury in relation to the process by which the jury may infer the accused's intention to defraud
Criminal law - Appeal against sentence - Total effective head sentence of 3 years 6 months' imprisonment with a total effective pre-release or non-parole period of 2 years 9 months - Whether the individual head sentence of 3 years' imprisonment for dishonestly obtaining a financial advantage by deception was manifestly excessive - Whether the trial judge erred by failing to apply the one-transaction principle - Whether the trial judge erred by infringing the totality principle - Whether the trial judge erred by imposing sentences the combined effect of which was to create a total effective pre-release or non-parole period that was manifestly excessive or disproportionate to the total effective head sentence
Sentencing Act 1995 (WA), s 89, s 93(1)
First Respondent : Director of Public Prosecutions (Cth)
Second Respondent : Director of Public Prosecutions (WA)
Ali v The State of Western Australia [2005] WASCA 90
Anderson v Bigmore [2006] ACTSC 85; (2006) 202 FLR 468
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Bick v The Queen [2006] NSWCCA 408
Brennan v The State of Western Australia [2010] WASCA 19
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176
Director of Public Prosecutions v Ka-Hung-Ip [2005] ACTCA 24
El Rakhawy v The Queen [2011] WASCA 209
Gok v The Queen [2010] WASCA 185
Graziosi v Director of Public Prosecutions (Cth) [2011] VSCA 418
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Ly v The Queen [2007] NSWCCA 28
Magar v The State of Western Australia [2011] WASCA 122
Magdi v The State of Western Australia [2010] WASCA 234
Markarian v The Queen [2001] WASCA 393
Mathews v The Queen [2001] WASCA 264; (2001) 24 WAR 438
McLean v The State of Western Australia [2011] WASCA 60
McMahon v The Queen [2011] NSWCCA 147
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
O'Meara v The Queen [2009] NSWCCA 90
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Baldock [2010] WASCA 170; (2010) 243 FLR 120
R v Barton [2006] QCA 18
R v CAK [2009] QCA 23
R v Desborough [2010] QCA 297
R v Donaldson [2009] SASC 31; (2009) 103 SASR 309
R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Kertebani [2010] NSWCCA 221
R v Lovel [2007] QCA 281
R v Minassian [2007] QCA 39
R v Newton [2010] QCA 101; (2010) 199 A Crim R 288
R v Pipes [2004] NSWCCA 351
R v Rajacic [1973] VicRp 63; [1973] VR 636
R v Ruha; Ex parte Commonwealth Director of Public Prosecutions [2010] QCA 10; (2010) 198 A Crim R 430
R v Smith (1987) 44 SASR 587
R v Wright [1999] VSCA 145; [1999] 3 VR 355
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Smith v The State of Western Australia [2010] WASCA 176
Sood v The Queen [2006] NSWCCA 114; (2006) 201 FLR 119
Wheeler v The Queen [No 2] [2010] WASCA 105
1 MARTIN CJ: The appeal against conviction should be dismissed, the appeal against sentence allowed, and the appellant resentenced in the manner proposed by Buss JA, for the reasons given by his Honour with which I agree.
2 BUSS JA: On 28 October 2010, the appellant was convicted, after a trial in the District Court before Deane DCJ and a jury, of two counts in an indictment.
3 Count 1 alleged that between 4 August 2006 and 1 February 2007 at Perth, the appellant, with intent to defraud by deceit or fraudulent means, gained a benefit for Muslimlink Australia Ltd (Muslimlink), contrary to s 409(1)(c) of the Criminal Code (WA) (the WA Code).
4 Count 2 alleged that between about 13 September 2006 and 16 January 2007 at Perth, the appellant, by a deception, dishonestly obtained a financial advantage from another person, namely the Department of Education, Science and Training (the Commonwealth Department), which is a Commonwealth entity, contrary to s 134.2(1) of the Criminal Code (Cth) (the Commonwealth Code).
5 The appellant was charged as a result of an investigation into claims for per capita funding made to the State and the Commonwealth in 2006 and 2007 for a school known as the Muslim Ladies College of Australia.
6 The school was entitled to receive funding, based on claims made each year to the State and Commonwealth authorities. The amount to which the school was entitled depended on the number of eligible students for whom funding could be claimed.
7 The prosecution's case was, in essence, that the appellant had signed, and caused to be submitted to the State and Commonwealth authorities, claims for per capita funding that he knew had been falsely inflated by the inclusion of numbers of non-existent or ineligible students.
8 On 30 November 2010, the appellant was sentenced, as follows:
Count 1: 18 months' immediate imprisonment, with eligibility for parole; and
Count 2: 3 years' immediate imprisonment, with a recognisance release order in the sum of $5,000 after serving two years.
9 The trial judge ordered that the sentence for count 1 commence upon the appellant completing 24 months of the sentence for count 2. Also, her Honour ordered that the sentence for count 2 be backdated to commence on 28 October 2010, being the date on which the appellant was taken into custody following his conviction.
10 Accordingly, the total effective head sentence was 3 years 6 months' imprisonment, and the total effective pre-release or non-parole period was 2 years 9 months.
11 The appellant appeals to this court against his conviction and sentence.
Formal admissions made by the appellant at trial
12 At trial, the appellant, through defence counsel, made numerous formal admissions pursuant to s 32 of the Evidence Act 1906 (WA).
(a) Between 1 January 2005 and 7 December 2007, the Minister for Education of Western Australia (the State Minister) registered Muslim Ladies College of Australia as a 'non systems school'.
(b) Muslimlink was registered with the State Minister as the governing body of the school. The appellant was a director of the company.
(c) Registration with the State Minister entitled the school to per capita grants of money made by the State of Western Australia.
(d) On 4 August 2006, the school submitted a certification (the State Census) relating to the State Non-Government Schools Per Capita Funding Application Second Semester 2006, which claimed there were 189 students enrolled at the school on that date.
(e) The purpose of completing the State Census was to enable the school to receive per capita grants from the State.
(f) Muslimlink received payments on behalf of the school as follows: $78,467.62 on 28 September 2006 and $85,318.20 on 1 February 2007.
(a) From 2003 until 7 December 2007, Muslim Ladies College of Australia was included in a list of Non-Government Schools, which entitled it to receive general recurrent grants from the Commonwealth Department, which was a Commonwealth entity.
(b) Muslimlink was the authority of the school, approved by the Commonwealth Department, for the purpose of receiving general recurrent grants. The appellant was a director of the company.
(c) On 5 February 2005, Muslimlink entered into a funding agreement with the Commonwealth Department for the purpose of receiving general recurrent grants.
(d) In accordance with the school's funding agreement, on 13 September 2006 the appellant signed a Census of Non-Government Schools 2006 Statutory Declaration for Staff and Student Data, in which he declared that, to the best of his knowledge and belief, the total number of students on the census date of 4 August 2006 was 186.
(e) Muslimlink received payments on behalf of the school as follows: $433,334.00 on 12 October 2006; $49,035.80 on 29 November 2006 and $479,052.20 on 16 January 2007.
Any person who, with intent to defraud, by deceit or any fraudulent means -
...
(c) gains a benefit, pecuniary or otherwise, for any person;
...
is guilty of a crime and is liable -
(g) if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or
(h) in any other case, to imprisonment for 7 years.
Section 134.2(1) and related provisions of the Commonwealth Code
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault elements for different physical elements.
A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
21 Section 5.4 is concerned with recklessness. It provides, relevantly:
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
23 Section 6.1 and s 6.2 are concerned with cases where fault elements are not required. By s 6.2:
(1) If a law that creates an offence provides that the offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.
(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3) The existence of absolute liability does not make any other defence unavailable.
(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b) element of the offence.
25 In s 133.1, the term 'deception' is defined for the purposes of pt 7.3, which includes s 134. The definition reads:
In this Part:
...
'deception' means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:
(a) a deception as to the intentions of the person using the deception or any other person; and
(b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.
26 In s 130.3, the term 'dishonest' is defined for the purposes of ch 7, which includes s 134. The definition reads:
For the purposes of this Chapter, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
Note: The following provisions affect the meaning of dishonesty:
(a) section 131.2 (theft);
(b) section134.1 (obtaining property by deception).
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
The trial judge's findings of fact at the appellant's sentencing hearing
29 The trial judge made various findings of fact at the appellant's sentencing hearing, including:
(a) In March 2003, Muslimlink made an application to the State Department to register as a non-government school under the name Muslimlink Australian Girls School. This name was changed later to the Muslim Ladies College of Australia.
(b) In March 2003, the application was approved. Initially, the school operated from premises in Queens Park. Later, it moved to Kenwick.
(c) As to count 1, a census application relevant to per capita funding for the school from the State certified that, as at 4 August 2006, there were 189 full-time students enrolled at and attending the school.
(d) As to count 2, a statutory declaration relevant to per capita funding from the Commonwealth declared that, as at 4 August 2006, there were 186 full-time students enrolled at the school and eligible for funding, comprising 134 primary school students and 52 secondary school students.
(e) In about October 2006, the Commonwealth engaged Edward Rollinson to conduct a post-census audit at the school in relation to the census as at 4 August 2006 and associated documents submitted by the school. Mr Rollinson made an appointment with the appellant to attend the school on 23 November 2006 and conduct the audit. He attended on that date and met with the appellant. On 23 November 2006, there were no students at the school. The appellant informed Mr Rollinson that they were attending a school function away from the school premises. Mr Rollinson told the appellant, without prior notice to him or the school, that he wanted to examine student rolls from particular classes. These documents were given to him. Mr Rollinson did not detect any cause for concern. He relied, in conducting his audit, upon the information contained in the student rolls he was given.
(f) On 2 December 2007, police executed a search warrant at the school and a number of student rolls were found and seized.
(g) The prosecution's case was that the student rolls had been manufactured to reflect inflated student numbers in various classes at the school. When the census was completed as at 4 August 2006, the school did not have either 189 or 186 full-time students who were eligible for State or Commonwealth funding. The prosecution's case was that, in fact, the student numbers were substantially less.
(h) The jury, by its verdict, accepted that the student numbers, as asserted by the appellant in the various census returns, were substantially inflated, and that the appellant knew this to be the case. Also, the jury, by its verdict, found that the appellant asserted falsehoods as to the actual number of student numbers with the intention of defrauding the State and Commonwealth authorities of money, in that the appellant knew and intended that the school should receive funding to which it was not entitled.
(i) It was not possible for the prosecution to prove with precision the number of students that had been overstated or inflated. However, the prosecution's allegation was that the overstatement or inflation was substantial, and therefore that the overpayment in each instance was substantial. The prosecution's case, based on the observations and memories of teachers who were employed at the school at or proximate to the material time, was that the total number of full-time students enrolled at the school and eligible for funding as at 4 August 2006 was between 80 - 100.
(j) The appellant was the architect and principal of this seriously dishonest and fraudulent behaviour. He devised the scheme and ensured, as best he could, that it came to fruition. The fraudulent conduct had a 'degree of sophistication' and, indeed, was 'rather bold' (ts 2483).
(k) On the appellant's own admission, in 2006, and indeed before that time, the school had been struggling financially.
(l) The appellant attempted to distance himself from the offending by, in effect, blaming an employee, June Abdullah, for providing the information contained in the census forms. Her Honour found:
This woman had left Australia about 2 months prior to the census being conducted and it is highly unlikely, particularly as in the end, she never returned to the school, that from a considerable distance away, she would involve herself so closely in the census when she would not be in a position to properly or appropriately check the accuracy of the information being signed off on.
Mrs Abdullah, according to the evidence, was certainly understood to work in the administration office and to have some authority in that respect but it would not appear from the evidence that she was closely involved in the daily running of the school or had any particular contact in that regard with teachers or parents (ts 2485).
Appeal against conviction: grounds of appeal
30 Initially, the appellant relied on four grounds in his appeal against conviction. At the hearing, counsel for the appellant expressly abandoned ground 3 (appeal ts 4). The remaining grounds read:
Ground 1
The learned trial Judge erred in failing to leave to the Jury the defence of mistake under s 24 of the Criminal Code (WA), which in this case related to the accused's claim that he had signed the relevant census documents prepared by staff honestly and reasonably, but mistakenly believing the contents to be true and correct.
Ground 2
The learned trial Judge erred in failing to leave to the Jury the defence of mistake under s 9.1 of the Criminal Code (Cth), which in this case related to the accused's claim that he had signed the relevant census documents prepared by staff honestly and reasonably, but mistakenly believing the contents to be true and correct.
...
Ground 4
The learned trial Judge erred in directing the Jury that the accused's intention to defraud was to be inferred from all the circumstances surrounding the alleged offences for it conveyed an entirely objective view of the relevant intention.
31 On 1 April 2011, Mazza J granted leave to appeal on ground 4 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.
Appeal against conviction: grounds 1 and 2: the appellant's defence
32 It is convenient to consider grounds 1 and 2 together.
33 The appellant gave sworn evidence at trial in his own defence.
34 He said that although he was the administrator of the school at material times, he did not personally check the information included in the census forms. He relied on staff employed by the school to collect and check the relevant information. According to the appellant, he had no reason to doubt the accuracy of the information contained in the census forms. He believed it to be correct. He said that when he signed the census forms he did so in the honest belief that the contents of each form were true and correct in respect of student numbers (ts 2017, 2048, 2056 - 2062).
35 The appellant's evidence on this issue was corroborated in some respects by the evidence of his daughter, Sumayyah Sayed (ts 2136 - 2141, 2154).
Appeal against conviction: grounds 1 and 2: the course of events at the trial
36 On 25 October 2010, defence counsel requested the trial judge, in substance, to give the jury a specific direction pursuant to s 24 of the WA Code in relation to count 1, and a specific direction pursuant to s 9.1 of the Commonwealth Code in relation to count 2, as to the alleged mistaken belief by the appellant when he signed the census documents submitted to the State and Commonwealth authorities (ts 2274 - 2281).
37 On 25 October 2010, there was some debate between the prosecutor, defence counsel and her Honour in relation to this issue (ts 2270 - 2297). During the debate, defence counsel, Mr MT Trowell QC (who also appeared for the appellant in this appeal), eventually accepted, in essence, that her Honour was not required to direct the jury pursuant to s 24 or s 9.1, in that if the jury thought there was at least a reasonable possibility that the appellant believed, when he signed the census documents, that the information in respect of student numbers was true and correct, then he would not have had the requisite knowledge or intent to have committed the offences, and he must therefore be acquitted (ts 2294 - 2296). Her Honour then said:
But it seems to me that it's simply a question of directing the jury in the usual way in relation to the elements of these two offences and the question of intention, and leaving aside any question of section 24; honesty or reasonableness or both. But clearly, intention as it relates to knowledge, whatever that was and whatever the intention was, is to be found according to the evidence that the jury accept and beyond a reasonable doubt, whatever that might be (ts 2296).
38 On the next day, 26 October 2010, defence counsel resiled from the position he had ultimately adopted the previous day, and made another application that the trial judge should give a direction to the jury pursuant to s 24 and s 9.1 (ts 2301 - 2306). After further debate, her Honour ruled that she would not give such a direction (ts 2308 - 2310). She was of the view that giving the direction may confuse the jury in relation to the subjective question on which it was required to be satisfied beyond reasonable doubt before it could convict, namely the appellant's subjective intention to commit the offences. Also, her Honour was of the view that giving the direction may mislead the jury into believing that 'the reasonable person test' included in the defences would be sufficient to prove the mental element of the offences beyond reasonable doubt. Further, her Honour was of the view that if the jury thought there was at least a reasonable possibility that the appellant had acted under the professed mistaken belief, then it could not be satisfied beyond reasonable doubt that he had the requisite subjective intention to commit the offences.
Appeal against conviction: grounds 1 and 2: the applicable legal principles
39 The question of whether, for the purposes of s 409(1) of the WA Code, an accused had an 'intent to defraud', is subjective. The question is concerned with the actual intention of the accused. The prosecution must prove beyond reasonable doubt that the accused subjectively had the requisite intent. See Mathews v The Queen [2001] WASCA 264; (2001) 24 WAR 438 [17] - [19] (Burchett AUJ, Malcolm CJ & Steytler J agreeing).
Under s 409(1), the relevant concepts are 'intent to defraud' and 'fraudulent means', rather than dishonesty. But the proper course for a trial judge is of the same kind: the knowledge, belief or intent said to reveal an intent to defraud and fraudulent means should be identified by the judge, and the jury should be instructed to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, what was relevantly done by the accused was so done with an intent to defraud and by fraudulent means. Generally, since s 24 requires the accused's state of mind, if he is to be exculpated, to be reasonable, introducing a consideration which is unnecessary to innocence under s 409, it will be inappropriate and confusing to direct the jury about s 24, and the judge should not do so. If, in a particular case, a direction under s 24 is required, great care will have to be taken to avoid confusion through a transference of concepts of reasonableness from the statutory defence to the crime under s 409 [19]. (emphasis added)
See also Markarian v The Queen [2001] WASCA 393 [22] - [30] (Olsson AUJ, Wallwork & Steytler JJ agreeing); Ali v The State of Western Australia [2005] WASCA 90 [35] - [40] (Pullin JA, Malcolm CJ & Wheeler JA agreeing).
41 It is unnecessary, in these reasons, to attempt an exhaustive analysis of the physical and fault elements of the offence created by s 134.2(1) of the Commonwealth Code. I will confine my analysis to those aspects of s 134.2(1) that are relevant to grounds 1 and 2 of the appeal against conviction.
42 A 'deception', for the purposes of s 134.2(1), must be intentional or reckless. That is, s 134.2(1), read with the definition of 'deception' in s 133.1, specifies that the fault element for the physical element of 'a deception' is that the deception must be 'intentional or reckless'.
43 Where a person, by a deception, obtains a financial advantage from another person and the other person is a Commonwealth entity, s 134.2(1), read with the definition of 'dishonest' in s 130.3, specifies that the fault element for the physical element of obtaining the financial advantage from the Commonwealth entity is that the financial advantage from the Commonwealth entity must have been obtained 'dishonestly'.
44 The definition of 'dishonest' in s 130.3 embodies an objective element and a subjective element. The objective element in par (a) of the definition is that the accused acted dishonestly, according to the standards of ordinary people, in obtaining the relevant financial advantage. The subjective element, in par (b), is that the accused knew that, in obtaining the relevant financial advantage, he or she was acting dishonestly according to the standards of ordinary people.
45 The elements embodied in the definition of 'dishonest' in s 130.3 reflect the common law test for dishonesty enunciated in R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053, 1064. In Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, the High Court decided that the Ghosh test would no longer apply under the common law of Australia. The reintroduction of the second element of the Ghosh test in par (b) of s 130.3 was deliberate. See Sood v The Queen [2006] NSWCCA 114; (2006) 201 FLR 119 [69] - [72] (Spigelman CJ, Simpson & Adams JJ relevantly agreeing). See also, in relation to s 130.3, Anderson v Bigmore [2006] ACTSC 85; (2006) 202 FLR 468 [21] (Crispin J).
46 In R v Donaldson [2009] SASC 31; (2009) 103 SASR 309, the appellants were convicted, after a trial before a judge and jury, of 22 counts of issuing securities without lodging a disclosure document, contrary to s 727(1) of the Corporations Act 2001 (Cth), and 22 counts of issuing securities without disclosure, contrary to s 727(4) of that Act. They appealed against conviction on all counts. There was evidence at trial that the appellants believed, at the material time, that certain transactions relevant to the charges were exempt from the disclosure provisions. The trial judge dealt with these alleged beliefs in the context of his summing up on the fault elements of the charges. The appellants submitted, on the appeal, that his Honour should have gone further and instructed the jury on the application of the defence of mistake or ignorance of fact, as set out in s 9.1 of the Commonwealth Code, to the circumstances of the case. The Court of Criminal Appeal of South Australia rejected this submission. Duggan J (Bleby & David JJ agreeing) said:
In my view, s 9.1 of the Criminal Code is of no practical relevance in a case such as the present. Whereas a distinct defence of mistake of fact is relevant to cases of strict liability, a consideration of the fault elements in a case which does not involve strict liability will subsume any issue involving mistake of fact. This was recognised in the report of the Model Criminal Code Officers:
'Although, strictly speaking, evidence of a mistake is only one sort of evidence which may cast doubt on the presence of a fault element, the Committee thought that for the sake of clarity, the Code should state the matter explicitly. In part, the Committee was influenced by the fact that the Code will speak to a wider audience than lawyers.'
The section has been described as superfluous in that 'if a fault element cannot be proved because the defendant had a particular mistaken belief about a fact, or was ignorant of a fact, it cannot be proved'.
This no doubt explains why s 9.1 was not alluded to by counsel at the trial and was not referred to in the summing up of the trial judge [23] - [25].
Appeal against conviction: grounds 1 and 2: the trial judge's directions
47 In the present case, the trial judge directed the jury that it had to be satisfied beyond reasonable doubt that the appellant intended to defraud the State or Commonwealth authority, as the case may be, before it could return a verdict of guilty in relation to the particular count under consideration (ts 2327 - 2331). Her Honour said:
A person's intention is subjective because it relates to that particular individual or person's state of mind. An accused's intention, if it exists - and that, of course, is very much in issue in the context of this case, because it's said there was no defrauding and there was no intent to defraud - must be inferred from the facts which you find to have been established by the evidence. And you'll remember what I said to you about inferences a little while ago ...
In relation to count 1, which I'm currently discussing, the Crown must prove that [the appellant] had a specific intention, namely, an intention to defraud, in putting forward, as they allege, the State census document for funding in the way that the prosecution say he did. You must be satisfied beyond a reasonable doubt that at the time he had such an intention before you could find this element proved.
If you are satisfied beyond a reasonable doubt that was the intention of the accused, that he did have this specific intent to defraud the entity concerned, then the prosecution will have succeeded in proving this element in relation to intention. But as you will appreciate, in this case the intention and the intention to defraud are very much in dispute, because having such intention and the defrauding are denied by the accused.
As I've said, determining what an accused's intention was at the relevant time is a matter of inference in the way that I've explained. You must bear in mind in this context and apply the direction I gave you a short time ago regarding the drawing of inferences in a criminal trial. You must not draw an inference that the accused had this intent to defraud as alleged by the Crown unless you are satisfied beyond a reasonable doubt that this inference is the only inference open to be drawn by you on all of the facts, whatever you find them to be on the evidence.
If there is some other reasonable inference open on the facts that you find to be established beyond a reasonable doubt which is not consistent with the inference that the accused had an intention to defraud as alleged by the Crown, then you can't find the charge proved (ts 2330 - 2331).
48 After giving the jury directions about the formal admissions made by the appellant at trial, her Honour directed on the appellant's case, as follows:
The position of the accused, and of course he does not have to prove or disprove anything, is that there were 189 students enrolled at the school to his knowledge on that date, and they were eligible for funding, and that the figures presented in that census form were correct and accurate, and not inflated. And therefore there was no fraud or deceit involved on his part at all (ts 2333).
49 After instructing the jury on count 1, the trial judge directed it on count 2. Her Honour said, relevantly:
So we now go to count 2 and the elements ... As with count 1, identity is in issue in the sense that the accused with respect to count 2 also denies any wrongdoing as alleged. They must prove that the accused intentionally or recklessly engaged in a deception by words or conduct. A deception is to cause or induce a person or another, in this case the Department of Education, Science and Training ... to believe that something is true when it is false and known to the accused to be false ...
As I've said, intention is a state of mind. It is subjective to the person concerned. And I've previously directed you as to how you can determine a person's intention. It is a matter of inference. Knowledge is often relevant to intention. And again, knowledge is a matter that can be determined by inference.
Deception is carried out recklessly if the accused is aware of a substantial risk that what he was putting forward as being true by way of numbers in that census return was false, and having regard to the circumstances that you find were known to him on the evidence before you, you consider that it was unjustifiable in those circumstances for the accused to take that risk.
In relation to this aspect of the matter, the prosecution must establish that the accused was consciously aware or knew of the substantial risk that what he was asserting by way of declaring exhibit 55, that's the Commonwealth census return, to be true was in fact not true. It is not sufficient to show that this was an obvious or well known risk. Rather, it must be shown that [the appellant] was consciously aware of the substantial risk that what he was asserting as being true was not true.
It is not necessary that the accused believed that it was unjustifiable to take the risk. Rather you, the jury, must make a judgment as to whether it was unjustifiable for the accused to take that risk, taking into account what you find were the facts known to the accused at the time. As I've said, the State of course say the accused knew full well exactly what the situation was, and that the numbers were inflated. The case for the accused of course is that those numbers were an accurate reflection of the eligible students for census purposes in the school at that time.
So getting back to this issue of the unjustifiable risk, in this context you must be satisfied beyond a reasonable doubt that the accused was consciously aware of the substantial risk that what he was putting forward as being true by way of student numbers in relation to count 2 was not true; and you must be satisfied beyond a reasonable doubt, taking into consideration the facts you find, whatever they are, that the accused knew - you find the accused knew existed, that it was unjustifiable for him to take the risk that what he was asserting was not in fact true (ts 2335 - 2337).
50 The trial judge also directed the jury, in the context of count 2, that the fundamental issue was whether the prosecution had proved beyond reasonable doubt that the appellant 'knew' that what he was doing was 'dishonest'. Her Honour explained:
[T]he accused must have known that what he did was dishonest according to the standards of ordinary people.
It is not a question therefore of whether the accused should have known that what he did was dishonest. The Crown must satisfy you that what he did was dishonest according to the standards of ordinary people, and that the accused knew that what he did was dishonest according to those standards (ts 2338).
51 Towards the end of her summing up, her Honour noted that the evidence of some of the prosecution witnesses differed significantly from the evidence of the appellant and his daughter on 'some fairly critical issues' (ts 2413). Her Honour stressed that the appellant did not bear any burden to prove or disprove anything (ts 2414). She then said:
In the first place, if on all of the evidence you are satisfied beyond a reasonable doubt of the guilt of the accused on a particular charge, then of course you must convict the accused of that charge. Secondly, if you believe the accused is telling the truth, you must of course acquit the accused. Thirdly, if you are left with a reasonable doubt as to any matter that the Crown must prove or disprove beyond a reasonable doubt, you must acquit the accused; in other words, if you cannot determine beyond a reasonable doubt where the truth lies in any particular instance, you must give the accused the benefit of that particular doubt (ts 2414).
Appeal against conviction: grounds 1 and 2: its merits
52 In my opinion, the trial judge correctly directed the jury as to the elements of the offences that the prosecution had to prove beyond reasonable doubt before it could find the appellant guilty on each of counts 1 and 2. In particular, her Honour correctly instructed the jury about what the prosecution had to prove in relation to the appellant's state of mind at the material time. The jury was directed on numerous occasions that before it could return a verdict of guilty on either count it had to be satisfied beyond reasonable doubt that the appellant intended, at the material time, to commit the offence the subject of the particular count.
53 The trial judge emphasised to the jury that it must not draw an inference that the appellant had an intent to defraud or had acted dishonestly unless it was satisfied beyond reasonable doubt that this was the only inference open on the facts as found by the jury. Her Honour told the jury that if it had a reasonable doubt as to any matter that the prosecution had to prove or disprove beyond reasonable doubt, then it must acquit the appellant. She explained that if the jury could not determine beyond reasonable doubt where the truth lay in relation to a particular matter, then it must give the appellant the benefit of that doubt.
54 The jury would necessarily have understood from her Honour's directions that if it thought there was at least a reasonable possibility that the appellant believed, at the material time, that the information in the census documents in respect of student numbers was true and correct, then he would not have had the requisite intent to defraud and he would not have been acting dishonestly.
55 The jury would readily have appreciated, from the trial judge's summing up, that it could not convict the appellant unless the prosecution proved beyond reasonable doubt that he did not honestly believe that the school was entitled to claim for the students who were, on the prosecution's case, non-existent or ineligible. Also, any reasonable juror would readily have appreciated from the summing up that the relevant belief, with which he or she was concerned, was the actual subjective belief of the appellant. Further, the jury would have been in no doubt that actual subjective dishonesty on the part of the appellant was an element of each offence, and that the prosecution carried the burden of proving the existence of this state of mind at the material time beyond reasonable doubt.
56 If the prosecution succeeded in persuading the jury beyond reasonable doubt of the existence of each of the elements of each offence, then the prosecution would necessarily have discharged the burden of excluding mistake of fact. The elements of each offence required the prosecution to prove beyond reasonable doubt that at the material time the appellant had the requisite state of mind. By contrast, the defence of mistake under s 24 of the WA Code, and the defence of mistake under s 9.1 of the Commonwealth Code, incorporates an objective component. Section 24 requires that any relevant mistaken belief be reasonable as well as honest. Section 9.1(2) provides that in determining whether the accused was under, relevantly, a mistaken belief, the tribunal of fact may consider whether the alleged mistaken belief was reasonable in the circumstances. If the jury was not satisfied beyond reasonable doubt that the prosecution had proved the mental or fault element of each offence then, on the trial judge's directions, it could not have returned a verdict of guilty on either offence.
57 In my opinion, proof of the elements of the offence against s 409(1)(c) of the WA Code, and proof of the elements of the offence against s 134.2(1) of the Commonwealth Code, necessarily negatived any possibility of the defence under s 24 of the WA Code (in the case of count 1) or the defence under s 9.1 of the Commonwealth Code (in the case of count 2) applying. It was unnecessary for the trial judge, in the particular circumstances of the present case, to direct the jury on the defence of mistake.
Appeal against conviction: ground 4: the appellant's complaint
59 Counsel for the appellant submitted that the trial judge's summing up would have conveyed to the jury 'an entirely objective view of the relevant intention, namely that it [had] to be gauged from conduct and they would have to draw an inference as to what [the appellant's] intent was from the circumstances'. According to counsel, her Honour's directions were seriously misleading in that they 'presupposed rejection of [the appellant's] evidence'.
60 Counsel for the appellant referred to this passage in the reasons of Burchett AUJ in Mathews:
It should be pointed out at once that the last paragraph of the quoted passage from the summing up, consistently with the earlier imposition upon the defence of a requirement that Mr Mathews' belief be 'reasonable', must have conveyed to the jury an entirely objective view of the relevant intention: it was to be gauged from conduct, and they would 'really have to draw an inference as to what his intent was ... from the circumstances'. This was seriously misleading; indeed, it presupposed rejection of the evidence of Mr Mathews. For, only if his assertion of his belief was rejected, could it be suggested the jury would 'have to draw an inference'. If he was accepted as a witness of truth, or even if the jury entertained a reasonable doubt that he might be telling the truth, no question of inferring intention from circumstances could arise, for belief and intention are matters of the actual subjective state of a person's mind. The correct approach to decision was, not to rely on inferences alone, but to "weigh his testimony along with any inferences": see Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 83, per Windeyer J [22].
Appeal against conviction: ground 4: the trial judge's directions
61 The trial judge directed the jury that the appellant did not have to give evidence. Her Honour then elaborated:
But having elected to do so, you take his evidence into account, as I previously explained, and in reaching your decision you assess his evidence in exactly the same way as you would assess the evidence of any other witness. The fact of the matter is you can accept everything a particular witness told you, you can reject everything they told you, or you can accept some of their evidence and reject some of their evidence. It's entirely up to you (ts 2405).
62 A little later in her summing up, her Honour referred to the conflict in the evidence between some of the prosecution witnesses, on the one hand, and the appellant and his daughter, on the other:
[I]t will be obvious to you, I'm quite sure, that the evidence of some of the Crown witnesses on the one hand and the evidence of [the appellant], the accused, and his daughter, Ms Sayed, to an extent on the other hand is very much in conflict as to some fairly critical issues. You must understand that your decisions in this matter involve more than simply deciding whether you believe one or more of the Crown witnesses on the one hand or [the appellant] and any witnesses called on his behalf on the other hand. The position is, even if you were to reject the accused's evidence and the case for the defence, it does not necessarily follow that you would find him guilty of a particular charge. Before you may find [the appellant] guilty of a charge, you must be satisfied of his guilt as to that charge beyond a reasonable doubt having regard to all of the evidence (ts 2413).
63 The trial judge then stated, relevantly, that the jury may or may not accept the appellant's evidence or his case in full, in part or at all (ts 2413). She added that there was no burden on the appellant to prove his innocence or to prove or disprove anything, but if the jury believed the appellant was telling the truth then it must acquit him (ts 2414).
64 As I have mentioned in the course of considering grounds 1 and 2, the trial judge stressed, in her summing up, that the jury was required to be satisfied beyond reasonable doubt of the 'subjective intention of the appellant' before it could convict him. Her Honour said:
A person's intention is a state of mind and it's intangible, in the sense that it's not a physical object or item and it can't be put before you with a label saying, 'This was or is the accused's intention.' It is the case, however, that the law recognises that a person's intention, being a state of mind, is a fact capable of being proved or determined. But it can't always be proved in the same way that other facts can be proved. As I've said, it's not a tangible item and the prosecution cannot call a witness to tell you or to say what an accused person's intention was at a relevant time.
A person's intention is subjective because it relates to that particular individual or person's state of mind. An accused's intention, if it exists - and that, of course, is very much in issue in the context of this case, because it's said there was no defrauding and there was no intent to defraud - must be inferred from the facts which you find to have been established by the evidence. And you'll remember what I said to you about inferences a little while ago.
So a person's intention may be inferred from all of the circumstances surrounding the alleged offence, whatever you find those circumstances to have been on the evidence, also from the conduct of the accused person, from what an accused person said or has said to others, if anything, about the conduct constituting the alleged offence.
So as a person's intention is a state of mind, it can only be inferred from other facts which are proved in the first instance. You determine a person's intention on the evidence from what's said and done in all of the circumstances. And of course, importantly and critically, it is for you, the jury, to determine on the evidence what the circumstances were beyond a reasonable doubt ...
If you are satisfied beyond a reasonable doubt that was the intention of [the appellant], that he did have this specific intent to defraud the entity concerned, then the prosecution will have succeeded in proving this element in relation to intention. But as you will appreciate, in this case the intention and the intention to defraud are very much in dispute, because having such intention and the defrauding are denied by [the appellant].
As I've said, determining what an accused's intention was at the relevant time is a matter of inference in the way that I've explained. You must bear in mind in this context and apply the direction I gave you a short time ago regarding the drawing of inferences in a criminal trial. You must not draw an inference that the accused had this intent to defraud as alleged by the Crown unless you are satisfied beyond a reasonable doubt that this inference is the only inference open to be drawn by you on all of the facts, whatever you find them to be on the evidence.
If there is some other reasonable inference open on the facts that you find to be established beyond a reasonable doubt which is not consistent with the inference that the accused had an intention to defraud as alleged by the Crown, then you can't find the charge proved (ts 2328 - 2331). (emphasis added)
Appeal against conviction: ground 4: its merits
65 Counsel for the appellant, in his written and oral submissions, did not refer to the passages in the trial judge's summing up that I have reproduced at [61] - [62] above or to the passages I have emphasised at [64] above.
66 In my opinion, there is no doubt that the jury would have understood, from her Honour's summing up as a whole, that all the evidence, including the appellant's sworn evidence in his own defence, had to be considered in deciding whether the prosecution had proved each of the elements of each offence beyond reasonable doubt, including the mental or fault element of each offence.
67 The jury had heard the appellant give evidence to the effect that he had no reason to doubt the accuracy of the information contained in the census forms and that, when he signed those forms, he did so in the honest belief that the contents of each form were true and correct in respect of student numbers.
(a) the appellant's evidence was to be assessed by it in the same manner as it would assess the evidence of any other witness (ts 2405);
(b) there was a conflict on some critical issues between the evidence of some of the prosecution witnesses, on the one hand, and the appellant and his daughter, on the other (ts 2413);
(c) the appellant's intention, in particular any intent to defraud, was 'very much in dispute' in that 'having such intention and the defrauding are denied by [the appellant]' (ts 2330);
(d) if it believed the appellant was telling the truth, it must acquit him (ts 2414); and
(e) if it was left with a reasonable doubt as to any matter that the prosecution had to prove or disprove beyond reasonable doubt, it must acquit the appellant; that is, if it could not determine beyond reasonable doubt where the truth lay in relation to any matter, it must give the appellant the benefit of that doubt (ts 2414).
69 On a fair reading of her Honour's summing up as a whole, her Honour did not, on any reasonable view, convey to the jury 'an entirely objective view of the relevant intention', as asserted by counsel for the appellant.
70 The trial judge's directions would have conveyed to the jury that although inferential reasoning in relation to intention was relevant to their deliberations, it must acquit the appellant if it believed he was telling the truth or if it thought there was at least a reasonable possibility that he believed, at the material time, that the information in the census documents in respect of student numbers was true and correct.
71 The passage from the reasons of Burchett AUJ in Mathews must be read and understood against the background of the issues in that case.
72 In Mathews, the appellant was convicted of four counts of fraud, contrary to s 409(1)(c) of the WA Code. The crucial issue at trial was whether the appellant had an intent to defraud. The trial judge gave the jury a specific direction pursuant to s 24 of the WA Code. Her Honour told the jury that:
[T]he defence say that because he says he had an honest and reasonable [emphasis added] but mistaken belief as to a certain state of facts then he is not guilty or in other words you could not find him guilty but I will come to that later [21].
73 The Court of Criminal Appeal decided in Mathews that the trial judge's summing up would inevitably have left the jury with the impression that, unless the belief asserted by the appellant in that case was objectively reasonable, he was guilty.
74 Mathews is to be contrasted with the present case. As I have mentioned, the trial judge in the present case did not give the jury a specific direction pursuant to s 24 of the WA Code in relation to count 1 or a specific direction pursuant to s 9.1 of the Commonwealth Code in relation to count 2. Her Honour was concerned to avoid, and she did in fact avoid, creating confusion for the jury of the kind that arose at trial in Mathews. By focussing on the issue of reasonableness embodied in s 24 of the WA Code, the trial judge in Mathews in effect invited the jury to discard the sworn evidence of the appellant in that case in relation to his alleged honest belief. This did not occur in the present case.
75 In my opinion, the trial judge properly directed the jury in substance that, in determining the actual subjective intention of the appellant when he signed the census forms, the jury was entitled (indeed, required) to consider all the evidence (including the appellant's sworn evidence). All the evidence was relevant in determining whether he had an intent to defraud or act dishonestly, as the case may be, in relation to the State or Commonwealth authority.
76 The trial judge's careful and detailed summing up occurred over three days and occupied 111 pages of transcript (ts 2319 - 2429). Her Honour adequately instructed the jury as to how it should approach the evidence in determining whether the prosecution had proved that the appellant had the requisite subjective intention at the material time. It is of some significance that the appellant's senior and very experienced criminal defence counsel did not seek any additional directions or redirections from her Honour in relation to the issue raised by ground 4. See R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA).
78 I would grant leave to appeal on grounds 1 and 2. However, for the reasons I have given, the appeal against conviction should be dismissed.
79 The appellant's grounds of appeal against sentence originally comprised three grounds, as follows:
Ground 1
The learned trial Judge erred in the exercise of her sentencing discretion by imposing a sentence in respect of Count 2 that was in all of the circumstances manifestly excessive having regard to the range of sentences commonly imposed for offences of this kind and taking account of all factors which were relevant to the offending and to the appellant.
Ground 2
The learned trial Judge erred in the exercise of her sentencing discretion by failing to apply the one transaction principle and applying concurrent terms of imprisonment.
Ground 3
The learned trial Judge erred in the exercise of her sentencing discretion by infringing the totality principle, resulting in a total sentence that was manifestly excessive.
80 At the hearing of the appeal, counsel for the appellant explained that ground 3 invoked the second (but not the first) limb of the totality principle (appeal ts 25).
81 At the conclusion of the hearing of the appeal, and in response to prompting from the court, counsel for the appellant made a belated application to rely on an additional ground of appeal (ground 4), as follows:
The learned trial judge erred by imposing sentences, the combined effect of which was to create a non-parole period that was manifestly excessive or disproportionate to the total effective sentence.
Counsel for the respondent did not oppose the application.
82 On 1 April 2011, Mazza J granted leave to appeal on grounds 1 and 3 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.
83 Ground 1 challenges the sentence of 3 years' immediate imprisonment for count 2. Counsel for the appellant argued that the sentence was manifestly excessive. The individual sentence for count 1, being 18 months' immediate imprisonment, is not challenged.
84 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an inferred error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
85 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Ly v The Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [147] (Buss JA).
86 The maximum available penalty for the appellant's contravention of s 134.2(1) of the Commonwealth Code was imprisonment for 10 years.
87 The diverse range of sentences which have been imposed for offences against s 134.2(1) is apparent from Wheeler v The Queen [No 2] [2010] WASCA 105; Gok v The Queen [2010] WASCA 185; El Rakhawy v The Queen [2011] WASCA 209; R v Pipes [2004] NSWCCA 351; Ly; O'Meara v The Queen [2009] NSWCCA 90; R v Kertebani [2010] NSWCCA 221; McMahon v The Queen [2011] NSWCCA 147; R v Barton [2006] QCA 18; R v Minassian [2007] QCA 39; R v Lovel [2007] QCA 281; R v CAK [2009] QCA 23; R v Newton [2010] QCA 101; (2010) 199 A Crim R 288; R v Desborough [2010] QCA 297; Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176; Graziosi v Director of Public Prosecutions (Cth) [2011] VSCA 418; and Director of Public Prosecutions v Ka-Hung-Ip [2005] ACTCA 24. See also, in the context of the analogous offence under s 134.1(1) of the Commonwealth Code, Magdi v The State of Western Australia [2010] WASCA 234 and Magar v The State of Western Australia [2011] WASCA 122. The most comparable cases, for present purposes, are Magdi and Magar.
88 The information before the trial judge at the sentencing hearing included a pre-sentence report dated 19 November 2010, a report dated 27 November 2010 from Clinical Professor Paul Skerritt (a psychiatrist) and a report dated 27 November 2010 from Dr Robert Davies (a urologist).
89 The appellant was born in Afghanistan on 5 January 1959. He was aged 51 years when sentenced. He entered Australia to undertake university studies at the age of 18.
90 In 1985 he returned to Afghanistan to visit his family, who were residing in a refugee camp in Pakistan near the Afghanistan border. Soon afterwards, he entered Afghanistan and began teaching in a camp. Within three weeks of his arrival, Russian forces entered the camp and the appellant was taken into custody by them.
91 Subsequently, the Russian forces imprisoned the appellant in Jalalabad. He was interrogated and tortured over a period of four or five months. The torture included sleep deprivation, sensory deprivation and the withdrawal of food. He was also tortured by a variety of other methods. He was threatened with death. After this four or five-month period, the appellant escaped. He underwent some counselling sessions with representatives of the Red Cross organisation. Later, he returned to Australia.
92 Professor Skerritt expressed the view that the appellant has suffered from a 'diagnosable psychiatric disorder of a fluctuating degree'. This commenced with his imprisonment and torture in 1985. It then went into 'partial remission over the years', with recent exacerbations upon the death of his father and with his current imprisonment. Professor Skerritt said that the appellant 'urgently needs treatment'. He added that the appellant's distress in prison was far greater than would be expected by 'the average prisoner'. Professor Skerritt concluded:
His diagnoses are in the frequently coinciding depressive and anxiety disorders, the latter in the category of post traumatic stress disorder [PTSD]. The pathogenesis of these disorders includes a predisposition in the patient's DNA often illustrated by a family history. Stressful environmental circumstances interact with the DNA activating the genes with a cascade of chemistry to the processes of neurotransmission in the systems regulating mood and fear. The illnesses thus produced often run an intermittent course with the potential for further activation by stressful circumstances. In the case of PTSD circumstances resembling the original stress are particular precipitators. I believe that this is what's happening in [the appellant].
93 At the hearing of the appeal, this court received additional evidence, being a report dated 28 July 2011 from Dr Mark Hall (a consultant psychiatrist) in relation to the appellant's psychiatric condition.
[The appellant] experienced significant trauma during a period of imprisonment, interrogation and torture in Afghanistan in 1985. He subsequently readjusted to living in the community albeit with intermittent symptoms of an anxious and post-traumatic nature triggered by contact with uniformed police officers. However, since his recent imprisonment, symptoms of anxiety, panic attacks, the sense of vividly 're-experiencing' the past trauma and the associated distress, hyper-vigilance and avoidance of triggering situations, and pervasive depressive symptoms have been present continuously and are, according to [the appellant], worsening. After attending the prison counselling service in late 2010, he was referred to the prison psychiatrist who diagnosed post-traumatic stress disorder and commenced treatment. However, his response to treatment thus far has been poor.
95 Dr Hall made these comments about the treatment the appellant was receiving while in prison:
On 29 December 2010, [the appellant] was referred by the prison counselling service to the prison mental health service in relation to a possible diagnosis of post-traumatic stress disorder. [The appellant] was assessed by the treating psychiatrist at the prison on 11 January 2011 and diagnosed with post-traumatic stress disorder. He was prescribed fluoxetine, an antidepressant medication useful in anxiety disorder (including post-traumatic stress disorder), at a dose of 50mg. I understand that the dose was increased to 100mg shortly after my consultation with [the appellant]. To my knowledge, [the appellant] also receives counselling from the prison counselling service and his mental health nurse at Wooroloo Prison Farm.
96 The appellant reported to Dr Hall that his psychological symptoms had 'more or less completely resolved' in May 2011, when he was absent from prison while undergoing treatment at Sir Charles Gairdner Hospital for his kidney disorder. Dr Hall expressed the view that this resolution, together with his previous 'very good adjustment' while in the community, suggested that 'his prognosis is very good in the event of his release to the community, and that his condition is in that sense not permanent'. However, at the conclusion of his report, Dr Hall said that although psychiatric treatment is available in prison, 'the longer that [the appellant] remains in custody, the greater the likelihood that his symptoms will become ingrained and difficult to shift even once released'.
97 Dr Hall interviewed the appellant on one occasion, on 8 June 2011, at Wooroloo prison farm. It is of some significance that, as Dr Hall noted in his report, the appellant's prescribed dose of the antidepressant medication that is used in treating anxiety disorder (including post-traumatic stress disorder) was increased from 50 mg to 100 mg shortly after this interview. There is no evidence before the court as to the effect upon the appellant's symptoms of this increased dosage.
98 The report of Dr Davies referred to the appellant's 'long-standing history of left-sided kidney stones'. He required surgical treatment. At the hearing of the appeal, counsel for the appellant informed the court that this health problem had been resolved (appeal ts 3).
99 Counsel for the appellant argued that there were 'significant mitigating factors' in relation to the appellant and his offending, namely:
(a) The appellant did not have a prior criminal record and was otherwise of good character. He is well regarded by those who know him and he is unlikely to reoffend. He is a dedicated family man with seven children.
(b) At the time of sentencing, and when the appeal was heard, the appellant was suffering from the psychiatric condition referred to by Professor Skerritt and Dr Hall.
(c) When the appellant made the fraudulent claims in question, the school was experiencing financial difficulty. This was the motive for his offending. He did not gain personally.
(d) The offending was not part of a 'course of conduct consisting of a series of criminal acts', but was in essence 'the same transaction'. The offences were committed within a two-month period.
(e) The appellant's psychiatric condition will make imprisonment more arduous for him than is usual.
100 The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, as King CJ (Cox & O'Loughlin JJ agreeing) stressed in R v Smith (1987) 44 SASR 587, 589:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
See also Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539.
101 In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I made these points (McLure P & Mazza J agreeing):
First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].
102 In the present case, the appellant's offending was serious. He committed a significant fraud upon the revenue. This was achieved by planned and deliberate acts of dishonesty. The trial judge found that the appellant was the architect and principal of the scheme and he ensured, as best he could, that it came to fruition. The amount defrauded was substantial. Offences of the kind he committed are not easy to detect. The system of per capita funding for schools relies on the integrity of school administrators. General deterrence was a significant sentencing factor.
103 The formal admissions made by the appellant at trial reduced the length of the trial. Although he was, of course, entitled to plead not guilty and proceed to trial, the appellant did not have the benefit of the mitigation that pleas of guilty would have brought. Also, at the trial he sought to avoid responsibility by blaming others (notably, Ms Abdullah).
104 In my opinion, the individual sentence imposed by the trial judge on count 2 is not plainly unreasonable or unjust when it is examined from the perspective of the maximum available penalty, the customary standards of sentencing, the objective seriousness of the offending and the appellant's personal circumstances. The sentence of 3 years' immediate imprisonment reflected, appropriately, the need for proper punishment and general deterrence, and gave adequate recognition to the various mitigatory factors including the absence of a prior criminal record and the greater custodial burden occasioned by the appellant's psychiatric condition. I am unable, on the basis of the sentencing outcome, to infer the existence of error.
106 It is convenient to consider grounds 2 and 3 together.
107 In Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319, Owen JA examined in detail the nature of the 'one transaction principle'. The object of this principle is to avoid the danger that an offender may be punished twice for what is, in essence, the same criminality represented by related offences. See also Brennan v The State of Western Australia [2010] WASCA 19; McLean v The State of Western Australia [2011] WASCA 60.
108 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. This principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The second limb of the totality principle requires that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.
109 The observations I have made, in the course of considering ground 1, in relation to the individual sentence imposed by the trial judge on count 2 also apply generally to the individual sentence imposed on count 1.
110 Counts 1 and 2 were separate and distinct offences. Each offence involved the commission of a serious fraud. Count 1 related to the State authority and count 2 to the Commonwealth authority. Some accumulation of the individual sentences was necessary. The sentencing discretion did not miscarry as a result of her Honour ordering, to the extent she did, partial accumulation of the head sentence for each offence.
111 The total effective head sentence of 3 years 6 months' imprisonment was appropriate in all the circumstances including those referable to the appellant personally. It was not disproportionate to his overall offending, and it cannot reasonably be said that he has been left without any reasonable prospect of useful life after his release. The sentence was not 'crushing' in the relevant sense. No basis exists for inferring error.
Appeal against sentence: ground 4: non-parole periods: State offences
113 Section 89 of the Sentencing Act confers on a court that is sentencing an offender to a fixed term of imprisonment, power to order that the offender be eligible for parole.
114 The combined effect of s 89(1) and s 89(4) is that the court is required to make a parole eligibility order if none or one of the four factors identified in s 89(4) are present. If two or more of those factors are present, the court is required, without any predisposition or bias, to take all relevant factors into account, including those identified in s 89(4), in deciding whether to make a parole eligibility order. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [48], [50].
115 By s 93(1) of the Sentencing Act, subject to s 94 (which is concerned with the aggregation of parole terms for certain purposes), a prisoner serving a parole term is eligible to be released on parole:
(a) if the term served is 4 years or less - when he or she has served one-half of the term; or
(b) if the term served is more than 4 years - when he or she has served 2 years less than the term.
Appeal against sentence: ground 4: pre-release periods under recognisance release orders: federal offences
116 Section 19AB(1) of the Crimes Act 1914 (Cth) provides, relevantly, that subject to s 19AB(3), where a person is convicted of a 'federal offence', and a court imposes on the person a 'federal sentence' of imprisonment that exceeds 3 years, and at the time the sentence is imposed, the person is not already serving or subject to a 'federal sentence', the court must, relevantly, fix a non-parole period in respect of that sentence. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period. The term 'federal offence' means an offence against the law of the Commonwealth and the term 'federal sentence' means a sentence imposed for a federal offence. See s 16(1).
117 Section 19AC(1) provides, relevantly, that subject to s 19AC(3) and s 19AC(4), where a person is convicted of a 'federal offence', and a court imposes on the person a 'federal sentence' of imprisonment that does not exceed 3 years, and at the time the sentence is imposed, the person is not already serving or subject to a federal sentence, the court must make a recognisance release order in respect of that sentence and must not fix a non-parole period.
118 Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic [1973] VicRp 63; [1973] VR 636, 641; R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12].
119 The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
120 The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy (531).
121 The considerations which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531).
122 In Bick v The Queen [2006] NSWCCA 408, Price J (Hodgson JA & Howie J agreeing) summarised the main factors which are relevant to the determination, in any case, of the appropriate ratio between the non-parole period and the head sentence. His Honour said:
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see Bernier (1998) 102 A Crim R 44) (at 49) and Sweet [2001] NSWCCA 445; 125 A Crim R 341 [at 346]), the seriousness of the offence and the prospects of rehabilitation (see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz unreported, Court of Criminal Appeal, NSW 23 November 1993) [15].
123 The principles applicable to the fixing of the length of a non-parole period for a federal offence are set out in my reasons in Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 [54] - [60] (McLure & Miller JJA agreeing). Bertilone was concerned with a federal drug importation offence. The relevant principles are these:
(a) Section 19AB(1) of the Crimes Act confers on a sentencing judge a discretion to determine the appropriate non-parole period.
(b) Neither s 19AB(1) nor any other statutory provision requires the non-parole period to bear any particular relationship to the head sentence.
(c) A review of the case law reveals that, in general, the non-parole periods for federal drug importation and related drug offences have usually been about 60% to 66 2/3% of the head sentences.
(d) The relationship between non-parole periods and head sentences which have customarily been imposed is, at most, a general guide, and must not control or fetter the proper exercise of a sentencing judge's discretion.
(e) Sentencing judges must determine the appropriate non-parole period in each case by applying the established legal principles set out at [120] - [122] above to the facts of the particular offence and the circumstances of the particular offender. The process is not rigid or mathematical. Care must be taken to ensure that the non-parole period arrived at in a particular case is the minimum period of imprisonment that justice requires the offender to serve.
(f) Sentencing judges must not determine the non-parole period in any case by applying automatically any general guide. The ratio in a particular case may be within the general guide or may be higher or lower, as the facts and circumstances in question require.
124 As Keane and Fraser JJA and Atkinson J noted in R v Ruha; Ex parte Commonwealth Director of Public Prosecutions [2010] QCA 10; (2010) 198 A Crim R 430, the principles governing the fixing of the length of a non-parole period are generally applicable to the fixing of the length of a pre-release period under a recognisance release order [46]. Their Honours reviewed the head sentences and minimum custodial terms imposed on offenders for offences under or comparable to s 134.2(1) of the Commonwealth Code, including offences against s 29D of the Crimes Act (repealed). Section 29D provided that a person who defrauded the Commonwealth or a public authority under the Commonwealth was guilty of an indictable offence and liable to a penalty of 1,000 penalty units or imprisonment for 10 years, or both. The provision was repealed by Act No 137 of 2000. Keane and Fraser JJA and Atkinson J concluded from their review of the decisions that there was considerable variety in the proportion which the pre-release periods bore to the head sentences.
Appeal against sentence: ground 4: commencement of federal offences and sentencing for a State offence and a federal offence
125 Section 16E of the Crimes Act makes provision with respect to the commencement of sentences for federal offences.
126 By s 16E(1), relevantly, subject to s 16E(2) and s 16E(3), the law of a State relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State for a federal offence in the same way as it applies to a person who is sentenced in that State for a State offence. Section 16E(2) provides, relevantly, that where the law of a State has the effect that a sentence imposed on a person for an offence against the law of that State may be reduced by the period that the person has been in custody for the offence, the law applies in the same way to a federal sentence imposed on a person in that State. Section 16E(3) is not relevant. See, in relation to the commencement of sentences under the law of Western Australia, s 6 of the Sentence Administration Act 2003 (WA). See also, in relation to taking time on remand into account under the law of Western Australian, s 87 of the Sentencing Act.
127 Section 19 of the Crimes Act is headed, 'Cumulative, partly cumulative or concurrent sentences'.
128 Section 19(3) and s 19(4) provide:
(a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d) if a non-parole period applies in respect of any State or Territory sentences - the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
(4) For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence.
Appeal against sentence: ground 4: its merits
129 The head sentence imposed by the trial judge for the State offence, count 1, was 18 months' immediate imprisonment. As a result of the parole eligibility order, the appellant was eligible to be considered for release on parole after serving one-half or 9 months of that sentence.
130 The head sentence imposed by her Honour for the federal offence, count 2, was 3 years' immediate imprisonment. As a result of the recognisance release order, the appellant was to be released upon serving two-thirds or 2 years of that sentence.
131 The trial judge partly accumulated the head sentences by ordering that the sentence for count 1 (that is, the 18-month term for the State offence) commence upon the appellant completing the pre-release period of 2 years for count 2 (that is, the federal offence).
132 The effect of her Honour's orders in relation to partial accumulation is that:
(a) the total effective head sentence is 3 years 6 months (being 6 months greater than the head sentence for count 2);
(b) the total effective pre-release or non-parole period is 2 years 9 months (being 9 months greater than the pre-release period for count 2); and
(c) the total effective pre-release or non-parole period of 2 years 9 months is about 79% of the total effective head sentence of 3 years 6 months.
133 As I have mentioned, the considerations that must be taken into account when fixing a total effective pre-release or non-parole period are the same as those applicable to the setting of the total effective head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ as a result of the different purposes underlying each function.
134 No statutory provision requires that a total effective pre-release or non-parole period bear any particular proportion to the total effective head sentence. However, the comparable cases reviewed by the Court of Appeal of Queensland in Ruha indicate that the total effective pre-release or non-parole period imposed in the present case was severe. The trial judge did not give any explanation in her sentencing remarks for fixing a total effective pre-release or non-parole period of about 79% of the total effective head sentence. In my respectful opinion, when all relevant sentencing considerations applicable to the fixing of a total effective pre-release or non-parole period are evaluated in the context of the facts and circumstances of the present case, it is apparent that the period of 2 years 9 months materially exceeded the minimum period of imprisonment that justice requires the appellant to serve. It should be inferred that her Honour's exercise of discretion miscarried. The length of the total effective pre-release or non-parole period was manifestly excessive.
Appeal against sentence: conclusion and resentencing
136 Leave to appeal should be granted on ground 4 but refused on ground 2.
137 I would allow the appeal against sentence on the basis of ground 4 and set aside the trial judge's sentencing decision. This court has the materials necessary to resentence the appellant.
138 I would impose sentences in relation to the individual counts, as follows:
Count 1: 18 months' immediate imprisonment, with eligibility for parole; and
Count 2: 3 years' immediate imprisonment, with a recognisance release order in the sum of $5,000 after serving 1 year 9 months.
139 I have reduced the pre-release period on count 2 (the Commonwealth offence) for the purpose of achieving a just outcome in relation to the total effective pre-release or non-parole period. The length of the non-parole period for count 1 (the State offence) is fixed by statute and cannot be varied in the exercise of the sentencing discretion.
140 The sentence for count 1 should be taken to have commenced on 28 October 2010, being the date on which the appellant was taken into custody for these offences. The sentence for count 2 should be taken to have commenced upon the appellant having completed 6 months of the sentence for count 1. As to the backdating, see s 41(3)(c) of the Criminal Appeals Act 2004 (WA) and s 16E of the Crimes Act.
141 Accordingly, the total effective head sentence is 3 years 6 months' imprisonment, and the total effective pre-release or non-parole period is 2 years 3 months.
(2006) 202 FLR 468
(1984) 58 ALJR 367
(2001) 24 WAR 438
(2008) 36 WAR 393
(1998) 192 CLR 493
(1974) 131 CLR 623
(2010) 243 FLR 120
(2008) 22 NTLR 125
(1987) 44 SASR 587
(1961) 108 CLR 56
(2009) 231 FLR 383
(1990) 169 CLR 525
(1989) 167 CLR 372
(2009) 103 SASR 309
(2006) 201 FLR 119