Court of Appeal (WA)|2008-03-19|Before: Pullin JA, Lure JA, Buss JA

SKIPWORTH -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 64 (19 March 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SKIPWORTH -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 64

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Multiple charges of fraud and forgery - Whether sentence of 2 years 8 months manifestly excessive - Whether sentence should have been suspended

1 McLURE JA: The facts and grounds of appeal are set out in the judgment of Pullin JA. In summary, the appellant was convicted on his own fast-track plea of guilty of three counts of fraud, one count of forgery and one count of uttering the forged instrument the subject of count 3. The offences took place in the period July 2004 to June 2005. All of the offences occurred in order to provide financial support for the appellant's business which provided painting and plaster goods and services to the building industry. The financial viability of his business was jeopardised by delays in a building project caused by the failure of another subcontractor and his business's failure to properly cost the goods and services to be supplied for that project.

2 The appellant obtained loans of $120,000 by fraudulent means. Two of the loans were from commercial lending outlets and one was from a client of the appellant's business. The forging and uttering offences related to the sale of the matrimonial home to a relative of a trade creditor pressing for payment. It was a term of the sale agreement that it would not proceed if the appellant could refinance that property. The appellant expected to repay the loans and other debts from income generated by his business. However, the business failed and no repayments were made.

3 In addition to the financial pressure associated with his business, the appellant was under pressure in his marriage. He and his wife of 18 years separated shortly before or during the period of his offending.

4 After his last offence, the appellant was interviewed by police in relation to the sale of the matrimonial home settlement of which did not proceed. However, the police did not at that stage take any action against the appellant. Thereafter he left for Sydney in November 2005 and returned to Perth in November 2006. In December 2006 the appellant voluntarily went to police and 'unburdened himself' in relation to his conduct the subject of the convictions.

5 The appellant obtained employment on his return to Perth. His former wife describes his conduct as being out of character. Notwithstanding the turmoil in his life he continued to maintain a relationship with, and support, the children of his marriage. The sentencing judge found that the appellant was genuinely remorseful for his conduct and unlikely to re-offend.

6 The appellant was aged 39 at the time he committed the offences. He had one prior conviction for a minor offence committed during the same period.

7 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It is entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasons or error can be inferred because the sentence is manifestly excessive or manifestly inadequate: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

8 The legal principles relevant to the sentencing options of suspended imprisonment and conditional suspended imprisonment under s 39(2) of the Sentencing Act 1995 (WA) are set out in Dinsdale. I refer to them in detail in Collins v The State of Western Australia [2007] WASCA 108 [12] - [18]. I do not propose to repeat all the principles here. It is sufficient for present purposes to note that the court cannot impose a sentence of immediate imprisonment unless satisfied that it is not appropriate to use the option of suspended imprisonment (conditional or otherwise) or other lesser sentence. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: Dinsdale [85].

9 A claim that a sentence is manifestly excessive or manifestly inadequate depends on an implied error apparent solely from the sentence being unreasonable or plainly unjust in all the relevant circumstances. The appellant's original ground of appeal was vague and unfocussed. It did not identify any express error of law (or fact) that would enliven this court's jurisdiction to set aside the sentence. Nor did the original ground expressly raise an issue of manifest excess. If the appeal was to have any prospect of success, the appellant had to obtain leave to amend his ground of appeal. He did so, claiming that the sentence was manifestly excessive on the ground that the sentencing judge should have suspended the term of imprisonment.

10 In determining whether a sentence is manifestly excessive, the court has regard to, inter alia, the standards of sentencing customarily imposed for offences of the type in question.

11 A term of immediate imprisonment is generally the only appropriate penalty for some types of offence. That is so for serious drug offences such as manufacturing or trafficking dangerous drugs and for the offence of stealing as a servant, which involves the abuse of a position of trust: Collins [17] - [18]. Even if an offence falls within this category, a sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors, it is appropriate to

suspend the term of imprisonment or to impose another lesser sentence: Collins [21].

12 The offences of which the appellant has been convicted are not as serious as the offence of stealing as a servant. The maximum penalty for stealing as a servant is 10 years. The maximum penalty for the offences committed by the appellant is 7 years which is the same as the maximum penalty for stealing simpliciter. Unlike the offence of stealing as a servant, there is no generally appropriate type of sentence for fraud or stealing. The circumstances and seriousness of these offences can differ widely.

13 By comparison with other cases, the number of offences committed by the appellant and the amounts in issue are towards the lower end of the scale or seriousness. Further, all matters personal to the appellant are strongly in his favour. He made a fast-track plea of guilty, he was found by the sentencing judge to be genuinely remorseful, his conduct was out of character (he being under immense financial and personal pressure at the time of offending), there is little if any risk of him re-offending, he had no relevant record of offending outside the period in question and, most significantly, he cooperated with police by confessing his conduct. The voluntary disclosure of offences which may remain undetected but for the offender's cooperation can be a weighty mitigating factor: Ryan v The Queen (2001) 206 CLR 267, 312. These are significant mitigating factors which in this case moderate the weight to be given to general deterrence.

14 Having regard to all relevant sentencing factors, I am satisfied that the sentencing judge erred in concluding that a sentence of immediate imprisonment was the only appropriate sentencing option. I would allow the appeal, set aside the order that the terms of imprisonment be served immediately and in lieu thereof order that the total sentence of 2 years and 8 months be suspended for a period of 12 months from the date of these orders.

15 PULLIN JA: This is an appeal against a sentence imposed by Bowden DCJ in the District Court. The appellant was convicted on 4 September 2007, after pleading guilty to the following charges:

(1) On 20 July 2004 at Highgate Jeffrey Donald Skipworth, with intent to defraud, by deceit or fraudulent means obtained a loan in the amount of $10,000.00 from Chequecash Pty Ltd trading as Financial Express Highgate [contrary to the Criminal Code s 409(1)].

(2) On 5 August 2004 at Perth Jeffrey Donald Skipworth, with intent to defraud, by deceit or fraudulent means obtained a loan in the amount of $50,000.00 from Harry Robinson [contrary to the Criminal Code s 409(1)].

(3) On 6 April 2005 at Perth Jeffrey Donald Skipworth, with intent to defraud, by deceit or fraudulent means obtained a loan in the amount of $60,000.00 from Unique Loans Pty Ltd trading as Unique Loans [contrary to the Criminal Code s 409(1)].

(4) On 10 June 2005 at O'Connor Jeffrey Donald Skipworth, with intent to defraud forged a record namely a contract for sale of land by offer and acceptance [contrary to the Criminal Code s 473(1)].

(5) On 10 June 2005 at O'Connor Jeffrey Donald Skipworth, with intent to defraud, uttered a forged record namely a contract for sale of land by offer and acceptance [contrary to the Criminal Code s 473(1)].

16 His Honour imposed a sentence of 8 months' imprisonment on count 1, 16 months on count 2, 16 months on count 3, 8 months on count 4 and 8 months on count 5. His Honour ordered that the sentences on counts 1 and 2 should be served concurrently, resulting in a total of 16 months' imprisonment, that the sentence on count 3 should be cumulative, resulting in a sentence of 2 years 8 months and that the sentences on counts 4 and 5 should be wholly concurrent. The appellant was made eligible for parole.

17 The offences of which the appellant was convicted occurred over a period beginning in July 2004 and ending in June 2005. The appellant was trained as a painter. In 2004, he was the sole director of two companies that conducted business in the building industry. These businesses were successful in obtaining a large contract in relation to a building site in Mandurah. As a result of this contract the company suffered financial problems.

18 In relation to count 1, on 22 July 2004, the appellant attended at Financial Express, Highgate. He applied for, and was granted, a loan of $10,000 in the names of himself and his wife. This loan was to pay wages to the company's employees. He did not have his wife's authority to apply in her name and copied her signature from another document.

19 In relation to count 2, on 5 August 2004, the appellant applied for and was granted, a loan of $50,000, again in the names of himself and his wife. This was to meet the debts of his companies. He provided the family home in Park Lane, Kardinya, as security for the loan. He did not have his wife's authority to make the application in her name. He forged her signature on the loan application. His wife was unaware that the family home had been provided as security.

20 In relation to count 3, on 6 April 2005 the appellant applied for, and was granted, a loan of $60,000. This was also to meet company debts. The loan agreement purported to be signed by the appellant's father-in-law as a witness; however, the appellant signed the witness' name himself. The appellant provided a property of his in Bateman as security for this loan. His property was owned solely in his name but was burdened by four caveats. The appellant produced false documents which gave the impression that these caveats had been removed.

21 In relation to count 4, the appellant and his wife were then separated. They still jointly owned the family home in Kardinya. On 10 June 2005 the appellant entered into a contract to sell the Kardinya property to Jessie Watson for $250,000. The appellant signed a document accepting Watson's offer. He also signed the document on behalf of his wife without her knowledge or authority.

22 In relation to count 5, the appellant retained Mint Settlements to act on his behalf for the sale of the property. He presented the contract containing the forged signature to Mint Settlements and the purchaser's settlement agent. Mint Settlements and the settlement agent for the purchaser commenced steps to finalise the settlement.

23 The appellant's wife discovered what had occurred and contacted police. The contract to sell the home was subsequently cancelled. On 18 December 2006 the appellant attended at the office of the major fraud squad at the request of the police. The appellant was interviewed and made admissions about the offences.

24 After referring to the facts the sentencing judge then looked at matters personal to the offender and which were in mitigation of the offence. His Honour said:

You are 42 years of age. I have been provided with the reference from your mother and your father who are very supportive of you. You are married for 18 years, you have two children being 14 years of age and seven, almost going on eight. Your marriage ended about the time of the commission of the offence as a result, no doubt, of financial pressure that have resulted and your wife's commencement of a relationship. Fortunately for both you and your self [sic], according to the reference, you and your ex-wife remain friendly. You provide child support to your ex-wife and to your credit, you've got a good relationship with her.

Your former wife has provided good support to you and she has described these actions as out of character. It is greatly to your credit that notwithstanding the trauma of the matrimonial breakdown, you have maintained a harmonious relationship with your children and continue to provide support for them. This is significant because far too often when marriages break down, the parents become bitter and this of course has a traumatic effect on the children which we later see as far as the children committing offences are concerned.

You have had a good education. You left school at the end of year 10. You obtained an apprenticeship and you had a very good work history and indeed are currently employed. I have been told by Mr Crispe that regrettably your company attended for a contract down in Mandurah and you were successful in obtaining that contract and lost approximately $300,000. I do find that it was because you were financially overextended that you indulged in this type of behaviour. I have no doubt, as I have said, that you were financially overextended and I have no doubt that your conduct was primarily to support your business.

I have been provided with the pre-sentence reports. I do find that you are remorseful and I do find that you accept responsibility. You have pleaded guilty at an early opportunity and, as Mr Crispe has no doubt advised you, that does entitle you to a discount on the sentence. It's treated as an act of remorse facilitating the administration of criminal justice and I do accept that you are genuinely remorseful for what's taken place.

I have also seen the psychological report. It describes you as having some forms of paranoia, a dependent and avoidant personality. You are somewhat withdrawn into your own reality. You put on a brave face to cover up issues of your own self-doubt and insecurity and you have a tendency to engage in the process of change given that your apparent tendency to present yourself positively. When one considers what's happened during the period of time, that is that your business has gone sour; that your marriage at the same period of time was disintegrating, then it's quite clear that you were very traumatised by what was taking place.

As I have found there's no doubt that you were carrying out these acts to support the business which in fact was failing. The reports also indicate that you attempt to avoid reality. You have a drive for recognition and you strive for the approval of others. You couldn't accept that your marriage was failing or indeed your business was failing and consequently were involved in these offences.

25 The sentencing judge stated that in sentencing the appellant:

I have to take into account your personal features but I also have to take into account the need to punish you, to protect the public, to deter others from criminal conduct such as this and to specifically deter you from such conduct and to aid in your rehabilitation.

...

I have to consider the aggravating features and the mitigating features. I can only send you to gaol if it's a penalty of last resort and I can only impose a period of imprisonment if the seriousness of the offence justifies imprisonment as the only penalty or the protection of the public demands it.

26 The sentencing judge then made reference to a number of factors, including:

(2) The conduct involved three separate, planned occasions of fraud and then an attempt to sell the matrimonial home without his wife's knowledge;

(4) That a large amount of money was involved, namely $120,000, and

(5) The extended period of the conduct (11 months).

After making reference to these factors, the learned judge states that 'it is my opinion that a period of imprisonment is the only appropriate disposition.'

27 The sentencing judge then considered whether a suspended sentence would be appropriate. He made the following remarks:

I have considered the question of a suspended sentence. In my opinion that would be wholly inappropriate for this sort of conduct. I do intend to impose a period of imprisonment to be served immediately. I do take into account that you have pleaded guilty at the first available opportunity, that you have cooperated fully with the police investigating and also in my opinion there's little likelihood of you reoffending but as I have remarked, the need for general deterrence for this conduct which involved the deliberate manipulation of credit providers to obtain funds ... It involved three separate entities as far as the fraud is concerned and it did involve a significant amount of money.

28 Until the day before the hearing of this appeal, there was only one ground of appeal. It read:

(1) The sentencing judge erred in failing to take proper account of matters relevant to the circumstances of the offence and the offender when determining not to impose a term of suspended imprisonment:

Particulars

His Honour determined prison was appropriate;
His Honour then referred to some mitigatory factors;

His Honour states a sentence could not be suspended 'for this sort of conduct';

His Honour then further referred to some mitigatory factors;
His Honour did not take proper account of all relevant mitigatory factors before determining not to suspend the sentence.

29 On the day before the hearing of the appeal, notice of a proposed new ground was sent to the court. On the hearing of the appeal, leave was sought to substitute a new ground for the existing ground. Counsel for the appellant did not say that he abandoned the existing ground if leave were not granted. I will therefore deal with the existing ground and then consider the application for leave to amend.

30 What was apparent from the existing ground of appeal is that there is no challenge to the sentence of imprisonment ordered with respect to each count. Nor is there any complaint about his Honour's application of the totality principle which produced, via the orders for concurrency and the order that count 3 be cumulative, a total sentence of imprisonment of 2 years 8 months. The only complaint is about the judge's decision not to suspend the terms of imprisonment and the ground as amplified by written submissions complains that the sentencing judge did not follow the process described in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; that is that the sentencing judge having determined that imprisonment was the appropriate sentence, did not revisit the considerations relevant to that decision when deciding not to suspend the sentence of imprisonment.

Principles in relation to sentencing appeals generally

31 An appellate court is not entitled to intervene merely because it would have exercised a sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. Error in the exercise of the sentencing judge's discretion may be demonstrated as explained in House v The King [1936] HCA 40; (1936) 55 CLR 499. An appellate court is entitled to intervene if a material error of fact or law is discerned, or if error can be inferred. However, even if a sentencing judge has made an error, this court may only allow an appeal against sentence if in its opinion, a different sentence should have been imposed: s 31(4) Criminal Appeals Act 2004 (WA).

32 This was a case where there were sentencing options available other than immediate imprisonment. In those circumstances, and immediate imprisonment having been ordered, the sentencing judge's reasons must reveal the process of reasoning which produced that outcome to the extent necessary to enable an appeal court to determine whether or not the judgment is erroneous: Hull v The State of Western Australia [2005] WASCA 194 [31].

33 This court must therefore consider two points in relation to the existing ground. The first is whether or not his Honour took account of all of the mitigatory factors when deciding not to suspend the sentence. The second is whether, if some error is shown, a different sentence should be imposed. The second point will be considered when considering the application to substitute a new ground of appeal.

Did the sentencing judge fail to take into account all the points in mitigation when deciding not to suspend the sentence?

34 It is clear law that when deciding whether to suspend a term of imprisonment, the considerations which were relevant to the imposition of a term of imprisonment must be revisited: Dinsdale v The Queen [85]; Duong v The State of Western Australia [2006] WASCA 110 [31] - [35].

35 The appellant's ground of appeal, as amplified in submissions, is that the sentencing judge did not mention again all of the mitigatory details he had spelled out earlier in his remarks and which are set out above. In my opinion the ground has not been made out. The sentencing judge considered the issue about whether the sentence of imprisonment should be suspended and said enough to make it plain that he was considering again the points of mitigation which were relevant to the decision to impose a sentence of imprisonment. It was not necessary for the sentencing judge to repeat in the same detail all of the mitigatory points he referred to earlier in his remarks. His Honour's summary identified the most important mitigatory points such as the early plea of guilty and cooperation with the police. By observing that there was little likelihood of reoffending, the sentencing judge was in effect referring to all of the other points in mitigation which he had mentioned. For example, the fact that the offences were committed in an endeavour to save the business and at a time when his marriage was disintegrating show that the particular circumstances created a one-off pressure to commit the offences. His Honour's assessment was that the offences were out of character and so all of these points were reflected in the remark that there was little likelihood of reoffending.

36 The original ground of appeal should be dismissed.

The application to amend the ground of appeal

37 The Court of Appeal Rules have been drafted to provide for a regime which in most cases will result in appeal books being made available well before the hearing date so that the members of the court may read the relevant primary materials, consider the submissions and examine any authorities relevant to the case before the hearing commences. This makes for a more concentrated and useful interchange between the members of the court and counsel when the oral hearing takes place. There may be occasions where there is good reason for a late amendment to the grounds of appeal, and if the justice of the case requires it, the amendment will be allowed. However, any application for late amendment should be accompanied by an explanation for the late amendment. In this case, on the eve of the hearing, without any explanation, counsel who had been involved in the settling of the original appellant's case, sent to the court a proposed amended ground of appeal which read:

The sentencing Judge's discretion miscarried when he determined to impose a term of immediate imprisonment, which sentence was manifestly excessive in all the circumstances, given;

the Appellant's antecedents;
the Appellant's disclosure of unknown guilt;

38 A research associate of the court immediately sent a facsimile to the appellant with a copy to the respondent, noting that the appellant proposed to seek leave to amend the ground of appeal and pointing out that it would be necessary for the court to be informed of the authorities which showed the range of sentences for this type of offence, so the appellant could support its contention that the sentence was manifestly outside that range.

39 Later on the eve of the hearing, the court received a facsimile from the counsel containing amended written submissions. Under the heading 'Comparative cases' there was a reference to just two cases, one being Godden v The Queen [2003] WASCA 150 and the other being Grzelka v The State of Western Australia [2006] WASCA 74. Godden was a case involving sentences imposed after trial and conviction of an accused on a charge of aggravated burglary, two of fraud and one of receiving stolen property. The appellant was sentenced to 4 years' imprisonment (equivalent to 2 years 8 months under the transitional provisions) and leave to appeal against that sentence was refused. In Grzelka the case involved two counts of stealing, one of fraud to gain a benefit and one of attempted fraud. The offender was 34 years old at the time of sentence. He had staged a mock burglary of goods he held, some of which were owned by a credit company. A sentence of 20 months' imprisonment was imposed in relation to two charges of fraud. He was sentenced to an aggregate of 20 months' imprisonment in relation to these charges. Those sentences were not altered on appeal.

40 Counsel for the appellant in oral submissions said that the two cases were 'bookend' cases and then asserted that the sentence of immediate imprisonment as opposed to a suspended term of imprisonment, was manifestly excessive. It may be observed that neither case supported the appellant's submission that a sentence of immediate imprisonment rather than suspended imprisonment was manifestly excessive.

41 In the time available, counsel for the respondent had not had time to carry out research to provide a range of sentences imposed in other cases. The appellant asked for, and was granted, leave to file supplementary submissions identifying other relevant cases. For my part, I would not have granted leave to do so, but I was in a minority on that point and leave was granted to the appellant (and thence to the respondent) to provide further submissions to refer to cases bearing upon the question of whether the sentence was manifestly excessive. The reason why I would have refused leave is that no explanation had been given for the late application to amend and there was no prima facie indication that the decision fell outside the range of sentences customarily imposed.

Principles governing a contention that a sentence is manifestly excessive

42 In House v The King (which was referred to by the High Court with approval in Lowndes v The Queen [15]), Dixon, Evatt and McTiernan JJ said in relation to challenges to discretionary judgments that:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (505).

43 If the sentence imposed in a particular case is perceived by the court to be unreasonable or plainly unjust, from which the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the sentencing judge, then the sentence will be manifestly excessive, or in some cases, manifestly inadequate. In Chan (1989) 38 A Crim R 337, Malcolm CJ said:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).

44 This statement of the law has been approved on many occasions by this court. The cases are too numerous to mention but to refer to two recent cases, see The State of Western Australia v Collier [2007] WASCA 250 [19] and Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 [12]. See also Vagh v The State of Western Australia [2007] WASCA 17 [47].

45 The maximum sentence with respect to each of the charges of which the appellant was convicted, was 7 years' imprisonment, although by reason of the transitional sentencing provisions, the highest sentence which could be imposed in practice was two-thirds of the statutory maximum. The personal circumstances of the offender were favourable in this case. It was unlikely that he would offend again. He had good references, no record, pleaded guilty at the earliest opportunity and had admitted the commission of the crimes as soon as he was interviewed by the police. There was some suggestion that he may have admitted at least one of the offences even before he was asked to attend at the police station to be interviewed about the charges, but the information on that point is too vague to be able to draw any conclusion to that effect.

46 On the other hand, the circumstances of the crimes were very serious. They were committed with deliberation over 11 months. They involved the forging of his wife's signature which put at risk his wife's property. The amount involved was substantial and the victims defrauded lost their money. Having mentioned all those factors, both favourable to and unfavourable to the appellant, what remained was for the appellant to demonstrate that the sentences lay outside the range of sentences customarily observed with respect to crimes of this type in the circumstances similar to those which prevailed in this case.

The cases referred to by the parties in the written submissions

47 I now turn to the cases referred to by the parties in written submissions filed after the conclusion of the hearing. The cases all involved fraud, attempted fraud or forging and uttering. In some of the cases, there were other related charges. The cases referred to were Haman v The Queen [2000] WASCA 369; Lenton v The Queen [2001] WASCA 392; Grubb v The Queen [2002] WASCA 158; Turner v The Queen [2002] WASCA 189; Davis v The Queen [2002] WASCA 298; Godden v The Queen [2003] WASCA 150; Jones v The Queen [2003] WASCA 155; Deville v The State of Western Australia [2004] WASCA 264; Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176; Hunter v The State of Western Australia [2005] WASCA 110; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Grzelka v The Queen, Ramanah v The Queen [2006] WASCA 112; Barrett v The State of Western Australia [2007] WASCA 21; Norton v The State of Western Australia [2007] WASCA 75. Some of these cases were pre-transitional offences and some were post-transitional. Sentences imposed under State legislation and referred to below have been converted to post-transitional sentences.

48 Deville and Hunter have little relevance because of the unusual circumstances. In Deville the 23 fraud offences involving approximately $102,000 had been committed about five years before the offender was indicted. The offender had no previous convictions. Of particular relevance was that the offender had undertaken significant rehabilitation before sentencing, he had established himself in business and he undertook to repay the money. Suspended sentences were ordered because of these unusual circumstances. This is the only case out of those referred to where a suspended sentence was imposed. In Hunter, 10 fraud

offences were committed concerning $169,000. The appellant had spent 18 months in a South Australian gaol and he was then sentenced in this State to 7 months' imprisonment, but this lenient sentence took into account parity issues and the fact that the appellant had been in prison in South Australia.

49 Two other cases, namely Ramanah and Thompson, should also be treated as having little relevance because the sentences of 9 years and 6 years 6 months' imprisonment for fraud offences were convictions under Commonwealth legislation. The penalty provisions in those cases were different from the penalty provisions here and the transitional sentencing provisions which apply here do not apply under Commonwealth legislation.

50 As to the remaining group of cases, the sentences vary considerably because of the many different circumstances, including the amounts involved and the effect on victims. This group of cases reveal a range of aggregate sentences of immediate imprisonment of between 6 years 8 months (in Grubb which involved 33 offences and $5.2 million), to 1 year 4 months (in Davis which involved 12 offences and $191,000). In none of this group of cases was a suspended sentence ordered. None of these cases support the appellant's proposed ground which contends that a term of immediate imprisonment was manifestly excessive because the term of imprisonment was not suspended. I would therefore refuse leave to appeal on the proposed ground. The appeal should be dismissed.

51 BUSS JA: The background facts, the counts in the indictment, the sentences imposed by the learned sentencing judge, the original ground of appeal and the proposed amended ground of appeal are set out in the reasons of Pullin JA. The material facts are also summarised in the reasons of McLure JA.

The relevant principles of appellate review

52 An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the sentencing judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge. The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is

consonant with consistency of approach and as accords with the applicable statutory regime. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

53 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].

54 In Vagh v The State of Western Australia [2007] WASCA 17, Roberts Smith JA said:

Whether or not a sentence is manifestly excessive can only be gauged by seeing how the sentence falls with the established range of sentences for offences of the kind, taking into account all factors which are relevant to the offending and to the offender in the particular case. A claim that a sentence is manifestly excessive (or inadequate) is a claim of implicit (that is otherwise unidentifiable) error. It would ordinarily (if not always) be impossible to demonstrate that inadequate (or undue) weight was given to a particular factor, in the exercise of a sentencing discretion, in the absence of specific, identified error. The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509; House v The King [1936] HCA 40; (1936) 55 CLR 499) [47].

55 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. See Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).

The merits of the original ground of appeal

56 In the present case, the original ground of appeal alleged that the learned sentencing judge had erred in failing to take proper account of matters relevant to the circumstances of the offence and the appellant when determining not to suspend the term of imprisonment. In particular, it was alleged that his Honour failed to take proper account of all relevant mitigatory factors.

57 By s 6(4) of the Sentencing Act 1995 (WA):

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

58 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in Div 1 of Pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act.

59 Section 76(1) of the Sentencing Act provides:

A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

60 In Dinsdale, Kirby J made the following observations in relation to s 76(1) and (2) of the Sentencing Act:

Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244-245; R v P [1992] FCA 626; (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 259-260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment (R v Liddington (1997) 18 WAR 394 at 402, per Ipp J) [85].

61 The factors to be considered when deciding whether or not to suspend a sentence of imprisonment were referred to by Steytler J (as his Honour then was) in R v Liddington (1997) 18 WAR 394. His Honour said:

Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221)); general deterrence (Causby (at 62); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; (1994) 61 SASR 589 at 592; cf R v Percy (at 72 - 73); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP, per Malcolm CJ (at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP, per Murray J at 234).

That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels (at 468)) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case (406).

62 I agree with Pullin JA, for the reasons he gives, that the original ground of appeal is without merit.

The merits of the proposed amended ground of appeal

63 The proposed amended ground of appeal alleges that the learned sentencing judge's discretion miscarried when he determined to impose a term of immediate imprisonment in that the sentence was manifestly excessive in all the circumstances having regard to:

(b) the appellant's disclosure of unknown guilt; and

64 At the material time, the maximum penalty prescribed by law for the offences the subject of counts 1, 2 and 3 (that is, obtaining loans, with intent to defraud, by deceit or fraudulent means) was, relevantly, imprisonment for 7 years. See s 409(1) of the Criminal Code (WA). Similarly, at the material time, the maximum penalty for the offences the subject of counts 4 and 5 (that is, forgery of a record with intent to defraud, and uttering a forged record with intent to defraud, respectively) was imprisonment for 7 years. See s 473(1) of the Criminal Code.

65 Clause 2(1) of Sch 1 of the Sentencing Act, which is part of the transitional provisions introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the Amendment and Repeal Act), requires that a court which has decided to sentence an offender to a fixed term of imprisonment must impose a fixed term that is two-thirds of the fixed term that would have been imposed under the law as it stood prior to the Amendment and Repeal Act.

66 Accordingly, the maximum sentence which may now be imposed for each of the offences committed by the appellant is 4 years and 8 months.

67 In the present case, it is apparent, from the learned sentencing judge's remarks, that his Honour decided, first, that a term of imprisonment should be imposed on each count and, having made that decision, he then considered whether the terms should be suspended. His Honour, in considering whether to suspend or not, revisited adequately the issues that were relevant to the imposition of the terms of imprisonment.

68 The learned sentencing judge had regard to all relevant considerations, including those favourable to the appellant. Considerations favourable to the appellant included his disclosure of unknown guilt, his fast-track plea of guilty, his apparent remorse, his criminal conduct being out of character, his having made no personal gain from the commission of the offences, the absence of any relevant prior criminal record, and the unlikelihood of his re-offending. After evaluating all relevant considerations, his Honour determined that immediate imprisonment was the only appropriate sentencing disposition. His Honour was influenced, in particular, by these considerations:

(b) The appellant engaged in three separate, planned frauds and then endeavoured to sell the matrimonial home without his wife's knowledge.

(d) The total amount of money involved, namely $120,000, was significant.

(e) The conduct in question occurred over a significant period, namely 11 months.

69 The authorities which the parties contended were 'comparable cases' are reviewed in Pullin JA's reasons. I agree with his Honour's observations in relation to them.

70 Although, as McLure JA has noted, there is no generally appropriate type of sentence for fraud or stealing, and the circumstances and seriousness of these offences can differ widely, the appellant has not established that the decision of the learned sentencing judge to impose immediate terms of imprisonment involved a miscarriage of his Honour's sentencing discretion.

71 In my opinion, the learned sentencing judge did not make any specific error in refusing to suspend the terms of imprisonment. Further, his Honour's refusal to suspend did not result in the imposition of sentences which were manifestly excessive or outside the applicable sentencing range. It was reasonably open to his Honour to conclude that, in all the circumstances, sentences of immediate imprisonment were the only appropriate sentencing option.

72 I would allow the appellant's application to amend his ground of appeal. I would, however, for the reasons I have given, dismiss the appeal.

Legislation Amendment and Repeal Act 2003

SKIPWORTH -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 64 (19 March 2008)

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SKIPWORTH -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 64 (19 March 2008)

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Cases Cited (17)