Stevens - Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 by [2011] NSWSC 1252

DECISION 1The applicant, Gary John Stevens, applies under s 78 of the Crimes (Appeal and Review) Act 2001 (the Act) for a referral of his case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. 2It is not altogether clear from the applicant's handwritten application whether he challenges the sentences that were imposed and his conviction following pleas of guilty to 11 counts of offences of dishonesty, contained on two indictments. In substance, the applicant contends that "the sentence was vitiated by error" and that "the offences charged in counts 6 to 10 of the second indictment are bad for duplicity and/or latently ambiguous". In so far as this latter contention raises the prospect that the applicant was wrongly convicted of those counts, I propose to treat the application as one against his overall sentence and his conviction in respect of those counts. 3The history of the proceedings and the basis upon which the applicant came to be sentenced are conveniently set out by the Chief Judge at Common Law in Stevens v R [2009] NSWCCA 260 at [10] and [14] to [32], when the Court of Criminal Appeal (Spigelman CJ and Grove J agreeing) dismissed the applicant's appeal against sentence. The applicant originally pleaded guilty on 6 December 2007 and was sentenced on 25 February 2008. His appeal against sentence to the Court of Criminal Appeal was dismissed on 28 October 2009. :- 10 First Indictment: This indictment contained only one count being: Use false instrument with intent contrary to s 300(2) Crimes Act 1900 for which the maximum penalty is 10 years imprisonment. Second indictment: Counts 1, 2 and 3: Possession of a false travel document contrary to s 22 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) for which the maximum penalty is 10 years imprisonment. Counts 4, 5, 6, 7, 8, 9 and 10: Obtain a benefit by deception contrary to s 178BA of the Crimes Act 1900 for which the maximum penalty is 5 years imprisonment. 14 The total non-parole period imposed was 6 years and 3 months imprisonment commencing 29 November 2006 and expiring 28 February 2013 with a balance of term of 2 years and 3 months expiring on 28 May 2015. 15 A statement of the relevant facts was agreed and tendered to the sentencing judge. It is unnecessary to restate the facts in full and I gratefully adopt the summary provided by the respondent in its written submissions to this Court. First indictment 16 The applicant entered a Westpac Bank branch in Sydney on 30 January 1990 and asked to cash a cheque for $6,700. It was dated 20 January 1990, was made out to "cash" and signed (apparently by a J Nealer"). The applicant said he was "Gary Anderson" and explained that he needed to pay overdue wages to employees of a pool company. Earlier, the bank manager had received a call from a man who said he was "John Nealer of F J Hawkes & Co" and that he had given a cheque to someone and asked if that person could come into the branch to cash the cheque. He explained that he had been asked to make a payment for a swimming pool (on behalf of Doug Sayer who was apparently overseas) and that his account only had $700 in it but that he would cover the payment first thing the next morning from an expected bonus payment. At the branch, the applicant gave the bank manager a business card in the name of "John L Nealer". The manager checked the account balance (which was $1,200) and subsequently gave the applicant $6,700 in cash. The manager being suspicious caused the security camera to be activated as the applicant left the branch. 17 On 1 February 1990 Douglas Sayer (who worked at F J Hawkes & Co) discovered that a cheque was missing from his cheque book. He went to the Westpac branch and identified the missing cheque as being the one which the applicant had cashed on 30 January. Apparently the signature on the cheque was a poor imitation of Mr Nealer's signature. 18 When the applicant was questioned by the police on 20 August 1990 he said he had cashed the cheque at the behest of a person (whom he had met at the races) after explaining that he was broke. He said that the person gave him $500 for cashing the cheque - $200 for his efforts, and $300 as a loan. 19 After his arrest, the applicant was admitted to bail. He pleaded not guilty on the date of committal for trial (25 February 1991), which was set down for 26 August 1992. He failed to appear. He had left Australia on a flight bound for the UK on 14 June 1992. A bench warrant was issued and executed. He was arrested on 29 November 2006 for the offences in the 2 nd indictment. He pleaded guilty on 6 December 2007 in the District Court. 20 During the proceedings on sentence the Crown provided written submissions to his Honour which disclosed that the applicant, after returning to Australia, had moved in and out of the country several times between 1998 and 2006. However, there was no suggestion that he had used a fraudulent passport to facilitate his travel. Second indictment - counts 1, 2 and 3 21 On 29 November 2006 a search warrant was executed at the applicant's home, during which three United Kingdom passports were found, each in different names, but with the applicant's photo on them. 22 The sentencing judge noted that he had no information about how the applicant came to possess the passports, except that he would have participated in their creation by providing his photo. He noted that they could have readily been used to facilitate fraudulent behaviour, that it was of "substantial significance that there were three passports capable of providing evidence of three separate false identifies", and his Honour had "no doubt that they were intended to be utilised for multiple frauds." Second indictment - count 4 23 On 31 occasions between 9 may and 4 October 2003 the applicant was photographed making cash withdrawals (averaging $1,000) from ATMs in the eastern suburbs. He withdraw a total of $29,920 from a Westpac Bank account in the name of "Chad Thorpe". The funds in this account had been sourced from unauthorised internet transfers (by a person unknown) from a joint account held in Westpac. These unauthorised transfers (conducted between April and November 2003) totalled $504,120 from which a total of $290,950 was deposited via the internet into the account of "Chad Thorp". Second indictment - count 5 24 On 17 occasions between 23 July and 1 October 2003 the applicant was photographed making cash withdrawals (averaging $1,000) from ATMs in the eastern suburbs. He withdraw a total of $16,480 from a Westpac Bank account in the name of "Chad Munce". The funds in this account had been sourced from unauthorised internet transfers (by a person unknown) from a joint account held in Westpac. These unauthorised transfers (conducted between April and November 2003) totalled $504,120 from which a total of $90,170 was deposited via the internet into the account of "Chad Munce". Second indictment - counts 6 and 7 25 On 31 October 2006 the applicant used the internet to transfer $36,650 and $222,000 from an ING Bank account (held by Dr Jeffrey Ichilcik) into a Commonwealth Bank account which had been opened in the name of "Brendan Urquart-Eastwood" on 30 August 2006. On 1 and 2 November 2006 Mr Urquart-Eastwood withdrew money from that account via ATMs. On 23 October 2006 the applicant had called the ING Bank (giving his name as "Jeffrey Ichilcik") and re-set "his" internet banking password after answering personal information. Using internet banking, the mailing and residential addresses held for the ING Bank account were changed (to a Potts Point address linked to a hostel at which both the applicant and Mr Urquart-Eastwood had been seen by police); the contact email address was changed, as were the contact phone numbers - the subscribers were neither the appellant nor Dr Ichilcik, and a mobile phone (with the same new number that had been registered on the account) was found during a search of the applicant's home. On a number of occasions a male person also rang the bank in relation to the account and his voice was recorded (and identified as being the voice of the applicant). During the search of the applicant's home a number of personal, business and financial documents of Dr Ichilcik were found, in addition to handwritten notes relating to Dr Ichilcik. The Crown case was that the applicant obtained access to Dr Ichilcik's personal information through theft of his mail. Second indictment - counts 8 and 9 26 On 7 August 2006 a customer of Westpac Bank paid off her and her husband's Visa card and cancelled that account. On 28 August an unknown person rang the bank (stating he was Mr Willmore, one of the joint account holders) and changed the contact address to the same Potts Point hostel address as in counts 7 and 8. Internet banking facilities for the bank account and credit card held by Mr and Mrs Willmore were re-activated. 27 Between 31 August and 23 September 2006 12 unauthorised transfers (from various internet cafes) totalling $32,620 were made from Mr and Mrs Willmore's bank account to another Westpac Bank account in the name of "Elaine Barbara Paul". This account was opened on 25 August 2006. Identification was provided in the form of Commonwealth Bank, St George Bank, Medicare and Pensioner Concession cards. The address associated with the Potts Point Hostel was given. Between 4 and 25 September 2006, the $32,260 was withdrawn from this account from a number of ATMs. 28 Over the same period, four unauthorised transfers totalling $10,590 were made from Mr and Mrs Willmore's bank account to a St George Bank account in the name of "Timothy Joel Russell". This account was opened on 28 August 2006. Identification was provided in the form of a Queensland driver's licence, as well as Medicare and Pensioner Concession cards. The address given was the same as the mailing address for Ms Paul's account. Between 13 and 18 September 2006, the $10,590 was withdrawn from this account from a number of ATMs. 29 When the applicant's house was searched, the police found two ATM cards in his wallet in the names of "Elaine B Paul" and "T J Russell". Other papers found by the police in his home included an account statement for Mr Willmore from the Westpac Bank. The Crown case was that the applicant obtained access to Mr Willmore's personal information through theft of his mail. Second indictment - count 10 30 On 5 April 2006 an unknown person accessed Westpac Bank's internet banking and changed the password and address (to the same Potts Point address as above) for an account held by Emery Eric Korda. On 26 April another Westpac Bank account was opened via telephone in the name of Emery Eric Korda. Due to the telephone operator's error, the account was opened immediately without a 100-point check being conducted in a branch. 31 Between 26 April and 23 May 2006 15 unauthorised internet transfers totalling $54,675 were made from Emery Eric Korda's bank account into the new bank account which had been opened in his name. Between these dates a total of $54,335 was transferred from the new account opened in Emery Eric Korda's name to a Commonwealth Bank account in the name of "Elaine Barbara Paul". This account had been opened on 14 February 2005 with a Medicare card, Energy bill, Pensioner Concession card and passbook account produced as identification. Between 27 April and 25 May 2006, $54,301.41 was withdrawn from Elaine Barbara Paul's account from a number of ATMs (including in Auckland, New Zealand, where the applicant was identified by a witness as being at the time). 32 When the applicant's house was searched, the police found documents in relation to the opening of the second Westpac Bank account in Emery Eric Korda's name. The Crown case was that the applicant obtained access to Mr Korda's personal information through theft of his mail. 4It should be observed that the offences described above were in the nature of identity theft, and that the sentencing proceedings were conducted on the basis of an agreed statement of facts. The applicant's senior counsel on the hearing of the appeal (who was not his counsel on sentence) at no stage took issue with the facts summarised for the purposes of the appeal and at no stage took the point now taken by the applicant, namely that counts 6 to 10 were bad for duplicity or latently ambiguous. 5The error said by the applicant to vitiate the sentence can only, if established, affect the sentences imposed in respect of counts 4 to 10 inclusive on the second indictment. When delivering remarks on sentence in relation to those counts, the sentencing judge stated "in all, he engaged in some 139 separate instances of dishonest conduct in the offences charged in counts 4 to 10 inclusive." The applicant maintains that this statement, which derived from submissions made by the Crown's representative on the sentencing proceedings on 6 December 2007, necessarily leads to the conclusion that he was sentenced on the basis of 139 offences. 6The applicant states that "the total offences for which I took responsibility and thus pleaded guilty to was 53". Whilst it appears that the applicant arrives at this figure by reference to court attendance notices that subsequently became the subject of the counts in the second indictment, the applicant has overlooked the fact that at least three charges that were the subject of court attendance notices were themselves rolled up charges encapsulating other offences. When one factors those offences into the total number of offences underlying counts 4 to 10 on the second indictment, there were in fact 81 offences underlying counts 4 to 10 of that indictment. 7The confusion arises partly because each count on the second indictment comprehended a number of transactions, each of which were capable of constituting offences in themselves. It is clear from the summary of facts in the Court of Criminal Appeal's judgment that each count on the indictment therefore represented a rolled up count encapsulating a number of offences of a like kind. 8The Crown's submission to the judge was erroneous. It appears from the transcript of 6 December 2007 that the Crown's representative construed each paragraph of a very lengthy statement of facts as referable to a separate offence, thus producing a total of 139 episodes of dishonest conduct which became the subject of counts 4 to 10. This error was not discovered by the applicant's counsel on sentence, nor by his senior counsel on the hearing of the appeal. 9Following a consideration of the sentences which were passed in respect of those counts, and having regard to the factors taken into account on sentence, I am of the view that these matters do not give rise to any sense of unease or disquiet that would justify the referral of the applicant's sentence to the Court of Criminal Appeal for a second time. 10The applicant received a sentence of three years imprisonment on each of counts 4, 5, 6, 7, 8 and 9, including a non-parole period of two years, to be served entirely concurrently with each other . On count 10, the applicant received a non-parole period of 1 year with a period on parole of 2 years and 3 months, also entirely concurrent with the previous sentences. On any view, these sentences are extremely lenient, having regard to the maximum penalty for each offence (five years imprisonment) and the extensive nature of the applicant's offending constituted by those counts. 11The offences were committed against a number of victims, some of whom were vulnerable, in that they were elderly and unsophisticated, over an extended period of time. The criminality comprehended by counts 4 to 10 on the second indictment extended from 9 May 2003 through to 1 November 2006. The total amount of funds obtained by deception in respect of these counts was $402,935:00. As noted by the Chief Judge at Common Law, the offences involve the creation of bogus bank accounts and fraudulent access to Internet banking facilities in order to transfer funds into the bogus accounts. The applicant used the stolen personal records of a number of people to carry out the scheme. 12Notwithstanding the fact that there were some offences that were committed in concert with other unknown persons (namely, those who had stolen the necessary identity records), the applicant himself was "a central player" in the setting up of the bogus accounts. The nature of the offences required a significant element of general deterrence. Moreover, the applicant committed these offences whilst at large, having failed to answer bail in respect of an offence of dishonesty in 1992. The conduct which was the subject of count 10 on the second indictment occurred while the applicant was subject to a recognizance following the imposition of a suspended sentence. 13Leaving to one side the sentences imposed in respect of these counts, there can be no complaint with respect to the overall sentence received by the applicant. An aggregate non parole period of 6 years and three months with a balance of term of two years and three months barely represents the totality of the criminality represented by the offences to which the applicant pleaded guilty. 14The applicant's second ground for the application may be briefly dealt with. 15The charges constituted by counts 6 to 10 on the second indictment were preferred under s 178 BA of the Crimes Act 1900. In each case, the applicant was charged that he did "by a deception, namely, by causing a computer system to electronically transfer funds without being authorised to do so, .. dishonestly obtain for himself a financial advantage". Each of those offences referred to deposits, being the financial advantage, in discrete amounts, namely, $36,650 in respect of count 6, $222,000 in respect of count 7, $32,620 in respect of count 8, $10,590 in respect of count 9 and $54,675 in respect of count 10. 16The applicant's contention is that there were two separate offences contained within the one offence that was the subject of each of counts 6 to 10 in the second indictment and that those two separate offences were so vague that they could not constitute one transaction. According to the applicant, those two separate offences are "obtain benefit by deception" and "causing a computer system to transfer funds without being authorised". 17The expression of counts 6 to 10 on the second indictment was entirely in conformity with the ingredients of the charge under s 178 BA of the Crimes Act. The act of causing the computer system to transfer funds to another account in the absence of authorisation constitutes the deception for the purposes of the offence. 18Further, the applicant's complaint that these counts were ambiguous and lacking in detail stems from the absence in the statement of facts of any demonstration of who ultimately received the sums of money the subject of those counts. This argument is misconstrued. The benefit to the applicant was constituted by the deposit of the funds into the bogus accounts which were operated and controlled by the applicant or his accomplices. It has never been a necessary ingredient of the charge under s 178 BA that the offender physically received the cash that has been withdrawn. Putting that matter to one side, there was evidence within the statement of facts that supported the conclusion that the applicant did receive cash on occasions. 19The applicants further complaint, namely that the prosecution was unable to prove that the applicant himself had physically authorised the transfers to the bogus accounts, was the subject of argument in the Court of Criminal Appeal. In the course of his Honour's judgment, the Chief Judge at Common Law said at [67] :- The applicant submitted that it had been alleged by the respondent that he was the principal only in relation to counts 6 and 7 and that his Honour failed to take this into account. However, when the applicant pleaded guilty he accepted that he was guilty of offences by which he deceptively caused the electronic transfers and obtained a financial benefit for himself. The applicant was a central player in all of the offences. The applicant's counsel accepted, during the sentence hearing, that the applicant "has to have been involved with those who organised the scheme." His Honour found that the applicant acted in concert with accomplices. Whatever was the applicant's actual degree of involvement in setting up the bogus accounts and theft of the personal records it was he who made the relevant withdrawals and otherwise completed the offences. The findings which his Honour made as to his involvement were clearly open. 20Next, the applicant complains that the terminology of parts of counts 6 to 10 on the second indictment provides "textbook examples of duplicity and/or ambiguity". The suspect terminology to which the applicant refers is the reference to "at a place unknown" and "at other places". Again, this complaint is misconstrued. That form of expression is entirely consistent with the way in which charges are often expressed in conventional indictments and does not run foul of the Criminal Procedure Act 1986. 21To similar effect is the applicant's complaint with respect to the expression of counts 6 and 7 over a span of dates. 22Such other inconsequential errors in the course of the remarks on sentence upon which the applicant relies are not capable of producing any different result in the sentence ultimately imposed. A number of minor errors in the remarks on sentence were identified in the Court of Criminal Appeal and, to the extent that they were the subject of grounds of the application in that Court, they were dealt with to finality. 23To the extent that the applicant now argues that his pleas of guilty to counts 6 to 10 on the second indictment were entered in ignorance of the true state of affairs, the applicant does not advance the application for the purposes of withdrawing his pleas of guilty. As was noted in the Court of Criminal Appeal, the applicant's pleas of guilty necessarily admitted the necessary legal ingredients of all of the offences. There is no basis apparent on the face of the application for a grant of leave to allow the applicant to withdraw those pleas of guilty. 24I have largely dealt with the merits of the application. However, there are cogent reasons for refusing to consider or otherwise deal with the application in so far as it relies on assertions of duplicity and ambiguity. Section 79(3) of the Act allows the Court to refuse to deal with the application if it appears that the matter raised by the convicted person is the subject of a right of appeal, yet no such appeal or application has been made and the Court is not satisfied that there are special facts or circumstances that justify further dealing with the application. There is no explanation advanced by the applicant for his failure to appeal his conviction in relation to counts 6 to 10 on the second indictment, nor have any special facts or circumstances been demonstrated by him. 25In all of these circumstances, I refuse the application.