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[2013] NSWCCA 159
Court of Criminal Appeal (NSW)
2013-03-27
Emmett JA, Simpson J, Latham J
Original judgment source is linked above.
The Applicant's Subjective Case 37The applicant was born in Fiji of Indian parents on 15 May 1969. She grew up with her family in Nadi before emigrating to Australia in 1977. Her parents are both retired. She has two older sisters both of whom are married with children and one younger brother, married with one child. Her parents continue to reside in Blacktown. 38The applicant met her husband shortly after commencing employment at ING. He was also an accountant with the firm. They married in 1992. In about 2006 the applicant's husband left ING to work for a subsidiary company in North Sydney. The applicant and her husband enjoy an ongoing supportive relationship. 39The applicant was educated to HSC standard following which she attended TAFE where she obtained her diploma in accountancy. After a few casual jobs, the applicant joined ING in 1989, initially as an accounts clerk for about five or six years, then as an assistant accountant for 10 years. She was promoted to financial accountant for a further three years. When her husband left the position of senior financial accountant the applicant took that position in 2006. She initially supervised four staff, which was later reduced to two. 40The applicant's duties generally involved payroll accounting, directors' fees, reconciliations and accounts payable. The applicant's former senior manager left the company in about 2008 and was replaced by a new senior manager who failed to communicate adequately with the applicant. According to the applicant, her senior manager's attitude towards the department, the applicant's work and that of her staff engendered in her a high degree of stress. She wanted redundancy but was never offered it. According to the applicant, her salary was not as great as that of her husband when he occupied the same position. Ultimately, her senior manager reduced her staff to one over the applicant's objections. 41The applicant disclosed a history of sexual abuse by her paternal grandfather in Fiji and in Australia. The abuse was said to have occurred over a number of years from about the age of 7 to about the age of 12. The abuse stopped when her grandparents moved to Melbourne. The abuse was constituted by oral sex and vaginal digital penetration. The applicant did not tell her parents, although she did tell her husband prior to their marriage. Her husband suggested that she consult a psychologist in Macquarie Street. The applicant attended on a number of occasions but discontinued when she found the sessions too difficult. 42In addition, the applicant said that she had been subjected to sexual abuse by one of the senior managers in ING over a number of years. The applicant claimed that the senior manager had sexual intercourse with her on a number of occasions and that she complied with his wishes because she was afraid that her husband would suffer if she did not. In fact, the applicant's husband, the applicant and the senior manager (who was a close friend of the applicant's husband) previously engaged in group sexual activity during the applicant's husband's employment at ING. Sexual activity between the applicant and the senior manger continued after the applicant's husband left the company, unbeknown to him. During this period of time she felt humiliated and shamed and became immensely depressed. 43The applicant initially attempted to explain her offending in part by reference to the appearance of a number of Indian men outside the ING building in about 2004 who engaged her in conversation. These Indian men told her that they wanted to change her future and spiritual path and that they were feeding hungry people in India. She said that they included Sheiks who wore turbans and who were gurus. She said that they would come 3 to 4 times a year but in different groups. They would call her at work and she would go downstairs to meet them. They had various names and she would sit with them for 5 to 10 minutes, talking. She began to give them money of her own, but after a few months she gave them money fraudulently acquired from other accounts. She felt as if their needs were greater than her own. Over time they started asking for more money and the applicant felt threatened and intimidated by them. It is not suggested that these demands were directly linked to the applicant's escalating frauds after 2004. 44According to a psychologist, Anita Duffy, the applicant's extravagant spending provided her with a sense of importance and self respect. The applicant's relationships with the staff of the retail outlets allowed her to escape the stress and despair that she felt in the workplace. 45The applicant was examined a number of times by Drs Westmore and Allnutt. To both of these psychiatrists and to a psychologist, the applicant provided further details regarding the visits of the Indian men, their appearance and the nature of their demands. Doctors Westmore and Allnutt concluded that the applicant's account of these interactions was not typical of a psychosis, rather they were indicative of pseudo-hallucinations suggestive of a schizo typal personality trait. The applicant was "likely manifesting depressive symptoms of variable severity during the period of the offending." Otherwise, the applicant did not manifest any major medical problems. 46In Dr Allnutt's report of 4 October 2011, he described the applicant as manifesting "relatively inflexible and pervasive personality traits that .. caused significant impairment in her social and occupational functioning; she does not fall into any particular personality diagnostic category, but does manifest a number of traits from various categories of personality disorder". Dr Allnutt confirmed that he considered schizo typal personality traits as a possibility given her description of her experiences with certain religious people that she met. Predominately, the applicant manifested the combination of borderline and dependent personality traits. 47In relation to the applicant's interactions with the Indian men, Dr Allnutt thought that they could be pseudo-psychotic symptoms derived from her personality disorder, or a transient psychotic episode or an actual experience of individuals that the applicant met and "misperceived", or that they were a fabrication on her part. Dr Allnutt was unable to determine which of these applied. 48The applicant's sexual abuse in childhood was considered material in the development of the applicant's personality disorder. According to Dr Allnutt's evidence during the sentencing proceedings, there was on the balance of probabilities a causal relationship between the applicant's personality disorder and the offending. 49That there was such a relationship was not disputed by the Crown. The only contentious aspect was the extent to which the sentence ought be ameliorated to take account of that factor.
The Applicant's Co-operation 50On the hearing of the appeal, the applicant contended that the sentencing judge had afforded an inadequate discount for the applicant's pleas of guilty and her "assistance" to authorities. This submission was prompted by the quantification of "an overall discount of 30%" by the judge, in recognition of the pleas and her extensive co-operation with the authorities, evidenced in part by the liquidation of property belonging to herself and her husband, unrelated to the fraud. 51The applicant's submissions on sentence did not seek a quantified discount for her co-operation. Rather, the submissions correctly recognised that restitution was a feature of the applicant's remorse. The applicant referred to Phelan v R (1993) 66 A Crim R 446 ; R v Giallussi [1999] NSWCCA 56 and R v Strano [2002] NSWCCA 531, all of which confirm that restitution can be a mitigating factor where it involves a degree of sacrifice. To those decisions may be added R v Conway [2001] NSWCCA 51 ; 121 A Crim R 177, Thewlis v R [2008] NSWCCA 176 and Job v R [2011] NSWCCA 267. 52Whether restitution is properly confined to considerations of contrition and remorse, or whether it is ameliorative conduct deserving of separate consideration in circumstances where it results in hardship to the offender and/or the offender's family (as Thewlis and Job suggest), it is clear that it does not warrant the allocation of a quantified discount : R v Borkowski [2009] NSWCCA 102 at [32] ; 195 A Crim R 1. 53In the circumstances of this case, I am of the view that the applicant's efforts to ameliorate the consequences of her offending are an expression of her remorse. Those efforts included :- (a)The execution of Powers of Attorney and transfers in relation to the properties and jewellery purchased by the applicant. (b)The transfer to ING of properties in Waitara and Wahroonga in which the applicant held an interest which was unrelated to her offending. (c)Assistance to ING in their investigations, including participating in interviews with ING and with investigators. 54The transfer of the interest in the properties unrelated to the offending deprived the applicant and her husband of investment properties. I accept that the applicant and her husband will not enjoy the financial security they had planned, but they remain in possession of the family home. To that extent, it is not entirely accurate to say that there was no more that the applicant could have done to make restitution. However, the applicant's remorse and contrition are genuine and complete.
Re-Sentencing 55The scale of the frauds committed by the applicant is breathtaking. The longevity of her conduct and the amount of money fraudulently obtained signifies criminality of a very high order. It must however be acknowledged that the applicant's offending was bizarre in nature. She made no real attempt to disguise the transactions whereby she deposited staggering amounts of money into her own accounts ; she repeatedly purchased the most expensive jewellery and luxury goods from the same retailers and provided them with her work email address ; she made no attempt to use or derive income from any of the property she purchased ; none of the items purchased were used by her, other than as gifts to virtually casual acquaintances ; the "gift" of $1.3 million to a shop assistant was, in itself, peculiar. 56The applicant's senior counsel on the hearing of the appeal contended that the applicant's personality disorder necessarily reduced the objective gravity of the offences. The question whether the applicant's mental condition is a factor in the assessment of the objective gravity of the offences is a vexed one. This Court has not, to date, reached a concluded view on that controversy since the decision in Muldrock v The Queen [2011] HCA 39 : see Yang v R [2012] NSWCCA 49 per Hulme J at [27] to [36]. The High Court in Muldrock confined the objective gravity of an offence to "the nature of the offending". 57For my part, attributes personal to the applicant (in particular, her mental state at the time of offending) more appropriately belong to an assessment of moral culpability. Such personal attributes ought be distinguished from the objective features of the offences, namely, the acts and the fault element constituting the offences. I acknowledge what Price J said (Allsop JA and Campbell J agreeing) in Williams v R [2012] NSWCCA 172 at [40] to [42], about the scope of the expression "the nature of the offending" in so far as it may not be correct to confine it to the ingredients of an offence. I would agree with Price J that the partial defence of provocation is properly considered as an aspect of objective gravity, not least because it qualifies the fault element of an offence. 58The impact of the applicant's personality disorder on the sentencing exercise is a complex issue. I am not persuaded that the applicant was incapable of appreciating the wrongfulness of her actions, such that her moral culpability for the offending ought be substantially reduced : Muldrock at [54]. The fact that there was an element of revenge in her offending, directed at those who the applicant perceived had mistreated her, suggests that she understood and desired that those persons in ING would be brought into disrepute by their failure to detect her offending. However, it appears that the causal relationship between her mental disorder and the offending lay in the applicant's compromised intellectual and emotional restraints. In these circumstances, a finding that the applicant's moral culpability is moderately reduced is justified. 59The applicant is entitled to a discount of 25% on the sentences to be imposed in recognition of her early pleas of guilty. As I have already noted, her extensive co-operation with the authorities is testimony to her remorse and contrition. The applicant's prospects of rehabilitation are sound and there is no purpose to be served by the imposition of a sentence that reflects personal deterrence. General deterrence, retribution and denunciation have less significance because of the applicant's personality disorder, although commensurate with the moderate reduction in the applicant's moral culpability, there is still some scope for the sentence to reflect those principles. 60Sequences 8 to 12, 14 to 16, 21, 22, 24, 25 and 27 each involved the fraudulent transfer of amounts less than $1 million. In all, about $3 million was obtained by the applicant from these offences. A fixed term of one year imprisonment ought be imposed for each of these offences, to be served wholly concurrently with each other. 61Sequences 13, 17, 19 and 37 each involved the fraudulent transfer of amounts ranging between $1 million and $2 million. A total of about $7 million was obtained by the applicant from these offences. A sentence of 18 months' imprisonment ought be imposed for each of these offences, with some partial accumulation resulting in an aggregate sentence of 2 years' imprisonment for this group of offences. 62Sequences 18, 26 and 28 each involved the fraudulent transfer of amounts between $2 million and $5 million. A total of $10.5 million was obtained by the applicant from these offences. A sentence of 30 months' imprisonment ought be imposed for each of these offences, with some partial accumulation resulting in an aggregate sentence of 3 years' imprisonment for this group of offences. 63Sequences 20 and 23 each involved the fraudulent transfer of amounts between $5 million and $12 million. A total of $13.5 million was obtained by the applicant from these offences. A sentence of 3 years' imprisonment ought be imposed for each of these offences, with some partial accumulation resulting in an aggregate sentence of 4 years' imprisonment for this group of offences. 64Sequence 29 involved the fraudulent transfer of over $12 million. A sentence of 3 years and 9 months' imprisonment ought be imposed for this offence. 65Sequence 30 is a money laundering offence that diverted $5.1 million in September and October of 2009 towards the purchase of three properties at Kirribilli. Sequence 32 is a money laundering offence that diverted $6.6 million in August of 2009 towards the purchase of two properties in Sydney and Bondi. Sequence 34 is a money laundering offence that diverted $5.8 million in September of 2009 towards the purchase of three properties in Bondi. A sentence of 3 years and 9 months' imprisonment ought be imposed for each of these offences, wholly concurrent with each other. 66The Crown took no issue with a finding of special circumstances. The applicant's personality disorder, in particular the long-term effects of her childhood sexual abuse, will require treatment in the context of her return to her marriage and to her family. 67Taking all of these matters into account, I propose the following orders: The appeal is allowed The sentence imposed on 10 February 2012 is quashed In lieu impose an aggregate non-parole period of six (6) years to date from 4 October 2009, expiring 3 October 2015, with a balance of term of five (5) years, expiring 3 October 2020. The applicant would be eligible for release on 4 October 2015. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2013
Subramaniam
R
The Approach to Sentencing under s 53A 26Section 53A relevantly provides :- (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. 27The most often overlooked aspect of the provision is subsection (2)(b). In R v Brown [2012] NSWCCA 199, Grove AJ (Macfarlan JA and McCallum J agreeing) cautioned against a "blanket assessment" of each offence. The imposition of the same sentence for a number of offences, each of which differs in criminality, may demonstrate a failure to comply with the fundamental principles of sentencing which were preserved by s 53A(2)(b) : see New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27867. 28In R v Nykolyn [2012] NSWCCA 219, McClellan CJ at CL (Hall and Hulme JJ agreeing) pointed out that the terms of s 53A(2) requires the sentencing judge to give consideration to the criminality involved in each offence and, where appropriate, have regard to any matters on a Form 1 when defining the sentence that would have been imposed for an individual offence. The four reasons underlying that requirement were identified by Hulme J at [58] as its importance for the application of the totality principle, the exposure of the sentencing exercise in the event of appellate review, the demonstration to victims and the general public of the gravity with which the offences are regarded and its contribution to an assessment of a new aggregate sentence in the event that any of the underlying convictions are quashed on appeal. 29The sentencing judge in the instant case failed to adhere to this approach, despite adverting to the totality principle. The judge imposed a uniform sentence of two years and one month (following the application of the discount for the pleas of guilty and the applicant's co-operation) with respect to each offence, notwithstanding significant variations in the amounts of money the subject of the deceptions in each case and notwithstanding the fact that the money laundering offences carried a maximum penalty three times greater than the obtain benefit by deception offences. 30The sentencing remarks reveal that the judge grouped the offences by reference to the bank accounts into which the funds were paid. The six groupings were :- (i)Six of the obtain benefit by deception offences that resulted in an amount of $2,096,000.00 being paid into an ANZ account. (ii)Seven of the obtain benefit by deception offences that resulted in an amount of $14,238,000.00 being paid into a St George account. (iii)One obtain benefit by deception offence that resulted in the payment of $585,000.00 into a Westpac account. (iv)One obtain benefit by deception offence that resulted in the payment of $12,500.00 into a Commonwealth account. (v)Seven obtain benefit by deception offences that resulted in the sum of $26,950,000.00 being paid into various retail and trading accounts. (vi)Three money laundering offences and one obtain property by deception offence with respect to an amount of $10,410,000.00. 31The judge stated :- Whilst I have regard to the maximum sentence that can be imposed for all the offences, sentences for each offence will be of a similar order. There must be some accumulation to take account of the fact that there were so many offences and I must have regard to the fact that the principle of totality requires that I impose a sentence that in the circumstances is not too severe. ........................................................................ In my opinion, it would be appropriate to make sentences concerning each bank account partly concurrent and partly cumulative and to make each group of offences partly concurrent and partly cumulative. ............................................................................ The overall sentence will be 15 years' imprisonment, but with a non-parole period of seven years. 32It is not apparent from the sentencing remarks which group of offences represented by each of the six categories were either partially accumulated or made partially concurrent with any other group. That in itself does not necessarily contravene s 53A. However, given the very disparate criminality represented by the offending within each group, having regard to the total sum deposited in each relevant bank account, the application of normal sentencing principles would ordinarily result in a different aggregate sentence with respect to each group. There is nothing in the remarks on sentence that provides any insight into that calculation. 33In addition, the offences represented by (vi) do not sit easily with one another or with the remaining offences in each of the other five groups. The criminality inherent in the money laundering offences significantly overlapped with the criminality represented by the offences in (ii) and (v). The offences in (ii) and (v) consisted of the fraudulent transfer of funds from ING accounts to the St George Bank and to three trust accounts, all relating to the purchase of properties, the subject of the money laundering offences. 34Thus, the money laundering offences came within the type of "highly technical" category of this offence that was identified by Howie J (Campbell JA and Rothman J agreeing) in Thorn v R [2009] NSWCCA 294 at [31]. As in Thorn, the applicant was doing no more than "merely transferring the money obtained by the fraudulent claims from the company accounts to [her] personal account ...... so that [she] could use it to [purchase property]. [She] was doing nothing to hide the source or to change the nature of the funds. [She] was simply gaining access to them." 35The criminality represented by the money laundering offences was of a low order for this reason and there ought to have been very little, if any, accumulation on the sentences imposed for the obtain benefit by deception offences in groups (ii) and (v). It is not possible to say whether that occurred or whether the sentence for the offences in (vi) added materially to the sentence for group (ii) and/or (v). 36It is appropriate in my view to approach re-sentencing on the basis that the obtain financial benefit offences involving the transfer of funds of a similar order ought be grouped together. The greater the amount comprehended by each group of offences, the greater the penalty, both with respect to each offence within the group and with respect to the aggregate sentence for the combination of offences. The penalties for the money laundering offences ought be wholly concurrent with the sentences for the s 178BA offences. This does not signify that there is no additional criminality inherent in the money laundering offences (albeit at the low end of the scale), but it recognises that partial accumulation of the sentences imposed for each of the proposed groups is sufficient for the purposes of totality.