Court of Appeal (WA)|2012-10-15|Before: Buss JA

THE STATE OF WESTERN AUSTRALIA -v- CHAPMAN [2012] WASCA 203 (15 October 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- CHAPMAN [2012] WASCA 203

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 990 of 2010, IND 991 of 2010

Criminal law and sentencing - State appeals - Stealing as a servant - Fraud - Totality principle - Offences committed over eight years involving more than $1.7 million - After trial, one offender sentenced to total term of 6 years and other offender sentenced to 32 months - Whether sentences infringed first limb of the totality principle - Turns on own facts

Brennan v The State of Western Australia [2010] WASCA 19

Brown v The State of Western Australia [2011] WASCA 111

Gok v The Queen [2010] WASCA 185

Green v The Queen [2011] HCA 49

Grubb v The Queen [2002] WASCA 158

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

Hodder v The Queen (1995) 15 WAR 264

Krijestorac v The State of Western Australia [2010] WASCA 35

McLean v The State of Western Australia [2011] WASCA 60

Nelmes v The State of Western Australia [2004] WASCA 191

Pak v The Queen (Unreported, WASCA, Library No 950407, 11 August 1995)

Pollock v The State of Western Australia [2011] WASCA 133

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Baldock [2010] WASCA 170

R v Black [2002] WASCA 26

Roffey v The State of Western Australia [2007] WASCA 246

Royer v The State of Western Australia [2009] WASCA 139

S v The Queen [2003] WASCA 309

Smith v The Queen [2003] WASCA 235

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v Bianco [2007] WASCA 197

The State of Western Australia v Hatch [2008] WASCA 162

The State of Western Australia v Munda [2012] WASCA 164

The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116

The State of Western Australia v Wynne [2008] WASCA 195

Wheeler v The Queen [No 2] [2010] WASCA 105

Wilkie v The State of Western Australia [2005] WASCA 156

Wilson v The State of Western Australia [2010] WASCA 82

Woods v The Queen (1994) 14 WAR 341

1 BUSS & MAZZA JJA: We have read in draft the reasons of Beech J in respect of these State appeals against sentence. We are grateful to him for his description of the facts, the respondents' antecedents, his Honour's sentencing remarks and the appellant's submissions, none of which require repetition. We agree that the State's appeal in respect of Ms Johnston must be allowed. We, too, would re-sentence her to a total effective sentence of 4 years imprisonment to be structured as set out in [148] of his Honour's reasons.

2 In respect of Mr Chapman, we have come to a different view from Beech J. We would allow the State's appeal and re-sentence Mr Chapman to a total effective sentence of 8 years imprisonment. We will deal first with the State's appeal against Mr Chapman's sentence and then the appeal in respect of Ms Johnston.

3 The principles applicable to appeals against sentence are well known and were explained in Wilson v The State of Western Australia [2010] WASCA 82 [2]. This court is not entitled to intervene because had it been exercising the sentencing discretion at first instance it would have imposed a different sentence. The court is only entitled to intervene where an appellant demonstrates that a material express or implied error has been made.

4 In this appeal the State relies upon an allegation of implied error. The sole ground of appeal claims an infringement of the first limb of the totality principle. This requires that the total effective sentence imposed upon an offender bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and having regard to all of the circumstances of the offending including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].

5 The overall criminality of Mr Chapman was of a very high order. This is demonstrated having regard to the combined force of these factors:

Mr Chapman was a high ranking public servant upon whom was reposed a high degree of responsibility, autonomy and trust. He abused his position to enrich himself and Ms Johnston.
The conduct involved careful planning and execution. Mr Chapman:

(a) directed Zernike Australia Pty Ltd (Zernike) to set up the trust accounts (referred to in the trial as TIDA accounts), and not include them in the relevant financial reports;

(b) arranged for funds belonging to the Western Australian government and the CSIRO to be paid into those accounts so that they could be accessed by him;

(c) forged invoices rendered in the name of Gordian Holdings Pty Ltd (Gordian) and Metra Business Services Pty Ltd (MBS);

(d) as the mastermind behind the offending induced his wife to assist him in his criminal activity (ts 1824). At his behest, Ms Johnston made available companies she controlled to launder the money he had dishonestly obtained. With Mr Chapman's knowledge, Ms Johnston dealt with the accountant Mr Cross and deliberately gave him the false impression that the money paid to the companies was legally earned by Ms Johnston on their behalf. Income tax was paid in respect of these sums to give the transactions the appearance of legitimacy.

Mr Chapman's dishonesty was carried out in a sustained and determined way over a very long period of eight years. It only came to an end when it was discovered. There is nothing to indicate that Mr Chapman had any intention of ceasing his offending on his own volition.
Mr Chapman's conduct resulted in the loss of a large sum of money ($1,705,328) and the three paintings which were valued at $61,000 (ts 1822). None of the money or the paintings have been recovered.
The offending had an adverse impact upon his fellow employees.
The money stolen or defrauded was used to finance an affluent lifestyle. Mr Chapman's offending was not driven by any mental illness or psychological difficulty (for example, an addiction).

6 The need for general deterrence scarcely needs to be stated. Public servants, especially high ranking public servants, are entrusted to act in the community interest and not to use their position to enrich themselves. Money and property dishonestly taken is to the detriment of the community as a whole. Mr Chapman's course of offending had the capacity to reflect adversely on and reduce public confidence in the integrity of the public service. A deterrent sentence was plainly required.

7 Mr Chapman's antecedents were favourable to him but in light of the serious nature of his offending and the need for general deterrence, the mitigatory weight that could be afforded to this factor was limited. There was little else that could be said in Mr Chapman's favour. He was not remorseful for what he had done. The rationalisation of his behaviour, that his work and talents had been inadequately remunerated, showed no insight (ts 1824). Although he had suffered some ill health, the learned sentencing judge, Wisbey DCJ, did not consider it a relevant factor (ts 1825). Of course, the mitigatory effect of pleas of guilty was not available to Mr Chapman.

8 In deciding whether the total effective sentence infringed the first limb of the totality principle one factor to be considered is the range of sentences customarily imposed in comparable cases. This is to ensure broad consistency and to guard against the imposition of idiosyncratic and arbitrary sentences: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]. But as this court has often pointed out, the range of sentences customarily imposed does not fix the parameters of a sound sentencing discretion. In the end, each case must be decided having regard to its own circumstances.

9 We have reviewed all the cases cited by the parties. They vary greatly in their facts and other circumstances. In respect of cases where sums of or in excess of $900,000 were involved the majority were the subject of pleas of guilty: see R v Black [2002] WASCA 26; Grubb v The Queen [2002] WASCA 158; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554; Wilkie v The State of Western Australia [2005] WASCA 156; The State of Western Australia v Bianco [2007] WASCA 197; and Brennan v The State of Western Australia [2010] WASCA 19. The sentences imposed in these cases (adjusted where necessary to take into account the transitional provisions) ranged from 7 years 6 months imprisonment (Brennan) to 3 years 6 months imprisonment (Bianco).

10 Black, Faithfull and Bianco were prosecution appeals decided at a time when the double jeopardy principle still applied. Black and Faithfull were exceptional in their circumstances and provide little guidance: Nelmes v The State of Western Australia [2004] WASCA 191 [18]. In Bianco, Owen JA concluded that were it not for the fact it was a State appeal, and the respondent's good antecedents, the sentence could have been higher [2].

11 There have been few cases involving sums of $900,000 or more where sentences have been imposed after trial. Pollock v The State of Western Australia [2011] WASCA 133 is one such case. There, the appellant defrauded the NAB of $3 million essentially using forged invoices. Although the sum defrauded was greater than in the present case, the appellant there, when compared with Mr Chapman here, was not in a position of trust with respect to the bank and he offended over a substantially shorter period of time. The sentencing judge in Pollock was unable to make definite findings as to the amount of any financial loss suffered by the bank. A sentence of 5 years 4 months imprisonment imposed at first instance was not interfered with.

12 An older case is Pak v The Queen (Unreported, WASCA, Library No 950407, 11 August 1995). In that case the appellant was convicted, after trial, of 12 offences of fraud, two offences of operating a bank account in a false name, one count of forgery, one count of uttering, and two offences of perverting the course of justice. The most significant offences were six counts of fraud which involved a loss to the victim, a bank, of $1,316,000. The appellant was sentenced to a total effective term of 7 years 6 months imprisonment which, in post-transitional terms, equates to a sentence of 5 years. He, unlike Mr Chapman, was not in a position of trust and the offending occurred over approximately two months.

13 To our mind, the most comparable cases to the case at hand in terms of seriousness are Wilkie and Brennan. Wilkie involved the theft of a similar sum of money to the present case, in excess of $1.65 million, over seven years and 10 months. The appellant was employed as a manager and enjoyed a high degree of trust and autonomy. He received a total effective sentence of 5 years imprisonment which was not disturbed on appeal. Unlike Mr Chapman, the appellant pleaded guilty on the fast-track system and did not induce anybody else to launder the money he had stolen. Also, unlike Mr Chapman, the appellant cooperated with the authorities and he was remorseful. The sentencing judge adopted a starting point, in pre-transitional terms, of 12 years' imprisonment. He then applied a 25% discount for the fast-track plea of guilty. This reduced the starting point to 9 years. He then took account of the appellant's prior good character and reduced the 9 years by 18 months to 7 years 6 months. His Honour then deducted one-third, as required by the transitional provisions, and arrived at a final sentence of 5 years in post-transitional terms. This court criticised the manner in which the sentencing judge structured the sentence, but dismissed the appeal pursuant to s 31(3) of the Criminal Appeals Act 2004 (WA). Without the discounts for the fast-track plea and for prior good character, the sentence would have been 8 years in post-transitional terms.

14 In Brennan, the appellant, a solicitor, stole, over approximately six years, about $900,000 from a client and, after the client died, from his estate. Although the amount stolen was considerably less than in the present case, the victim was particularly vulnerable. After receiving a discount of about 25% for his early pleas of guilty, the appellant was sentenced to 7 years 6 months imprisonment. An appeal by the offender against this sentence was unsuccessful.

15 When compared with the sentences imposed in Wilkie and Brennan the total overall sentence in Mr Chapman's case is unjustifiably lenient. In respect of cases involving serious prolonged dishonesty by an offender in a position of trust, it is more consistent with a sentence imposed after a fast-track plea of guilty, than after trial, and with an offender who has cooperated with the authorities and shown remorse.

16 Having regard to the high level of criminality engaged in by Mr Chapman, the need for general deterrence and the absence of any significant mitigation, the total effective sentence of 6 years imprisonment was, with great respect to the learned sentencing judge, disproportionate to the seriousness of the offending. In our opinion, the State has demonstrated that the total effective sentence imposed by his Honour breached the first limb of the totality principle. Error having been established this court is entitled to resentence Mr Chapman.

17 In our opinion, Mr Chapman should be resentenced to a total effective term of 8 years imprisonment. That sentence to our mind conforms with the requirements of the first limb of the totality principle. We would achieve this by setting aside the order for concurrency on count 13 and substitute an order for accumulation. Thus the sentences on counts 1, 4, 5 and 13 are to be served cumulatively upon each other.

18 In coming to the conclusion that the appropriate overall sentence should be 8 years imprisonment, we have taken into account the issue of parity with the increased overall sentence that we would impose upon Ms Johnston. The sentence imposed on Mr Chapman will be double that imposed on Ms Johnston. In our opinion that result does not give rise to an objectively justifiable sense of grievance on Mr Chapman's part. Mr Chapman was the mastermind of the offending. His culpability was substantially greater than Ms Johnston. Further, as Beech J has pointed out in his reasons, her personal circumstances were significantly more mitigatory.

19 We now turn to the State's appeal against Ms Johnston's sentence. The State's first contention that Mr Chapman's erroneous sentence affected the sentence imposed upon Ms Johnston may well be correct having regard to considerations of parity. However, it is, in the end, unnecessary to decide this point.

20 There is no doubt that each of the offences committed by Ms Johnston was serious. To her knowledge, Mr Chapman perpetrated a well-planned and systematic fraud over a period of about eight years. Ms Johnston personally implemented a scheme during that interval to launder the large sums of money obtained by Mr Chapman. Income tax was paid on the amount stolen or defrauded to create the appearance that the remainder was derived lawfully. Ms Johnston's role was essential. She was able deliberately to mislead the accountant, Mr Cross, on numerous occasions. Ms Johnston benefited personally and directly from the criminal enterprise. She did not act impulsively. The joint offending of Mr Chapman and Ms Johnston was revealed as a result of investigations and a complaint made by a third party. Ms Johnston did not cease offending on her own volition. She did not have the benefit of the mitigation that pleas of guilty would have brought. As a senior public servant, Ms Johnston must have known that Mr Chapman's ongoing dishonest conduct, which she was facilitating, had the capacity to impact adversely on public confidence in the integrity of the public service.

21 Although Ms Johnston was not as culpable as Mr Chapman, her offending behaviour involved, nevertheless, a high degree of criminality.

22 We agree with Beech J, for the reasons he gives, that in the present case only very limited weight could be given to the effect on Ms Johnston's children of her imprisonment and to her psychological difficulties. During the period of her offending, any psychological difficulties did not impede her from discharging appropriately the duties and functions of her employment.

23 We readily acknowledge that Ms Johnston's personal circumstances were much more favourable than Mr Chapman's.

24 In our opinion, Ms Johnston's total effective sentence of 2 years 8 months' imprisonment does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including the maximum penalties, the objective seriousness of the offending, other cases with some comparable features and Ms Johnston's personal circumstances. The dominant sentencing factors were punishment of Ms Johnston and general deterrence. In the circumstances, it was necessary for the learned sentencing judge to accumulate, to a greater extent than he did, the individual sentences he imposed, in order to satisfy these sentencing factors. The seriousness of Ms Johnston's overall offending was not appropriately marked by a total effective sentence of 2 years 8 months' imprisonment. Error should be inferred from the sentencing outcome.

25 In our opinion a total effective sentence of 4 years imprisonment properly reflects her overall criminality having regard to all relevant sentencing principles and all relevant circumstances including her personal circumstances. We think a total effective sentence of 4 years, when compared to the total effective sentence of 8 years now to be imposed upon Mr Chapman, properly reflects the differences in their offending and their personal circumstances.

26 No proper basis exists in relation to either Mr Chapman or Ms Johnston for applying the discretion under s 31(4) of the Criminal Appeals Act. See The State of Western Australia v Munda [2012] WASCA 164. Neither counsel for Mr Chapman nor counsel for Ms Johnston submitted that the discretion should be applied. The total effective sentence originally imposed on Mr Chapman (6 years) and the total effective sentence originally imposed on Ms Johnston (2 years 8 months) were substantially less than the sentencing range open on a proper exercise of the sentencing discretion. The State has established very clearly the errors of which it complains. It is necessary for this court to intervene to ensure that appropriate standards of sentencing are observed in very serious cases of stealing as a public servant and fraud.

27 In respect of the State's appeal against Mr Chapman we would make these orders:

The appeal is allowed.
The orders made by Wisbey DCJ stand save that the order for concurrency with respect to the sentence imposed on count 13 is set aside and the sentence on count 13 is to be served cumulatively with the sentences on counts 1, 4 and 5.
The total effective sentence is 8 years imprisonment.

28 In respect of the State's appeal against Ms Johnston we agree with the orders proposed by Beech J.

30 Mr Chapman was convicted after trial of 15 counts of dishonesty: seven counts of stealing as a servant; seven counts of fraud; and one count of dishonestly obtaining Commonwealth property. Ms Johnston was convicted after trial of 12 of these counts: four of the counts of stealing as a servant; the seven counts of fraud; and one count of dishonestly obtaining Commonwealth property.

31 The offences were committed over an eight-year period. The total amount obtained by these offences was in excess of $1.7 million.

32 Mr Chapman was sentenced to a total effective sentence of 6 years. Ms Johnston received a total effective sentence of 32 months. The State appeals against their sentences on the ground that they infringe the first limb of the totality principle.

33 For the reasons that follow, I would dismiss the appeal on Mr Chapman's sentence, uphold the appeal on Ms Johnston's sentence, and resentence her to a term of 4 years.

34 The sentencing judge made the following findings of fact. His Honour's findings of fact are not challenged in this appeal.

35 In summary, his Honour described the joint charges as a consequence of a criminal enterprise embarked on by both offenders with the intention of fraudulently extracting substantial sums of money from the State of Western Australia (ts 1821).

36 Mr Chapman was employed by the Department of Industry and Resources (DOIR). He was the general manager of Technology Park and Innovation Services. In that position he was responsible for the management and general supervision of Technology Park in Bentley. He used that position to deceive various persons into paying substantial sums of money to proprietary companies associated with, and controlled by his wife, Ms Johnston. The companies involved were Metra Business Services Pty Ltd (MBS) and Gordian Holdings Pty Ltd (Gordian). Those

companies then disbursed the money for the benefit of Mr Chapman and Ms Johnston.

37 A private company called Zernike Australia Pty Ltd (Zernike) held a contract to manage Technology Park. Part of Zernike's role included administering the sale of blocks of land within Technology Park. Zernike would forward invoices to DOIR for payment. Mr Chapman was responsible for approving those invoices. Under the direction of Mr Chapman, Zernike had set up trust accounts (referred to in the trial as TIDA accounts). Mr Chapman directed an employee of Zernike to set up these accounts so as not to be included in the financial reports.

38 In general terms, in relation to the fraud charges, Mr Chapman would arrange for State government funds to be placed in the TIDA accounts administered by Zernike, ostensibly for a nominated purpose but in reality to be available for accessing by the respondents. Invoices were then issued in the name of either MBS or Gordian and were paid, generally as a result of Mr Chapman approving payment.

39 Three counts on the indictment related to the proceeds of sale of blocks of government owned land. These were counts 1, 2 and 4, all charges of stealing as a servant. Mr Chapman gave instructions to the government's solicitors to direct part of the settlement proceeds of the sale to MBS. Count 1 occurred in September 1999; count 2 in June 2000; and count 4 in July 2002. These counts involved a total of $208,476.

40 By count 3, in July 2002 the respondents obtained $330,000 by deceiving CSIRO. The State and Federal governments had made an agreement to create a petroleum and energy facility at Technology Park. The facility was described as a Knowledge Hub. Mr Chapman persuaded CSIRO to make a contribution of $330,000 for the purpose of appointing a coordinator to oversee the development of the hub. Subsequently, CSIRO received a tax invoice from MBS in the sum of $330,000. The invoice was false. CSIRO paid on the invoice. The sum of $330,000 was deposited into MBS' account. The proceeds of payment were converted into Mr Chapman and Ms Johnston's joint bank account.

41 Counts 5 and 6 involved obtaining moneys by fraud in a similar way. Mr Chapman instructed a third party with a sub contract to do work at Technology Park to add an additional $100,000 and $32,000 to the contract, for the cost of preparation of a market demand study and of future strategies. A false invoice was rendered by MBS for $132,000 and that money was paid by the third party to MBS. The third party recovered the amount from DOIR. This occurred in early 2003.

42 Count 7 arose from a series of false invoices submitted by Gordian to Zernike in early 2005. The invoices claimed moneys for general consultancy services. The invoices led to a payment of $300,318 from the TIDA accounts to Gordian's account. The proceeds were paid from Gordian's account into the personal bank accounts of Mr Chapman and Ms Johnston.

43 Counts 8, 9 and 11 were charged only against Mr Chapman. They related to the purchase and subsequent theft of three paintings valued at a total of $61,000. Mr Chapman selected the paintings and arranged payment from State government funds. He collected the paintings from an art gallery. They were purportedly purchased for the Innovation Centre at Technology Park but they were never registered on DOIR's asset register, nor taken to Technology Park.

44 Count 10 related to invoices in 2006 totalling $221,000. Three invoices ostensibly rendered for 'innovation related services' were paid by Zernike to Gordian from the TIDA accounts under Mr Chapman's direction in late April or early May 2006.

45 Count 12 involved conduct of the same kind. Again, a false invoice was submitted by Gordian for $160,000 purportedly for innovation related services. The invoice was paid from one of the TIDA accounts.

46 Count 13 arose in the following way. Mr Chapman sent two Zernike invoices to DOIR. That led to Zernike receiving a payment of $200,000 from DOIR, ostensibly for the preparation of a regional traffic study and detailed area plan for Technology Park. Gordian then submitted an invoice to Zernike in the same sum of $200,000. Again, the invoice was false.

47 Count 14 related to another false invoice, submitted by Gordian to Zernike, in the sum of $107,954 dated 12 October 2007.

48 In December 2007, the balance of funds in the TIDA accounts was $45,579.85. At the direction of Mr Chapman, on 3 December 2007, the remaining funds were electronically transferred to Gordian. That constituted the stealing as a public servant offence in count 15.

49 Ms Johnston's role was to make her companies available to receive the money, thereby concealing Mr Chapman's involvement and enabling the money to be dealt with. She shared in the benefits of the receipt of the moneys.

50 Ms Johnston dealt with the receipt of these moneys in the books of the companies controlled by her as if it were company income. She represented to the accountant preparing the returns that it was income the result of her personal endeavours.

51 The joint offences of Ms Johnston and Mr Chapman realised a total sum of $1,705,328. The three paintings stolen by Mr Chapman were valued at $61,000.

52 The sentencing judge summarised the facts on which the offenders were to be sentenced. I have outlined that summary in the preceding section of these reasons.

53 After stating some general sentencing principles, his Honour made some observations relevant to the degree of criminality in the offenders' offending:

(1) this was a criminal enterprise involving a gross breach of trust on the part of Mr Chapman who used the authority of his position in the Public Service to perpetrate and perpetuate his criminality;

(2) the criminality involved the theft, on a number of occasions extending over a period of eight years, of public funds;

(3) it had the capacity to reflect badly on the public sector;

(4) it only came to an end when it was discovered; and

(5) the conduct was carefully planned, implemented and sustained dishonesty of a high level, over an extended period of time, in respect of which there had been no demonstration of remorse (ts 1821 - 1823).

His Honour then turned his attention to the individual offenders and the appropriate sentence for each of them.

54 Mr Chapman was then 48, married to Ms Johnston with two children. He had high level tertiary qualifications, including a Master of Economics, and what appeared to be a successful career in the Western Australian Public Service. He made, and had the capacity to continue to make, a significant contribution to government.

55 His Honour suggested that Mr Chapman rationalised his criminality on the basis that he believed his capacity and contribution were not being financially acknowledged (ts 1824).

(1) Mr Chapman had no criminal record and had excellent references;

(2) Mr Chapman was the 'mastermind' of the criminality. It was an aggravating circumstance that he induced Ms Johnston to assist in facilitating the criminality;

(3) the offending was possible only because of Mr Chapman's position in the Public Service and the trust which that position involved;

(4) the money stolen was applied simply to personal advantage; and

57 The individual sentences imposed by the sentencing judge for each offence are set out in the table below.

Stealing as a public servant - s 378(6) Criminal Code (WA)

4 years' imprisonment concurrent on Count 2. Non-parole period of 32 months.

32 months' imprisonment to commence forthwith. After 16 months released on $1,000 Good Behaviour Bond.

2 years' imprisonment concurrent on Count 6 but cumulative on Counts 1 and 4.

32 months' imprisonment. Eligible for parole. Count 3 - released $1,000 GBB after 16 months.

58 His Honour directed that counts 5 and 6 be concurrent with each other and that, with count 4, they be cumulative on count 1. That gave a total effective sentence of 6 years. Mr Chapman was ordered to be eligible for parole.

59 Ms Johnston was 48. She is married to Mr Chapman from whom she was by then estranged. She is the mother of two children: a girl and a boy, who were then 10 years old and 5 years old respectively.

60 Ms Johnston had significant health problems, including psychiatric issues which have in the past, and it was to be expected, would in the future, necessitate medical supervision.

61 Like Mr Chapman, Ms Johnston was a well-educated person with an impressive vocational history. She had made a considerable contribution as a public servant. The references spoke well of her character including her work and social capacity, her contribution, and her commitment and dedication as a mother.

62 The sentencing judge rightly observed that those matters made it hard to understand how Ms Johnston had been persuaded to become involved in the criminality. His Honour described it as 'eloquent of the extent of the personal tragedy consequent upon [the criminality]' (ts 1826).

63 At the early stages of the criminality Ms Johnston was suffering a recognised psychiatric condition and was troubled by unresolved issues in her domestic relationship. Those issues involved a lack of support and emotional commitment from Mr Chapman.

64 His Honour quoted from a report from Ms Johnston's consultant psychiatrist which stated that:

Mr Chapman was self-indulgent and Ms Johnston self-sacrificing. She would often let him have his way to keep the peace. However, she felt unsupported and lonely (ts 1827).

65 His Honour observed that it was clear that Ms Johnston was anxious to maintain their relationship and it was in that climate that she succumbed to Mr Chapman's overtures to make her companies available for the purpose of receiving and treating the fraudulently and dishonestly obtained money.

66 His Honour expressed no doubt that Mr Chapman was primarily responsible for initiating and implementing the criminality, but found that Ms Johnston was accepting of it, and a willing participant and beneficiary of it (ts 1827).

67 It was submitted to his Honour that a term of imprisonment should be suspended in the case of Ms Johnston. It was said that the situation of the children, both of whose parents would be imprisoned, constituted exceptional circumstances. His Honour described it as a 'distressing sentencing dilemma'. However, he said he was drawn reluctantly to the conclusion that the criminality was of such a high level of seriousness, involving the loss of a substantial sum of money as a result of fraud and deceit over years, and taking into account misrepresentations by Ms Johnston to her accountant about the source of the moneys, that immediate imprisonment was the only appropriate disposition (ts 1827).

68 His Honour observed that 'the welfare of the children must be accommodated as best it can in the term imposed' (ts 1828).

69 The individual sentences imposed for each offence are as set out in the table earlier in these reasons [57].

70 Count 4 was cumulative on count 1. Count 5 was concurrent with count 6 and the remaining counts were made concurrent with count 1. The total effective sentence was 32 months. There was an order for eligibility for parole in respect of the State sentences.

71 The State appeals against the sentences imposed on both Mr Chapman and Ms Johnston. In each case, there is a single ground of appeal. The ground alleges that the total effective sentence imposed was inadequate and infringed the first limb of the totality principle in that it was disproportionate to the degree of criminality in the offending conduct. Particulars are given of the matters relied upon. I will refer to these matters in summarising the State's submissions. Before doing that I will outline some general principles.

General principles - appeals against sentence

72 The proper approach to an appeal against sentence is well-known. The principles were explained in Wilson v The State of Western Australia [2010] WASCA 82 [2].

73 The imposition of a sentence involves the exercise of a discretion. On appeal, that exercise of discretion will not be interfered with unless error is demonstrated. Error may be express, or it may be implied from the result. Manifest inadequacy, and breach of the first limb of the totality principle, are examples of implied error. A finding of implied error is a conclusion that the sentence imposed was so unreasonable or unjust that some substantial error occurred, although it is not possible to discern what specifically the error was. Manifest inadequacy and infringement of the first limb of the totality principle are not established merely because, in sentencing the offender, the appellate court would have imposed a different sentence. Nor is it established simply because the result is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [58]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [59].

74 There are two limbs of the totality principle. The first limb requires that the total effective sentence be a just and appropriate reflection of the total criminality involved in all the relevant offences, viewed in their entirety and having regard to the circumstances of the case, including the personal circumstances of the offender: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Woods v The Queen (1994) 14 WAR 341, 352; Roffey v The State of Western Australia [2007] WASCA 246 [24].

75 In order to determine whether a sentence for an individual offence is manifestly inadequate (or 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: The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 [39]; Chan (1989) 38 A Crim R 337, 342.

76 Similar considerations apply to an assessment of whether multiple sentences for a number of offences infringe the first limb of the totality principle. See, for example, R v Baldock [2010] WASCA 170 [131].

77 It has often been said that cases decided in the past do not fix the boundaries within which the sentencing discretion must be exercised. In other words, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54]; Pollock v The State of Western Australia [2011] WASCA 133 [70]. A sentence falling outside the range will not necessarily be overturned, just as the fact that a sentence is within the range of other sentences does not, of itself, demonstrate that it is an appropriate exercise of discretion: Royer v The State of Western Australia [2009] WASCA 139 [87]; R v Baldock [147].

78 As McLure P pointed out in The State of Western Australia v Munda [2012] WASCA 164 [59], what was said in Brown v The State of Western Australia [2011] WASCA 111 [6] about manifest excess is equally applicable to manifest inadequacy:

The range of sentences customarily imposed for comparable offences is only one of a number of relevant factors in the determination of whether a sentence is manifestly excessive. Thus, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465; Fernandes v The State of Western Australia [2009] WASCA 227 [15]; The State of Western Australia v Akizuki [2008] WASCA 267 [71]. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors: Sabau v The State of Western Australia [2010] WASCA 3 [18].

79 The second limb of the totality principle requires that the sentences imposed not be crushing. The second limb is not relevant to this appeal. It was not invoked by the sentencing judge and the respondents do not rely on it to justify the sentences imposed.

80 In case of multiple offenders an appellate court must not overlook questions of parity (or disparity) in State appeals against sentence: Green v The Queen [2011] HCA 49.

81 The State submits that there were a number of features of Mr Chapman's and Ms Johnston's offending which placed it at, or close to, the top of the range of seriousness for offences of stealing as a servant and fraud. The State highlights the following features:

(1) Mr Chapman was a high ranking public servant who had a substantial degree of autonomy in carrying out his work. That permitted him to repeatedly commit offences over a long period without detection. His conduct involved a gross breach of trust. Ms Johnston, who was a high ranking public servant in her own right, was aware the offending conduct involved a gross breach of trust by Mr Chapman;

(2) the offences were committed over a very long period of time of about eight years and involved careful planning and execution;

(3) this was not a case of stealing or fraud to deal with an addiction. The money stolen and otherwise obtained was used to fund the respondents' lifestyle. Mr Chapman appeared to believe that his contribution had not been adequately financially acknowledged. As the sentencing judge found, Ms Johnston was a willing participant in, and beneficiary of, the offending;

(4) although the effect upon the victim, namely the State, is not a direct factor relevant to sentencing in the same way as in many other cases, the offences caused loss to the State and Federal Government and therefore to the public as taxpayers. Further, as the sentencing judge observed, the offending had the capacity to reflect adversely on, and reduce public confidence in, the integrity of the Public Service;

(5) discovery of Mr Chapman's course of offending had had an adverse impact on his fellow employees;

(6) the total value of property and money obtained by the respondents was a significant amount of $1.7 million, none of which has been recovered;

(7) the offences were committed in concert. Through the involvement of Ms Johnston, Mr Chapman was assisted in concealing the offending behaviour and deflecting attention from his activities for such a long period; and

(8) the absence of remorse on the part of both respondents.

82 The State submits that when these features (the presence of which is not in doubt) are borne in mind, and taking into account sentences imposed in other cases of fraud and stealing as a servant, the total sentence of 6 years imposed on Mr Chapman reveals an error in the exercise of the sentencing discretion.

83 The State asserts that Ms Johnston's role and personal circumstances meant that it was appropriate for her to receive a lesser sentence than Mr Chapman. The State puts its appeal against her sentence in two ways. First, it contends that Mr Chapman's sentence was too low, and so that erroneous starting point infected the sentence imposed on Ms Johnston. Secondly, and alternatively, and if Mr Chapman's sentence is not interfered with, the State contends that the total sentence of 32 months imposed on Ms Johnston is manifestly inadequate when viewed in light of the term of 6 years imposed on Mr Chapman.

84 In these circumstances it is convenient to begin by focusing on whether Mr Chapman's sentence is so low as to reveal error. That invites attention to sentencing decisions for offences of a similar character.

Sentencing decisions for stealing as a servant and fraud

85 The following factors were identified in R v Barrick (1985) 7 Crim App R 78, 82 as among the relevant factors in sentencing for offences of stealing as a servant and like offences:

(1) the quality and degree of trust reposed in the offender, including their rank within the organisation;

(2) the period over which the frauds or thefts were committed;

(3) the use to which the money or property dishonestly taken was put;

(5) the impact of the offences on the public and public confidence;

(9) those matters of mitigation particular to the offender such as illness, being placed under great strain for particular reasons, help given to the police and other mitigating matters.

86 It is well established that general deterrence is of primary importance in cases where there has been deliberate, systematic and planned criminality over a lengthy period. See, for example, Smith v The Queen [2003] WASCA 235 [27] - [28].

87 A review of appellate decisions reveals that, in serious cases of fraud and stealing involving large sums of money, only terms of immediate imprisonment have been imposed: Pollock [71].

88 There is no generally appropriate type of sentence or range of sentence for fraud or stealing because the circumstances and seriousness of these offences can vary so widely in each case: Pollock [42], [71]. See also Brennan v The State of Western Australia [2010] WASCA 19 [32] - [33]; and Grubb v The Queen [2002] WASCA 158 [28].

89 In R v Baldock, after a review of Commonwealth fraud cases, Pullin JA and Kenneth Martin J observed that there was a 'remarkable range of sentences' [41].

90 The State referred to 18 appellate decisions in an annexure to its submissions. I have reviewed those decisions and some others.

91 In its written and oral submissions, the State referred to four cases which were said to have similarities to the offending in this case and to reveal the manifest inadequacy of the total sentence imposed by the sentencing judge. I begin with those cases.

92 In Brennan the offender pleaded guilty to 70 counts of stealing as a servant and one count of attempting to gain a benefit by deceit. He was sentenced to a total term of 7 years and 6 months. The victim was an immigrant who, as his physical and mental health deteriorated, was introduced to the offender as someone who could look after his affairs. The victim executed an enduring power of attorney in favour of the offender. After that, the offender managed the victim's affairs. In the course of doing that he regularly stole substantial sums of money from the victim's account. After the victim's death the offender continued to steal.

93 The total amount stolen was about $900,000. The offending continued over a period of almost six years. The offender used the money to improve his personal financial situation, paying off credit cards, personal loans and other debts and paying various of his ordinary expenses. There appears to have been no restitution. The sentencing judge made a compensation order for $896,787 in favour of the victim's estate.

94 In Brennan the offender pleaded guilty at a relatively early stage. The sentencing judge gave a discount of about 25%. Thus the starting point for the sentence, before the discount for the plea of guilty, must have been 10 years or thereabouts.

95 The State emphasises that the period of offending in Brennan was two years shorter, and the amount stolen was about half that obtained, than in the present case. Further, the State contends that the conduct of the respondents in this case is arguably more serious than that in Brennan given that it involved a systematic method of concealment. Against that, however, is the fact that in Brennan, the offender was a solicitor. Moreover, he was, as Owen JA emphasised, in a unique position to defraud the victim because of the latter's impaired mental acuity: Brennan [33].

96 On the face of it, it is not easy to justify the size of the difference in the starting point of 10 years in Brennan with the six years imposed on Mr Chapman in this case. However, as I have said, the sentence imposed in one case does not in itself constitute a range or dictate a particular sentence for another case.

97 In Grubb the offender was a finance broker. He stole more than $5 million in committing 33 offences over the course of about 18 months. Some offences involved stealing from a client who had paid the moneys to the offender with a direction that it be lent for a specific purpose. In other cases, a borrower paid money to the offender as a repayment of a loan but the offender stole the money and did not repay the lender. The victims had no immediate prospect of recovery and it was quite likely they would never recover any part of the money they had lost. Many of the victims were elderly, retired people, some of whom had entrusted their life savings to the offender. The offender's long experience in the mortgage broking industry meant that people placed trust in him, which he breached by his offending.

98 The offender pleaded guilty on the fast track system, and cooperated with public enquiries into finance broking and other public authorities. The judge indicated a view that, but for the early pleas of guilty, a total sentence of 14 years would have been appropriate, but reduced the overall sentence to 10 years. The Court of Criminal Appeal dismissed the appeal, coming to the view upon resentencing that 10 years was the appropriate term. The 10 years imposed in Grubb is equivalent to a term of 6 years and 8 months in current (post-transitional) terms.

99 The State submits that the imposition of a greater term on the offender in Grubb, after a fast track plea of guilty, than was imposed on Mr Chapman, who did not demonstrate remorse or cooperation, is demonstrative of an error in the sentencing process of Mr Chapman.

100 I do not accept the State's submission. The court in Grubb emphasised the abuse of trust involved; the devastating effect on the offender's victims, many of whom lost their life savings; and the amount of money involved - over $5 million [54] - [55]. Review of the sentence in Grubb may suggest Mr Chapman was fortunate not to have received a higher sentence, but it does not, to my mind, suggest Mr Chapman's sentence is so low as to reveal an error in discretion.

101 In Pollock, the offender was convicted of nine counts of defrauding a bank of sums totalling more than $3 million. The sentencing judge was unable to make definite findings as to the amount of any financial loss to the bank, but found this was not a factor of major significance. The sentencing judge characterised the frauds as serious and striking at the heart of commercial retail finance. The offender defended the charges at trial, and was sentenced on the basis that he had not shown any remorse.

102 The Court of Appeal upheld the aggregate term of 5 years and 4 months' imprisonment.

103 The State submits that Mr Chapman should have received a more severe sentence than that imposed in Pollock given the considerably longer period of offending, the significant breach of trust, the involvement of two offenders and the extensive loss to the public purse. Of course, Mr Chapman did receive a longer sentence than the offender in Pollock, 6 years as against 5 years and 4 months. The question is whether a sound exercise of discretion required a larger difference. My comments about what is revealed by comparison with Grubb (see the last sentence of [100]) apply again here.

104 In Wilkie v The State of Western Australia [2005] WASCA 156 the offender was a manager with a high degree of autonomy. He was convicted on a fast track plea of guilty of 102 counts of stealing as a servant. Contrary to the submissions of the State in this case, the period of offending of the offences as a whole extended over 7 years and 10 months. The total amount stolen was in excess of $1.65 million, of which more than $1.5 million had not been recovered and was unlikely to be recovered. The offender had used the moneys to fund an extravagant lifestyle.

105 The offender's appeal against a head sentence of 5 years' imprisonment was dismissed. The discount given for the plea of guilty was one quarter. The manner in which the sentencing judge structured the sentence is explained in the reasons of Buss and Mazza JJA. In substance, without the plea of guilty, the starting point for the sentence was 6 years and 8 months.

106 As the State's submissions acknowledge, the circumstances of the offending in Wilkie include a number of features similar to the offending in the present case. Both Mr Chapman and the offender in Wilkie enjoyed a high degree of autonomy in their role as manager. Both stole similar amounts over a similar period. Both used the money to finance an extravagant lifestyle. In both cases there was little prospect of recovering the stolen moneys, resulting in losses of similar magnitudes. In both cases there was no explanation for the offending behaviour. In Wilkie it was said that the offender was embittered towards his employers after failing to receive an expected promotion. Mr Chapman appears to have rationalised his offending on the basis that he had not been adequately rewarded for the work he had done.

107 In my view, the effective starting point of 6 years and 8 months in Wilkie (before the discount for the plea of guilty), is an obstacle for the proposition that Mr Chapman's sentence of 6 years is so unreasonable or unjust that error can be inferred in the exercise of the sentencing discretion.

108 In The State of Western Australia v Bianco [2007] WASCA 197 the offender was convicted, on his pleas of guilty, of 297 counts of stealing as a servant. The total amount stolen was a little over $900,000. The offender committed the offences over a period of six years. The offending was motivated by an addiction to gambling. The offender stole the money from a small family company which suffered seriously as a result. The employer was likely to recover about $336,000 in the offender's bankruptcy.

109 The sentencing judge sentenced the offender to a total effective sentence of 2 years and 6 months. A State appeal against sentence was upheld and the total effective sentence was increased to 3 years and 6 months. Owen JA observed that, but for the fact that it was a State appeal, and for the otherwise good antecedents of the offender, the substituted sentence could have been higher [2]. His Honour referred to the high degree of trust reposed in employees of small business.

110 Bianco was a State appeal decided at a time when double jeopardy constrained resentencing if an error in discretion was demonstrated. The offender in Bianco was at a markedly lower level in the relevant organisation than Mr Chapman. Mr Chapman's offending involved a significantly greater breach of trust and about twice as much money. Further, the offences in Bianco were committed to feed a gambling addition. Nevertheless, the sentence imposed in Bianco is, to my mind, relevant to the question of whether the term of 6 years imposed on Mr Chapman was outside the sound range of an exercise of the sentencing discretion.

111 In Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176, the offender was convicted, on his pleas of guilty, of 51 counts of fraud and two counts of stealing, committed over a period of about one year. It was very difficult to determine the total amount defrauded. There had been no restitution. The offender was sentenced to a total term of 6 years. His appeal against sentence was successful. The Court of Appeal sentenced the offender to a total term of 4 years. The amount involved was unclear, but it was plainly significantly less than in the present case. In the course of his reasons, Steytler P reviewed a number of sentences for fraud and stealing: [37] - [44]. I take into account those decisions, without repeating his Honour's outline. With the exception of Grubb, to which I have referred, and R v Black [2002] WASCA 26, to which I will come shortly, none of the other cases considered by Steytler P involved offending as serious as Mr Chapman's offending.

112 In R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 the offender pleaded guilty to two counts of stealing as a servant. The first count alleged stealing in excess of $18 million, being the amount of a general deficiency, over a period of more than five years, from his bank employer. The second count alleged stealing of an amount of about $840,000. The offender was the manager of a branch of the bank in a country town. He took the money in order to gamble. He was described as a pathological gambler. Eventually, the offender voluntarily informed the bank of his offending. He then assisted the bank with its investigation and in attempting to recover the stolen money. The sentencing judge sentenced the offender to a term of 5 years on the first count, 3 years on the second count and made the sentences concurrent. Although the Court of Criminal Appeal found errors in the sentencing judge's exercise of discretion, taking into account that it was a Crown appeal, the court declined to impose a higher or different sentence and the appeal was dismissed.

113 In R v Black the offender pleaded guilty to four counts of stealing as a servant and four counts of falsifying a record. The offender was employed by a bank in a position of trust. His conduct was characterised as deliberate, systematic and premeditated. The bank employer lost more than $2 million, with no prospect of restitution. The dishonesty was perpetrated over a period of more than 7½ years. The offender used the money for gambling. He cooperated with the authorities and showed remorse. He was sentenced to a total period of 6 years' imprisonment (the equivalent to 4 years, post-transitional). While it was said that the sentences imposed may have been lenient, the Court of Criminal Appeal was not persuaded to interfere with the sentences imposed. Again, this was a prosecution appeal when double jeopardy applied.

Conclusions from review of other cases: the adequacy of Mr Chapman's sentence

114 This review of sentencing appeals reinforces my earlier observations that sentences for offences of these kinds vary widely, and are sensitive to the particular facts and circumstances of the offending and the offender.

115 In my view, it is apparent from my review of the authorities that a higher sentence could have been imposed upon Mr Chapman. I think his sentence is properly described as being lenient, probably very lenient. However, I have come to the conclusion, not without some hesitation, that the total term of 6 years does not demonstrate error in the exercise of the sentencing discretion. To my mind, the sentence imposed on Mr Chapman can fairly be said to be at, or very close to, the bottom of the range of sentences to be imposed upon a proper exercise of the discretion.

116 For these reasons I would dismiss the State's appeal against the sentence imposed on Mr Chapman.

117 That brings me to the State's appeal against the sentence imposed on Ms Johnston. The State's first contention falls with the failure of its appeal against Mr Chapman's sentence. The State's second contention remains to be considered. The question is whether, in all the circumstances, including a sentence of 6 years being imposed on Mr Chapman, the total sentence of 32 months infringes the first limb of the totality principle.

THE STATE OF WESTERN AUSTRALIA -v- CHAPMAN [2012] WASCA 203 (15 October 2012)

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THE STATE OF WESTERN AUSTRALIA -v- CHAPMAN [2012] WASCA 203 (15 October 2012)

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