R v Birch (1993) 69 A Crim R 181

Gardiner v The Queen, unreported; CCA SCt of WA; Library No 940121; 3 March 1994

R v Greenburg (1993) 68 A Crim R 392

Jarvis v R (1993) 20 WAR 201

R v Wilkinson (1996) 85 A Crim R 353

Ryan v R [2001] HCA 21; (2001) 179 ALR 193

The Queen v Black [2002] WASCA 26

The Queen v White [2002] WASCA 112

1 MALCOLM CJ: This was an application for leave to appeal against sentence. I have had the advantage of reading in draft the reasons to be published by Miller J. I am in full agreement with those reasons with the consequence that I would refuse leave to appeal.

2 STEYTLER J: I have had the advantage of reading in draft the reasons to be published by Miller J. I agree with them and with his Honour's conclusion that leave to appeal should be refused.

3 MILLER J: The applicant was charged on two indictments with offences of fraud, contrary to s 409(1)(d) of the Criminal Code. The first indictment, dated 8 October 2001, alleged 20 counts of fraud between 1 January 1993 and 30 November 1994. In each case it was alleged that the applicant, with intent to defraud, by fraudulent means, had caused a detriment to Fletcher Construction Australia Ltd. A second indictment, also dated 8 October 2001, alleged four counts of fraud between 1 January 1993 and 30 November 1994, the entity defrauded again being Fletcher Construction Australia Ltd.

4 To the first indictment, the applicant pleaded not guilty and he was tried before Judge and jury in the District Court, Perth between 8 October and 1 November 2001. He was convicted of all counts on the indictment. After those convictions were recorded the second indictment was put to the applicant and he pleaded guilty to two counts on that indictment. After hearing a plea in mitigation of sentence the learned trial Judge pronounced sentence on 16 November 2001. He sentenced the applicant on the first indictment to imprisonment for 3 years on each of the 20 counts, ordering that the sentences on counts 1-10 be served concurrently and the sentences on counts 11-20 be served concurrently with each other but cumulatively upon the sentences imposed for counts 1-10. On the second indictment the applicant was sentenced to imprisonment for 2 years on each count, the sentences to be served cumulatively on one another, but concurrently with the sentences imposed on the first indictment. The total effective sentence was therefore 6 years' imprisonment for all offences. The sentence was backdated to 1 November 2001 and the applicant was ordered to be eligible for parole.

5 The applicant seeks leave to appeal the sentence imposed on six grounds. They are as follows:

"1. The learned sentencing judge erred in that he failed to sentence the applicant in accordance with the principles

enunciated by the High Court of Australia in Pearce v R (1998) 194 CLR 610 at paragraph 45.

Particulars

(a) The learned sentencing judge failed to fix an appropriate sentence for each offence.

(b) The learned sentencing judge erred in sentencing the applicant to the same term of imprisonment for each offence.

(c) The learned sentencing judge failed to take into account the individual circumstances of each offence.

2. The sentences imposed upon the applicant both individually and in their aggregate were manifestly excessive.

Particulars

(a) None of the offences on their facts justified the imposition of 3 years imprisonment.

(b) The aggregate sentence of 6 years imprisonment was too much having regard to -

(i) the applicant's favourable antecedents;

(ii) the adverse effects that the convictions will have upon his reputation and future capacity to earn an income;

(iii) the delay between the commission of the offences and the applicant's trial;

(iv) the payment by the applicant to the complainant of an amount of compensation $68,000 plus costs and interest which totalled $100,000.

3. The learned sentencing judge gave too much weight to considerations of personal and general deterrence.

4. On indictment number 1839 of 2001 the learned sentencing judge failed to give any real sentencing discount to reflect the applicant's pleas of guilty and the fact that the applicant made no personal gain from the offences.

5. The learned sentencing judge erred in ordering that the sentences on counts 11-20 in indictment 1452 of 2001 be served cumulatively upon the sentences imposed on counts 1-10.

Particulars

All 20 offences taken together constituted a single invasion of the same legally protected interest and thus the sentences imposed upon the applicant should have been ordered to be served concurrently.

6. The learned sentencing judge gave insufficient regard to the totality principle.

Particulars

The aggregate sentence of 6 years was a crushing sentence in light of the applicant's overall criminal conduct and was not in keeping with his record and prospects."

6 The following facts were found by the learned sentencing Judge in relation to the first indictment. The applicant became State Manager in Western Australia for Fletcher Construction Australia Ltd ("Fletcher") in 1992. He was on a salary package of $145,000, which increased to $150,000. During the years 1993 and 1994, he arranged for building work to be done and for goods to be supplied to his home at 9 Ashmore Way, Sorrento. Sometimes the cost of these works or goods were incorporated into the costs associated with the Midland Gate Shopping Centre, a large construction project being undertaken by Fletcher. In other cases, the cost of works or goods supplied were incorporated into the costs of other projects, including Westend Apartments and a project in Wellington Street, Perth, each of which was being undertaken by Fletcher.

7 What the applicant did was procure other employees to make arrangements with subcontractors and/or suppliers and/or arrange for the tender prices submitted by subcontractors to be inflated to include costs in respect of the home in Sorrento. False invoices were also prepared by various subcontractors and debited to Midland Gate Shopping Centre, West End Apartments or the Wellington Street Project, when in fact work was carried out by the subcontractors on the home in Sorrento. The total amount involved in these offences amounted to approximately $223,000, although the learned trial Judge mistakenly put the figure in the order of $238,000. Nothing turns on the difference.

8 On the second indictment the facts were somewhat different. Two sums, being $25,000 and $20,000 respectively were paid to the Builders' Labourers Federation to secure industrial peace on Fletcher Construction sites. To secure this money, false invoices were raised in relation to the Midland Gate and West End Apartments projects and moneys received as a result were paid to the Federation. It was accepted by the learned trial Judge that in these instances the money was not for the applicant's personal use.

9 When sentencing the applicant, the learned sentencing Judge accepted that he had no previous convictions and following his dismissal from Fletcher, had paid a total of $100,000 by way of restitution. It was accepted that the applicant was a person who had worked hard all of his life and that the convictions he had now sustained would destroy his reputation and restrict his capacity for future work. However, the learned sentencing Judge pointed out that the applicant was presently running his own business. He took the view that both personal deterrence and general deterrence were important aspects in the sentencing process and stressed the fact that a number of persons had to be corrupted to enable the applicant to put his plan into operation. His Honour took into account the totality principle and took account of the fact that in relation to the second indictment there had been pleas of guilty to two counts, although not at an early stage in the proceedings. Indeed those pleas were entered and accepted by the Crown in satisfaction of the indictment after conviction on the 20 counts contained in the first indictment.

10 The learned sentencing Judge accepted that the offences were serious, particularly as they were of a type difficult to detect. He considered there to be a need for penalties reflecting deterrence, denunciation and punishment. He found no evidence of remorse on the part of the applicant and indeed found that he had endeavoured to deflect the blame from himself to others during the course of his trial. The learned sentencing Judge was particularly concerned about the evidence of corruption of other employees.

11 The first ground of appeal contends that the learned sentencing Judge erred in failing to turn his mind to the appropriate sentence to be imposed for each individual offence. It is contended that the fact that the same penalty was imposed for each count on the first indictment indicates that the learned sentencing Judge did not differentiate between the individual counts, when in truth there was substantial differences between them. Those differences related to the amount of detriment suffered by Fletcher. The largest amount of detriment was $43,280 in relation to count 14, but a number of counts (eight) involved sums between $10,000 and $19,410, and a further nine counts involved sums between only $750 and $8,986.

12 It was argued that a sentence of 3 years' imprisonment for the counts involving the largest sums of moneys was too severe and plainly the 3 years' imprisonment imposed in relation to the smaller sums was far too severe. The contention was that the learned sentencing Judge failed to have regard to proper principle, reliance being placed upon what was said by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 where, at [43]- [47] their Honours said:

"43 The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

44 Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

45 To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

46 Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

47 Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation."

13 It must be appreciated that in Pearce v The Queen the Court was concerned with the situation in which there were two offences containing common elements, they being maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and breaking and entering the dwelling house of the same victim and whilst therein, inflicting grievous bodily harm on him. The Court held that to the extent to which the two offences contained common elements, it would be wrong to punish the offender twice for the commission of elements that are common.

14 Whilst the passage relied upon by counsel for the applicant is clearly of general application to cases in which there are multiple counts on an indictment, the case must be considered in the light of the particular facts which were there under consideration. The facts here were somewhat different. There were 20 separate counts on the first indictment in relation to which there were 20 separate offences of fraud involving varying amounts of money which ranged from $750 at the lowest end to $43,280 at the highest. Each offence was, however, one in which detriment was caused to Fletcher in circumstances in which there was corruption to others.

15 Whilst the learned sentencing Judge may more correctly have pronounced sentence by varying the length of the sentence imposed in relation to each of the separate and distinct counts contained on the indictment, he was in the end result going to be called upon to consider the totality sentence in fixing an effective term of imprisonment to be served. Whilst it is arguable that there was error in simply fixing 3 years' imprisonment as the sentence for each count, the question is whether in the end there was a miscarriage of justice occasioned by the way in which the sentence was structured. In my view there was not.

16 The maximum penalty applicable to each count on the indictment was 7 years' imprisonment. An effective sentence of 6 years' imprisonment was, in my view, a proper reflection of the criminality of the acts of the applicant. The sentences imposed in relation to the second indictment properly took into account the plea of guilty and, in my view, no error can be discerned in relation to the way in which they were structured.

17 The gravity of the applicant's conduct cannot be understated. There was a quality and degree of trust reposed in him by Fletcher and he breached that trust, not only by the frauds committed, but also by the corruption of various other employees, subcontractors and suppliers. Counsel for the respondent in his written submissions described the applicant's behaviour as "insidious ... (creating) a chain of corruption that was far reaching". This, in my view, was an accurate description of what the applicant did.

18 Further, the period over which the frauds were perpetrated was approximately January 1993 to November 1994. For a person who held the responsible position of trust that the applicant did, this was an aggravating factor. The amount of the frauds was significant, there being a total of $223,000 involved in relation to the first indictment and $45,000 (although not for the applicant's personal use) in relation to the second indictment. The frauds in relation to the first indictment were committed solely for the applicant's own personal purposes, properly described the Director in his submissions as "solely for greed". The offences were committed to support his lifestyle.

19 Finally, and very importantly, the offences were such as to have a severe impact on public confidence. As the Director submitted, the reputation of the construction industry is tarnished by offences of the kind committed by the applicant. The Director's submission that by such offences "a perception is created that to get work one has to engage in these sort of activities" is arguably correct.

20 Counsel for the applicant referred to a number of comparative cases, arguing that an effective sentence of 6 years' imprisonment in the present case was well beyond the exercise of a sound discretionary judgment. Instances were given of high sentences in the case of very substantial amounts of money (Pak v The Queen, unreported; CCA SCt of WA; Library No 950407; 11 August 1995, where a sentence of 7-1/2 years' imprisonment was upheld in circumstances where the total amount defrauded was $1.316 million) and lower sentences for offences where the amount involved was as high as $800,000 (McPharlin v The Queen, unreported; CCA SCt of WA; Library No 970665; 10 October 1997, where a sentence of 4 years' imprisonment was imposed for fraud involving $800,000). A number of Crown appeals were referred to, including The Queen v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996, where a sentence of 3 years was increased to 5 years for a $500,000 fraud and The Queen v Kite, unreported; CCA SCt of WA; Library No 950659; 1 December 1995, where a sentence of 2-1/2 years' imprisonment was increased to 3-1/2 years on a representative indictment alleging frauds of $174,000 in total.

21 In my view, detailed reference to comparative cases is unhelpful. In some cases there were pleas of guilty and other cases pleas of not guilty. In some cases there was corruption of others, but in others no such corruption. Crown appeals are to be treated on a different basis from appeals brought by convicted persons. The principle of double jeopardy often means that increases in sentence on Crown appeals are less than they might otherwise be.

22 Further, no trend in sentencing for the offence of fraud is immediately discernable from these or other cases cited in argument. All seem to have facts peculiar to the circumstances of the particular case. I cannot accept the submission of counsel for the applicant that sentences for the offence of fraud have become less severe in recent years. Nor would one expect that trend to have occurred. In my view the second ground of appeal cannot succeed.

23 The third ground of appeal contends that excessive weight was given by the learned sentencing Judge to personal and general deterrence. I am unable to accept this submission. The applicant did need personal deterrence. Although there was no indication that he was likely to reoffend in the future, the fact remained that personal deterrence was a factor relevant to the sentencing exercise. The applicant had pleaded not guilty to the first indictment and, as the learned sentencing Judge found, had attempted to deflect the blame from himself to others. General deterrence was extremely important, particularly having regard to the position of trust held by the applicant, the influence he had on others and the nature of the industry in which he worked. I can find no basis for the contention that undue emphasis was given to deterrence.

24 The fourth ground of appeal complains that insufficient credit was given to the applicant in relation to his pleas of guilty on the second indictment. However, the learned sentencing Judge specifically said that the applicant should be given credit for his pleas of guilty in relation to the second indictment. Although late pleas, they attracted a discount on what would otherwise have been the sentence by reason of their utilitarian value: see Cameron v The Queen [2002] WASCA 81. The fact that the sentences in relation to the two counts on the second indictment were each 2 years' imprisonment indicates that there had been a discount both for the utilitarian plea and the peculiar circumstances of those offences. I can find no substance in the fourth ground of appeal.

25 The fifth and sixth grounds of appeal can be considered together. They contend that the learned trial Judge erred in the manner in which he ordered concurrency and the cumulative effect of the sentences, and by giving insufficient emphasis to the totality principle.

26 In my view these grounds cannot be made out. Although an unusual way in which to structure the sentences cumulatively (3 years on each of counts 1-10 concurrent and 3 years on each of counts 11-20 concurrent, but cumulative upon the sentences for counts 1-10), it would not have mattered had the learned sentencing Judge imposed cumulative sentences on counts 1 and 2, with the balance to be served concurrently. It is the end result that counts. A sentence of 6 years' imprisonment was, in my view, well within the exercise of a proper discretion and a proper reflection of the totality principle.

27 Although it was faintly argued that the "one transaction rule" applied in this case by reason of the fact that the offences were committed over a period of almost two years and involved the same modus operandi with the same detriment in each case suffered by Fletcher, I am unable to agree with that proposition. Although counsel for the applicant relied upon the decision in Pieri v The Queen [2001] WASCA 357, Einfeld AJ in that case (at [36] - [41]) expressed the rule in terms which make it entirely appropriate to the present case:

"36 In 'Principles of Sentencing' 2nd Ed 1979, p53, D A Thomas says that:

'Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive.'

37 Again, in Brown (1982) 5 A Crim R 404 at 407 Forster CJ said:

'When a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, cumulative penalties should not be imposed.'

38 The question is whether the offences arise 'out of the same facts' so that they should be concurrent or whether they are 'entirely distinct' so that they should be cumulative: Carey (1975) 11 SASR 575 at 577.

39 In R v Ruane [1979] 1 A Crim R 284 at 286, Wallace J said:

'Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefore is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question.'

40 His Honour quoted from Archbold 38th ed at par 637:

'Ordinarily two consecutive sentences should not be passed for two offences which arise from one and the same act.'

41 The essence of the one transaction rule thus appears to be that consecutive or cumulative sentences are inappropriate when all the offences taken together constitute a single invasion of the same legally protected interest."

28 The learned trial Judge plainly took notice of the totality principle in sentencing the applicant. He made specific reference to the principle and to the need to avoid a sentence which was crushing. It was, in my view, a sentence which was in every respect proportionate to the degree of criminality involved. Although the applicant had excellent antecedents, and those antecedents were to be taken into account, they were properly to be considered of less weight than might otherwise be the case in other offences. In this respect, what was said by Scott J (with which Kennedy and Wallwork JJ agreed) in The Queen v Sivandran, unreported; CCA SCt of WA; Library No 960154; 11 August 1995 at page 13, is entirely applicable to this case:

"In these cases, the fact that the offender has impeccable antecedents has less than the usual impact in the sentencing process because it is only that history that enabled the respondent to hold the position that he occupied. That is not to say that his impeccable antecedents are to be ignored as a factor in sentencing, but rather, that in a case such as this, the respondent's antecedents are of less weight than would otherwise be the case: Gardiner v R, unreported; CCA SCt of WA; Library No 940121; 3 March 1994 and Greenburg (1993) 69 A Crim R 392."

29 I have stressed that the case was one in which a large measure of discretion was reposed in the learned sentencing Judge. This was because of the number of counts on the first indictment, the combination of the two indictments, the amount involved and all of the other factors to which I have referred. It as truly a case in which the oft-cited passage from Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15] was relevant:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

30 In the end, I am unable to find substance in any of the grounds of appeal advanced on behalf of the applicant and I would refuse leave to appeal.