Van Haltren v R

33 Given the Applicant's pattern of deception revealed by the offences, his Honour was "very cautious about accepting the reliability" of the Applicant's statements concerning his history and background to the probation and parole officer or to any other person or organisation (ROS19-20). 34 Following his arrest on 12 July 2004, the Applicant remained in custody until released on bail in mid-August 2004. He remained on bail until remanded in custody on 8 June 2007 following his pleas of guilty.

The Grounds of Appeal 35 The Applicant presses three grounds of appeal:

(a) Ground 1 - insufficient discount was allowed for the Applicant's assistance to authorities;

(b) Ground 2 - the discount for the Applicant's pleas of guilty was inadequate;

(c) Ground 3 - the sentence is, in all the circumstances, manifestly excessive.

Ground 1 - Insufficient Discount Allowed for Assistance to Authorities 36 The Applicant was arrested on 12 July 2004 and first appeared before Central Local Court on 6 August 2004. On 27 April 2006, he was committed for trial in the Sydney District Court. 37 In 2006 and 2007, the Applicant agreed to be interviewed by Australian Federal Police. It is the assistance to the authorities said to flow from these interviews which is the subject of the first ground of appeal. 38 His Honour dealt with the Applicant's assistance in the following way (ROS17-19): "In April 2006 the offender submitted to interviews by investigating police: that was prior to the date listed for committal proceedings in the matters in Downing Centre Local Court. The offender made certain allegations in that interview but those were said to be of a general nature and did not specify times or locations. It is the view of both the Federal and New South Wales Police Force that the information provided by the defendant was of no value as it was of a general nature. On 7 June 2007 the offender, a day prior to entering his pleas of guilty on the indictment, attended the Australian Federal Police Sydney office and participated in a further tape interview in the presence of his counsel and solicitor. The offender made certain denials in relation to various credit accounts that he was said to have operated. He made allegations against a person not named in the statement of facts. Police have spoken to that person who has denied the allegations. The facts detail that some of the material seized on the execution of search warrants from premises occupied by the offender is linked to some of the accounts that the offender denied operating. During the interview, the offender alleged that he had attended properties with two persons with the intention of identifying properties that could be purchased using a system of bank loans given to fictitious applicants, together with over valuation of the real estate. The offender in his interview with police however did not identify any specific properties involved. He did say that the property at Leichhardt however was subject to a valid valuation. The offender denied knowledge of certain fraudulent documents and said that he was willing to provide evidence that some documents were not completed by him. It is observed however that copies of for instance the St George bank loan application were found at his premises during a search warrant execution. A person he nominated as having completed or submitted false documents to St George has denied to police any involvement. Another person identified, said to be a mortgage manager, had left Australia in 2003 and has not been interviewed. The offender did admit to police in that second interview that he was present when documents for bank loans were altered on behalf of one of his employees. In addition, after his plea of guilty and prior to sentencing, the offender entered into further interviews with police. I have received a document tendered in the sentencing process being Exhibit D which actually comprised two documents. It is the assertion of the relevant Federal Police Officers that the assistance given by the offender in his most recent interviews was of no value. I am asked by Mr Byrne of senior counsel, on behalf of the offender, to take into account the willingness of the offender to co-operate. I accept that although the material he has delivered in his various interviews has not, in the view of the police, been of any significant value, it is an indication that he was prepared to come forward and answer questions. I will take that into account in determining his penalty and I will give him a very slight discount for that co-operation with authorities as evidence of his regret for his involvement." 39 A little later, his Honour said (ROS23): "Mr Byrne of senior counsel also tendered, as I have observed, the final statement made to police made by the offender, although the police say the information provided was of 'nil' value. As I have observed, I will utilise that material for the purposes of being some evidence of the regret of the offender for his behaviour and his desire to co-operate."

Applicant's Submissions 40 Mr McClintock SC, for the Applicant, submitted that a "very slight discount" for the Applicant's co-operation was an insufficient discount in the circumstances of the case. He submitted that there is a significant public policy in encouraging accused persons to co-operate with the police in order to expose other persons who are involved in criminal conduct: De Campos v R [2006] NSWCCA 51 at [25]. He submits that this principle applies here and that the disinclination of police to further investigate information provided by the Applicant ought not to have impacted on the assessment on the quality of the assistance, thereby reducing the discount. 41 He submits that the sentencing judge allowed a combined discount of 15% for the pleas of guilty and for the Applicant's assistance to the authorities, and that such a combined discount was insufficient in the circumstances of the case.

Crown Submissions 42 The Crown submits that no error has been demonstrated in the manner alleged in the first ground of appeal. The police were not challenged in evidence or submissions in the District Court concerning their opinion as to the value of the information provide by the Applicant. 43 The Crown submits that the sentencing judge did not combine the discount to be allowed for the Applicant's pleas of guilty, and his assistance to the authorities, leading to a single discount of 15%. Rather, the 15% discount was solely referrable to the Applicant's pleas of guilty with his Honour allowing an additional "very slight discount" for his co-operation. 44 The Crown submits that it was appropriate for his Honour to consider the value, or lack of value, of the Applicant's assistance to the authorities: Alchikh v R [2007] NSWCCA 345 at [25].

Decision 45 I accept the Crown submission that his Honour did not give a rolled-up 15% discount for the Applicant's pleas of guilty and his co-operation with authorities. It is clear from the remarks on sentence (ROS25) that the 15% discount related solely to the Applicant's pleas of guilty, which had utilitarian value and indicated the Applicant's preparedness to facilitate the administration of justice: Cameron v The Queen (2002) 209 CLR 339 at 343-344 [13]-[15]; Cahyadi v R (2007) 168 A Crim R 41 at 49 [34]. The "very slight discount' which his Honour allowed for the Applicant's co-operation with authorities was taken into account in addition to the 15% discount in imposition of sentence. 46 The sentencing judge took into account the fact that the Applicant was prepared, long after the relevant events, to provide some information to the police. It was appropriate for his Honour to consider the value of the information provided. In accordance with usual practice, investigating police provided an assessment of the value of the material, indicating that it was of no value. This opinion was expressed after police had assessed the information provided by the Applicant. This assessment was not challenged in the District Court by cross-examination or in submissions made by the Applicant. The nature and content of the information provided by the Applicant (as outlined in the quotation at [38] above) serves to explain why little weight was given to it on sentence. Both the timing and content of the Applicant's interviews and statement were relevant, and neither operated to assist the Applicant. 47 This is not a case like De Campos v R at [20], where the offender offered to take part in a controlled delivery of drugs, while an investigation was still on foot, but a police officer declined on the basis that it was not worth the effort in light of the likely outcome of such an operation. In that case, the offender made an unconditional offer to assist police in a practical way soon after arrest, and whilst other criminal participants were still actively involved in the offending conduct. Despite the fact that police chose not to take the matter further at the time (for reasons beyond the control of the co-operating offender), the Court said that it was appropriate that the offender be given a discount for this assistance. As Howie J (Beazley JA and Adams J agreeing) observed at [25]: "In my view the applicant should be re-sentenced to take into account this offer of assistance although it will not always be the case that an offer that was not taken up by the police should be rewarded. It is well-known and has been well stated in numerous decisions of this Court that there is a significant public policy in encouraging people to co-operate with the police in order to expose other persons who are in the hierarchy of importing drugs into the country, particularly where those persons reside in this country." 48 De Campos v R is not authority for the proposition that a discount ought be given in every case where an offender provides information. 49 It was open to the sentencing judge to make the findings he did and to determine that a "very slight discount" only ought be allowed for the Applicant's assistance. Although the attempt made to assist police is one of the matters to be considered, so is the effectiveness of the assistance and its benefit to the authorities: R v El Hani [2004] NSWCCA 162 at [73]; Alchikh v R at [25]. In reality, the Applicant's proffered assistance came late and was of no practical benefit to the police: Assafiri v R [2007] NSWCCA 159 at [20]-[23]. 50 No error has been demonstrated by the Applicant in the manner in which the sentencing judge approached the Applicant's provision of information to authorities. I would reject the first ground of appeal.

Ground 2 - The Discount for the Applicant's Pleas of Guilty Was Inadequate 51 Consistent with my conclusion (at [45]) with respect to Ground 1, I approach Ground 2 upon the basis that his Honour allowed a discrete discount of 15% for the Applicant's pleas of guilty.

Applicant's Submissions 52 Mr McClintock SC submits that the discount allowed for the Applicant's pleas of guilty was inadequate in the circumstances of this case.

53 Mr McClintock SC points to the history of the matter whereby the Applicant was charged with eight offences in August 2004. Over the ensuing eight months, at different times, a further 40 charges were laid. The Applicant pleaded not guilty in the Local Court to all charges and, on 27 April 2006, he was committed for trial in the District Court. Thereafter, various delays ensued involving the appointment of new legal representatives. At one stage, legal aid was withdrawn and further adjournments resulted. On 12 December 2006, a six-week trial was fixed to commence on 4 June 2007. 54 On 4 June 2007, the Applicant pleaded guilty to nine charges and foreshadowed pleas of guilty to further charges. On 6 June 2007, the Applicant entered a further eight pleas of guilty, and the Crown indicated that a fresh indictment was likely to be filed after the consent of the NSW Director of Public Prosecutions had been obtained. On 8 June 2007, a fresh indictment was presented containing the 26 counts to which the Applicant pleaded guilty. On the same day, the sentencing judge was asked to take into account eight Commonwealth offences for the purposes of s.16BA Crimes Act 1914 (Cth) and the State offences on the Form 1. Thereafter, the sentencing hearing proceeded on 5 October 2007 with sentence being passed on 16 November 2007. 55 In the circumstances of the case, Mr McClintock SC submits that the pleas of guilty were useful in avoiding the need for a trial with an estimate of four to six weeks. Although acknowledging that the Applicant sought a number of adjournments, he submits that these were partly a result of the Crown amending charges before the time when the Applicant entered guilty pleas. In these circumstances, he submits that the responsibility for the delay in those pleas cannot be visited entirely on the Applicant. He points to the complexity of the prosecution and contends, in the circumstances, that an inadequate discount was allowed for the Applicant's pleas of guilty.

Crown Submissions 56 The Crown submits that the 15% discount allowed for the Applicant's pleas of guilty was both open to the sentencing court and appropriate. 57 The Applicant did not challenge the sentencing judge's finding that pleas had not been entered at the earliest opportunity. The matter had been listed for trial in the District Court on three occasions (30 October 2006, 13 November 2006 and 20 November 2006) with the trial being vacated on each occasion on a defence application. It was not until June 2007, some 14 months after committal, that the Applicant entered pleas of guilty. Although there was a saving of court time as a result of the guilty pleas, the matter had to be prepared for trial on each occasion. 58 The Crown submits that the sentencing judge took into account both the timing of the pleas and the particular benefits arising from the prospective length and complexity of the trial: R v Thomson and Houlton (2000) 49 NSWLR 383 at 418-419 [155], [160]. The Crown also points to the observation of Heydon JA (Bell J and Smart AJ agreeing) in R v Conway (2001) 121 A Crim R 177 at 183-184 [25] that it is not easy to succeed in a challenge to a discretionary sentencing decision upon the basis that insufficient or inadequate weight had been given to a particular factor. In circumstances where the Applicant has not demonstrated an error in principle and the result, so the Crown contends, is not plainly indicative of some error, then Ground 2 ought be rejected.

Decision 59 The Applicant pleaded guilty to 25 Commonwealth offences and one State offence, with additional Commonwealth and State offences to be taken into account for the purpose of sentence. The sentencing judge allowed a discount of 15% with respect to the Applicant's pleas of guilty. The 15% discount took into account the utilitarian value of the pleas and the willingness of the Applicant to facilitate the course of justice. 60 It is appropriate to nominate a discount for pleas of guilty where an offender is charged with both Commonwealth and State offences: Cahyahi v R at 49 [34]. The range of discount nominated in R v Thomson and Houlton has been adopted as a reasonable range with respect to Commonwealth offences: R v Bugeja [2001] NSWCCA 196 at [28]; R v Otto (2005) 157 A Crim R 525 at 540 [69]; Morgan v R [2007] NSWCCA 8 at [21]. 61 Insofar as there is criticism in this case of the percentage discount awarded, the short answer is that the Applicant has no entitlement to any particular discount: Cahyahi v R at 49 [35]. 62 There was no suggestion here that the Applicant had offered a plea of guilty to any count or counts prior to June 2007. This was not a case where a plea of guilty was offered by the Applicant but rejected by the Crown, only to be accepted at a later time by the Crown: Ahmad v R [2006] NSWCCA 177 at [20]. Rather, the Applicant had denied his guilt and was committed for trial, with a trial date being fixed on three occasions thereafter, before (on the day when the trial was to commence) pleas of guilty were ultimately offered and accepted by the Crown to a large number (but not all) of the charges which had been brought against the Applicant. If a plea is entered a long time after a person is first charged, even to a lesser group of charges, the advantages to the administration of justice are less: R v Dib [2003] NSWCCA 117 at [5]-[6]. 63 In my view, the sentencing judge took into account, in an appropriate fashion, the timing of the pleas, their utilitarian value and the willingness of the Applicant to facilitate the course of justice. Given the lateness of the pleas of guilty, a 15% discount was reasonably generous to the Applicant. The Applicant has failed to demonstrate that the learned sentencing judge allowed an insufficient discount by reference to the pleas of guilty. 64 I would reject the second ground of appeal.

Applicant's Submissions 65 Mr McClintock SC acknowledged that the Applicant's criminal conduct was serious and took place over a significant period of time with a large amount of money being obtained. A sentence of full-time imprisonment was inevitable. He submits, however, that the length of the overall sentence imposed is manifestly excessive. In view of the discount in the order of 15%, he submits that a starting point of approximately seven years' imprisonment was excessive. 66 Senior counsel for the Applicant drew support from the statement of Burchett and Higgins JJ in R v McDonald (1994) 71 A Crim R 370 at 379, in the context of a fraud offender, that "a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of the count when its length is fixed". 67 The Applicant referred to a schedule of cases provided to the sentencing judge by the Crown and noted that, with one exception, a head sentence not exceeding two years had been imposed. Mr McClintock SC submits that, by comparison with the sentences referred to in this table, the Applicant's sentence is excessive. Whilst acknowledging the limitations inherent in relying upon other sentencing decisions, Mr McClintock SC submits that the following additional cases provide some support for the submission that the sentences imposed on the Applicant are manifestly excessive:

(a) Valentine v R [2007] NSWCCA 23 concerning sentences imposed for three counts of using a false instrument contrary to s.300(2) Crimes Act 1900 (NSW) ;

(b) R v Watt [2005] NSWCCA 89 concerning sentences imposed for 11 counts of the offender using his position dishonestly to obtain an advantage contrary to s.184(2) Corporations Act 2001 (Cth) ;

(c) R v Cappadonna (2001) 122 A Crim R 52 concerning sentences for eight offences of fraud (on the Australian Taxation Office) contrary to s.29D Crimes Act 1914 (Cth) . 68 The Applicant submits that the sentences imposed in the District Court are manifestly excessive and that this Court should intervene and resentence him by way of less severe penalties.

Crown Submissions 69 The Crown submits that the sentences imposed in this case are not manifestly excessive. The Applicant had committed a large number of offences, with different maximum penalties, and it was necessary for his Honour to have regard to the principles in Pearce v The Queen (1998) 194 CLR 610. His Honour determined the individual sentence for each offence and then turned to issues of concurrency and accumulation and the principle of totality. His Honour had regard to relevant factors for the purpose of s.16A Crimes Act 1914 (Cth). 70 His Honour was required to impose a sentence of a severity appropriate in all the circumstances of the offences: s.16A(1) Crimes Act 1914 (Cth). Those circumstances included the fact that, between March 2001 and September 2004, the Applicant used false identities (for which he had procured false identification documents such as driver's licences, Medicare cards and passports) in order to obtain money and other benefits. He used these false identities to open and operate a number of bank accounts and to obtain credit, including real property mortgages. Both general and personal deterrence were significant factors to maintain the integrity of bankruptcy laws: Paragalli v R [2006] NSWCCA 87 at [23]. 71 To the extent that the Applicant seeks to rely upon the schedule of cases provided by the Crown to the sentencing judge, the Crown submits that a review of those cases reveals the criminality involved in each of them was far less than that exhibited by the Applicant. In that sense, the Crown submits that the cases are not comparable to the present case. They provide some indication concerning penalties imposed in other cases but they do not provide true comparisons with the Applicant's case. 72 The Crown submits that the sentences imposed upon the Applicant were within the available range of sentence and that it has not been demonstrated that the sentences were manifestly excessive.

Decision 73 The question for this Court is whether (either patent or latent) error has been demonstrated with respect to sentence and, if so, whether a positive opinion ought be formed that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson (2001) 53 NSWLR 704 at 719 [79]. 74 The submission of the Applicant is, in reality, that the final sentences imposed were manifestly excessive and that a breach of the proportionality and totality principles may be inferred from the final result. It is said that the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] 228 CLR 357 at 370-371 [25]. 75 The Applicant's principal submission involves reliance upon other sentencing decisions, in an effort to establish a range of sentence, to support an argument that the present sentences are manifestly excessive. I do not consider that the sentencing decisions relied upon by the Applicant assist him to make good this submission. 76 The Crown provided to the sentencing judge a schedule of cases as examples of sentencing decisions for offences under the same provisions contravened by the Applicant. Sentences for offences under s.269 Bankruptcy Act 1966 (Cth) were considered in R v Halls (2002) 127 A Crim R 209, R v Issaac [2005] NSWCCA 86 and R v Paragalli. Sentences for offences under s.24 FTR Act were considered in Cahyadi v R and offences under s.300(2) Crimes Act 1900 (NSW) were considered in R v Meyer (2002) 135 A Crim R 438. It was appropriate for the Crown to provide these references to the sentencing judge, but it was equally important that the purpose for which the information was provided was kept in mind. His Honour did so in this case. 77 A note of caution has been expressed by this Court when a manifestly excessive ground is based upon comparison with sentences imposed in other cases. 78 In R v Morgan (1993) 70 A Crim R 368, Hunt CJ at CL (Allen J and Loveday AJ agreeing) said at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range." 79 In R v George (2004) 149 A Crim R 38 at 47, the Court (Wood CJ at CL, Adams and Kirby JJ) approached a ground of appeal which invited comparison with sentences in other cases in the following way: "We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 to 101. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna , 'Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.' Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made." 80 After referring to these passages from R v Morgan and R v George, I observed in R v Araya (2005) 155 A Crim R 555 at 567 [70] (with the concurrence of Simpson and Rothman JJ): "Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker [2001] NSWCCA 148 at paragraphs 17-18; R v Swadling [2004] NSWCCA 421 at paragraphs 29, 54; R v Martin [2005] NSWCCA 190 at paragraph 56. In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy." 81 I do not consider that the few cases relied upon by the present Applicant establish a range of sentence for these classes of offences. The cases referred to by the Crown in the District Court were of most assistance for their statements of general sentencing policy for this class of offending. 82 Section 269 Bankruptcy Act 1966 (Cth) is intended to protect persons, in particular credit providers, dealing with an undischarged bankrupt: R v Scott (1996) 131 FLR 137 at 141-142; R v Halls at 216 [25]. Although fraudulent intent is not an element of a s.269(1) offence, the circumstances of a case (such as this) may reveal that an offender has acted in a fraudulent or dishonest way: R v Scott at 142-146; R v Issaac at [37]-[39]. 83 The importance of deterrence with respect to s.269 offences has been emphasised: R v Halls at 215-216 [24]. This Court has said that both general and personal deterrence (but especially general deterrence) are significant factors in aid of maintaining the integrity of the law of bankruptcy, without which there would be serious public disadvantage of various commercial, economic and social kinds: Paragalli v R at [23]. 84 The offender's motive for committing s.269 offences is also relevant on sentence. In R v Issaac at [28], it was relevant that the offender's motive for commission of offences was "need, as distinct from greed". The sentencing judge found that the present Applicant was motivated by greed (see [28] above). 85 The present Applicant's objective criminality far exceeded that revealed in the cases referred to by the Crown in the District Court. 86 The Applicant stood for sentence for a large number of serious offences committed over a lengthy period of time for personal gain, motivated by greed. His deception extended beyond the use of false identities to deceive banks and other corporate entities to the brazen denial that he was using false identities accompanied, at times, by threats of litigation against those who made such suggestions. It was entirely correct for the sentencing judge to emphasise the need for personal and general deterrence in this case. 87 The Applicant engaged in a persistent course of deception over some three-and-a-half years. A range of false identities were utilised by him for unlawful purposes. In another context, it has been observed that a proficient fraudster may be armed with forged documents, such as a driver's licence, as proof of false identity and that this demonstrates an element of planning and sophistication and a high level of objective criminality: R v Tadrosse [2005] NSWCCA 145 at [26]; R v Araya at 571 [96]. General and specific deterrence are matters of particular importance where there is a pattern of fraudulent activity by an offender over an extended period using false identities and associated paraphernalia (such as fraudulent driver's licences): R v Araya at 571 [98]. 88 The course of criminal conduct of the Applicant involved persistent identity crime, a class of criminal conduct which has drawn particular attention in recent years: see, generally, the Final Report of the Model Criminal Law Officers' Committee of the Standing Committee of Attorneys-General, "Identity Crime", March 2008. Using the nomenclature of that report (at paragraph 2.2), the Applicant's conduct involved both identity fabrication (the creation of fictitious identities) and identity manipulation (the alteration of his own identity by changing one or more elements of identity). 89 Given the number and range of offences, it was necessary for his Honour to consider questions of accumulation, concurrence and totality: Cahyahi v R at 47-48 [27]-[30]. In R v Knight (2005) 155 A Crim R 252 at 272 [112] it was said: "It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM [2002] NSWCCA 58 at [70]; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at paragraph 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paragraphs 36-37."

His Honour applied these principles in this case. A substantial total sentence was imposed upon the Applicant, but that was the consequence of his persistent and protracted criminality motivated by greed. His Honour had proper regard to the objective circumstances of the offences and the subjective circumstances of the Applicant. 90 The Applicant has not demonstrated that the sentences imposed upon him were manifestly excessive. I reject the third ground of appeal.

Orders 91 Leave to appeal ought be granted, but the appeal should be dismissed. 92 PRICE J: I agree with Johnson J. **********

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