R v Tooth [2000] NSWCCA 482

New South Wales Court of Criminal Appeal

CITATION : R v Tooth [2000] NSWCCA 482 FILE NUMBER(S) : CCA 60298/2000 HEARING DATE(S) : 20/11/00 JUDGMENT DATE : 22 December 2000

PARTIES : Regina v William Richard Tooth JUDGMENT OF : Barr J at 1 & 70; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/41/0046; 96/41/0046; 99/11/0283 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : (Applicant): R Toner SC / K R Newell (Crown): P G Berman SC SOLICITORS : (Crown): S E O'Connor CATCHWORDS : Sentencing - severity appeal - obtaining a financial advantage by deception etc - whethr sentences manifestly excessive - relationship between discount for assistance to the authorities and special circumstances considered. Crimes Act 1900 LEGISLATION CITED : Justices Act 1902 Crimes (Sentencing Procedure) Act 1999 R v Jalalaty (CCA, unreported, 2 April 1997) R v Moffitt (1990) 20 NSWLR 114 R v Gallagher (1991) 23 NSWLR 220 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v S (2000) 111 A Crim R 225 R v Clarke (1995) 78 A Crim R 226 R v Henry (1992) 28 NSWLR 348 DECISION : See paragraph 69

IN THE COURT OF CRIMINAL APPEAL 60298/00

BARR J CARRUTHERS AJ Friday, 22 December 2000

REGINA v William Richard TOOTH

JUDGMENT 1 BARR J: I agree with Carruthers AJ. 2 CARRUTHERS AJ: William Richard Tooth seeks leave to appeal against sentences imposed upon him by her Honour Judge Ainslie-Wallace at the Sydney District Court on 5 May 2000. 3 On 5 April 2000 the applicant pleaded guilty to counts 1 to 4 and 6 to 9 of an Indictment containing 9 counts. He pleaded not guilty to the 5th count and the Crown accepted the pleas of guilty in full discharge of the Indictment. 4 Each of the 8 relevant charges was under s 178BA of the Crimes Act 1900 (the Act) (obtaining a financial advantage by deception). That section provides a maximum penalty of five years imprisonment. 5 On that date her Honour was also asked to take into account 23 matters under a Form 1 constituting 6 charges of using a false instrument, 9 charges of using a copy of a false instrument and one charge of dishonestly concealing a material fact. 6 These matters were referred to in the sentencing proceedings as "the Wollongong matters". 7 On that date her Honour also had before her 2 charges which had been committed to the District Court pursuant to the provisions of s 51A of the Justices Act 1902. They were both charges of making a false statement. In addition, there were 23 matters on a second Form 1 which her Honour was asked to take into consideration being 18 charges of obtaining a benefit by deception, one of being an accessory before the fact to making a false statement, two of making a false statement, one of using a false instrument and one of receiving. 8 These matters were referred to as "the Sydney matters." 9 The offences contained within the Indictment covered the period 8 August 1989 to 31 January 1992. The 2 section 51A matters were committed on 11 February 98 and 31 March 1998 respectively. 10 Her Honour sentenced the applicant in relation to each of the 8 matters on the Indictment to concurrent fixed terms of 3 years imprisonment to commence on 5 May 2000 and to expire on 4 May 2003, after taking into account the matters on the first Form 1. 11 In relation to the first charge on the s 51A matters her Honour sentenced the applicant to imprisonment for 3 years, with a non-parole period of 2 years and 3 months, to commence on 5 May 2003 and to expire on 4 August 2005, after taking into account the matters on the second Form 1. 12 In relation to the second charge her Honour sentenced the applicant to a fixed term of 2 years imprisonment to commence on 5 May 2003 and to expire on 4 May 2005. 13 I shall refer first to the Wollongong matters. The applicant was born on 28 April 1953 and thus is presently 47 years of age. Prior to about 1998 the applicant was engaged on the family farm at Colleambally. At about that time he moved to Armidale where he became acquainted with John and Ken Wilson. The applicant held a pilot's licence and in 1989 he formed a partnership with the Wilsons involving charter aircraft and crop dusting, known as New England Aerial Top Dressing. 14 In mid 1989 the applicant and Ken Wilson purchased a company called Crop Air Leasing Pty Limited. In 1992 this company went into liquidation and the applicant entered into voluntary bankruptcy. The subject offences were committed over the period of 1989 to 1992 when the applicant and Ken Wilson were in partnership. 15 The details of the relevant offences in the Indictment and the first Form 1 are set out in some detail in her Honour's remarks on sentence and, despite their seriousness, they, for present purposes, may be dealt with briefly. 16 Up until mid 1990, the agency for Ayers Aircraft in the Armidale area was held by Ross and Mary Mace. 17 The applicant and Ken Wilson resolved to acquire a number of aircraft from Ayers Aircraft and entered into a scheme with the Maces, which generally speaking, involved the parties agreeing upon the true value of a particular aircraft. 18 The vendors then submitted a fictitious invoice at an inflated price, which the applicant and Wilson relied upon to obtain finance, either from a bank or a finance company. The financier then paid the inflated price to the vendors (the Maces) who then remitted the overpayment to the applicant and Wilson. 19 The 8 counts in the Indictment relate to the purchase and financing in this illegal manner of 8 separate aircraft. In all the overpayments to the applicant and Wilson amounted to $1,600,000. 20 The 16 matters in the first Form 1 relate to ancillary criminal conduct necessary to give effect to the overall criminal scheme. By way of example, matter 5 in the Form 1 refers to a guarantee supplied to the relevant finance company in the name of the applicant's wife, whose signature was forged by the applicant. 21 I turn then to the Sydney matters. With regard to the first charge the following relevant facts may be noted. In February 1998 the applicant, with a co-offender, met with a loans officer from the Colonial State Bank and provided him with false documents asserting that the applicant was one George Christie Using those false documents the applicant signed a loan document ostensibly for the financing of 7 home units in Coffs Harbour. Their true value was to the order of $85,000 each but it was represented to the bank that their value was about $150,000 each. As a consequence of the over financing the applicant and Wilson received about $50,000 between them. 22 The second charge relates to a similar type of dishonest transaction resulting in the applicant and John Wilson receiving $38,000 between them. The Colonial State Bank suffered a loss to the order of $763,000 as a result of this criminal conduct. 23 The applicant offered considerable assistance to the investigating police particularly in relation to this latter matter. Evidence was presented to her Honour that the applicant had provided information that there was an on-going organisation of people who had been making fraudulent applications to lending institutions for finance including two solicitors and an accountant. 24 The applicant participated in a number of covert operations organised by police officers which involved, at times, his carrying a concealed recording device. 25 The applicant gave police information about certain other attempted frauds on banks which were then in train and which were able to be averted. 26 With regard to one such fraudulent scheme, the applicant was charged with attempted fraud in Queensland. On 20 December 1999 he was given a 3 years suspended sentence by the Brisbane District Court in relation to this offence. 27 There was evidence before her Honour that the use of the covert recording device by the applicant resulted in members of the organisation being charged with 154 separate offences. 28 The applicant travelled to Queensland to give evidence against members of the organisation on a number of occasions and has also given evidence in New South Wales in this regard. 29 At the time of sentence the applicant had not completed giving all the evidence which he had undertaken to give. 30 The information made available to her Honour was that whilst the applicant's evidence was not crucial to the various prosecutions, it had a direct and positive impact on the investigation of each case. 31 Her Honour referred to the 23 matters on the second Form 1 in some detail. Each of the matters involved serious fraudulent conduct involving significant losses to banks or financial institutions as a consequence of the applicant obtaining financial benefit for himself. 32 There was evidence before her Honour by a senior police officer that there was a real risk to the applicant in custody because of the nature and extent of his assistance and because of the criminal connections of one of the other members of the organisation. 33 As a consequence her Honour made a recommendation that the applicant's custody be served in a facility such as that at Berrima. 34 A co-offender John Wilson pleaded guilty to the same 2 charges as those contained in the s 51A matter. He was placed on a 3 year good behaviour bond. 35 It was not suggested to her Honour that any question of parity arose, although the matter has been raised in this Court. 36 Apart from the Brisbane matter, to which I have referred, the applicant has no antecedent criminal convictions. 37 The applicant asserted that he participated in all the criminal schemes as a result of the financial pressures placed on him by his business in Armidale. 38 In her remarks on sentence her Honour indicated that but for the assistance rendered by the applicant she would have imposed a total sentence of 6 years imprisonment in relation to the Sydney offences, taking into account the matters on the second Form 1. 39 Her Honour was very sensitive to the need to accommodate the very significant deterrent element required in sentencing for offences of this nature. 40 Firstly, the applicant contends that the sentences imposed in respect of the Wollongong matters were manifestly excessive; that the judge failed properly to address "special circumstances" and erred in that she imposed sentences in respect to the Sydney matters too disparate from those imposed on the co-offender John Wilson. 41 The fundamental argument in relation to the manifestly excessive ground is that her Honour did not recognise the true extent of the participation of the applicant in the commission of the Wollongong offences. There was a greater participation by John Wilson in these offences than the applicant, it was contended. 42 This argument fails to appreciate, however, the true approach by the law to the joint responsibility of the participants in a common enterprise. It is not correct, as the applicant contends, that her Honour should have looked upon the benefit obtained by the applicant as $800,000, in lieu of the overall figure of $1,600,000. This would be quite an erroneous approach. 43 A number of specific matters were referred to in argument said jointly or severally to demonstrate that the sentence was manifestly excessive but such submissions fail to recognise the true magnitude of the massive criminal enterprise in which the applicant was engaged. 44 Then the applicant argued that there was unfairness in her Honour taking into account the ancillary offences contained within the first Form 1. 45 This submission is also erroneous in law and inconsistent with the decision of this Court in Regina v Jalalaty (unreported, 2 April 1997). As the Crown has pointed out, an armed robber who steals a get away car cannot expect to have the theft of the car overlooked. 46 Then it was argued that the applicant was entitled to have had non-parole periods set in respect of the Wollongong charges. Further, that her Honour having decided not to set a non-parole period failed to make a record of her reasons for that refusal: see Crimes (Sentencing Procedure) Act 1999, s 45(2). However, sub-section (4) of s 45 provides that the failure of a court to comply with the requirements of sub-section (2) of s 44 with respect to a sentence does not invalidate the sentence. 47 Regrettably counsel failed to draw her Honour's attention to this oversight. 48 In any event, as the Crown points out, it was a necessary part of the sentencing regime that the sentence for the Sydney matters was to be served cumulatively upon the sentence for the Wollongong matters and any parole period on the Wollongong matters would have been wholly subsumed by the non-parole period on the Sydney matters. 49 I turn then to the submission that the learned judge had failed properly to address the question of special circumstances. The specific matters relied upon here were the assistance proffered to the authorities, the accumulation of the Sydney sentences upon the Wollongong sentences and the prior absence of convictions. 50 We were reminded that in Regina v Moffitt (1990) 20 NSWLR 114 at 116, Samuels JA expressed the view that there was no requirement to exclude from the category of special circumstances factors which might already have been considered in determining the minimum term. 51 I am not persuaded that (with one exception to which I shall refer later) her Honour erred in failing to find there was no justification for special circumstances in the sentencing process. Specifically further allowance for assistance to the authorities and the associated potential risk to the applicant's safety would have had a destabilising effect on the sentencing pattern. It must not be forgotten that s 23(4) of the Crimes (Sentencing Procedure) Act provides that a lesser penalty that is imposed under s 23 must not be unreasonably disproportionate to the nature and circumstances of the offence. 52 As I have already indicated, no question of parity between John Wilson and the applicant was raised before her Honour. It is an argument which, however, lacks substance as the circumstances between the two offenders is so disparate. 53 Wilson was sentenced only on the 2 Sydney charges, while the applicant asked for a further 23 charges to be taken into account. The applicant committed the offences while on bail for other serious offences. No such aspect arose in Wilson's case. This argument must be rejected. 54 It was also argued that her Honour erred in not granting a discount to the applicant in relation to the Sydney offences by reason of the assistance which the applicant rendered the authorities. However, it is well established that the approach which her Honour took is supported by precedent: see R v Gallagher (1991) 23 NSWLR 220 at 230 and 234. 55 It was also argued on behalf of the applicant that her Honour failed to give sufficient consideration to the dangers to which the applicant will be subject during his period of incarceration arising out of the assistance which he gave to the authorities. I am not satisfied that her Honour erred in this regard. 56 It was also argued that her Honour failed to apply the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. Again, I am not satisfied that this is so. 57 Her Honour was faced in this case with an extremely difficult sentencing exercise. The facts relating to the offence together with the subjective circumstances were complex and raised for her Honour's consideration a number of discrete sentencing principles which, to use a well known expression, jostled against each other for primacy. 58 This has resulted in a concerted attack upon virtually every aspect of the sentencing exercise. 59 Having carefully considered the various grounds of appeal I have concluded that despite her Honour's careful consideration of the myriad factors which she had to take into consideration, her Honour erred in principle in respect of one matter. 60 When considering whether there were special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 her Honour said: "Although the prisoner has not served any time in prison before and I have accumulated the sentences in relation to the matters, I considered whether it would be appropriate to find special circumstances to alter the statutory ratio between the non-parole and parole period in relation to the 51A matters. I am of the view that it is not appropriate to find special circumstances because of the significant discount given to the sentence in relation to the assistance and because to do so would not reflect the objective seriousness of the crimes which the prisoner is to be sentenced." 61 It is not, in my view, correct in principle to hold that (other than in exceptional circumstances) a significant discount for assistance to the authorities is a matter for consideration when determining whether special circumstances exist for the purpose of determining whether there should be variation of the primary ratio between the non-parole period and the overall term of the sentence. [see Regina v S (2000) 111 A Crim R 225]. 62 Section 44(1) of the Act is in the following terms: "44(1). When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence)." 63 The assessment of the appropriate discount to be awarded under s 23 of the Act is to be determined when setting the overall term of the sentence as required by paragraph (a) above. 64 In assessing the quantum of discount, the judge must bear in mind s 23(3) of the Act which provides that a lesser penalty that is imposed under s 23(1) must not be unreasonably disproportionate to the nature and circumstances of the offence. 65 The question of special circumstances falls to be considered when setting the non-parole period as required by paragraph (b) above. 66 When one considers special circumstances, unencumbered by any consideration of the discount for assistance to the authorities, the conclusion is, in my view, almost irresistible that the accumulation of the sentences for the Sydney matters upon the sentences for the Wollongong matters constituted special circumstances within the meaning of s 44(2): see R v Clarke (1995) 78 A Crim R 226 at 238-239, and the cases there cited. 67 Thus, in my view the intervention of this Court is required. 68 In the event that this Court were minded to intervene senior counsel for the applicant has provided an Affidavit of Assistance by a police officer sworn 19 December 2000. This Affidavit refers to assistance given to the authorities by the applicant during the course of his incarceration. It is appropriate that this matter be taken into consideration for re-sentencing purposes: c.f. Regina v Henry (1992) 28 NSWLR 348 at 353. In the exceptional circumstances which exist here this matter should be reflected in the non-parole period. 69 Balancing the serious objective circumstances and the subjective circumstances I would propose the following orders: