Regina v Brendan Bernard CAMPBELL [2000] NSWCCA 154

New South Wales Court of Criminal Appeal

CITATION : Regina v Brendan Bernard CAMPBELL [2000] NSWCCA 154 FILE NUMBER(S) : CCA 60367/99 HEARING DATE(S) : 1st May 2000 JUDGMENT DATE : 1 May 2000

PARTIES : Regina v Brendan Bernard CAMPBELL JUDGMENT OF : Hulme J at 1 & 48; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0121 LOWER COURT JUDICIAL Davidson DCJ OFFICER :

COUNSEL : R Burgess - Applicant M Grogan - Crown SOLICITORS : T A Murphy - Applicant S E O'Connor - Crown CATCHWORDS : Criminal law - sentence appeal - multiple offences - alleged failure to allow discount for assistance to authorities - sentence allegedly manifestly excessive - special circumstances - appeal allowed to adjust sentence to comply with Pearce - overall sentence not disturbed. LEGISLATION CITED : Crimes Act 1900, ss 112, 188, 178BB, 300, 442B Yenice (1994) 72 A Crim 234 CASES CITED: Pearce (1998) 194 CLR 610 Simpson (1992) 61 A Crim R 58 DECISION : See paragraphs 45 - 50.

IN THE COURT OF CRIMINAL APPEAL 060367/99

HULME J CARRUTHERS AJ Monday 1 May 2000

REGINA v Brendan Bernard CAMPBELL

JUDGMENT

1 HULME J: I will ask Carruthers AJ to deliver the first judgment. 2 CARRUTHERS AJ: Brendan Campbell seeks leave to appeal against sentences imposed upon him at the District Court, Sydney on 4 June 1999. The applicant had pleaded guilty on 19 March 1999 to a litany of offences contained within 25 counts on the indictment. 3 Count 1 was a charge under section 178BB of the Crimes Act 1900, as amended (the Act) of obtaining money by false or misleading statements. This count carries a maximum penalty of 5 years imprisonment. Counts 2 to 20 were under section 300 of the Act, i.e. using false instruments. This offence carries a maximum penalty of 10 years penal servitude. Count 21 was a count under section 112 of the Act i.e. break, enter and steal which carries a maximum penalty of 14 years penal servitude. Counts 22 to 25 were under section 188 of the Act i.e. receiving, which carries a maximum penalty of 10 years penal servitude. 4 His Honour was also asked to take into account the following offences under a Form 1: one offence of make a false instrument, 93 offences of using false instrument, 5 offences of receiving and one offence of goods in custody. The offences covered period from 5 August 1997 to 6 January 1998. 5 His Honour imposed the following sentences declaring that he was applying the principle of totality. In relation to the first count he imposed a fixed term of 12 months imprisonment to commence on 18 December 1998 and to expire on 17 December 1999. In relation to each of counts 2 to 20 his Honour imposed a fixed term of 2 years penal servitude to commence on 18 December 1998 and expire on 17 December 2000. 6 In relation to count 21, his Honour imposed a minimum term of 4 and a half years penal servitude to commence on 18 December 1998 and expire on 17 June 2003 with an additional term of 1 and a half years to commence on 18 June 2003 and expire on 17 December 2004. 7 In relation to each of counts 22 to 25, his Honour imposed a fixed term of 2 years penal servitude to commence on 18 December 1998 and expire on 17 December 2000. 8 The applicant was born on 27 July 1977 and was accordingly 31 years of age at the date of sentence. His prior criminal record commenced on 10 June 1982 and contains a considerable number of offences of varying kinds. Generally it would be fair to say that in relation to those offences he has received a considerable degree of leniency. It is not necessary for present purposes to deal at length with the various offences to which the applicant pleaded guilty. 9 Two briefs of evidence were tendered before his Honour. In relation to the first brief which related to the section 178BB and section 300 offences, the relevant facts are summarised in the remarks on sentence as well as in a statement of facts which was before his Honour. Briefly stated, the offences occurred during November and December 1997. Police searched the applicant's unit at Glebe on 6 January 1998 when he was arrested for breach of parole. Property and documents were seized during the search which were relevant to the subject offences. However, for some reason which did not appear in the evidence before his Honour, the applicant was not apparently interviewed with regard to such offences until 30 June 1998 when he participated in an ERISP. He cooperated fully with the police and made admissions and also named other persons allegedly involved in the offences. 10 As to the facts, on 27 November 1997 the applicant attended the Colonial State Bank at Pagewood and completed a bank document requesting banking facilities in a fictitious name, Stephen John McDowell trading as Encom Computers. In support of this application he produced a number of false documents. On 2 December 1997, the applicant returned to the bank and applied for and was granted a merchant facility for that account. He was given a credit card and a cheque book in the name Encom Computers. Between 18 and 24 December 1997 false sales vouchers and merchant voucher imprints, which totalled $183,061, were prepared purporting to be for goods supplied by Encom. This amount was purported to be deposited into the account. 11 Between 19 and 23 December 1997, the applicant drew 9 cheques on the Encom cheque book totalling $104,484.70. He signed the cheques in a fictitious name. Six of the cheques were cashed at various Colonial State Bank branches for the amount of $45,987.10. A further $50,000 was deposited into a Westpac account. Police were unable to ascertain details of who transferred this money. However, at the date of sentence enquiries were continuing. The total amount thus fraudulently withdrawn from the Encom account was $95,487.10. 12 The applicant claimed he received only a small amount of this money, about $8000 or $9000, and that the remainder went to the other persons involved. He said he did not have anything to do with the deposit side. 13 The reason he asserted in the ERISP for the commission of those offences was he was using amphetamines and needed the money to support his drug habit. 14 Once again this Court has before it an example of a fraudulent scheme resulting in large amounts of money being illegally obtained from a large banking institution. The frequency with which such matters come before the District Court is a matter of some concern. 15 I turn then to the second brief. With regard to the first matter, I note that when the applicant's unit was searched on 6 January 1998 property was found that had been stolen during different break and enter offences in Sydney. When asked in a second ERISP on 30 June 1998 about certain property taken from premises at 32 Quinlan Parade, Manly on 11 December 1997, the applicant made an immediate admission. He said that he had committed the offence because he had a "terrible amphetamine habit". The value of the property stolen was approximately $15,000 and about half of that property was recovered. 16 For myself, I accept what was put on behalf of the applicant by Ms Burgess in her careful submissions that if the applicant had not confessed to the break, enter and steal matters, the prosecution may not have been able to have made a case out against him in this regard. 17 As to the receiving counts, when questioned about property from other break, enter and steal matters, the applicant admitted that he had bought certain items, namely, a television set, a stereo, a Walkman and a printer from a man he identified to police as Patrick Walton. He said that Mr Walton had gone to Darwin and left some other property at his unit. He assumed that such property was stolen. 18 It is convenient to refer, at this stage, to the following facts so far as the applicant's custody was concerned prior to the sentencing process. On 28 February 1996 the applicant was sentenced to a 7 months minimum term from 15 January 1996 to 14 August 1996 and an 18 months additional term from 15 August 1996 to 14 February 1998, in relation to the breach of a recognizance granted in 1995 for an offence of malicious wounding. He remained in custody after his minimum term expired on 14 August 1996. As from 28 February 1997 he was in custody on remand for a charge of sexual assault. He was acquitted of this charge and released on parole on 28 February 1997. 19 On 6 January 1998 he was arrested for breach of parole and remained in custody from that date until 6 May 1998. As already indicated on 30 June 1998 he was formally arrested and interviewed in relation to the instant matters. He was then granted bail. His parole was again revoked on 16 September 1998 and he remained in custody in that regard until 18 December 1998. Thereafter he was 'bail refused' in relation to the subject matters. Thus there was a period of approximately 3 months in custody immediately preceding the date from which his Honour imposed the subject sentences viz 18 December 1998. I shall refer to that aspect of the matter later. 20 It is convenient to take the subjective matters from the written submissions on behalf of the applicant. As I have indicated, the applicant was 31 years of age at the date of sentence. He came to Australia from New Zealand in his first year with his family. A report from Dr Olav Nielssen, Psychiatrist, was tendered on his behalf, as well as references from Gary Ferguson CFC, the Chaplain at Silverwater Gaol and David Rowe, a drug and alcohol worker. Dr Nielssen recorded that the applicant grew up in Glebe where his parents established a community newspaper which left little time for the family. He had 12 step siblings and a younger brother. He had a disrupted childhood and was sent for a number of years to live with his grandparents in Queensland. He later attended boarding school in Bowral and St. Josephs at Hunters Hill. He began drinking alcohol at about age 12 and ingesting drugs in his early teenage years. His convictions for violence were said to be mainly related to drug and alcohol abuse. 21 Dr Nielssen said that the background to the offences was that after his release on parole on 28 February 1997, the applicant arranged for his supervision to be transferred to Queensland so he could live with his mother. However, she was seriously injured in a motor vehicle accident and he was required to care for her. It is said that he returned to Sydney in a distressed state and recommenced using amphetamines intravenously to the extent of as much 7 grams in a 2 day period. 22 It is said that his amphetamine habit became expensive and he committed offences to obtain money. Dr Nielssen reported the applicant has a history of hypomania and had numerous psychiatric assessments. He was admitted to a psychiatric hospital in Canberra in 1993 with acute paranoid psychosis induced by amphetamine abuse. 23 There is also a family history of hypomania. There is also a family history of drug abuse. Dr Nielssen did not consider that the applicant was suffering from mania when the subject offences were committed, although he noted it is difficult to separate symptoms of mental illness from a state induced by a chaotic lifestyle and continuous heavy amphetamine abuse. Dr Nielssen thought the treatment most likely to assist him would be drug and alcohol rehabilitation. He considered that the applicant should accept very close community supervision after release, to minimise contact with the criminal milieu and to decrease the risk of resuming drug use. 24 Ms Burgess argued that his Honour erred in failing to give the applicant any reduction with respect to assistance to the authorities pursuant to section 442 B of the Act. Shortly stated, counsel submitted that in relation to the first brief, the applicant named a co-offender, one of whom had worked in a bank and therefore provided esoteric information for the commission of the bank offences. Further that the applicant had during the course of the ERISP interview agreed to view a video shown to him by the interviewing police officers for the purpose of identifying persons alleged to be co-offenders. Certain persons were identified by the applicant. 25 The applicant explained the way the crimes had been committed. The applicant also indicated that he was prepared to assist further, but due to additional information otherwise coming to the knowledge of the police officers, the applicant was not in a position to assist the interviewing police further. It was not contended by the investigation police officers that the applicant was not genuine or correct in the information which he tendered to them in relation to co-offenders. 26 Counsel stressed that in relation to the receiving matters and the break, enter and steal there was an absence of independent evidence. 27 Reliance was placed upon the particular reference to Patrick Walton who was, in fact. convicted of stealing the property found in the applicant's premises, albeit, Mr Walton had been charged prior to his being named by the applicant. 28 In his remarks the learned sentencing judge referred to co-operation by the applicant, but said: "I am, nevertheless not of the view that any real basis exists for a section 442 reduction of any sentence to be imposed on this basis. It seems to me that the assistance you gave to the police has been quite minimal. It is restricted, as I have said to names, so far as the brief 1 matters are concerned and although the police investigation has continued for a considerable time it has not succeeded in bringing to light any of these persons."