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." His Honour then went on to say. "I take into consideration your present status as being in protective custody albeit at your own request." 29 Counsel referred the Court to remarks by Hunt CJ at CL in Yenice (1994) 72 A Crim 234 at 239 where his Honour said (with the concurrence of Dunford and Blanch JJ). "s442B does make is necessary for a judge to consider the usefulness of the information given when determining the extent of the discount to be made to the sentence imposed." And further, "That requirement of s 442B does not mean that no discount can be made for the assistance given where the prisoner has been unable to establish the usefulness of the information provided. The section is not expressed in terms that a discount may only be made if the information has been shown to have been useful to the authorities. But it does mean that the extent of the discount must be less where the usefulness of the information has not been established." 30 With regard to the reference by his Honour to the applicant being in protective custody, Ms Burgess emphasised that the applicant is in such custody because of his co-operation with the investigating police. She contended that his Honour had obviously, by inference, failed to give adequate weight to the fact that his co-operation with the police was resulting in the applicant's custodial situation being more harsh than would otherwise have been the position (see s 442B(3)(g)). I shall return to these matters shortly. 31 It was also submitted that his Honour did not give sufficient consideration to the applicant's drug addiction when considering the objective seriousness of the case, and our attention was drawn to certain authorities in that regard. 32 In his submission in response, Mr Grogan of counsel for the Crown submitted (inter alia) that there is no issue that notwithstanding his drug use, the applicant was capable of playing the dominant role in the commission of offences which manifested in a high degree of sustained planning. In the final analysis the drug use was nothing more than the motive to achieve the fundamental object of the commission of the offence, the obtaining of the money. 33 During his remarks on sentence the trial judge adverted to the applicant's history of drug abuse and his attendance, whilst in custody, at the alcohol and other drugs section of the Silverwater gaol, and also other positive steps that the applicant had taken in regard to his drug abuse. 34 I am unable to conclude that his Honour erred in relation to the relevance of the applicant's long history of drug abuse which was clearly present at the time of the commission of the subject offences and the impact that such addiction would have on the sentencing process. This is not an appropriate case to review the statements of principle in that regard which were referred to during the course of the oral submissions and in the written submissions. 35 It was further argued that the overall sentence of 6 years was manifestly excessive taking into account the applicant's plea of guilty at the earliest opportunity, particularly in relation to the break, enter and steal and receiving matters, his co-operation with the police and the subjective features, including his drug addiction. 36 Reference was also made to the fact that the bank offences were committed over a relatively short period of time and that his Honour had accepted that the applicant had only received $8000 or $9000 of the total amount taken. 37 Reference was also made to statistics from the Judicial Commission which show in particular, that the sentence imposed had been the break enter and steal charge and receiving charges are at the top of the range for all offenders, which includes pleas of not guilty and multiple charges. 38 Finally, reference was made to the commencement date of the sentence and the question of special circumstances. His Honour declined to hold that there were special circumstances. Ms Burgess has argued, however, that as his Honour accumulated the sentences he imposed on the sentence served between 17 September 1998 and 18 December 1998, his Honour should, consistently with cases such as Simpson (1992) 61 A Crim R 58, have accepted that there were special circumstances to ensure that a proper proportion between the effective total minimum term and the effective additional term was achieved. Apart from this, it was argued, that his Honour nevertheless in failing to find special circumstances. There was ample evidence, it was submitted, to support a finding of the need for a longer than usual additional term to foster the applicant's rehabilitation. 39 When sentencing the applicant, his Honour said: "I accept the proposition of Mr Driels (appearing for the applicant before his Honour) that the appropriate method of approaching the imposition of sentence in respect of these offences is by adopting the principle of totality and I wish to emphasise that when I come to an indication of the sentences in respect of these offences in detail, that those sentences are calculated with the principle of totality firmly in mind." 40 His Honour made no reference to the Judgment of the High Court in Pearce (1998) 194 CLR 610. Ultimately it was submitted by the applicant before this Court that the sentence imposed by his Honour in relation to the break, enter and steal matter of an overall 6 years penal servitude demonstrated, first, that it was an excessive sentence bearing in mind the sentencing regime for offences of that kind and, secondly, that it demonstrated a failure by his Honour to comply with the principles enunciated by the High Court in Pearce. In Pearce the High Court indicated that it is necessary for a sentencing judge to impose a sentence for each offence when dealing with multiple offences which reflected the criminality for that offence. Thereafter, the judge may consider questions of cumulation or concurrence, as well, of course, as questions of totality. 41 I must say, with respect, that I consider that there is some substance in the submissions made on behalf of the applicant in relation to the way in which his Honour dealt with the section 442B issue before him. However, it must be borne in mind that the regime laid down by section 442B, from beginning to end is a discretionary matter. Secondly, subsection 2 provides: "A court must not reduce a sentence so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the case." 42 His Honour was faced with an extraordinarily difficult sentencing matter, bearing in mind the youth of the applicant, his unfortunate prior criminal record and his addiction to amphetamines, together with the large number of serious offences which the applicant had committed. Numerous factors jostled against each other for primacy in the sentencing process to use an oft quoted expression of Wells J. 43 Accordingly, allowing for what I consider to be of some substance in the submissions that are made on behalf of the applicant with regard to section 442B, the overall sentences imposed by his Honour nevertheless fall so comfortably within the allowable sentencing range for the subject offences, that I am unable to come to conclude that a discount under section 442B would have disturbed what would otherwise have been an appropriate total sentence for the subject offences. I am quite confident, if I may respectfully say so, that his Honour was well aware of the fact that the co-operation which the applicant had afforded to the police would have resulted in a harsher manner of serving his sentence than otherwise would have been the case and I do not consider that the arguments that have been submitted in this regard undermine, in any way, the sentencing process. Nor do I think, allowing for the argument that was submitted in relation to the accumulation of these sentences upon the 3 months for breach of parole which the applicant has served, there is sufficient justification for disturbing the overall sentencing regime. Bearing in mind the level of criminality involved in these proceedings such an error, if it were, does not justify any disturbance of the overall sentencing regime. I think his Honour was entitled to take the view that an 18 months additional term was quite sufficient for the rehabilitation, if such were to occur, of the applicant in the circumstances of this case. 44 However I have come to the conclusion that in light of the principles cited in Pearce that the sentencing regime should be adjusted because I accept the argument that the overall sentence of 6 years broken up into a minimum term of 4 and a half years and an additional term of 1 and a half years was beyond the sentencing discretion available to his Honour for that particular offence. 45 However, I am of the view that overall the period which the applicant should serve should not be disturbed. I would propose therefore that the application for leave to appeal be allowed and that the appeal be upheld but only to the extent necessary to comply with the principles enunciated in Pearce. 46 In relation to count 21, I would vary the sentence imposed by his Honour to the following extent, I would set aside the minimum term of 4 and a half years and additional term of 18 months and impose a fixed term of 3 years to commence on 18 December 1998 and to expire on 17 December 2001. 47 Secondly, in relation to the sentence imposed on the first count, I would set aside the fixed term of 12 months and impose a minimum term of 18 months to commence on 18 December 2001 and to expire on 17 June 2003 and I would impose an additional term of 18 months to commence on 18 June 2003 and expire on 17 December 2004. 48 HULME J: I agree with the orders proposed and with his Honour's reasons. 49 I would add only that the applicant has an appalling record for offences of dishonesty including offences of dishonesty of the precise nature of those which were dealt with by his Honour, Judge Davidson. A corollary to the leniency which is extended to offenders who appear in court for the first or first few times, is that once they become repeat offenders who apparently have learned nothing from their prior sentences, there is an obligation on the courts to ensure that sentences imposed are salutary. Having regard to the totality of the applicant's criminality, I by no means regard the sentences which were imposed as excessive. I myself would have imposed more severe sentences. 50 The order of the Court will be leave to appeal is granted. The sentences imposed in relation of counts 21 and 1, are quashed and in lieu thereof the applicant is sentenced as outlined by Justice Carruthers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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