New South Wales Court of Criminal Appeal CITATION : R v Hawker [2001] NSWCCA 148 FILE NUMBER(S) : CCA 60577/00 HEARING DATE(S) : 18 April 2001 JUDGMENT DATE : 18 April 2001 PARTIES : Regina Shane Hawker JUDGMENT OF : Wood CJ at CL at 1; Sully J at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0075 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : C: M. Marien A: G. Scragg SOLICITORS : S E O'Connor John Bettens & Co CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - obtaining money by deception - sentence outside proper range - use of sentencing statistics - general deterrence CASES CITED: Crimes Act 1900 s 178BA DECISION : (1) Leave to appeal granted. ; (2) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60577 of 2000 WOOD CJ at CL SULLY J Wednesday 18 April 2001 Regina v Shane Christopher HAWKER The applicant pleaded guilty to nine offences of obtaining money by deception under s 178BA Crimes Act 1900 and asked that a further thirty-five matters be taken into account. He was sentenced to a total of six years of imprisonment with a non-parole period of three and a half years. The applicant seeks leave to appeal against the severity of the sentences on the grounds that the total sentencing order fell outside the proper range for the offences involved. HELD: (Appeal dismissed): Ground 1: sentence fell outside the proper range There is a danger is endeavouring to extract a "range" from a limited group of decisions on appeal, or from bare sentencing statistics. Greater assistance is to be derived by general sentencing policy, which has seen something of a hardening of attitude towards white collar crime. It is now generally accepted that, absent very special circumstances, criminality of this character, particularly that which demonstrates blatantly dishonest conduct, with no regard to the propriety of the transaction or their consequences, will normally require a significant element of general deterrence. In the instant case there were aggravating circumstances due to the amount of money involved in the offence, and the criminality involved was "considerable". Corner (John Stewart) NSWCCA 19 December 1997; Pantano (1990) 49 A Crim R 328; Hawkins (1989) 45 A Crim R 430 applied. Proposed Orders (1) Leave to appeal granted. (2) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60577/00 WOOD CJ AT CL SULLY J WEDNESDAY 18 April 2001 REGINA V SHANE HAWKER JUDGMENT 1 WOOD CJ AT CL: The applicant, together with his co-accused, Craig Sundstrom, appeared in the District Court for sentence on 14 August 2000, in relation to a series of offences under S178 BA of the Crimes Act 1900. The applicant added to his plea of guilty nine such offences, and asked that a further thirty-five matters be taken into account. The co-accused pleaded guilty to ten such offences and asked that a further eighty-three matters be taken into account. 2 As a consequence each was sentenced, effectively to a total term of imprisonment of six years, with an effective non-parole period of three-and- a half years. In the case of the applicant this was made up by concurrent sentences for fixed terms each of two years, in relation to the first four counts in the indictment, and by sentences each of four years for the remaining five counts to be served cumulatively upon the fixed terms, but concurrently with one another. A non parole period of one and a half years was fixed to commence at the expiry of the fixed terms. 3 His Honour came to this sentencing order by reason that the objective criminality of the co-accused was greater than that of the applicant, and that in his case a starting point of ten years was appropriate for his total criminality, which he reduced by twenty-five per cent for his plea of guilty, to one of seven and a half years. He further reduced that term by one and a half years for the assistance he had given, to produce a total sentence of six years. 4 In relation to the applicant the starting point was one of eight years, to reflect his lesser criminality. This was similarly reduced by twenty-five per cent for the plea of guilty to a total sentence of six years. He was not entitled to any further discount for assistance. 5 In assessing parity his Honour reached the conclusion that there was nothing to distinguish between the two offenders in terms of their ages, backgrounds, education, employment and motivation attributable to an addiction to gambling. Special circumstances were found in relation to each offender, referable to their age, the fact that this was a first occasion of imprisonment for them, their favourable prospects of rehabilitation, and the need for guidance and supervision to foster their assimilation back into the community. As a consequence, the non parole period was reduced to equate to fifty-eight per cent of the total sentence. 6 The applicant now seeks leave to appeal against the severity of the sentences upon the basis that the total sentencing order fell outside the range for offences of dishonesty of the kind here involved. 7 It was submitted this morning that the proper range in the case of the applicant was one attracting a head sentence of four to five years with a non-parole period of two to two and a half years. Facts 8 The applicant lent himself to a simple but cunning system of dishonesty to which he was introduced by his co-accused, and which was practised by them over the period between December 1995 and February 1999. At the time of inception of the scheme, each was an employee of the Commonwealth Bank. The applicant had a staff housing loan account with the bank, into which he made repayments on his loan. The account was so structured as to allow payments over and above the normal mortgage instalments to be credited to it. They were then available for withdrawal, upon application to the Staff Housing Loan section of the bank, where the co-accused worked. 9 A flaw, however, existed in the system which the co-accused discovered and which he and the applicant then utilised to draw down sums in the order of $1.2m, over the period in question. This involved the co-accused entering false information onto the bank's records to the effect that a special repayment had been made against the applicant's housing loan, when in fact, no such payment had been made. 10 This placed the housing loan account in funds, and it was a simple matter thereafter for the credited moneys to then be drawn from that account, and credited to the applicant's personal account. The moneys fraudulently acquired in this way, and received by the applicant over the period in question, amounted to about $560,000, while those received by the co-accused amounted to about $730,000. In the case of each offender, the funds so acquired were dissipated through gambling. 11 Their activities came to light during an internal investigation which led to the co-accused being suspended or dismissed. He immediately confessed his guilt and produced a witness statement in which he undertook to give evidence against the applicant. At the outset, the applicant declined to be interviewed, as he was entitled to do. Subsequently, after discussions between his legal advisers and the Director of Public Prosecutions, he elected to plead guilty to the various offences, each of which involved that of dishonestly obtaining a financial advantage by deception. By the time when all of the offences came to light the applicant had left the bank. This occurred in March 1997, by which time the flaw had been dishonestly utilised, it would appear, on about seven occasions. Notwithstanding his resignation, the scheme did not come to an end at that point. The applicant knowingly allowed it to continue for a lengthy period hereafter and he benefited from it in so far as he obtained funds to which he was not entitled, and with which he could continue his gambling activities. 12 The applicant has made reparations in the sum of $12,500. The co-accused has repaid some $186,000. 13 In support of the submission that the sentencing order was out of the range, reference was made to a number of decisions of the Court of Criminal Appeal, and they are identified in the schedule to this judgment. They were said to support a submission, firstly, that a sentence involving a non-prole period in the order of three and a half years or more for offences of the kind before the Court was outside the range and, secondly, that his Honour had erred in selecting a starting point for the co-accused which was too high, and which he had then carried forward when sentencing the applicant. 14 It was also submitted by counsel that this was not a case involving the abuse by the appellant of his position as an employee of the bank. Rather it was submitted that the offences involved his participation in a scheme of deception that was practised by his co-accused, who throughout was an employee of the bank, and in a position where he was able to and did manipulate its affairs. So, it was submitted, the present case did not involve, on the applicant's part, a breach of trust or a breach of duty of employment of the kind that categorised the various cases that were cited in the schedule. 15 This, in my view, is to split hairs. The occasion for the offences initially arose by reason of the applicant's employment with the bank and it involved the use of the accounts which he held with it. The applicant knew of, connived in, encouraged and profited from the egregious reaches of duty and trust owed by the co-accused for their mutual benefit. His participation in allowing his loan account and personal account to be used was as important for the deception as was the activity of the co-accused in manipulating the records of the bank. 16 The applicant was in a position throughout to understand the ramifications of what was occurring. In those circumstances I can see no reason, either in principle or in common sense, to differentiate between them, or to require a different approach from that considered in the cases cited in the schedule. 17 There is a danger in endeavouring to extract a "range" from a limited group of decisions on appeal, or from sentencing statistics. Some of the cases here selected by the applicant were Crown appeals in which the principle of double jeopardy or that relating to special discretion attaching to Crown appeals, were applicable. Others were cases involving quite different objective and subjective considerations, a well as differing sums of money. Some involved offenders such as solicitors or others holding fiduciary office or positions of trust, and others of which involved employees of no great seniority. In some instances, the offences were relatively simple and of short duration, and in other cases they were complex and prolonged. 18 The need for care in attempting any such comparison as that suggested here was recently underlined by Spigelman CJ in Slater [2001] NSWCCA 65 at paras 50-52. Moreover, while reference to cases of similar character can be helpful as a guide, those selected are by no means a comprehensive survey of sentences imposed, either upon appeal or at first instance, for serious instances s 178BA offences. Nor is it clear upon which basis they were selected. 19 Indeed, not all of the cases cited support the applicant's proposition as to the appropriate range, since those of O'Neill, Smith, Pantano, Corbett and Sellen, produced either comparable or longer sentences than that imposed upon the appellant. 20 So far as reference to comparable cases involving employees may, however, be of assistance to the resolution of the present appeal, subject to the qualifications previously noted, that of O'Neill justifies mention. There, a payroll supervisor of a large company, admittedly with a prior income of dishonesty, received a head sentence of ten years with a minimum term of six years for a series of offences committed over three years and involving a sum of $1,063,000. 21 Additionally, the recent case of Tripodina (2001) NSWCCA 136, is in point. There an employee with favourable subjective circumstances, who defrauded his employer of some $96,000, by directing cheques ostensibly payable to creditors to his own use, over a four year period, to support a gambling habit, had an appeal against a head sentence of six and a half years, with a non parole period of four and a half years, dismissed. The Court there also confirmed that an accumulation of sentences was appropriate, since the imposition of concurrent sentences, in a case involving continuing criminality of the kind seen there, and in the present case, would not adequately reflect the criminality involved. 22 The circumstance that a number of offences were here taken into account on a Form 1, also meant that there had to be some increase in the sentence, although not as great as might have been the case had those offences been the subject of separate charge: Dawson (2000) NSWCCA 399 AND Lemene (2001) NSWCCA 5. 23 In my view, greater assistance is to be derived by reference to general sentencing policy which has seen something of a hardening attitude to white collar crime in view of its difficulty of detection, and in view of the fact that its impact may fall upon a wider group of investors or creditors: Pont [2000] NSWCCA 419. Particularly has this been recognised in cases involving fraud on the revenue, or on Commonwealth agencies such as those involved in the administration of the Social Security System or the Medicare system: see e.g. Farrell NSW CCA 22 November 1996, Whitney NSWCCA 6 June 1997, Stitt NSW CCA 8 September 1998, and White NSW CCA 20 August 1998. 24 It is now generally accepted that absent very special circumstances, crime of this character, particularly that which demonstrates blatantly dishonest conduct, with no regard to the propriety of the transactions or their consequences, will normally require a significant element of general deterrence: Corner (John Stewart) NSW CCA 19 December 1997, and Pantano (19909) 49 A Crim R 328, where I observed: "As was observed in McKechnie ( CCA 1 October 1987, unreported) those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences: Glennister (1980) 2 NSWLR 597 9AT 330." 25 In the instant case there were aggravating circumstances in that large amounts of money were involved: see Hawkins (1989) 45 A Crim R 430 and Jalaty CCA NSW 2 April 1997; and in that the offences occupied a period and involved a deliberate and systematic deception of the bank in excess of three years : Tyneth NSWCCA NSW 25 November 1994. 26 The criminality of the applicant was appropriately described by the sentencing judge as 'considerable' and deserving of 'appropriately salutary punishment." I wholeheartedly agree with those comments, and I am unable to see any error in the most comprehensive and careful reasons on sentence which were delivered by his Honour.. 27 In my view, the sentences imposed were entirely within the permissible range. I would grant leave to appeal, but would dismiss the appeal. 28 SULLY J: I agree. 29 WOOD CJ at CL: The order of the Court will, therefore, be as I have proposed. 30 (Schedule) R v Kevin Peter Doherty (CCA unreported 5 November 1991) R v Sean Da Silva (CCA unreported 14 December 1993) R v Ronald John Poppert (CCA unreported 25 July 1994) R v George George (CCA unreported 23 September 1994) R v Mark Patrick O'Neill (CCA unreported 24 July 1996) R v Vincent Cofini (CCA unreported 4 March 1997) R v Hitchcock (CCA unreported 13 July 1998) R v Battiato (CCA unreported 8 March 1999) R v Fraser (CCA unreported 24 March 2000) R v Smith (CCA unreported 1 May 2000) R v Pantano (49 A Crim R 328) R v Corbett (52 A Crim R 112) R v Sellen (57 A Crim R 313) R v Phelan (66 A Crim R 446) 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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