New South Wales Court of Criminal Appeal CITATION : R v DE SOUZA [2001] NSWCCA 94 FILE NUMBER(S) : CCA 60341/00 HEARING DATE(S) : 23/03/2001 JUDGMENT DATE : 23 March 2001 PARTIES : REGINA v Terence Clifford DE SOUZA JUDGMENT OF : Studdert J at 33; Barr J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0376 LOWER COURT JUDICIAL Nash ADCJ OFFICER : COUNSEL : Crown: WL Robinson QC Applicant: In Person SOLICITORS : Crown: SE O'Connor CASES CITED: Regina v Edwards (1996) 90 A Crim R 510 DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60341/00 STUDDERT J BARR J Friday, 23 March 2001 REGINA v Terence Clifford DE SOUZA JUDGMENT 1 STUDDERT J: I will ask Barr J to deliver the judgment. 2 BARR J: Terence De Souza seeks leave to appeal against sentences imposed in the District Court. The applicant pleaded guilty before a magistrate and in due course confirmed his pleas before Nash ADCJ to a number of charges arising out of his dishonest conduct as a life assurance agent. 3 Altogether there were twenty charges, four of using a false instrument, the maximum penalty for which was ten years' imprisonment, fifteen of fraudulent misappropriation, the penalty for which was seven years' imprisonment, and one of dishonestly obtaining a financial advantage, the maximum penalty for which was five years' imprisonment. His Honour was asked to take into account under the provisions of Crimes (Sentencing Procedure) Act fifteen charges of using a false instrument, nineteen of making a false instrument and thirty-two of fraudulent misappropriation. All the offences were committed between October 1990 and November 1995. 4 On nineteen of the twenty counts, comprising all except one of the counts of fraudulent misappropriation, his Honour sentenced the applicant to penal servitude for a fixed term of four years, commencing on 20 March 1998, and expiring on 19 March 2002. On the remaining count of fraudulent misappropriation, and taking into account the other matters I have summarised, his Honour sentenced the applicant to penal servitude for seven years, comprising a minimum term of four years concurrent with the fixed terms and an additional term of three years. 5 The applicant was an agent of the AMP Society and was in a position to advise its policy holders about, amongst other things, the surrender of policies and the investment of funds. Over the period of five years the applicant repeatedly advised policy holders to surrender policies and invest the resulting funds in what he called a pooled investment by AMP and the Macquarie Bank. He told the policy holders that the income from the fund would be tax free and would not affect pension rights. That was a matter of some importance because several of the people he advised were pensioners. 6 Altogether there were twenty-three victims of the applicant's scheme. Three were in their late twenties, four were in their thirties, three were in their fifties, ten were in their sixties, two were in their seventies and one was eighty-three years of age. Not all of them could fully understand, read or write English. All relied upon the advice of the applicant. 7 What the applicant told the policy holders was a lie because the investment account did not exist. There was no association between AMP and Macquarie Bank. By various fraudulent means, including writing cheques and other documents, the proceeds of the surrendered policies were credited to a bank account in the name of the applicant and his wife. He used the proceeds of that account for his own purposes. His wife knew nothing about these matters. The total amount of money misdirected in this way was about one and a half million dollars. 8 The execution of the frauds required a good deal of planning and preparation and the applicant carefully executed the many steps necessary to carry it through. Even more preparation was needed to ensure that the frauds were not discovered. The applicant fabricated statements of account in the so-called fund and sent them to the persons he had defrauded. In that way his activities remained undetected for the five years over which the frauds were carried out. 9 This was not the first time the applicant had been dealt with for offences of dishonesty. In August 1978, when he was twenty years of age, he was given the benefit of a good behaviour recognisance on two charges of stealing. On that occasion he had obtained money from his employer by using cash refund vouchers to which he was not entitled. 10 On 27 February 1987, when he was twenty-nine years of age, he was given the benefit of an order to perform three hundred hours' community service on six counts of stealing a valuable security. At that time he was employed by a local council and was in a position of trust. Using that position, he diverted about $40,000 in council funds to his own use over a period of about fifteen months. 11 The persons defrauded by the applicant have not lost financially, because the AMP Society has ensured that they have received or will receive the full benefits that they would have been entitled to receive but for the fraudulent misappropriations. The result, however, is that the applicant himself and his wife have been obliged to sell up all the property they have owned and the Court has been informed that the AMP Society itself is some $800,000 out of pocket. It would not be correct, therefore, to say that substantial loss has not been caused by the activities of the applicant. 12 The applicant has represented himself in the conduct of this application and has furnished the Court with lengthy and detailed written submissions. I shall summarise the ways in which he contends that the learned sentencing judge fell into error, but before I do so I should observe for his benefit that for the most part his submissions appear to promote assertions of fact which were put before the sentencing judge and which were decided adversely to him. It is important that the applicant understand that this is not a court of sentencing or a court of rehearing. The only power this Court has is to inquire whether the sentencing process was accompanied by error, and if so to decide what the proper consequences should be. 13 The applicant's written submissions are, as I have said, put forward in considerable detail. They are ten pages long. The Crown has helpfully summarised the substance of them in the following way, and I think that this summary fairly and accurately puts what the applicant submits. 14 The applicant contends overall that the sentence is manifestly excessive and that his Honour acted on wrong principle or on irrelevant or extraneous matters or on a mistake of fact, or failed to take into account material considerations. The following particular issues arise: 1. His Honour gave no consideration or insufficient consideration to or wrongly rejected the evidence concerning a number of subjective features of the applicant's background which may be grouped in the following way. First, the relevance to his continuing offending behaviour of sexual abuse he experienced during his childhood; that it took a realisation by the applicant of his own hypocrisy before he could confess his offences; that exceptional circumstances existed as to why the applicant had failed to learn from his 1987 experience of having been dealt with by the Court and sentenced to serve a period of community service; that the motivation for the offences was not greed; that his Honour failed to accept and act upon all of the views and recommendations made by Dr Canaris. 2. That his Honour gave inadequate consideration to the effect on the applicant's family of the custodial sentence imposed. 3. His Honour gave inadequate consideration to the financial restitution made by the applicant and his family. 4. His Honour gave inadequate consideration to the applicant's confession of his offences, his subsequent assistance with the police investigation and his plea of guilty. 5. His Honour gave inadequate consideration to the applicant's prospects for rehabilitation. 6. The applicant's desire to spend the balance of his sentence on home detention. 15 The applicant was born into a Christian family in Pakistan. The family was apparently one of some substance. Amongst other things, the family had the benefit of servants in the household. When he was of tender age, it appears that the applicant was sexually interfered with by a member of the household staff. As children do, he kept the matter to himself for many years and it was not until he dealt with the matter with Dr Canaris, whom he first began to see after his arrest on these charges, that he was able to expose the existence of what had happened, to talk about it and to begin to come to terms with it. 16 The applicant picked up in his written submissions an observation made by the learned sentencing judge about the fact that within about three years of being dealt with for the 1987 offences, the applicant began to re-offend. His Honour said: Unfortunately you did not heed what happened then and only three years later began this series of more substantial frauds. 17 The submission is that his Honour fell into error in making that observation because he failed to realise the difficulty that the applicant had had and to which I have referred - his inability to come to terms with what happened to him as a child until he had had many consultations with Dr Canaris. 18 His Honour found, in fact, that the abuse of the applicant as a child had nothing to do with the dishonest conduct, either in 1987 or upon the occasions for which his Honour was sentencing the applicant. In my opinion, that was a conclusion of fact that was open to his Honour on the evidence, and it is one that may not be challenged in this Court. 19 The same thing may be said of the submissions made by the applicant that it took a realisation by him of his own hypocrisy before he could confess his offences, and that exceptional circumstances existed why he failed to learn from the 1987 experience. 20 The next matter is that the motivation for the offence was not greed. That was not a finding made by his Honour and in my view it is not a matter that is open to the applicant to put to this Court. 21 Then it is said that his Honour failed to accept and act upon the views and recommendations made by Dr Canaris. Dr Canaris is a consultant psychiatrist, as I have observed. The applicant sought his service not so much for treatment but upon the recommendation of his solicitor, for the preparation of a report to be furnished to the Court. In due course the reports of Dr Canaris dated 21 January and 18 March 1998 were tendered and his Honour dealt with the detail of them. His Honour formed a poor view of Dr Canaris. He came to the view that Dr Canaris had made himself an advocate and that the Court ought not to rely upon his opinions and recommendations. 22 I need not deal with the detail of the reports of Dr Canaris. It will be sufficient if I quote from the last page of the first mentioned report. Dr Canaris knew the facts of the case which were likely to be proved against the applicant. He must have known that the applicant faced the likely imposition of a long period of time in custody. He knew that the applicant wished to contend before the sentencing Court that it should sentence him to a period of home detention. On the last page of his report of 21 January 1998 Dr Canaris said this - You have drawn my attention to the option of home detention. It is my considered view that home detention is from the psychological perspective by far the most desirable option. I understand that the conditions applied to home detention are stringent and no sinecure. The process is quite intrusive with close monitoring of the offender's behaviours. Provision could be made for both himself and his wife to attend my rooms in continuing therapy. There is a great deal of work to be done with Mr De Souza as an individual and together with his wife in order to help him break his pattern of doubling. The fact that he would then be under sentence with very strict controls would in fact be of great assistance in therapy. I might add that an integral part of Mr De Souza's therapy is that he be seen together with his wife. While individual psychiatric treatment would be available to him in prison, therapy for the De Souzas as a couple obviously is not. Consequently, the therapeutic result is likely to be considerably less effective. At the end of the day, the aim, of course, is not only to confront your client with his doubling behaviour but also to help him develop more mature and constructive ways of dealing with the vicissitudes of his life. This would be much more achievable because it would be much more likely that Karin could then be recruited as a person who would also confront Terry yet also support him and build up his self esteem. It will in all likelihood be much more difficult to resume this process which has only just begun if it is interrupted by a spell in prison. Mr De Souza is likely to emerge from prison so demoralised that he will need so much propping up as to make any kind of confrontation or remoulding of behaviour patterns virtually unthinkable for a long time. It will also be much harder to recruit Karin into the therapeutic process. Imprisonment is a gruelling experience not only for the prisoner but also for his spouse and family. Over the course of his imprisonment, Karin's psychological resources will be severely taxed as she endeavours to keep her large and young family functioning as a single parent. I am greatly concerned that she may become so embittered and exhausted by the process as to find it difficult to make any more than a cursory attempt to help her husband. In view of the above considerations, I respectfully urge that the court seriously consider home detention. It is my professional opinion that your client's rehabilitation is far more likely to be attainable by the exercise of this option. 23 It is quite apparent from that material alone that his Honour was entitled to take the view that Dr Canaris was playing the role of an advocate rather than attempting in any way to put a balanced professional view to the sentencing Court, and in my opinion his Honour was entitled to decline to rely upon his evidence. I do not think that in doing so his Honour fell into error. 24 The next two matters put forward to this Court were that his Honour gave inadequate consideration to the effect upon his family of the custodial sentence and inadequate consideration to the financial restitution made by the applicant and his family. His Honour dealt in detail with the restitution, the facts of which I have already summarised. The imprisonment of the applicant and the loss of the family home and the translation of the applicant's family from being comfortably off to depending upon public funds are all matters which must be acknowledged to have had, and to be likely to continue to have, a very serious effect upon members of the applicant's family. 25 It is often said that the people who are hurt by criminal activities are not so much the criminals themselves but members of their families. However, it is only in a very rare case that the deleterious effects of sentencing and of the consequences of crime on the families of offenders and the hardship that they suffer may be taken into account in fashioning an appropriate sentence: Regina v Edwards (1996) 90 A Crim R 510. I do not say in any insensitive way that the Court appreciates the position in which the applicant's family now finds itself, but even so it does not seem to me that the consequences for them constitute a matter which his Honour would have been entitled to take account of in deciding on an appropriate sentence. 26 As to the restitution, the applicant himself, of course, has lost his property but it has to be acknowledged that his restitution has not been complete and a substantial loss has resulted. 27 The next matter was that his Honour gave inadequate consideration to the applicant's confession of his offences, his subsequent assistance with a police investigation and his plea of guilty. His Honour undoubtedly did give consideration to those matters and dealt with them in detail in a long and careful judgment. An important feature of the position the applicant found himself in was that once his activities became known, there was going to be nothing he could say in defence of himself. It was, of course, in his own interests to make the full confession that he did, but the confession and the pleas of guilty, whilst they were entitled to be given weight because they saved the State the time and money of what would probably have been a long and expensive trial, were not of themselves much more than an acknowledgment of the inevitable. 28 Then it was submitted that his Honour gave inadequate consideration to the appellant's prospects of rehabilitation. In fact, his Honour did consider the appellant's prospects for rehabilitation and concluded that there were prospects. To submit that inadequate consideration was given is really to submit that the sentences were so long as to lead to the conclusion that that is what must have happened. 29 I shall in a moment deal with the length of the sentences themselves, and I can do so as I deal with the final submission, namely the applicant's desire to spend the balance of his sentence on home detention. His Honour was correct to describe the offences as grave breaches of trust and extremely serious. Twenty-three individuals were defrauded of about one and a half million dollars over a period of five years. By any measure, that involves criminality of the highest kind. In my opinion, the applicant's criminality was such that his Honour would have fallen into error if he had not imposed sentences which involved the applicant spending a considerable time in full-time custody. 30 Other aspects of his criminality were the care with which he had to prepare and carry out his scheme, the fact that several of the persons defrauded were in a particularly vulnerable position and relied upon the applicant for advice and assistance, all of which may be summarised as saying that the applicant committed gross breaches of trust. 31 His Honour paid full regard to the subjective features of the case, to the prospects of rehabilitation in particular, and, relying on a report from an officer of the Probation and Parole Service, considered that the need for counselling and psychiatric assistance if and when required constituted a reason for imposing sentences which produced an additional term during which the applicant would be eligible for release on parole longer than would otherwise apply. 32 In my opinion, in all the circumstances of the case, the construction of the sentence to produce that result was well within the sentencing discretion of the trial judge. I would grant leave to the applicant to appeal but would dismiss the appeal. 33 STUDDERT J: I agree. The orders of the Court therefore will be those proposed by Barr J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.