R v Tooth [2001] NSWCCA 407

New South Wales Court of Criminal Appeal

CITATION : R v Tooth [2001] NSWCCA 407 FILE NUMBER(S) : CCA 60446/01 HEARING DATE(S) : 08/10/01 JUDGMENT DATE : 10 October 2001

PARTIES : Regina v William Richard Tooth JUDGMENT OF : Grove J at 1; Howie J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/41/0050 LOWER COURT JUDICIAL Twigg DCJ OFFICER :

COUNSEL : P.G. Berman SC - Crown P. Hamill - Applicant SOLICITORS : S.E. O'Connor Nyman & Gibson CATCHWORDS : Discount for assistance to authorities - "significance and usefulness" of assistance Crimes Act 1900 - ss 300(2), 442B LEGISLATION CITED : Justices Act 1902 - s 51A Crimes (Sentencing Procedure) Act 1999 - s 23 Evidence Act 1995 - s 165 R v Tooth [2000] NSWCCA 482 R v Thomson and Houlton (2000) 49 NSWLR 383 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 Yenice (1994) 72 A Crim R 234 R v Ward (NSWCCA, unreported 29 May 1995) Phelan (1993) 66 A Crim R 446 DECISION : Application for leave to appeal allowed but appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60446/01

GROVE J HOWIE J

DATE: 10 October 2001 REGINA v WILLIAM RICHARD TOOTH JUDGMENT

1 GROVE J: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against the sentence imposed by his Honour Judge Twigg as a consequence of the applicant adhering to his plea of guilty to two charges of using a false instrument, being in each case a bank cheque, contrary to s 300(2) of the Crimes Act 1900. The applicant had pleaded guilty to these charges before a magistrate and was then committed for sentence under s 51A of the Justices Act 1902. The maximum penalty prescribed under s 300(2) is imprisonment for 10 years. 3 His Honour sentenced the applicant in respect of each charge to imprisonment for 4 years and specified a non-parole period of 2 years. The sentences were to be served concurrently and to date from the expiration of the sentences then being served by the applicant. Those sentences were in effect six years to date from 5 May 2000 with a non-parole period to expire on 4 November 2004. Those sentences related to a large number of dishonesty or fraud offences. As a result of the sentences imposed by Judge Twigg the applicant is due for consideration for parole on 4 November 2006. His Honour also made a reparation order in the sum of $24,490.00. 4 Each offence for which the applicant was sentenced involved a stolen cheque; the first was made out for $390,637.75 and the second for $24,490.00. The two cheque forms had been included in a large number of blank cheques stolen on about 9 June 1999. On 29 February 2000 the applicant used these cheques to pay out two mortgages on a property he had purchased in May 1998. Having obtained the title deeds to the property, he then proceeded to complete the sale of it. However, the paying banks refused to honour the cheques because they were stolen and the former mortgagees contacted police. The applicant was arrested on 4 July 2000 and refused to answer questions in respect of the cheques. 5 At the time of the offences the applicant was on bail awaiting sentencing in the District Court for the offences for which he was sentenced on 5 May 2000. The facts and history of these offences are set out in this Court's judgment in R v Tooth [2000] NSWCCA 482. In allowing his appeal, this Court noted that the applicant had given considerable assistance in relation to the investigation of those matters. The applicant was given the benefit of a finding of special circumstances when this Court redetermined his non-parole period, a finding that had been denied to him by the sentencing judge. As I have already indicated, when he came before Judge Twigg he had a parole eligibility from 4 November 2004. 6 The applicant was born on 28 April 1953. His upbringing was unremarkable and he left home at the age of 20 years when he married. He resided in the rural property, which he and his wife had purchased, until 1986. They established an aircraft business, at one stage employing up to thirty persons. However, the business eventually failed and the applicant was declared bankrupt in 1993. He separated from his wife as a result of marital strain caused by their financial problems. He has three adult children from that marriage. In 1998 the applicant remarried but retained close contact with his children. In evidence before the sentencing judge the applicant said that he had been informed that his second wife was intending to seek a divorce. 7 In the pre-sentence report before Judge Twigg, the probation officer indicated he was unable from his inquiries to find any obvious underlying causes for the applicant's criminal conduct. The applicant told the officer that he attributed his offending to efforts to extricate himself from his financial difficulties. 8 The applicant gave evidence on the sentencing hearing that the current offences were committed to pay legal fees and ensure his wife had sufficient money while he was in custody for the offences for which he was then awaiting sentencing. He said that he had met a person named Chelliah who had suggested a scheme whereby the applicant could use stolen cheques to clear his property of the encumbrance of two mortgages and then sell the property to an associate of Chelliah, named Jain. The applicant obtained the cheques from a person by the name of Daniels who was to receive some of the proceeds of the sale of the property. 9 The applicant said in evidence that, when the bank did not meet the cheques, the mortgagee placed a caveat on the title and commenced Supreme Court proceedings to recover the title deeds from Chelliah. After his arrest the applicant contacted the solicitor for the mortgagee and provided him with a statement setting out what had happened. Ultimately, the applicant gave evidence on behalf of the mortgagee in the Equity Division of the Supreme Court on 26 April of this year. As a result of those proceedings the mortgagee recovered the title deeds and was intending to sell the property under the terms of the mortgage. 10 The applicant also gave evidence that he had provided information to the police of an admission made by a fellow inmate to a murder committed in the prison where the prisoner was serving his sentence. He had undertaken to give evidence against that accused at his trial. 11 On the hearing of the appeal it was contended that his Honour erred in the following three ways: (i) he failed to give the applicant a sufficient discount for his assistance to the authorities; (ii) he gave insufficient, if any, weight to the applicant's assistance to the victims by giving evidence in civil proceedings in the Supreme Court; (iii) the total sentence is manifestly excessive when considered in light of the overall length of the sentences he is to serve and the totality of the criminality involved in the offences for which he has been sentenced. 12 In sentencing the applicant Judge Twigg indicated that he was prepared to give the applicant a discount of 20 percent by reason his early plea and in accordance with the guideline laid down by this Court in R v Thomson and Houlton (2000) 49 NSWLR 383. His Honour was not persuaded on the applicant's evidence that the two men Chelliah and Jain were involved in the offence. He described the prisoner's version as a "shabby and deceitful attempt by the offender to shift his blame in the face of a long gaol sentence for his wrong doing". However, his Honour found that there was a need for rehabilitation that justified a variation in the statutory relationship between the head sentence and the non-parole period. 13 The first specific complaint made is that his Honour did not give sufficient credit for the applicant's offer of assistance to the authorities. It should be noted that it appears that this Court gave some benefit to the applicant for this assistance when determining the non-parole period for the earlier offences. However, in the circumstances of this case, the fact that he has received some benefit for the assistance does not disentitle him from further consideration of that matter. 14 Section 23 of the Crimes (Sentencing Procedure) Act is as follows: (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.