New South Wales Court of Criminal Appeal CITATION : Regina v Thompson [2003] NSWCCA 219 revised - 22/08/2003 HEARING DATE(S) : 4 August 2003 JUDGMENT DATE : 4 August 2003 JUDGMENT OF : Wood CJ at CL at 15, 17; Simpson J at 1; Adams J at 16 DECISION : Leave to appeal granted; appeal dismissed CATCHWORDS : application for leave to appeal against severity of sentence - charges of making and using a false instrument - Form 1 offences LEGISLATION CITED : Crimes Act 1900, s300 Crimes (Sentencing Procedure) Act 1999, s33, s50 CASES CITED : Regina v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 PARTIES : Crown - Respondent Helen Anne Thompson - Applicant FILE NUMBER(S) : CCA 60146/03 COUNSEL : D Arnott - Crown GR Heathcote - Applicant SOLICITORS : SE O'Connor - Crown B Andrews - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/3202 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60146/03 WOOD CJ at CL SIMPSON J ADAMS J Monday 4 August 2003 REGINA v Helen Anne THOMPSON Judgment 1 SIMPSON J: The applicant seeks leave to appeal against the asserted severity of sentences imposed upon her in the District Court on 21 October 2002, following her pleas of guilty to seven charges of making a false instrument, and seven of using a false instrument. In addition, the sentencing judge, pursuant to s33 of the Crimes (Sentencing Procedure) Act 1999, at the applicant's request, took into account a further 30 charges of making, and 30 of using, false instruments. Pursuant to s300 of the Crimes Act 1900, each offence exposed the applicant to a maximum term of imprisonment for ten years. The applicant was sentenced, on each of the counts, to imprisonment for three years with a non-parole period of eighteen months, to commence on 21 October 2002 (the date sentence was imposed). In respect of six counts she was sentenced to imprisonment for nine months, with the same commencement date, to expire on 20 July 2003. In respect of the remaining six counts on the indictment, she was sentenced to a fixed term of imprisonment for nine months, to commence on 21 July 2003, that is, at the expiration of the previously imposed fixed term. In reality, both groups of fixed term sentences are entirely subsumed within the three year sentence, and in the non-parole period specified in relation to those sentences. Pursuant to s50 of the Crimes (Sentencing Procedure) Act, the sentencing judge directed that the applicant be released at the expiration of the non-parole period. Accordingly, the overall sentence is of imprisonment for three years with a non-parole period of eighteen months at which point the applicant is entitled (not eligible) to release on parole. 2 In reaching the sentence he did, the sentencing judge said that but for the early plea of guilty, he would have imposed an overall sentence of four years, but reduced this to three years, by reason of the plea. A simple mathematical calculation indicates that this was a twenty-five per cent reduction, and I would take this to be the maximum reduction available in accordance with the decision of this Court in Regina v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. 3 The offences were committed over a period commencing on 25 March 1998, and ending on 8 December 1999. They were committed in the course of the applicant's employment with a company called Swift and Moore, which was an alcohol distribution company. The applicant was employed as a credit collector which involved her receiving money owed to the company. In 1999, for reasons which will later appear, the applicant found herself in financial difficulties and began altering account records and redirecting to herself (in a former married name) cheques made payable to the company. In all, the applicant defrauded the company of $144,000 in this way. As a result of her financial and personal difficulties the applicant had begun consuming alcohol heavily and had become an entrenched gambler. The money was used, in part, for family expenses, and otherwise poured into poker machines. 4 The applicant was confronted by senior employees of the company in about December 1999. She made full admissions and repaid a small amount, about $800. She was interviewed by police on 14 December 2000. She maintained her admissions, and entered pleas of guilty at the first available opportunity. There was considerable delay, which concerned the sentencing judge, in bringing the proceedings to a conclusion, and although some part of that may have been attributable to the circumstances of the applicant, the sentencing judge seems to have considered that most of the blame for the delay lay with the Crown. subjective circumstances 5 The applicant gave evidence in the sentencing proceedings. She was born on 1 October 1954 and was forty-three years of age at the time of the commencement of her criminal activities. Apart from two previous offences of drink driving (1996 and 1999) she had no criminal history. She had married aged 17 and had two children, at the ages of eighteen and twenty. The marriage ended in 1979 and the applicant married the older brother of her first husband. Two more children were born of this marriage, in 1984 and 1986. That marriage also ended, in 1993, and the applicant began living with another man. This arrangement lasted about eighteen months. During most of this time the applicant was in employment. After the de facto relationship ended the applicant married a third time, on this occasion to a man who had three children who were not in his custody, but in respect of whom he was making child support payments. His income was extremely limited and appears to have been sporadic. At the same time the applicant was making child support payments to the father of two of her children with whom they were living. It seems to have been at about this time that the applicant's financial difficulties became insuperable and it was that that precipitated her on the course of defrauding her employer. 6 The applicant has reduced her alcohol intake and abandoned gambling. She has, unsurprisingly, been unable to find employment and is living with her mother and step-father who are prepared to offer her a home on her release from prison. the application for leave to appeal 7 Two grounds were pleaded, and argued, in support of the application for leave to appeal. The first of these was that: "His Honour erred in his consideration of the particular facts of the case in fixing the sentences which he did". 8 The asserted error(s) in the facts was not identified with precision in the written submissions, but in oral argument we were referred to delay, rehabilitation, the absence of any criminal history, and the applicant's long period of employment without any instances of betrayal of trust. These were of course all relevant matters, but they were mentioned by the sentencing judge, and in my opinion both the remarks on sentence, and the sentences imposed, show that they were taken into account and properly taken into account. 9 Reference was made to the large number of offences taken into account pursuant to the Crimes (Sentencing Procedure) Act. It seems now to be accepted that, while it is legitimate and appropriate that, where offences are so taken into account, a sentence greater than would otherwise be imposed upon the principal offence may and sometimes must be imposed, an offender who takes advantage of the Form 1 procedure will be entitled to anticipate significant benefit – that is, to be sentenced to a lesser term than he or she would have been had separate charges been prosecuted. 10 Here the applicant faced 14 charges, and 60 were taken into account. Clearly, those circumstances meant that the overall sentences imposed upon the applicant in respect of the offences charged had to reflect the serious additional criminality taken into account. 11 I see no error in the approach taken to the Form 1 offences. 12 The other matters that were put in support of the application were subjective factors which were taken into account appropriately and adequately by the sentencing judge. These included her immediate admission, the motivation for the offences, her previous good character, the delay in proceeding with prosecution and the applicant's genuine remorse and prospect for rehabilitation. 13 The second ground pleaded was that the sentences imposed are manifestly excessive. This in my opinion can be answered shortly. The applicant cannot escape the fact that this was a serious and protracted course of criminality, which resulted in substantial losses, quite irrecoverable, to her employer. They were committed from a position of trust. I am satisfied that any lesser sentence would have been inadequate. The sentencing process had to balance not only those subjective matters favourable to the applicant, but also the objective gravity of the offences committed and the need for denunciation of the behaviour which led her to this position. 14 I would grant leave to appeal but dismiss the appeal. 15 WOOD CJ at CL: I agree. 16 ADAMS J: I also agree. 17 WOOD CJ at CL: The order of the Court will therefore be as proposed by Simpson J. ********** Last Modified: 08/28/2003 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.