R v Tomich [2002] NSWCCA 175

Reported Decision : (2002) 127 A Crim R 234

New South Wales Court of Criminal Appeal

CITATION : R v Tomich [2002] NSWCCA 175 FILE NUMBER(S) : CCA 60449/01 HEARING DATE(S) : 13 May 2002 JUDGMENT DATE : 13 May 2002

PARTIES : Heather Leigh Tomich v Regina JUDGMENT OF : O'Keefe J at 44; Smart AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0440; 00/31/043; 00/31/0243 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : (A) T S Corish (C) G I O Rowling SOLICITORS : (A) D J Humphreys (C) S E O'Connor CATCHWORDS : Sentencing - global sentencing impermissible - misdescription of offences - need careful adherence to provisions of Crimes (Sentencing Procedures) Act 1999 when dealing with Form 1 offences - need for deterrent sentences when dealing with financial frauds on an employer and breaches of trust - compelling subjective features Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED: Nil DECISION : See paragraphs 43 and 44

IN THE COURT OF CRIMINAL APPEAL

60449/01

O'KEEFE J SMART AJ

Monday 13 May 2002 REGINA v HEATHER LEIGH TOMICH JUDGMENT 1. SMART AJ: Heather Leigh Tomich seeks leave to appeal out of time against the asserted severity of sentences of imprisonment imposed upon her in the District Court on 8 June 2001 consequent upon her plea of guilty to each offence. As the application was filed but nine days late, the applicant did not realise that she was required to lodge her appeal within 28 days and there are matters of substance to be argued an extension of time should be granted. 2. On the charge of on 14 October 1998 at Bateau Bay, then being a clerk of St George Bank Limited stealing $15,000, she was sentenced to a fixed term of three years commencing on 12 April 2001. On two charges of larceny as a clerk of the bank, being $1,000 on 14 July 1999, and $1,000 on 26 July 1999, she was sentenced to a fixed term of two years commencing on 12 April 2001. It is not clear whether the judge intended to impose that sentence on each count. Having regard to what she did on the next group of charges it may well have been a group sentence for the two offences. The maximum penalty for larceny as a clerk under s 156 of the Crimes Act 1900 is ten years imprisonment 3. Rectifying the judge's description of the offences on: (i) Ten counts of larceny as a clerk of the bank extending over the period 15 October 1998 to 2 February 2000, on different days mainly in 1999, and involving amounts ranging from $500 to $3,000 (Crimes Act, s 156); (ii) Four counts of intentionally and without authority or lawful excuse inserting data stored in a computer, namely term deposit accounts of Mr and Mrs Wymark (15 February 1999 and 14 July 1999), and Mrs K Cracknell (12 April 1999 and 9 September 1999) (Crimes Act, s 310 (a) - now repealed - maximum custodial penalty ten years); (iii) Six counts of intentionally and without authority or lawful excuse altering data stored in a computer, namely the term deposit accounts of Mrs Cracknell, between 9 January 1999 and 9 February 2000, on 12 April 1999 and 9 September 1999; and of Mr and Mrs Wymark on 15 February 1999, on 14 July 1999 and 28 January 2000 (Crimes Act, s 310 (a) - now repealed - maximum custodial penalty ten years); and (iv) One count of make false instrument with the intention of using it to induce another person to accept the instrument as genuine, and because of that acceptance to do or not to do some act to that other person's prejudice (Crimes Act, s 300 (1) - maximum custodial penalty ten years). The applicant was sentenced to a term of four years to commence on 12 April 2002, with a non-parole period of three years, taking into account the offences on the Form 1. The Form 1 contained 94 offences of larceny, one offence of obtain money by deception, two offences of intentionally and without authority or lawful excuse insert data stored in a computer and two offences of intentionally and without authority or lawful excuse alter data stored in a computer. 4. The sentence last mentioned was a global group one. The judge did not impose a sentence on each of the 21 individual counts, nor did she state on which particular count the offences were being taken into account. Global or group sentences are not permissible. The judge did not approach the offences on the basis of imposing the correct sentence for each offence. This Court is compelled to re-sentence. As all the matters were dealt with together and interlocking sentences were imposed, it is necessary to reconsider all sentences. 5. In her remarks on sentence the judge, after imposing the sentence on the count of larceny of a clerk on 14 October 1998 and the two counts of larceny as a clerk committed on 14 and 26 July 1999, said: "On the 21 counts of larceny as a clerk, one count of make false instrument, and five counts of alter data and destroy/erase data you are sentenced to a term of imprisonment of four years to commence on 12 April 2002 and to expire on 11 April 2006, the term of imprisonment of four years is to be served partly concurrently and partly consecutively with the sentences imposed for the first two counts and for that reason it is to commence on 12 April 2002 and expire on 11 April 2006. In relation to this count I have taken into account the Form 1 offences, and it is for that reason and also to mark the accelerating and ultimately the total criminality that I have significantly enlarged the sentence on this count and direct that it be served as ordered. I fix a non-parole period of four years, in fixing the non-parole period I've had regard to the interests of the offender and of the community in providing an adequate period for post release supervision. Significant period of post release and supervision on parole is justified, however, that does not justify reducing the non-parole period to one that fails to appropriately reflect the criminality for which the offender is to be sentenced. You are to be considered eligible for release to parole on 11 April 2005". 6. The solicitor appearing for the Crown explained to the judge that the non-parole period was part of the total period of the sentence, that there could not be a global non-parole period, and that any non-parole period must pertain to a specific sentence and not to a group of sentences. The solicitor also reminded the judge that she had not attached the largest sentence to the biggest theft, namely that of $15,000 the subject of the first count. The judge replied that she wanted to impose the heaviest sentence on the last group of offences because of the accelerating and greater criminality. 7. After a lengthy discussion between the legal representatives of the parties and the judge, finally on the group of 21 charges she imposed a sentence of imprisonment of four years with a non-parole period of three years starting from 12 April 2002. It was the judge's stated intention that overall the applicant would serve a non-parole period of four years. The three year sentence of the applicant on count 1 started on 12 April 2001. 8. It is not easy to reconcile the judge's statement that a significant period of post release supervision on parole was justified with her fixing a non-parole period of less than three quarters of the accumulated sentences. One year is not a significant period of post release supervision in the circumstances of this case. 9. The applicant complained that the judge had erred in the way in which she dealt with the 1999 offences to be taken into account. The Form 1 (list of additional charges) signed by the applicant on 12 April 2001 provided for the 99 charges to be taken into account on the offence of larceny as a clerk of $15,000 on 14 October 1998. The judge took the 99 offences on the Form 1 into account on the third group of offences when she delivered her remarks on sentence and finalised the sentences. When it was pointed out to her that the Form 1 envisaged that the offences listed would be taken into account on the charge of larceny as a clerk of $15,000 on 14 October 1998, the judge replied that she had structured her entire sentence on the basis that the Form 1 attached to the 21 counts (the third group of offences). 10. The solicitor for the Crown applied for leave to amend the Form 1. The legal representative for the applicant stated, "I've no objection to the amendment of that document". The solicitor then amended the Form 1 by striking out "$15,000" and substituting another set of figures, so that the opening words of the Form 1 read, "To Heather Tomich, charged with the offence of larceny as a clerk of 00/31/0243, 15/10/99, before the Gosford District Court". 00/31/0243 was apparently the District Court file number of the third group of charges. While there is a charge relating to 15 October 1998, there does not seem to be one relating to 15 October 99. 11. The applicant correctly submitted that s 32 (4) of the Crimes (Sentencing Procedure) Act 1999 requires the Form 1 to be signed by the offender. However, she did not sign the amended form providing for the list of offences being taken into account on a group of charges. The applicant submitted that the judge did not comply with s 33 (1) of the Act in that the judge did not ask her whether she wanted the Form 1 offences taken into account on the third group of offences. There would be a resultant non compliance with s 33 (2) (a) (ii). Sections 32 and 33 are designed to ensure that the offender is made fully aware of what is proposed or happening so that mistakes are unlikely to occur. These are procedural steps of some consequence as they are capable of bearing upon the liberty of the subject. 12. The applicant also complained that the judge incorrectly described (and possibly incorrectly understood) the offences in the third group. She incorrectly stated: "On the 21 counts of larceny as a clerk, one count of making false instrument, and five counts of alter data and destroy/erase data, you are sentenced...".