New South Wales Court of Criminal Appeal CITATION : REGINA v. TRIM [2002] NSWCCA 82 FILE NUMBER(S) : CCA No. 60231 of 2001 HEARING DATE(S) : Tuesday 19 March 2002 JUDGMENT DATE : 19 March 2002 PARTIES : REGINA v. TRIM, Brian JUDGMENT OF : Greg James J at 1; Buddin J at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0287 LOWER COURT JUDICIAL Karpin, DCJ. OFFICER : COUNSEL : Crown: L.M.B. Lamprati App: T.J. Golding SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - appeal - sentence - fraud and forgery - two charges encompassing over 800 acts of dishonesty over long period - position of trust - sentenced to maximum less discount for plea and totality - no account in sentences for favourable subjective circumstances - appeal upheld - appellant re-sentenced. Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act Thomson & Houlton (2000) 115 A. Crim. R. 104 CASES CITED: Cameron [2002] HCA 6 Pearce (1998) 194 CLR 610 DECISION : Leave to appeal granted. Appeal upheld. The sentences imposed in the District Court quashed and in lieu the applicant is sentenced, on count one, to a fixed term of two years, six months imprisonment to date from 16 March 2001 and to expire on 15 September 2003; on count two, the applicant to be sentenced to a period of imprisonment for three years, six months to commence on 16 September 2003 and to expire on 15 March 2007. On that sentence, there will be a non-parole period of six months to expire on 15 March 2004. On the first sentence, no non-parole period imposed for the reason that the sentence on a fixed term and the sentenced on the second count is to be cumulative on the sentence on the first count. IN THE COURT OF CRIMINAL APPEAL No. 60231 of 2001 GREG JAMES, J. BUDDIN, J. TUESDAY 19 MARCH 2002 REGINA v. BRIAN TRIM Judgment 1 GREG JAMES, J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the District Court of New South Wales at Parramatta for two offences of obtaining financial advantage by deception. These are offences created by s.178BA(1) of the Crimes Act 1900, each of which is punishable by a maximum penalty of five years imprisonment. To each of these offences the applicant pleaded guilty before the Magistrate and adhered to his pleas before the learned sentencing District Court judge. 2 At the time the applicant was 65 years of age having been born on the 23 January 1937. 3 The applicant was sentenced on the first count to a fixed term of imprisonment for three years to date from the 16 March 2001, that sentence expiring on the 15 March 2004; on the second count the applicant was sentenced to imprisonment for three years and nine months to commence on the 16 March 2004 and to expire on the 15 December 2007. The learned trial judge imposed in respect of that latter sentence a non-parole period of one year to commence on 16 March 2004 and to expire on the 15 March 2005. The applicant had been on bail prior to his conviction on the 16 March 2001 when he was remanded in custody. The sentences therefore dated from the date the applicant first went into custody. 4 A number of grounds have been advanced in criticism of the sentences. For an understanding of those grounds some summary is necessary of the facts on which the applicant came forward for sentence. Each of the counts charged offences over a period, the first between the 5 May 1993 and the 8 October 1999 and the second the 2 February 1994 to the 29 October 1999. It can be seen that the periods overlapped. The first count was said to involve the obtaining of some $232,433.10, the second, further amounts totalling $213,200; thus the total amount taken by the offender over the total period was some $445,603.10. This amount was taken in what the trial judge referred to as a sustained course of criminality over a period of six and a half years involving the forging of cheques or the creation of false instruments involving some 878 separate cheques. 5 The applicant was of the age of 56 when he commenced this course of fraud and he continued it to the age of 62. He had had no prior convictions. He was a clerk employed by a firm of accountants for the purpose of maintaining and operating a trust fund established by a deceased husband and wife for the benefit of their children. That fund managed various business enterprises. The manager of the fund attended at the accountant's office to draw cheques on a fortnightly basis and the applicant from his position of trust took advantage of that circumstance to obtain cheques in his favour by manipulating the circumstances in which the cheques came to be signed. He either forged the signature of one or other of the signatories or both signatories and effected thereby fraudulent drawings from the accounts of the companies operated by the trust. 6 The applicant in those circumstances breached the trust placed in him not only by his employer, so found the trial judge, but also by the beneficiaries of the estate with whom he had been in regular contact. He had apparently fallen into these criminal ways by reason of his having developed what her Honour referred to as a "syndrome", that is to say, he had become a gambling addict. In particular he had spent this enormous sum of money on poker machines, horse racing and keno. 7 The trial judge made a positive finding that he would have had some winnings during this period but it appeared to her that those winnings too had been dissipated along with the money taken from the trust. She found that the applicant is dependent upon his wife who provided a statement and gave evidence in his favour. 8 The applicant's contention that his employers were at fault by failing properly to audit the accounts can be disregarded. There is nothing mitigatory in such a belief. In particular it only goes to emphasise the advantage he took of his position of trust. This, of course, was found by her Honour. He had had, she found, an unremarkable and relatively stable early life, although his first marriage had failed and he had married his present partner shortly prior to being detected for these offences. There are no children of that relationship. 9 At his age it has become apparent that there will be no reasonable likelihood of his being employed again when he is released from custody. He has no assets, there is no prospect of restitution and it is most unlikely that he would have any further opportunity in his lifetime to acquire assets to make restitution. 10 The trial judge found (and it is supported by the evidence) that he has always both drunk and gambled to excess, that his inability to fund his gambling from his own resources was the initial cause of the pattern of dishonesty that had brought him before the court. 11 He left his employment due to his high anxiety levels generated by his own dishonesty. For some months he was able to hold at bay those who were seeking from him audited accounts and even during that time he did not refrain from continuing his frauds. However, when spoken to by the police, he made full admissions. 12 There was some delay in the matter going forward occasioned by the necessity for proper investigation but that delay was occasioned by the nature of the accounting exercise involved rather than by any dilatoriness on his part or on the part of the prosecuting authorities. 13 The trial judge found (and it was the evidence from his referees and the opinion of his Probation and Parole Service officer) that he was genuinely ashamed and remorseful for his conduct, that there was no realistic likelihood of his offending in the future and that in effect there was no necessity to make particular provision for personal deterrence in the sentence since the experience of his being charged and in prison would act as an effective personal deterrent. 14 The learned trial judge, however, turned to general deterrence and in that connection found that it was necessary for there to be condign sentences for those who might be minded to abuse the trust imposed in them in like circumstances to the offender. It was an offence for which she properly held that there was no alternative to full-time imprisonment (notwithstanding that it will be the offender's first time in custody), that imprisonment would be most unpleasant for him and at his age such imprisonment would be especially onerous. 15 He suffers from neurodermatitis and high blood pressure which itself did not render the sentence much more onerous but which, taken in conjunction with his age, no doubt minded her Honour to remark:- "It will no doubt be a most unpleasant experience having regard to his age and background". 16 He has attempted with some degree of success, the trial judge found, to turn away from gambling addiction and is apparently, according to the evidence of his wife, (which her Honour seemed to have accepted) able to drink and gamble in moderation. Her Honour concluded, and in my view rightly, that it is an appropriate matter in which to provide for a lengthy period on parole having regard to the necessity for the protection of the community, so that when the offender returns to the community he will not again be attracted to gambling and thus risk further criminality. 17 Her Honour was of the view therefore that there should be a variation of the normal sentence to parole period relatively pursuant to s.44(2). By that I understand that her Honour found all of those matters to be special circumstances such as would warrant a disturbance of the statutory ratio. Her Honour proceeded on the basis favourable to the offender that he was suffering from the syndrome to which I have referred. She had regard to various decisions and various authorities concerning individual sentences in like circumstances. She concluded:- "Having regard to the period of time over which these offences were committed, the persistent criminality and the amount involved, the offender will be sentenced to a head sentence in each case to the full amount allowed by law namely five years". 18 However, her Honour expressed the view that there should be a reduction of 25% reflecting the discount to which she had earlier referred of the head sentence in each case as:- "Appropriate as acknowledgement of the utilitarian aspect of the saving of considerable court time and time for witnesses." 19 That discount reflected the principles in The Queen v. Thomson & Houlton (2000) 115 A. Crim. R. 104, the decision in the present case having come down prior to the decision of the High Court of Australia in Cameron v. The Queen [2002] HCA 6. Her Honour continued, that by applying that 25% discount, the head sentence would be reduced to "three years and nine months". Plainly that is a reference to 75% of the statutory maximum in each case. She continued:- "Applying the principles of totality the sentences will be accumulated, and there will therefore be a fixed sentence imposed in the first count, with an accumulated sentence on the second count, providing a non-parole and parole period". 20 Thus it was that context that her Honour passed the sentences to which I have referred. It can be seen that the fixed term of imprisonment of three years her Honour imposed was nine months less than the figure she had nominated, apparently in order to accommodate the principle of totality to which she had referred. It would seem to me that what her Honour has done is to sentence the offender on each count to the maximum sentence allowed by law, to provide the totality discount of nine months (to which I have referred) on the first sentence only, to provide on each sentence the 25% discount appropriate for early plea or for willingness to facilitate the course of justice (see Cameron (supra)) and to provide that the sentences be cumulative. 21 Despite her Honour having found a number of matters favourable subjectively to the applicant and despite her Honour having had regard to them, those matters do not seem to have figured in the final sentences. Indeed, there seems to be no allowance for his age, his health, the existence of the syndrome, remorse, the lack of necessity for further personal deterrence, his prior lack of record, that it was his first time in custody and the onerous effect of the sentence on him at his age. 22 True it is that matters subjective to the offender and personal to his circumstances are subsidiary to the necessity that the sentences reflect adequately the objective culpability of the offender, but that is not to say that such matters shall be omitted from figuring in the end result. 23 Although there were only two charges, and it appears that the criminality overall of the offender was disclosed in the statement of facts upon which her Honour was asked to sentence, it does not appear that her Honour appropriately treated the two charges as though they were representative or specimen charges. No resort was had to the expedient of placing other offences upon a Form 1. 24 It seemed to be common ground that her Honour was to treat the two charges as though they were substantive charges but as reflecting the whole of the offender's criminality; it is only on that basis that it is explicable that her Honour sentenced the offender in the way in which she did to the maximum sentence according to law, less the discount to which I have referred on each charge. But notwithstanding that, it was, in my view, an error on her part to sentence in such a way as failed entirely to reflect the other matters that she had found in favour of the offender and thus to produce the sentences that she passed. 25 I would conclude therefore that her Honour in that respect fell into error and that some other sentence is both warranted in law and should have been passed. In those circumstances s.6(3) of the Criminal Appeal Act 1912 is applicable and it falls to this court to re-sentence. For that purpose submissions were entertained from counsel as to the appropriate way in which such a sentence might be structured as would adequately reflect the matters found by her Honour and the additional considerations to which I have referred. 26 During those submissions an incongruity came to light. It was submitted that it was not possible to structure a sentence that would produce an effective overall result on the two counts of a term of imprisonment in total of six years with a non-parole period of three years having regard to the principles referred to by the High Court of Australia in The Queen v. Pearce (1998) 194 CLR 610. In that decision the High Court of Australia made it clear that it is necessary for sentencing courts to pass a sentence which in the case of multiple offences adequately reflects the criminality and affords individual weight to each crime. The incongruity to which I have referred is that should one apply Pearce (supra) to the head sentences or to the head sentences having regard to the provisions of the New South Wales Crimes (Sentencing Procedure) Act and in particular s.44 and s.45 of that Act, it is necessary to provide for a non-parole period for both sentences and in that regard, if one is to preserve some relationship between the non-parole periods, one almost invariably produces a gap period. Consequently the course that has to be taken, if sufficient weight is given to the culpability of each of the crimes in each of the head sentences, is to structure a non-parole period which seems to have little relationship to the head sentence to which it is applied. Nonetheless, if this is the course that has to be taken in order to produce an overall sentence which adequately reflects the justice of the case that is the course to which we are relegated. Counsels' submissions, as I understand them, were to that effect. 27 The orders that I would propose therefore are that leave to appeal be granted, the appeal upheld, the sentences imposed in the District Court quashed and in lieu the applicant sentenced on count 1 to a fixed term of two years six months imprisonment to date from the 16 March 2001 and to expire on the 15 September 2003; on count 2 the applicant to be sentenced to a period of imprisonment of three years six months to commence on the 16 September 2003 and to expire on the 15 March 2007. On that sentence there will be a non-parole period of six months to expire on the 15 March 2004. On the first sentence I would decline to impose a non-parole period for the reason that the sentence on a fixed term and the sentence on the second count is to be cumulative on the sentence on the first count. It having been noted that counsel is content with the formulation in that form I propose the orders that I have said. 28 BUDDIN J: I agree. 29 GREG JAMES J: The orders therefore will be as I have proposed. *************** 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.