REGINA v S J H [2002] NSWCCA 532

New South Wales Court of Criminal Appeal

CITATION : REGINA v S J H [2002] NSWCCA 532 FILE NUMBER(S) : CCA 60422/02 HEARING DATE(S) : 29/11/02 JUDGMENT DATE : 29 November 2002

PARTIES : S J H Regina JUDGMENT OF : Spigelman CJ at 1; Sully J at 21; James J at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/11/0429 LOWER COURT JUDICIAL Armitage DCJ OFFICER :

COUNSEL : D M L Woodburne (Appellant) M B Lee (Respondent) SOLICITORS : S E O'Connor (Appellant) Marsdens (Respondent) CATCHWORDS : CRIMINAL LAW - SENTENCE - Crown appeal against inadequacy - failure to consider prior conviction - failure to consider offences committed while on good behaviour bond - manifestly inadequate sentence - where prior offence unrelated - where offender previously police officer - range of permissible discretion LEGISLATION CITED : Criminal Appeal Act 1912 Crimes Act 1900 DECISION : Appeal dismissed

- 6 -IN THE COURT OF CRIMINAL APPEAL 60422/02

SPIGELMAN CJ SULLY J JAMES J

Friday 29 November 2002 R v S J H Judgment 1 SPIGELMAN CJ: This is a Crown appeal against the inadequacy of a sentence pursuant to s5D of the Criminal Appeal Act 1912. The Respondent pleaded guilty to two counts of using a false instrument contrary to s300(2) of the Crimes Act 1900, and four counts of obtaining financial advantage by deception contrary to s178BA of the Crimes Act 1900. Two offences of possessing a prescribed restricted substance were taken into account on a Form 1. 2 With respect to the two counts of using a false instrument, the Respondent was imprisoned for two years commencing on 14 June 2002, with a non-parole period of twelve months expiring on 13 June 2003. With respect to each of the four counts of obtaining a financial advantage by deception, he was imprisoned for eighteen months commencing on 14 June 2002 with a non-parole period of nine months expiring on 13 March 2003. 3 The Respondent had acquired a business name under an alias and opened an account with Macquarie Investment Management Pty Ltd in that business name, upon which account he conducted transactions under an alias. Between September 2000 and June 2001, seven cheques were drawn on the Westpac bank account of Caltex Australia Limited to the favour of "the Customs officer". Four of these cheques, totalling an amount of $624,968.13, were deposited to the Macquarie Bank account opened by the Respondent. The four cheques drawn on the Caltex Westpac Bank account paid into the Macquarie account constituted the four breaches of s178AB. The two breaches of s300(2) constituted by the use of documentation in March 2000 to obtain the transfer of an amount of $285,000 at the direction of the Respondent and the use of documentation in July 2001 to transfer an amount of $165,000 to an account in Lebanon. 4 The Respondent pleaded guilty to the charges and gave evidence at the trial. In that evidence he told the sentencing judge that he had committed the acts at the direction of another man, a Mr Moussa, whom he feared and whom he regarded as a dominant figure. He said that he felt he had no alternative but to commit the offences. He also told the sentencing judge that he obtained no financial benefit from any of the offences. His Honour said in his remarks on sentence: "The offender's evidence is that he got nothing out of it. After some consideration I have come to the view that I should not reject that evidence. I must say I am not completely happy about it but I do not feel that I can reject it out of hand." 5 His Honour did not, however, accept the Respondent's evidence with respect to the compulsion to obey instructions of Mr Moussa. His Honour had noted that between 1991 and 1996 the Respondent was a member of the New South Wales Police Force and in that capacity had been engaged in undercover operations with respect to drugs. In 1996 the offender had been terminated as a member of the Police Force because of a charge of aiding and abetting fraudulent impersonation of a police officer. The trial judge concluded: "… I find it impossible to accept that this offender, an ex-police officer, was so intimated by the man Moussa that he felt he had no alternative other than to commit these offences at Moussa's instigation. It is plain that Moussa was involved and that he did play a significant part. As to the part played by this offender, it is plain too from the evidence that it was significant. I do not accept that virtually everything the offender did was at the immediate instigation of the man Moussa, or a man who has been referred to as Vu." 6 His Honour referred to the large number of references provided by persons who knew the Respondent and who thought highly of him. These references included observations about the Respondent's remorse and contrition. His Honour accepted that the Respondent's remorse was genuine. His Honour also concluded that the Respondent's prospects of rehabilitation were extremely good. His Honour also noted that it could well be that the Respondent would be in some danger in the prison system by reason of his prior activities as a police officer. 7 His Honour also went on to make a finding of special circumstances based on a number of matters, including the Respondent's age of thirty-one, his background, by which I understand his Honour to be referring both to his cultural background and to his police service, the Respondent's prospects of rehabilitation and the fact that this would be his first time in custody. 8 The first basis on which the Crown challenges the sentences is the failure, it submits, of the sentencing judge to give any or adequate weight to the Respondent's previous conviction, and the failure to take into account the fact that the Respondent committed the subject offences in breach of a bond to be of good behaviour. 9 There was some confusion in the course of the proceedings as to the date from which the three year good behaviour bond was to be calculated. Nevertheless, the original error was expressly corrected so that his Honour could have been in no doubt that the date of the conviction was 27 August 1999. 10 During the course of his remarks on sentence, his Honour referred to the Respondent's prior record and said: "… it does him no credit but nevertheless, it is a type of offence far removed from what I am here concerned with and I think for all practical purposes I should ignore it." 11 It may have been a proper exercise of his Honour's discretion to give minimal weight to the fact of the prior conviction by reason of the significant difference between that matter and the matters upon which he was called to sentence. It was not, however, permissible for his Honour to "for all practical purposes … ignore" the fact that the offences were committed whilst the offender was at large on conditional liberty. However, this matter was clarified prior to the sentence being imposed and I am not satisfied that his Honour ignored it. 12 In the course of his Honour's remarks on sentence his Honour turned to the issue of special circumstances on which there had not been any specific submission. During that discussion the Prosecutor specifically stated: "… the conviction occurred on 27 August 1999 and that these offences occurred during the course of that particular recognisance." 13 To this his Honour expressly stated: "I note what you've said about it Mr Crown." 14 It was after, indeed, immediately after, this exchange that his Honour went on to impose the sentences. In such a context the Crown submission that his Honour failed to take into account the fact that the sentences were committed during the course of the recognisance should be rejected. The matter was clearly in his Honour's mind at the time that the sentences were imposed. 15 The second basis of the Crown appeal is that the sentences were manifestly inadequate. The Crown drew particular attention to the failure to reflect the seriousness of the offences in the non-parole period, and to the imposition of concurrent sentences. As the Crown submitted, each one of the six fraud offences involved a substantial amount of money and a high degree of planning and organisation. This was a successful fraud in the achievement of which the Respondent played an important role. The basic theft was, of course, the obtaining of the cheques which were paid out of the Westpac account of Caltex. 16 The role of the Respondent was critical to the ability of those responsible for that conduct to have access to the funds. 17 Each of the four s178BA counts relate to the deposit of four Westpac cheques to the Macquarie account. One of the two s300(2) counts concerned the removal of $285,000 from the Macquarie account and the other such count relates to the final attempt to remove what was, virtually, the balance of the account in the amount of $165,000, at which stage the Respondent was apprehended. There can be no doubt of the seriousness of the frauds in which the Respondent played a critical role. 18 His Honour's finding, at which he arrived with some reluctance, that the Respondent received no financial benefit from the transactions, was open to him. So was his Honour's finding that the Respondent was not a mere instrument of Mr Moussa. 19 The Respondent submitted that the subjective considerations which his Honour mentioned in the context of the particular role played by the Respondent – the fact that he was to some degree acting from fear, the lack of any material benefit, the early plea of guilty – indicated that the sentences imposed were appropriate even if they were at the low end of what was open to a sentencing judge. The sentences, it was submitted, are within the range appropriate to the objective gravity of the offences and the subjective circumstances of the Respondent. 20 I have come to the conclusion that although those sentences are at the very bottom of the range, they were within the range of permissible sentences in the discretion to be exercised by the sentencing judge. There were powerful subjective considerations involved in this sentencing exercise. I refer particularly to the fact that the respondent performed significant services to the community in and about his duties as a police officer. It is true his departure from the Police Force was not an honourable departure. Nevertheless, the references that were before the sentencing Judge, and the degree of remorse that the respondent has indicated throughout, and his early plea of guilty, were significant. It was open to the sentencing judge to conclude that the prospects of rehabilitation were high in this particular case. The objective gravity of the offences was to a degree moderated by his Honour's finding that the respondent received no substantial benefit from the transactions. In all the circumstances, in my opinion, his Honour's sentences were within the permissible range and I so find. 21 SULLY J: I agree. 22 JAMES J: I also agree. 23 SPIGELMAN CJ: The order of the court is: Appeal dismissed. **********