R v FELL [2004] NSWCCA 235

New South Wales Court of Criminal Appeal

CITATION : R v FELL [2004] NSWCCA 235 HEARING DATE(S) : 3 February 2004 JUDGMENT DATE : 14 July 2004

JUDGMENT OF : Giles JA at 1; Hulme J at 1; Adams J at 1 DECISION : The Crown appeal is dismissed.

PARTIES : Regina James Andrew Fell FILE NUMBER(S) : CCA 60400/03 COUNSEL : Crown: D Frearson Respondent: J Dalley SOLICITORS : Crown: S Kavanagh Respondent: K Madden

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/0166 FILE NUMBER(S) : LOWER COURT Tupman DCJ JUDICIAL OFFICER :

- 11 - IN THE COURT OF CRIMINAL APPEAL 60400/03

GILES JA HULME J ADAMS J

Wednesday 14 July 2004 R v JAMES ANDREW FELL Judgment 1 THE COURT: On 3 February last the Court heard and dismissed a Crown appeal in this matter, indicating its reasons would be published later. Hence these reasons. 2 The Respondent pleaded guilty to 14 charges alleging that he did dishonestly obtain for himself money by deception, namely by fraudulently crediting funds into his personal account from WES Components. The 14 charges related to transactions between 5 March 2001 and 17 July 2001 in amounts varying between $11,250 and $31,600. The total amount involved in these 14 offences was $326,324. 3 Also taken into account were 70 further offences occurring between 14 May 2000 and mid July 2001. As time went on the amounts involved in the offending tended to increase - firstly $30, then $50 and then $70. By about mid July there was an offence involving $650. The largest of these offences involved an amount of $9,681. The total amount involved in these 70 additional offences was $216,349.50. 4 The offences arose under Section 178BA of the Crimes Act and each of those charged rendered the Applicant liable to imprisonment for 5 years. On 18 August 2003, Judge Tupman imposed the following sentences in respect of the charges:- 1. In respect to counts 1 to 13 imprisonment for a period of 16 months commencing on 18 August 2003, the date of sentence. 2. In respect of count 14 and taking into account the 70 additional offences appearing on the Form 1, imprisonment for a period of 22 months commencing on 18 August 2003. 3. Each sentence was suspended upon the Respondent entering into a good behaviour bond to come up for sentence at any time if called on for any breach committed during the period of the bond. Additional conditions of the bonds were:- (a) That the Respondent accept the supervision and guidance of the probation and parole service. (b) That he continue to undertake psychiatric and psychological treatment as is recommended by his medial advisors. (c) That the supervision not be discontinued without further order of the court. 5 At the time of his offending, the Respondent was employed in the office of WES Components. The method by which he perpetrated his offences was by swiping or otherwise entering his key card in his employer's records in circumstances such that the transaction appeared to be a genuine credit or refund to one of the customers of his employer. The amount of each such transaction was automatically credited to the Respondent's bank account. He would seem also to have removed parts of printer rolls of transactions so that some or all of the subject transactions did not appear. 6 The Respondent's offending seems to have been motivated by a number of factors. He told a psychologist who later treated him that he felt like revenge for lack of promotion in responsibility or remuneration by his employer. He told Dr Strum, who interviewed the Respondent for the purposes of preparing a report for sentencing purposes that he heard voices telling him to steal. He told the sentencing judge – and there is at least some suggestion of this in Dr Strum's report – that the possessions he acquired as a result of his criminality helped him to feel successful, and the explanation he gave his family for these, viz of making money in his own business, made him feel secure and good. 7 Dr Strum himself opined that the Respondent's actions arose out of a long standing psychiatric illness and disorder, describing these as a Bipolar Affective Disorder with both Hypomanic and Depressive Episodes and a Schizotypal Personality Disorder. The psychologist, Ms O'Neill diagnosed the Respondent as suffering from a Schizoid Personality Disorder, and a Panic Disorder with Agoraphobia together with a Sub-clinical low non-verbal IQ. In addition the Respondent suffered from a medical neurological condition which gave rise to frequent – as many as 9 a day – seizures. 8 In fact the Respondent had first been treated by a psychiatrist when he was at school and having difficulties with the way he was then treated by his peers. After his offending was revealed he again consulted a psychiatrist and in September 2001 was referred to Ms O'Neill who continued treating him up to the time of sentence. By then he had also been diagnosed with tuberous sclerosis and small cervicothoracic syringomyelia with indications of epilepsy. 9 Judge Tupman seems to have largely accepted these diagnoses and that the Respondent's symptoms and condition started to become worse at about the time he started committing the offences. Her Honour observed:- "… I accept Dr Strum's opinion that the stealing, more probably than not, would not have occurred if his condition had been treated more effectively at the time, including if he had been on medication and in receipt of therapy… I accept the opinion of the psychiatrist that the Prisoner's commission of the offences was directly attributable to and associated with his psychiatric condition." 10 Her Honour also accepted that the Respondent's psychiatric illness and personality disorder were treatable and that treatment would reduce the likelihood of re-offending. Her Honour continued:- "The Prisoner has been seeing a clinical psychologist for treatment in relation to his diagnosed condition and has been in receipt of medication to deal with it. He has also undertaken therapy. His condition is now under control and I accept is likely to remain that way whilst ever he remains under psychiatric and psychological care. He would appear not to have had any ongoing treatment until after these offences came to light in July/August 2001. I accept that he was not aware, nor were his family, that in fact he suffered from the psychiatric condition to which Dr Strum has referred, nor the impact that it was having on his behaviour. He now is, as is his family and I accept that over the last two years the Prisoner has demonstrated a commitment to receive treatment for it and that the treatment has been successful." 11 The Respondent used a deal of the proceeds of his criminality to buy for himself designer clothes, rather than the second-hand ones from charity shops he was accustomed to purchase previously. He also bought a number of items of electronic and electrical equipment. These included 4 hammer drills and two electronic organs. Two organs were acquired so that the Respondent could "use one with each hand to compose music with". The unusual number of the drills, and one may infer the duplication of many other items, was so that "if one broke down, (the Respondent would) have spares". 12 In evidence the Respondent acknowledged that he knew from the outset that what he was doing was wrong. Indeed, from July to November 2000 he ceased his offending, in his words freezing his card so that it could not be used. He explained what he meant by "freezing his card". He froze it in the freezer in a glass of water, removing it occasionally for some legitimate purpose, and then re-freezing it. 13 In July 2001, the Respondent disclosed his offending to his parents. He then, in the knowledge that the police would become involved, instructed a solicitor to make contact with his employer, reveal his offending and repay to his employer $200,000 which had been invested. He also took steps to refund another $50,000 but that was prevented for a time in consequence of the employer being informed. Ultimately a total of $279,844.45 was refunded. 14 There was evidence that some months prior to July 2001, the Respondent's employer was making enquiries into the apparent loss of funds from his business but her Honour found that the Respondent's confessions were made out of remorse and guilt and without knowing that the employer was investigating the possibility that a staff member had been committing fraud. 15 Her Honour recognised that the Respondent's offending involved an abuse of trust and the offending serious. Her Honour described the offending as not at the top of the range but towards the middle in terms of seriousness of offences of the type. She observed that normally, fraud such as that practiced by the Respondent would result in full time imprisonment. In light of the fact that the plea was very early and a trial would have been lengthy and involved an understanding of a substantial quantity of documentation her Honour allowed a discount of 25% for the Respondent's plea. 16 Her Honour also took the view that there had been unacceptable and unexplained delay in the institution of the proceedings against the Respondent. Although it was in July 2001 that the Respondent's solicitor revealed to the victim the Respondent's offending and a great deal of detail in relation to it and the police were then notified, it was not until late October 2002 that the Respondent was asked to attend on the police and was charged. 17 In the interim, the Respondent had, in her Honour's view, taken major steps by way of rehabilitation, including psychological and psychiatric treatment and medication, and his condition was by then under control and likely to remain so provided such care continued. Her Honour also recorded that since July 2001, the Respondent had applied for some 600 jobs obtaining only one which lasted some 7 weeks until his employer ascertained that the Respondent was on medication which made his continuing employment with machinery potentially dangerous. The Respondent also established his first ever male to female relationship. The Respondent had been born in May 1968 and, prior to the commission of the subject offences, the Respondent had no criminal record. 18 Her Honour observed that had the Respondent's condition been appropriately treated earlier, the offences would probably not have occurred. These events and the psychiatric condition which prevailed at the time of offending led her Honour to observe that general and specific deterrence had much smaller parts to play in the sentencing exercise than usual. Her Honour observed that the Respondent made the confessions he did out of a sense of remorse and guilt. 19 Towards the end of her remarks, her Honour said: "However, it seems to me that this is a case where it is neither sensible nor appropriate to attempt to apportion individual sentences for each of the offences… Each of those which might otherwise attract custodial penalties would probably in the circumstances attract individual penalties of between 6 to 12 months if taken individually. The total criminality involved, it seems to me, absent the plea of guilty but taking into account the delay, assistance provided by the Prisoner, the psychiatric condition and other subjective circumstances would give rise to an overall period of imprisonment of about 2½ years. It would be appropriate, it seems to me, to reduce that to 22 months to take into account the 25% discount for the utilitarian value of the plea. … I acknowledge that the last of the offences in time must attract a somewhat higher appropriate sentence to take into account the additional 70 offences. However, it seems to me because of the considerations of total criminality, that each of the sentences should be served concurrently to reflect the fact that they are part of one overall episode of criminality, albeit committed over 15 months. I propose to give effect to these findings by fixing a twenty-two months sentence to the last of these offences and terms of sixteen months for each of the earlier thirteen. For the reasons that I have outlined in relation to the subjective circumstances of the Prisoner, it seems to me that his prospects of rehabilitation are considerably better advanced if he remains in the community undertaking his psychiatric treatment, being able to use the medication that has assisted him with that condition and being available for ongoing psychiatric and medical therapy and treatment. So far as this assessment of his prospects of rehabilitation is concerned I also take into account and accept the opinion of the Probation and Parole Service contained in the report of 22 July 2003 that he was thought to be unsuitable for periodic detention because he is a vulnerable individual at high risk of being exploited in a custodial setting who would be at greater risk because of the risk of seizures and psychiatric episode and the difficulties he would have functioning in a custodial setting because of his psychiatric and general medical condition and vulnerability." 20 Thus it was her Honour imposed the sentences she did. 21 It should be mentioned also that, on account of his mental condition, the Respondent was assessed by the Probation and Parole Service as unsuitable for a Community Service Order or for Periodic Detention. Both Dr Strum and Ms O'Neill expressed the view that the Respondent's condition would make it very (or extremely) difficult for him to deal with a gaol sentence. 22 The Crown's criticism of the sentencing process and its result was on a number of bases. It was submitted:- (i) The sentences imposed are manifestly inadequate and do not reflect the totality of the criminality including the abuse of trust, the planned persistent and systematic dishonesty involving a large amount of money and extending over a period of 14 months.