Regina v HALL [2005] NSWCCA 217

New South Wales Court of Criminal Appeal

CITATION: Regina v HALL [2005] NSWCCA 217

HEARING DATE(S): 9/06/05

JUDGMENT DATE: 9 June 2005

JUDGMENT OF: Studdert J at 30; James J at 2; Howie J at 31

DECISION: Leave to appeal against sentence granted. Appeal allowed. Applicant re-sentenced

CATCHWORDS: CRIMINAL LAW - sentence - whether the sentencing judge erred by failing demonstrably to take into account the applicant's presentence custody

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Procedure Act

Regina v Galati [2003] NSWCCA 148 CASES CITED: Regina v Howard [2001] NSWCCA 309 Regina v Philips; Regina v Simpson [2002] NSWCCA 167

PARTIES: Regina v Peter Francis HALL

FILE NUMBER(S): CCA 2005/408

D Frearson SC - Crown COUNSEL: A Francis - Applicant

S Kavanagh - Crown SOLICITORS: SE O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1146

LOWER COURT JUDICIAL OFFICER: Judge Blackmore

IN THE COURT OF CRIMINAL APPEAL 2005/408

STUDDERT J JAMES J HOWIE J

THURSDAY 9 JUNE 2005 REGINA V PETER FRANCIS HALL Judgment

1 STUDDERT J: I will ask Mr Justice James to give the first judgment. 2 JAMES J: Peter Francis Hall has applied for leave to appeal against sentences imposed on him in the District Court on 20 August 2004 by his Honour Judge Blackmore of Senior Counsel. 3 On each of four offences of making a false instrument, which is an offence under s 300(1) of the Crimes Act and carries a maximum penalty of imprisonment for 10 years, and taking into account on the first of those offences a further offence of making a false instrument, his Honour imposed a sentence of imprisonment for three years commencing on 20 August 2004, with a non-parole period of two years. 4 On each of four counts of possessing implements for making a false instrument, which is an offence under s 302A of the Crimes Act and carries a maximum penalty of imprisonment for 10 years, his Honour imposed a sentence of imprisonment for three years commencing on 20 August 2005, with a non-parole period of 18 months. 5 On each of three summary offences, two of possessing a prohibited drug and one of cultivating a prohibited plant, which were dealt with pursuant to s 166 of the Criminal Procedure Act his Honour imposed a sentence of imprisonment for a fixed term of three months, also commencing on 20 August 2004. 6 The total effect of the sentences was that the applicant was imprisoned for sentences totalling four years with non-parole periods totalling two years six months. 7 The facts of the various offences were stated by the sentencing judge in his remarks on sentence and can be briefly summarised as follows. On 30 July 2003 police executed a search warrant at the applicant's home. During the search police found prohibited drugs, fraudulent documentation and equipment used in the making of fraudulent documents and identifications. On the same day a man was observed leaving the applicant's home carrying an envelope. This envelope contained two false New South Wales driver's licences which had been provided to the man by the applicant. During the search of the applicant's home police found a further false New South Wales driver's licence. A further false New South Wales driver's licence made by the applicant was found in the possession of another person arrested by the police. 8 Further facts of the offences of possessing implements for making a false instrument were stated by the sentencing judge as follows in his remarks on sentence: "During the execution of the search warrant conducted at the offender's address, the police located a sophisticated system which was used in the manufacture of fraudulent identifications including drivers licences. This system consisted of a computer hard driver, a monitor, a scanner, a laser printer, a card printer, a modem and a camera. It is alleged that the offender used all of these items to manufacture false identifications. When the offender was questioned, he confirmed that he did use these items in that way and he told police that he last made a false drivers licence three days earlier. Further, the offender told police that during the process he could produce a licence in approximately 15 minutes and that he stored the items on templates within the hard drives of his computer system. During the search police also seized a number of blank card templates and other documents used in the process". 9 In his remarks on sentence his Honour found that the offences were objectively serious, particularly because the creation by the applicant of false identifications would enable others to use the false identifications for criminal purposes. 10 His Honour considered that the sentences to be imposed would have to reflect the need for general deterrence. Furthermore, the sentences to be imposed would have to reflect the need for personal deterrence, because the applicant had a history of fraud offences. 11 In 1997 the applicant had been convicted of making a false instrument and had been fined. In the year 2000 he had been convicted of a number of offences of making and using false instruments and had been sentenced to periodic detention. 12 The applicant did not give evidence in the proceedings on sentence. A report by a psychologist was admitted into evidence. This report contained a history given by the applicant to the psychologist that the applicant had set up and developed some large businesses, which had then failed because of a misappropriation of funds by someone else or a loss of all the business's records in a burglary. 13 The probation and parole officer who prepared a pre-sentence report recorded that the applicant had told her that he had obtained two degrees from Sydney University, as well as two diplomas. However, the applicant was unable to produce copies of the diplomas and Sydney University advised the probation and parole officer that it had no record of the applicant being a graduate of Sydney University. 14 The sentencing judge commented in his remarks on sentence:- "With respect, the grandiose personal history that is presented by the offender, a background of being extremely successful both academically and in business would have been easy to establish if true, but no evidence supporting those claims exists. The offender's counsel did tender a document from the Australian Securities and Investment Commission, but that document does not support the claims of the offender. If anything, it leaves those claims in a very questionable state". 15 It is apparent that his Honour did not accept the history given by the applicant to the psychologist or to the probation and parole officer and did not accept the assessment of the applicant offered by the psychologist, which was based on that history. His Honour also rejected a claim by the applicant that he was in a relationship with a woman by whom he had had two children. 16 The sentencing judge did find that the applicant had pleaded guilty at the first available opportunity and had provided some assistance. In regard to assistance his Honour said: "In addition, he has offered to give some assistance to the police. I accept that he made the offer and that it was genuine. Most of the information that he provided was initially provided in his record of interview. That appeared genuine enough and the police apparently accepted it in that way. Practically, however, it was of little value. Despite that, I will give some additional credit to the offender for that offer of assistance". 17 His Honour found special circumstances in that the sentences of imprisonment he was about to impose would be the applicant's first time in full time custody. 18 There is only one ground of appeal against sentence, namely that the sentencing judge erred by failing demonstrably to take into account the applicant's pre-sentence custody. 19 The applicant was arrested on 30 July 2003 and was refused bail. On 28 October 2003 the applicant was granted conditional bail and released on bail. On the hearing of this application it was agreed by the parties that the litigant had spent a total of 90 days in pre-sentence custody. 20 In his remarks on sentence the sentencing judge said that he had taken into account the nearly three months that the applicant had spent in custody awaiting sentence. However, his Honour made the sentences he imposed on 20 August 2004 commence from that date or 20 August 2005 and did not backdate the commencement of any of the sentences. 21 It was submitted by counsel for the applicant that the sentencing judge had erred in not demonstrably taking into account the pre-sentence custody by backdating the commencement of the initial sentences by the amount of the presentence custody. Counsel referred to ss 24(1)(a) and 47(3) of the Crimes (Sentencing Procedure) Act and to some decisions of this court, including R v Howard [2001] NSWCCA 309 and R v Philips; R v Simpson [2002] NSWCCA 167. 22 In R v Howard the offender had spent 10 days in custody after he was arrested and had later spent a further discrete period of one month five days in custody, so that he had spent a total of one month 15 days in pre-sentence custody. In his remarks on sentence the sentencing judge made no mention of the first period of 10 days but said that he had taken into account the second period of one month five days. The sentence which was imposed was not backdated and was in round figures. 23 Wood CJ at CL, with whose judgment the other members of the court agreed, said that error had occurred, in that the two periods of pre-sentence custody had not been demonstrably reflected in the sentencing orders. His Honour said: "Although I otherwise consider the sentence appropriate, in the absence of any statement or reason for not backdating for the periods in question or for reducing the sentence from the other end, I am of the view that the court should intervene." 24 R v Howard has been referred to and applied in a number of subsequent decisions of this court, including R v Philips; R v Simpson and R v Galati [2003] NSWCCA 148. 25 In the present case there was a single period of pre-sentence custody of 90 days and the sentencing judge said in his remarks on sentence that in sentencing the applicant he had taken the period of pre-sentence custody into account. As I have already noted, his Honour did not backdate the commencement of any of the sentences he imposed. However, it was submitted by the Crown that the sentencing judge should be regarded as having taken the pre-sentence custody into account by reducing the sentences he would otherwise have imposed, a course left open by the Chief Judge at Common Law in Howard. 26 The sentencing judge said in his remarks on sentence that, if the charges had gone to trial and the applicant had been convicted, he would possibly have been facing sentences totalling six years. His Honour found that the applicant had pleaded guilty at the first reasonable opportunity and it could be inferred that his Honour allowed a discount of approximately 25 per cent for the utilitarian value of the pleas of guilty, which would have reduced the total sentences to four and a half years. The sentences actually imposed by his Honour totalled four years. It might be the case that, in reducing the putative sentence from four and a half years to four years, the sentencing judge did take into account the pre-sentence custody, as well as the assistance provided by the applicant for which the sentencing judge explicitly said that the applicant would be given some credit. However, I do not consider that it could be said that the sentencing judge demonstrably took into account the pre-sentence custody and accordingly I consider that the ground of appeal has been made out. 27 It was submitted by the Crown in written submissions that, even if the ground of appeal was held to have been made out, the appeal against sentence should be dismissed, on the basis that no lesser sentences than those imposed by his Honour would be warranted. 28 The objective facts of the principal offences were serious and the applicant had few, if any, favourable subjective circumstances, apart from the pleas of guilty and the assistance he had provided. Nevertheless, I would not conclude that no lesser sentences than those imposed by his Honour would be warranted. 29 In my opinion, leave to appeal against sentence should be granted and the appeal against sentence should be allowed. The commencement of the sentences should be backdated so as to demonstrably take into account the applicant's pre-sentence custody. The sentences imposed by the sentencing judge should be quashed and in lieu thereof the following sentences should be imposed:-