Reported Decision : 158 A Crim R 233 New South Wales Court of Criminal Appeal CITATION: Itaoui v Regina [2005] NSWCCA 415 HEARING DATE(S): 30/11/2005 JUDGMENT DATE: 2 December 2005 JUDGMENT OF: Studdert J at 1; Whealy J at 2; Howie J at 3 DECISION: Application for leave granted, appeal allowed and the sentence quashed. The applicant is sentenced to imprisonment for 34 months to date from 26 November 2004. There is specified a non-parole period of 15 months to commence on 26 November 2004 and to expire on 25 February 2006 the date upon which the applicant is to be released to parole. CATCHWORDS: Criminal Law - Sentencing - Erroneous pronouncement of sentence - whether any other sentence warranted. Crimes Act 1900 - s 156 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 44 Criminal Appeal Act 1912 - s 6(3) R v P [2004] NSWCCA 218 R v Tobar (2004) 150 A Crim R 104 R v Simon [2005] NSWCCA 123 R v Mako [2004] NSWCCA 90 CASES CITED: R v KBM [2004] NSWCCA 123 R v Cramp [2004] NSWCCA 264 R v DF [2005] NSWCCA 259 R v Hansen [2002] NSWCCA 321 PARTIES: Fida Itaoui v Regina FILE NUMBER(S): CCA 2005/1443 J. Bennett SC - Crown COUNSEL: P. Boulten - Applicant S. Kavanagh - Crown SOLICITORS: S. O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0330 LOWER COURT JUDICIAL OFFICER: Karpin DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1443 CCAP STUDDERT J WHEALY J HOWIE J FRIDAY 2 DECEMBER 2005 Fida ITAOUI v REGINA Judgment 1 STUDDERT J: I agree with Howie J. 2 WHEALY J: I agree with the reasons of Howie J and the orders that he proposes. 3 HOWIE J: This is an application for leave to appeal against a sentence imposed in the District Court by Judge Karpin (the Judge). On 26 November 2004 the applicant was sentenced on one count of larceny by a servant to a non-parole period of 15 months with a parole period of 19 months. The non-parole period is to expire on 25 February 2006 the date upon which the applicant is to be released to parole on conditions imposed by the Judge and relating to supervision of the applicant by the Probation and Parole Service. 4 The offence to which the applicant pleaded guilty arose from her employment with Thomas Cook Travel. The charge alleged that between 18 July 1999 and 7 October 2000 the applicant stole cash from her employer. The allegation was that over this period of about 15 months the applicant had by numerous acts of dishonesty stolen $135,199.40. The offence was contrary to s 156 of the Crimes Act and carried a maximum penalty of 10 years imprisonment. 5 The relevant chronology is that the applicant commenced employment with Thomas Cook in May 1996. Her criminal activity first came to the notice of her employer in October 2000 and on 11 October 2000 her employment was terminated. She was not charged with any offence, however, until 9 September 2002. She was arraigned before the District Court on 24 April 2003 and was to stand trial on 7 September 2004. The trial was estimated to have a duration of 10 weeks but on the trial date the applicant pleaded guilty. 6 There was an agreed statement of facts placed before the court. It is unnecessary to detail the manner in which the applicant was able to steal money from her employer. It is sufficient to state that it involved the abuse of the position she held as the custodian of one of the tills in the Queen Victoria branch from July 1999. The applicant committed numerous fraudulent acts in order either to obtain the money or to conceal discrepancies that would have arisen as a result of her thefts. These included making electronic transfers to her till from other tills that were unoccupied by the persons in charge because the person was off duty or on leave. There were occasions when the applicant received large sums of cash but delayed entering their receipts into the system until some days or weeks after receiving the money. There were numerous occasions when the applicant made false entries in order to conceal the deficiencies in her till. She also drew cash advances from her own credit card using a false authorisation number. 7 In relation to the delay in charging the applicant the Judge stated: The complexity of the accounting system and the considerable trouble the prisoner had taken to cover her defalcations undoubtedly would have combined to produce the need for a complex and time consuming audit involving the physical inspection of large number of Thomas Cook (documents) and bank records. Clearly this was done with no assistance from the prisoner. Approximately 1600 documents were identified, analysed, collated and audited in order to establish the totality of the prisoner's theft from her employer………." 8 The Judge noted that the applicant had no criminal offences recorded against her prior to this spate of offending but that she had since leaving that employment been charged and convicted of offences arising from her subsequent employment with NRMA. In June 2002 the applicant was placed on a bond in respect of three offences arising from fraudulently altering her payslips to her mother's name in order to assist her mother obtain a personal loan. The Judge correctly indicated that these matters reflected adversely on the applicant's prospects of rehabilitation. 9 The applicant was born on 3 September 1973 in Lebanon. Her father was a police officer and shortly after her birth the family went to Tripoli. At this time there was civil war and her father sent the family to the safety of a village in the north. In 1984 the family migrated to Australia. She is a member of a very close knit and extended family. She and her parents were living with a brother at the time of sentencing. The applicant had been engaged to the same man for nine years. 10 The applicant was a highly successful student. She obtained a law degree from Sydney University but has never practiced law. She also obtained a Bachelor in Business from the University of Western Sydney. She commenced working for Thomas Cook in 1996 and in 1997 was the victim of an armed robbery at the office in Sydney Airport. The applicant's brother gave evidence of the effect of this event upon the applicant and there is evidence to suggest that she suffered from Post Traumatic Stress Disorder as a result. She was off work for six months because of stress and depression. She returned to work although her brother believed she had not fully recovered. 11 The applicant did not give evidence before her Honour and had denied the offences up until she pleaded guilty. The brother was unable to offer any explanation for the commission of the offences or what happened to the money. The Judge stated: Thus the Court is left with no explanation for the prisoner's conduct over a period of more than a year, during which she used her knowledge, her impressive intelligence and her ability cunningly and persistently to thieve and cover up her thefts. Because she is highly intelligent she devised various means of circumventing the procedures designed to prevent employees from stealing. She was successful for a considerable period and she engaged in careful and sophisticated procedures of her own which must have required considerable forethought. She has provided no explanation for her conduct, has made, and will make, no restitution and her conduct involved a serious breach of trust by an employee. It was not an isolated incident, not a sudden moment of giving into temptation. It was well planned, persistent and determined theft from her employers for whom she had already worked for several years at the time she commenced her stealing. No doubt her record of employment over several years was a motivating factor in promoting her to the control of a till. 12 There was in evidence a number of medical and psychiatric reports as to the applicant's poor physical and mental health at the time of sentencing and for some years previously. There is a ground of appeal asserting that her Honour failed to give proper weight to the applicant's psychiatric condition at the time of the offending and I will deal with the evidence concerning her psychiatric condition when considering that ground of appeal. However, it should be noted that, notwithstanding that the applicant pleaded guilty on the day set down for the trial, the Judge gave her a discount of 20 per cent based upon the utility of the plea but taking into account her "mental state at the time of trial". Ground 1 – "The learned sentencing judge misapplied the applicable provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 " 13 As has been noted, the Judge sentenced the applicant to a non-parole period and specified the balance of the term. The pronouncement of the sentence in that way accords with s 44 of the Crimes (Sentencing Procedure) Act (the Act) as it is presently drafted and as it was at the time that sentence was pronounced. However, the section in this form had replaced a section worded differently and requiring the court to, firstly, set the term of the sentence and, secondly, to set a non-parole period for the sentence. Because the applicant's offence was committed before 1 February 2003, the relevant form of s 44 was that which had been replaced and not that which was existing at the time of sentence. 14 It is submitted on the applicant's behalf that this error led to an injustice as the Judge found special circumstances which led to a longer total sentence being imposed. The argument is that the Judge must have determined the non-parole period first and then, having found special circumstances, extended the balance of the term to reflect that finding. 15 Such an argument succeeded in this Court in two related appeals, R v P [2004] NSWCCA 218 and R v Tobar (2004) 150 A Crim R 104. It failed in R v Simon [2005] NSWCCA 123. In Simon it was argued that Judge Coolahan had extended the balance of the term by a finding of special circumstances. In dismissing the appeal, and with the concurrence of the Chief Justice and Justice Studdert, I said: 26 The decision in R v Tobar followed a decision of this Court in R v P [2004] NSWCCA 218. The applicant in R v P was a co-offender of the two applicants in R v Tobar. The same District Court Judge sentenced all of the applicants. In his reasons for sentencing CP, the applicant in R v P, the Judge indicated that, in sentencing for one of the two offences before the Court, he started with the standard non-parole period that applied to the offence and then deducted from that figure a specified amount to reflect the fact that the applicant was a juvenile. Having by this mathematical approach determined what the non-parole period should be, the sentencing judge then fixed the balance of the term by finding that there were special circumstances. 27 In those circumstances and with the Judge's reasoning so exposed, this Court had little difficulty in concluding that his Honour had erred in the way that it is argued that Judge Coolahan erred in the present case. However, in respect of the other offence for which CP was sentenced and where the Judge had not exposed his reasoning in determining the non-parole period and the balance of the term, the Court was not prepared to find that the Judge had made the same error. 28 In R v Tobar the Court concluded that the sentencing judge had determined the non-parole period before deciding upon the balance of the term in respect of each of the applicants then before the Court in the same way as he had done when sentencing CP. The Crown conceded that this error had taken place. The Judge wrongly determined the length of the non-parole period before taking into account the existence of special circumstances. 29 The facts in both R v P and R v Tobar were very different from the present case. It is clear that Judge Coolahan was conscious that the finding of special circumstances affected the length of the non-parole period and stated as much. But further, he made the finding of special circumstances before determining the length of the non-parole period. In such a case I do not understand why it should be inferred that the Judge only came to consider the effect of the finding of special circumstances when determining the length of the balance of the term and after fixing the length of the non-parole period. 16 In the present case before imposing sentence, the Judge said: The prisoner's health is relevant to the setting of a variation of the non-parole and parole periods so that she may be released under supervision for a longer than usual period. It is clear that the Judge considered the applicant's physical and mental health to have been a factor giving rise to special circumstances. As in Simon the Judge referred to this matter before specifying either the non-parole period or the balance of the term. As in Simon I see no reason to assume that the Judge only considered the question of a variation in the statutory ratio between the non-parole period and the balance of the sentence after determining what the term of the non-parole period should be. Further, it seems to me that from what she said the Judge was thinking in terms of a variation in the statutory ratio between the two periods within a predetermined total term of the sentence. 17 Similar errors to that which occurred in the present case have been considered by this Court in R v Mako [2004] NSWCCA 90, R v KBM [2004] NSWCCA 123, R v Cramp [2004] NSWCCA 264 and R v DF [2005] NSWCCA 259. It was described by the Chief Justice in Cramp as "a technical error of little or no practical significance". His Honour also stated at [44]: The Applicant submitted that by reason of this error the Court was entitled to set aside the sentence and proceed to determine the sentence which it believed should be imposed. The error that has been identified did not affect the exercise of discretion by the trial judge. The Court is able to, and should, resentence the Applicant. However, unless some other aspect of the sentence warrants the Court proceeding to sentence afresh, I would not do so. The error identified is a technical one and does not justify this Court proceeding as if his Honour's exercise of the sentencing discretion miscarried. 18 Therefore, notwithstanding this error, this Court could only intervene to reduce the sentence if it believed that a sentence other than that imposed was warranted at law: s 6(3) of the Criminal Appeal Act. In Mako and DF the Court simply corrected the error by resentencing the applicant in terms of the applicable section. In KBM and Cramp the Court found that some other sentence was warranted and resentenced the applicant by reducing the sentence imposed at first instance. 19 A question arose at the hearing of this application as to whether the Court should receive evidence of events occurring after sentence based upon this error alone. The view was taken in Mako, applying the decision of a two judge bench in Hansen [2002] NSWCCA 321 that, as the Court was resentencing the applicant, it could take into account fresh material when exercising its own sentencing discretion. But the passage in the judgment of the Chief Justice in Cramp, set out above, seems to be inconsistent with that approach. However, it is unnecessary to resolve that point because the fresh material in this case, relating as it does to the problems of the applicant in prison, does not by itself warrant this court resentencing the applicant. Therefore the other grounds of appeal must be considered. Ground 2 - The learned sentencing judge failed to give proper weight to the applicant's psychiatric condition during the time the offence was committed. 20 The complaint is that the Judge only took into account the psychiatric condition of the applicant in relation to determining the ratio between the non-parole period and the period on parole and not in assessing the overall criminality of the applicant in relation to the offence for which she was being sentenced. 21 There was a great deal of evidence as to the psychiatric condition of the applicant at the time of sentence but little as to any psychiatric condition from which she may have been suffering at the time of committing the offence. There was none to suggest that her psychiatric condition had anything to do with the stealing or her other fraudulent activity. 22 There was a report from Dr Grigis dated 14 February 2003. It was relevantly as follows: I first saw this young lady at my Eastwood Medical Centre three years ago, and then at Merrylands. I saw her again today in the City. Other than the very traumatic experience (the hold up at the Airport office), she has suffered even more emotional trauma when she was wrongly accused of stealing a large amount of money. This has been devastated (sic). Not only [for] this poor lady but this has destroyed the emotional feelings of all her family (whom I have known for almost 15 years now). Since that most unfortunate incidence (sic), [the applicant's] family has watched her almost starving to death because of the severe depression, intractable insomnia, memory deficits, lack of motivation and developing "Anorexia Nervosa". Because of that [the applicant] developed "fear of people", she was having panic attacks, and nightmares. This ended in "Social Phobia". 23 Dr Girgis concluded that a mental state examination of the applicant revealed that she was suffering from Post Traumatic Stress Disorder, severe anxiety/depression state, has feelings of hopelessness and was anorexic. 24 Dr Do supplied a "medical report" dated 15 October 2004. She had been treating the applicant since 1998. Dr Do noted that the applicant had been suffering from chronic medical illnesses for several years. These included: Anorexia nervosa; chronic gastritis; congenital cataracts to the eyes; and vocal cord nodule edema causing loss of voice for several weeks. Dr Do also listed one of the applicant's illnesses as "anxiety and depression" and in that respect commented: [A]s part of the eating disorder and also due to excessive stress at home and from time to time at work, she also suffers from anxiety and depression. She has been on various anti depression and anti anxiety medication. She is under the care of Dr Baker (Clinical Psychiatrist). 25 Dr Do also stated (my underlining): I have been seeing [the applicant] on a regular basis for several years. My impression of her is that she is not a physically well person, she has multiple medical problems. There are also multiple stressors in her life. In the past there has been strained relationship with her parents. Currently the charge that she is facing has caused an exacerbation of all the above medical conditions, rendering her very unwell indeed. Despite her poor health, [the applicant] has always been conscientious and very hard working. She has had several different jobs and positions over the years. She has always enjoyed her work and tried extremely hard to perform well. She spoke often to me about her jobs with a sense of pride. I was astonished to learn of the charge being laid on her. 26 Dr Baker came to have care of the applicant from 3 June 2004 and knew nothing of her or her family before that time. He diagnosed the applicant as suffering from Major Depression. Although he could not exclude a diagnosis of Post Traumatic Stress Disorder as found by Dr Girgis, Dr Baker believed her clinical condition had deteriorated into Major Depression with Melancholia. He treated the applicant between June and October 2004 with medication and psychotherapy and her condition slowly improved but her prognosis was guarded. 27 In his report dated 15 June 2004 the following was stated: The patient's first episode of depression was about five years ago. She describes having episodes of depressed mood episodically since this time………. 28 The applicant's brother gave evidence at the sentencing proceedings relevantly as follows: Q. After this armed holdup at the airport when she was working [with] Thomas Cook as a teller there, did you notice that she was at home for a while? A. Yes I did, indeed I did. Q. In fact she didn't go to work for about six months? A. Six months, that's correct. Q. To jog your memory the position is, is it not, that she was being treated, sponsored by her work, by a psychiatrist called Dr Ali and then a Dr Gergis took over from Dr Ali? A. That's correct. Q. After about six months did she get back to work? A. She did. Q. In that six months when she was at home what was she like compared to the-- A. She was very stressful and she wasn't feeling well at all, she was always down, very uncomfortable, sick. Q. When she went back to work was she better at the time she went back to work? A. Not really. Q. Had she got even a little bit better? A. No, well - - Q. I know you're not a doctor but did she appear better to you when she went back to work after six months? A. She might have appeared a little better but she's still not a hundred per cent like she was before the - - 29 In cross–examination the following occurred: Q. Mr Itaoui I think your evidence has been that after the holdup in 1997 your sister remained at home for a period of approximately six months, is that correct? A. That's correct sir. Q. And during that period she was treated by a psychiatrist? A. Yes she did? Q. After she returned to work, that is after the six months, did she continue to see a psychiatrist? A. Sometimes she did but after a while I think she stopped. Q. Do you know how long after she returned to work did she see a psychiatrist for, was it a short period after she returned to work or a longer period? A. I would say a short period but I can't really recall exactly. 30 It should be noted that the armed robbery was in 1997 and the offences commenced in July 1999. In the meantime the applicant had obtained a law degree and had been attending university to obtain her business degree. It should also be noted that in 2002 she was well enough to work for the NRMA. 31 On this evidence it is quite impossible to see how the Judge could have found as a fact that the applicant was suffering from any mental illness or disability at the time of the offending. The applicant had the onus of proof in that regard. Dr Grigis's evidence was quite unspecific as to dates but it might be accepted that the applicant could have been suffering from some symptoms of Post Traumatic Stress Disorder when she returned to work. I fail to understand how such a Disorder, even if she were still suffering from its symptoms at the time of the offending behaviour, could possibly have borne any relationship to the crime committed. The brother's evidence tended against any suggestion that she was mentally ill or disabled at the time of the offences. Dr Do's report is against the proposition that during her working periods she was suffering any significant mental condition apart from occasional anxiety or depression chiefly as a result of problems at home. The underlined passage from her report refutes any possible inference that the applicant was suffering from some mental illness as Dr Grigis or Dr Baker described at the time of the offending behaviour. 32 The applicant relied in particular upon the following passage in Dr Baker's report as being relevant to the issue of the applicant's culpability: The [applicant's] extraordinary evidence of being born and growing up during the Civil War in Lebanon (1973-1995) and her subsequently being a victim of robbery at the Sydney Airport in 1997, places this woman at a higher risk of severe psychiatric illness. Similarly the use of the coping style of denial may exacerbate the patient's condition, resulting in [the applicant] not fully acknowledging situations which she experiences as threatening. This may lead to delayed onset of treatment due to the patient not seeking help. I do not view this opinion as suggesting that the applicant's behaviour was in any way due to a psychiatric illness such that her culpability was diminished. There was no evidence that at the time of the offences she was experiencing any threatening situations. Her "coping style of denial" may explain her refusal for so long to acknowledge her criminal conduct and may explain her lack of apparent remorse. It raises questions about her prospects of rehabilitation rather than her criminal culpability. 33 In any event the nature of the applicant's activity in stealing the money and concealing her theft by what the Judge described as "careful and sophisticated procedures of her own which must have required considerable forethought" is inconsistent with any mental disability. The Judge described the thefts as "systematic, planned and sophisticated". There was no error in these findings and there is no merit in this ground of appeal. Ground 3 - The sentence imposed is manifestly excessive in all the circumstances. 34 This was a difficult sentencing exercise. On the one hand there was the seriousness of the applicant's criminal behaviour in breach of trust of her employer that clearly warranted a significant prison sentence for the reasons given by the Judge including the importance of general deterrence. 35 On the other hand, the applicant was suffering serious mental and physical conditions of which her Honour was fully appraised. Shortly before imposing sentence the Judge remarked: The extent to which the prisoner's undoubted ill health should protect her from adequate punishment for her wrong doing is a troubling issue. The resolution of this issue was one for the sentencing Judge to determine in the exercise of her discretion. 36 As has already been noted, the Judge adopted the unusual course of increasing the discount for the plea of guilty by reason of the applicant's mental state at the time of sentencing. I do not quite understand the rationale behind that course because the applicant's mental condition had nothing to do with the utilitarian value of her plea. A late plea is of less utilitarian value than an early plea irrespective of the personal circumstances of the offender. But, even though the Judge's approach was erroneous, it was to the applicant's advantage. The Judge specifically took into account that the applicant would spend her time in prison in more difficult conditions than might otherwise be the case because of her physical and mental condition. 37 The applicant contends that a particular error was the failure of the Judge to give sufficient weight to the delay between the commission of the offence and the applicant being charged with the offence. This was a period of nearly two years. However, the Judge specifically referred to this period and indicated that it had to be taken into account in favour of the applicant. 38 I have already noted that the Judge came to a finding that the applicant's physical and mental condition justified a variation in the ratio between the non-parole period and the period to be served on parole. I am unpersuaded by the applicant's argument that the Judge failed to take into account sufficiently the applicant's mental condition in determining the total term of the sentence. Her Honour took into account all relevant facts and sentencing principles and I am far from satisfied that the course adopted by the sentencing judge was outside her sentencing discretion. Although error has been shown in the way the trial judge pronounced the sentencing orders, I am not satisfied that any other sentence is warranted. 39 I propose that the application for leave be granted, the appeal allowed and the sentence quashed. The following orders should be made: The applicant is sentenced to imprisonment for 34 months to date from 26 November 2004. There is specified a non-parole period of 15 months to commence on 26 November 2004 and to expire on 25 February 2006 the date upon which the applicant is to be released to parole. ********** 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.