New South Wales Court of Criminal Appeal CITATION: Regina v Wilson [2005] NSWCCA 414 HEARING DATE(S): 30/11/05 JUDGMENT DATE: 30 November 2005 JUDGMENT OF: Studdert J at 21; Whealy J at 1; Howie J at 22 DECISION: Appeal be allowed and the sentence imposed in the District Court quashed. Respondent sentenced to imprisonment for 2 years with a non-parole period of 12 months. Sentence to be served by way of Periodic Detention and to commence on Friday 9 December 2005. Respondent to report to Officer-in-Charge of Parramatta Periodic Detention Centre by 4pm on that day. Non-parole period to expire on 8 December 2006 when respondent is to be released to parole. Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 R v Zamagias [2002] NSWCCA 17 at 22 per Howie J, Hogdson JA and Levine J concurring CASES CITED: R v Pantano (1990) 49 A Crim R 328 at 330 R v Falzon & Pullen (unreported NSWCCA 20 February 1992 per Loveday J PARTIES: Regina v Michael John Wilson FILE NUMBER(S): CCA 2005/1442 Mr J. Bennett SC - Crown COUNSEL: Mr C. Craigie SC - Respondent S. Kavanagh - Public Prosecutions SOLICITORS: Steve O'Connor - Legal Aid Commission of NSW LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Solomon DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1442 STUDDERT J WHEALY J HOWIE J WEDNESDAY 30 November 2005 REGINA v Michael John WILSON Judgment 1 WHEALY J: This is a Crown appeal against the sentence passed by Judge Solomon against the respondent at the Sydney District Court on 1 June 2005. The respondent had been found guilty by a jury of one count of use a copy of a false instrument for which the maximum penalty is ten years imprisonment (Crimes Act 1900 s 301(2)). The circumstances of the offence may be briefly stated. The respondent was a professional valuer. He valued a property at Lidcombe and attached a false document certifying that he had professional indemnity insurance, when, in fact, his insurance had lapsed. As it happened, the document was relied upon by the lendor, who lost approximately $250,000 because the borrower and "owner" of the property was a fictitious person. 2 The sentencing judge however held that the respondent was not part of the "wider fraud" involving the fictitious owner and there was no finding that he had knowledge of the fraud. It was however, clearly important to the approval of the loan that the respondent held professional indemnity insurance cover. There was evidence at trial that the lender would not have advanced the loan had it been know the certificate given by the respondent was false. It appears that his Honour was entitled to proceed on the basis, as he did, that there was no direct financial benefit accruing to the respondent, apart from not having to pay a fee for a certificate of indemnification. The offence however, was a serious one quite apart from the fact that the respondent at the time had been on conditional bail awaiting sentence for two false statement offences in respect of which he was later granted a s 558 recognizance by his Honour Judge Shadbolt. 3 The respondent had a strong subjective case. The sentencing judge found that he was 54 years of age and in a stable de facto relationship with his current partner. The respondent however suffered ill health in that he had chronic pancreatitis and this condition was exacerbated by the abuse of alcohol. He had in fact been hospitalised on three occasions since 2002 with acute pancreatitis. The trial judge quoted Dr Tom Benjamin who had said: - "I see Mr Wilson as someone who has fallen through the cracks of the medical system. Clinically he presents as a highly strung possibly psychologically depressed person who has gradually progressed through an unsupervised self-medication regime to a status of brain damage." 4 I should add that there was no physical evidence of brain damage. Rather Dr Benjamin relied upon the results of a series of questionnaires to justify the opinion. He accepted that detoxification from alcohol might improve the respondent's functioning. 5 The trial judge noted, in addition, that the offender would have great difficulty in dealing with the prison environment as a first time prisoner. He stated further that the respondent's medical condition would aggravate that difficulty to a very large extent. There was another factor mentioned, namely the difficulty faced by the respondent in the prison system having regard to the assistance he had given to authorities in relation to the co-offenders regarding the 1998 offences dealt with by Shadbolt DCJ. 6 His Honour's decision then continued - "As indicated however I do not find that the offender was aware of the fraud perpetuated against the true owners of the property or that Roy James Lloyd was not the registered proprietor of the property. In the light of the objective facts and the offender's record a custodial sentence is required. However, I am of the view that the sentence should be suspended. You are convicted. I set a non-parole period of three years. Sentence for a term of imprisonment of three years to date from 29 July 2005 and to expire on 28 July 2008 under s 12 (Sentencing Procedure) Act 1999. Order that the execution of the sentence be suspended for the term of the sentence. I direct that the offender be released from custody on the condition that the offender enter into a good behaviour bond for the term of the sentence". 7 His Honour then imposed conditions in relation to the good behaviour bond. The Crown representative then interrupted the sentencing judge to point out that there was a difficulty at that stage with the orders that had been made. His Honour was informed or reminded that he was empowered to suspend the sentence for a maximum of two years and not three. The transcript records the following: - "His Honour: Two years. My mistake two years. Lawless: So it is two years not three? His Honour: Yes two, thank you. My mistake, thank you". The issues in this appeal 8 There are two issues in this appeal. The first is whether, as the Crown submits, the sentencing judge fell into error by determining that the sentence should be suspended before determining the appropriate length of the sentence, independent of whether or not it should be suspended (R v Zamagias [2002] NSWCCA 17 at 22 per Howie J, Hodgson JA and Levine J concurring). In addition, it was noted his Honour failed to fix a non-parole period as required by the now repealed s 44 of the Crimes (Sentencing Procedure) Act 1999. The second issue is whether the sentence was in any event manifestly inadequate. It was submitted that, in light of the authorities providing guidance upon the standards of honesty expected of business professionals and the fact that the offence was committed while the respondent was on bail for two offences of a similar nature, the sentence was manifestly inadequate. 9 As to the first issue it appears to me to be inescapable that the judge fell plainly into error by determining that the sentence should be suspended rather than by first determining the term of an appropriate sentence. The respondent has accepted that elements of the sentencing exercise miscarried, whether as to proper application of an appropriate mechanism or as to producing an outcome that a proper analysis of the evidence permitted. The respondent did suggest that there were several possible and contradictory interpretations of what it was the form of the orders indicated as to his Honour's intention. However, there is, in my view, regrettably little if any room for argument. 10 In these circumstances, the respondent's primary submission was that it remained nevertheless a viable proposition that the outcome of a two year suspended sentence fell within the sentencing discretion of the primary judge, notwithstanding that there may have been procedural errors in the approach or the formulation of the final orders. Secondly, the respondent submitted that the nature of the offending in the present instance, which had about it a predominant quality of recklessness rather than greed, did not require a sentence of three years and that a suspended sentence of the lesser order arrived at was appropriate in the circumstances. This, it was submitted, is particularly so when consideration was given to the double jeopardy factor impacting upon a seriously ill older offender who is presently at liberty. 11 In my opinion, the sentence was manifestly inadequate. It must inevitably be the fact that too much attention was given to the respondent's subjective features at the expense of the objective seriousness of the offence. In addition, the fact that the offence was committed while the respondent was on bail awaiting sentence in the District Court for two other similar matters (making a false statement to obtain money greater than $15,000) seriously aggravated the offence. While his Honour found that the respondent was not a part of the "wider fraud", it is not contested that the conduct of the respondent was an integral element in the fraud committed by the other persons, even if he was unaware of the nature of that fraud. The requirements of both general and specific deterrence leave no doubt that the sentence imposed by the sentencing judge was manifestly inadequate. (R v Pantano (1990) 49 A Crim R 328 at 330; R v Falzon & Pullen (unreported NSWCCA 20 February 1992 per Loveday J). 12 In my opinion the Crown has made good its challenge to both the sentencing procedure and the sentence itself. 13 What then should the response of the Court be in the present matter? Considerations of double jeopardy arise in a not insignificant manner. The pre-sentence report from Probation and Parole Service indicates the respondent has had, in many respects a difficult life. His father died when he was six years old and he and his brother were sent away to boarding school. His mother, now deceased, was described as "domineering and alcoholic". After his schooling the respondent entered the real estate profession as a valuer and partner in the property market until the venture collapsed in the late 1980's. It appears that as a consequence of failed relationships and business ventures, the respondent entered upon a regime of alcohol abuse and began to associate with people who took advantage of him and that as a consequence he became "less careful" in his attention to business details. He has been admitted to hospital on a number of occasions for pancreatitis "precipitated by excess alcohol consumption". There were a significant number of medical reports before the sentencing judge which confirms the existence of chronic pancreatitis. 14 The respondent placed before the Court on the hearing of the appeal an affidavit dealing with his present situation. He has very little income relying on a sickness benefit payment of $405.00 a fortnight. This is his only source of income. Moreover, he is residing rent free in a property owned by his brother at Bondi Junction. The respondent has undertaken a number of drug and alcohol counselling sessions over the past few months. A certificate of attendance from Waverly Drug and Alcohol Centre has been placed before the Court which suggests that the respondent is putting some effort into his counselling sessions and is concerned about his health and well-being. In addition, the respondent is assisting the Australian Taxation Office investigations concerning GST and tax fraud and may be called as a witness in a trial probably sometime next year. Material pointed to by the Crown confirms that this is likely to be real assistance in a number of matters and that the respondent will be called as a witness. I should add that this information was not before the sentencing judge. The offender has been offered work which may be available for him to take up early in the New Year. His de facto partner resides in Penrith and they spend weekends together. They are unable to be together during the week as a consequence of the need for the respondent to attend parole counselling and court commitments. 15 There is a further report from Dr Benjamin which reviews the respondent's current mental state and symptoms. As might be expected the respondent scores heavily on depression anxiety and stress scales. Dr Benjamin has reviewed his symptoms against certain stated criteria and suggests that his high level of anxiety is having a strong impact on his daily life. Clearly the respondent is very apprehensive about the prospect of imprisonment. Dr Benjamin suggests in this report that the respondent's health situation, his age and the fact that he is facing retirement would indicate that there would be little personal benefit to him from the imposition of a fulltime custodial sentence. Those observations on the part of Dr Benjamin do not of course equate to the considerations that the Court must take into account in determining an appropriate sentence in the circumstances. 16 The position of the respondent is one that properly excites some sympathy. The situation in which he now finds himself is that, having been relieved of the burden of a custodial sentence, he must now contemplate once more the possibility of such a sentence being imposed upon him. The respondent has been subject to the uncertainty of the Crown appeal for a period of a little over four months. It is plain that the uncertainties of his situation have had a continuing effect on his health. 17 In my opinion, a sentence of imprisonment must now be imposed upon the respondent but not the sentence which should have been imposed by the sentencing judge. An appropriate sentence to be imposed by the Court, bearing in mind the principles of double jeopardy, would be one of imprisonment for two years. The selection of this term and the assessment of the non-parole period I will shortly consider is intended to take into account and reflect the fact the respondent has been at liberty on a suspended sentence and subject to the term of a good behaviour bond for just over four months. I have no doubt that a sentence of fulltime custody should have been imposed in the lower court, notwithstanding the harsh consequences of such a sentence upon the respondent. It would, however, now be overly harsh to impose a fulltime sentence upon him. 18 The pre-sentence report to which I made earlier reference indicated that the respondent was a suitable candidate for periodic detention. It has not been suggested by the Crown that the respondent is for any reason disentitled to an order that any sentence be served by way of periodic detention. Mr Craigie SC accepted that such an option would be available. 19 It is necessary, however, because of the foregoing proposal that consideration be given to the length of the non-parole period. This will be the applicant's first period in custody and he is plainly not in good health. Consequently there are in my view, special circumstances justifying a reduction in the non-parole period. 20 I propose that the appeal be allowed and the sentence imposed in the District Court be quashed. In my opinion the sentence that should now be imposed is imprisonment for two years with a non-parole period of twelve months. I propose that the respondent be sentenced to imprisonment for two years with a non-parole period of twelve months. There should be an order that the sentence be served by way of Periodic Detention. The sentence is to commence on Friday 9 December 2005. The respondent should report to the officer-in-charge of Parramatta Periodic Detention Centre by 4pm on that day. The non-parole period is to expire on 8 December 2006 the date upon which the respondent is to be released to parole. 21 STUDDERT J: I agree. 22 HOWIE J: I agree. 23 STUDDERT J: The orders then of the Court are those 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.