New South Wales Court of Criminal Appeal CITATION: Regina v FARRANT [2005] NSWCCA 229 HEARING DATE(S): 14 June 2005 JUDGMENT DATE: 22 July 2005 JUDGMENT OF: James J at 1; Howie J at 2; Rothman J at 3 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: Criminal law - Appeal against sentence - Totality - One course of criminal conduct - Redressing previous leniency - Seriousness of offence of dishonesty in employment Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Lowndes v R (1999) 195 CLR 665 House v The King (1936) 55 CLR 499 Johnson v R (2004) 78 ALJR 616 CASES CITED: Pearce v R (1998) 194 CLR 610 O'Keefe v The Crown (1992) 60 A Crim R 201 Veen (No. 2) (1998) 164 CLR 465 The Crown PARTIES: Danielle FARRANT FILE NUMBER(S): CCA 2005/497 Crown - J A Girdham COUNSEL: Applicant - A Barber Crown - Solicitor for Public Prosecutions SOLICITORS: Applicant - Ross Hill, solicitor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0690 LOWER COURT JUDICIAL OFFICER: Berman DCJ IN THE COURT OF CRIMINAL APPEAL 2005/497 CCAP JAMES J HOWIE J ROTHMAN J 22 July 2005 REGINA v Danielle FARRANT Judgment 1 JAMES J: I agree with Rothman J. 2 HOWIE J: I agree with Rothman J. 3 ROTHMAN J: This is an application for Leave to Appeal pursuant to the terms of s.5(1)(c) of the Criminal Appeal Act 1912 against sentence imposed upon the applicant in respect of eight offences. Those offences relate to six counts of making a false instrument in contravention of s.300(1) of the Crimes Act 1900 (Counts 1 to 6) and two counts of obtaining money by deception contrary to the provisions of s.178BA(1) of the Crimes Act 1900 (Counts 7 & 8). 4 The maximum penalty for making a false instrument is ten years imprisonment and the maximum penalty for obtaining money by deception is five years imprisonment. 5 The sentence imposed was: in relation to count 1, a non-parole period of 15 months imprisonment with a total term of 2 years and 6 months imprisonment to commence on 3 December 2004; in relation to counts 2-6; a non-parole period of 12 months imprisonment with a total term of 2 years to commence on 3 December 2004; in relation to counts 7 and 8; imprisonment for a fixed term of 9 months to commence on 3 September 2004. His Honour made a finding of special circumstances and a significant adjustment was made to the sentence. The total effective sentence was 2 years and 9 months with a non-parole period of eighteen months. 6 The application for Leave to Appeal against the sentences imposed by Berman DCJ seeks to raise two issues going to the allegedly excessive nature of the sentences imposed by His Honour, namely: (a) That His Honour failed to give any or any due consideration to the totality principle in imposing sentence; and (b) His Honour afforded too much weight to previous criminal convictions in fixing the appropriate sentence. Brief Facts 7 The appellant was employed by AGL on and from September 2000 and was employed in a non-professional position where she was responsible for paying the creditors of that company. For that purpose AGL's electronic payment system was utilised. Between October 2000 and October 2003, the appellant defrauded the company by causing payments to be made to a known creditor of the company in circumstances where no money was in fact owed by AGL. Following the cheque being issued by AGL, the appellant would obtain the cheque and erase the name of the payee, insert her own name and obtain the proceeds. This was accomplished by contacting the creditor, telling them that a mistake had been made and asking them to return the cheque. The appellant would send a courier to the creditor's premises to pick up the cheque and return it to her. The proceeds of the amount were deposited into her bank account. The appellant also used the company credit card to purchase personal items. 8 The appellant's scheme was discovered when on 3 November 2003, employees of AGL noticed a large cheque for $79,114.49 had been presented against the company account which had some irregularities and contact was made with the creditor. The cheque was obtained by AGL from the bank after it had been deposited into the appellant's account. On 6 November 2003 the appellant met with AGL management, her employment was terminated and the police were called. The appellant made admissions as to what she had been doing and the appellant pleaded to the offences at the earliest possible time. 9 For the purpose of sentence, Berman DCJ took into account forty-four (44) further additional charges included in a Form 1 list, each of which relate to either making false instruments or obtaining money by deception. The amount involved in the fraud which was subject to the eight charges was in excess of $50,000.00 and the sum total of the fraud in respect of all matters, including those on the Form 1, was an amount of over $130,000.00 plus a further loss to Westpac of over $9,000.00. 10 His Honour Berman DCJ made further findings in the sentence proceedings and took other matters into account. These included that: (a) In the opinion of Berman DCJ, the appellant's criminality was considerable in that it occurred over a significant length of time, there were a number of separate offences and there was a large amount of money involved; (b) Because of a number of factors, including two prior offences and those matters referred to in the Form 1 disclosure, there was a greater need for personal deterrence; (c) The appellant had involved herself in a significant breach of trust; (d) The appellant only ceased committing the offences because her wrong doing had been discovered; (e) The appellant pleaded guilty at the earliest possible opportunity; (f) The appellant had committed herself to repaying the money that had been stolen; (g) The appellant cooperated with authorities in relation to her own criminality from the moment of her arrest; and (h) Special circumstances existed because of the need for the appellant to receive counselling. 11 In the course of the remarks on sentence, Berman DCJ said: "In 1995 the offender appeared before the Manly Local Court charged with a number of offences of dishonesty relating to offences committed against her then employer. She pleaded guilty and was fined and placed on a bond. The following year, she was again before the Manly Local Court on similar charges relating to dishonesty with a different employer. Again she was fined and placed on a bond. She was clearly dealt with leniently in the Local Court but unfortunately she did not take advantage of that leniency. Instead, a third employer has had to bear the consequences of the offender's dishonesty and illegal behaviour." 12 His Honour, after dealing with a number of matters already adumbrated said: "Because of the offender's background I will extend as much leniency as possible. …in the present case, nevertheless, I am satisfied that a custodial sentence is required. Having regard to the length of that sentence, the only alternative to full time imprisonment which is available is periodic detention, but particularly in the light of the authorities and the need for general deterrence, I have decided that such a sentence is not appropriate." Principles on Appeal 13 The principles according to which an appellate court may interfere with a discretionary judgment are well established. It is insufficient for this court to form a view that it would have exercised its discretion in the sentencing matter differently from the way in which it has been exercised by the sentencing Judge. "The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." (Lowndes v R (1999) 195 CLR 665 at [15]) 14 As has been adopted on a number of occasions, the principles include those adumbrated by the High Court of Australia in House v The King (1936) 55 CLR 499, particularly, in the oft cited passage at p.504 in the joint judgment of Dixon J (as he then was) and Evatt and McTiernan JJ. Submissions on Appeal 15 I turn then to the two grounds of appeal and the submissions in support of them. 16 Essentially the appellant, in this matter, relies on two fundamental aspects of the judgment below of Berman DCJ. The first of them is the argument that Berman DCJ paid too much regard to the leniency of the sentences imposed for the two prior convictions in fixing a sentence in relation to the matters before him. The second relates to a lack of proper consideration of the totality principle. 17 It must be said, in relation to the latter of those arguments, that Berman DCJ does not expressly refer to the term "totality". In Johnson v R (2004) 78 ALJR 616, the High Court (Gummow, Callinan & Heydon JJ), after referring to Pearce said: "It may be accepted that the approach which ought to have been adopted by the sentencing Judge in the present case, was to fix appropriate penalties for both offences then consider the application of the totality principle and, in particular, whether any adjustment needed to be made to either of the sentences imposed to achieve a total effective sentence which was consistent with the application of the principle. … while the approach adopted by the learned Judge was not exactly in accordance with the principle, it does not necessarily follow that there has been a miscarriage of justice." 18 The High Court in Johnson then dealt with the criminality and the relevance of the fact that, in a case involving a drug runner, he had taken possession of two separate drugs on separate occasions. 19 It is apparent from the structure of the sentence imposed by Berman DCJ that the principle of totality was applied by His Honour and the fact that there was no statement to that effect is not demonstrative of any failure in that regard. Any analysis of the manner in which His Honour sentenced the appellant would, necessarily, come to the conclusion that His Honour took account of the totality principle as expressed by the High Court, inter alia, in Pearce v R (1998) 194 CLR 610. 20 Assuming, as one must, that totality was a principle applied by Berman DCJ below, the appellant, nevertheless argues that insufficient regard was paid to the principle. In pursuing that submission, it is submitted that the eight offences for which the appellant was sentenced amount to one course of criminal conduct, or not wholly separate crimes, and insufficient regard was paid to that factor in the sentencing of His Honour below. 21 It is not manifest that the criminal charges for which the appellant was sentenced involved one course of conduct. Each of the counts of making false instrument would require a quite separate intention in relation to each such amount and quite separate acts of dishonesty. Such is also the case in relation to the obtaining money by deception. The only factor which involves commonality is the fact that the victim in each case is the same employer and the offences were committed during the course of one period of employment. 22 The offences of making a false instrument are, also, different in substance and in circumstance to the offences of obtaining money by deception and additional punishment was not an inappropriate course in sentencing the appellant. 23 This Court has previously remarked about the seriousness with which offences of the kind committed by the appellant ought to be treated. In O'Keefe v R (1992) 60 A Crim R 201 at 204, Lee AJ, with whom Gleeson CJ and Priestly JA agreed, said: "It is of the utmost importance that employers carrying on business and entrusting members of their staff with control of money as must be done, should be entitled to maximum honesty in that activity and the Courts play an important role and must play an important role in imposing sentences in cases of this nature – which are often called white collar crimes – which will operate effectively as a deterrent to others … ." 24 I now turn to the contention that His Honour afforded too much weight to the appellant's previous criminal convictions. His Honour mentioned the previous convictions in opening the sentencing remarks as already outlined. 25 It is not apparent that His Honour imposed the sentence on the basis of redressing previous leniency. Rather it seems that His Honour formed the view that given the previous leniency and the failure of the appellant to take advantage of it, a far greater subjective deterrent was necessary for this particular offender. The role of criminal history of an accused was dealt with in Veen (No. 2) (1998) 164 CLR 465 at 477: "The antecedent criminal history of a criminal offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: DPP v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifestered in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 26 In the instant case, His Honour below considered the imposition of periodic detention and, in his own words, extended "as much leniency as possible". 27 A sentence other than a custodial sentence which reflected the seriousness of the offences would, on the basis of the history of this appellant, not have appropriately dealt with the aspects of retribution, deterrence and protection of society. Deterrence, in particular, was a significant factor in circumstances of the current situation. 28 In my view, His Honour dealt with the criminal history of the appellant in a manner entirely consistent with the principle the High Court stated in Veen (No. 2) and referred to above. 29 For those reasons, the grounds of appeal are not made out and I propose that: (a) Leave to appeal be granted; (b) The appeal be dismissed. ********** 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.