Reported Decision: 70 NSWLR 660 New South Wales Court of Criminal Appeal CITATION: BLUNDELL, Paul John v R (Cth) [2008] NSWCCA 63 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 12 December 2007 JUDGMENT DATE: 25 March 2008 JUDGMENT OF: Grove J at 1; Hulme J at 2; Simpson J at 6 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – appeal against sentence – fraudulent misappropriation – plea of guilty – lapse of 5 years between offending and sentencing – Community Service Order and periodic detention not available as applicant living interstate – principle of parsimony LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW) CATEGORY: Principal judgment DB v R; DNN v R [2007] NSWCCA 27 Kelly v The Queen [2007] NSWCCA 357 CASES CITED : Lowe v The Queen [1984] HCA 46; 154 CLR 606 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v PP [2003] VSCA 100; 142 A Crim R 369 R v Storey [1998] 1 VR 359 PARTIES: Paul John Blundell (Applicant) Regina (Cth) (Respondent) FILE NUMBER(S): CCA 2007/3109 COUNSEL: A Francis (Applicant) C O'Donnell (Respondent) SOLICITORS: Gregory J Goold Solicitor (Applicant) Commonwealth Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0344 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 13 July 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3109 GROVE J HULME J SIMPSON J 25 March 2008 BLUNDELL, Paul John v R (Cth) Judgment 1 GROVE J: I agree with Simpson J. I wish expressly to affirm my agreement with what her Honour has written about the purported "principle" of parsimony. 2 HULME J: I have had the benefit of reading the Reasons for Judgment of Simpson J and can accordingly be brief. I agree with the orders proposed by her Honour and generally with her Honour's Reasons. 3 This Court is entitled to interfere with the sentence imposed by Hughes DCJ only if error can be found in that sentence. Given the limited options open to his Honour in consequence of the Applicant not being judged suitable for periodic detention or community service because of his residence in Queensland, I am unable to conclude that there is any such error. 4 The matter I find of most concern is that it was 5 years after his offending that the Applicant was sentenced to imprisonment, he having been at liberty meanwhile. Such a situation has hallmarks of injustice about it. However, although it would seem that it was only when in 2006 some of the charges against the Applicant's brother came to trial and were dismissed that the Crown reduced the number of charges against the Applicant and he felt disposed to plead guilty to the remainder, the fact remains that the option to plead guilty to the offences which he now admits was available to him long ago. 5 In these circumstances I am not persuaded that the 5 year delay to which I have referred is not, at least in significant measure, something for which the Applicant is responsible. Thus I am not disposed to conclude that the result is so unjust that the (relatively short) sentence imposed by Hughes DCJ should not be allowed to stand. 6 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 13 July 2007 by Hughes DCJ following his pleas of guilty to charges brought by the Commonwealth Director of Public Prosecutions ("the DPP") under the Crimes Act 1900 (NSW). 7 The applicant pleaded guilty to three counts of fraudulent misappropriation, contrary to s 178A of the Crimes Act. The maximum penalty prescribed by the Crimes Act in respect of the offence is imprisonment for 7 years. 8 Hughes DCJ sentenced the applicant, on the second count on the indictment, to imprisonment for 18 months to commence on 13 July 2007, with a non-parole period of 9 months that would expire on 12 April 2008; on the first and third charges he imposed fixed terms of imprisonment for 6 months to commence the same day and be served concurrently with one another and with the first imposed sentence. Having regard to the length of the sentence imposed on the major count, the applicant was entitled also to an order that he be released on parole at the expiration of the non-parole period: s 50(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). 9 His Honour stated that, were it not for the pleas of guilty, the overall sentence would have been of imprisonment for 2 years, which he discounted by 25 percent in recognition of the pleas of guilty. He found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, as a consequence of which he varied the ratio between the head sentence and the non-parole period there stated. 10 Although the applicant was taken into custody on the day of sentencing and began serving his sentence, he was, on 23 August 2007, granted bail pending the hearing and determination of this application. 11 One of the conditions of his bail was specified as: "Appear in Court of Criminal Appeal as directed." 12 Notwithstanding that express condition, the applicant was advised by his solicitor that it was not necessary for him to attend on the date the application was listed for hearing, and he did not do so. Since he appears to have acted on incorrect legal advice, this Court opted against issuing a warrant for his arrest, and directed instead that he attend on the date he is advised the application is listed for judgment. 13 Another condition of his bail was that the applicant reside at an address (his parents' address) at Kensington, NSW, and another that he report twice weekly to the Officer in Charge of the Maroubra Police Station. However, on 11 September 2007 these conditions were varied to enable the applicant to resume living at his former residence in Queensland and to report once weekly to the Officer in Charge of the Noosa Heads Police Station. The facts 14 All offences on the indictment were committed over a period of a few months in 2002. In each case the applicant, who, with his brother Richard Blundell, operated an insurance brokerage business, represented to a client that a particular kind of insurance would be (or had been) arranged and obtained from that client funds for payment of the premium but failed to make the necessary arrangements or remit the funds to the insurance company, rather, diverting the funds into a business or personal account. One consequence was that clients who believed that they had insurance cover against various contingencies were in fact uninsured. In the case of the offences committed by the applicant the victims were a recreational club (presumably licensed) and a company that owned and operated two hotels. 15 The applicant's brother, Richard Blundell, was charged with four similar offences, and asked that a further five offences be taken into account pursuant to Pt 3 Div 3 of the Sentencing Procedure Act. These were all offences of a similar nature to those committed by the applicant, but involved different clients/victims. 16 The total amount involved in the charges against Richard Blundell was $16,920.39, of which $8827.30 was attributable to the offences the subject of the indictment, and the balance of $8093.09, to the Form 1 offences. At first instance, Richard Blundell was sentenced to imprisonment for 18 months, made up of a non-parole period of 6 months and a balance of term of 12 months. This Court on 14 December 2007 granted leave to appeal against the sentence, quashed the sentences and directed him to perform 100 hours of community service work. 17 The amount involved in the applicant's offences was vastly higher than that involved in the offences to which his brother pleaded guilty, amounting in total to $146,000. This may have been because of the identity of the victims, who were the operators of licensed premises, where, it may be assumed, insurance premiums are significant. Subjective circumstances 18 The applicant was born in 1964. He was 38 years of age when the offending began, 43 at sentencing. By the time of sentencing he had moved to live in Noosaville, Queensland. He is married and has three daughters aged 14, nine and seven. The house is rented. In a pre-sentence report it was asserted that he had suffered a nervous breakdown in 2004 and had used anti-depressant medication for a period of about 18 months before weaning himself off the drug because of unfavourable side effects. 19 His criminal history is limited to a 1983 offence of driving with the prescribed concentration of alcohol, and three traffic offences (speeding), and an offence, committed in February 2007 and therefore post dating the present offence, of driving under the influence of liquor. 20 He owns a house in Maroubra which is rented, producing an income of $6000 per month. It is subject to a mortgage of $1.2 million for which the repayments virtually swallow the entirety of the rental. 21 The insurance brokerage business had been established by the applicant's grandfather and had remained in the family for three generations. 22 The applicant gave evidence in the sentencing proceedings. He said that he had suffered depression and anxiety, which he had been unable to overcome, and that he and his wife had decided to move from the eastern suburbs to Queensland because of his embarrassment at the charges he was facing. He had no intention of returning to live in NSW, but felt the loss of contact with his family. 23 At the time of sentencing he was conducting a business of manufacturing, hiring and selling camper trailers. 24 He produced a large number of character references, and called some witnesses to give oral evidence as to his good character. This suggested that he had made considerable contributions to the community, particularly in teaching young people, including disabled children, to sail. 25 One matter concerning the case he presented cannot be overlooked. He presented three psychiatric reports from Dr Rosalie Wilcox, dated 7 March 2004, 23 May 2004 and 21 June 2004. Dr Wilcox was in fact a treating psychiatrist to whom the applicant had been referred by his general practitioner. What is notable about these reports is that they are addressed to a claims assessor of an insurance company and it is plain from their content that they were written for the purpose of assisting the applicant to obtain payment under a disability benefits policy that he held. The reports are particularly notable for their omission of any reference to the charges that he was then facing. In the first report, under the heading "History obtained" Dr Wilcox wrote: "Mr Blundell told me that the three months prior to leaving work were a blur. Around Christmas 2002 he 'went off the rails' as he became withdrawn, did not want to get out of bed, was in tears, had no energy, could not sleep and had panic attacks. He denied that there were any external factors of relevance however I note that Dr Snowden queried whether something had occurred in the workplace …" (italics added) In oral evidence the applicant maintained that he had given an accurate history to Dr Wilcox. 26 Counsel who appeared for the applicant in the sentencing proceedings accepted that an obvious inference from this is that the applicant was "devious" in his dealings with the insurance company, in failing to disclose (or, indeed, concealing) his criminal activity. However, although the applicant was cross-examined, this issue was not taken up, and it does not really advance the present application. 27 In a letter written to the applicant's legal representatives on 8 May 2007, the DPP advised that, if the applicant were to plead guilty to the three counts on the indictment, it would submit to the court that a sentence to be served by way of periodic detention would be within the range of available sentencing options; that anything less than a "substantial" term would amount to appellable error; and that, if the applicant were to be convicted after trial, it would submit that a term of fulltime imprisonment would be the appropriate sentence. 28 The Crown did not depart from this position. 29 A pre-sentence report assessed the applicant as unsuitable for a community service order, or an order that any prison sentence be served by way of periodic detention, because of his interstate residence. There do not appear to be any arrangements between this State and Queensland that would allow such a sentence to be supervised there. The Remarks on Sentence 30 In sentencing the applicant, Hughes DCJ twice observed that there had been no victim; this, presumably, because, during the period which the clients concerned were uninsured, no event occurred as a result of which any of them called upon the insurance policy that it believed it had. He accepted that there was little chance of the applicant re-offending and that his rehabilitation was "all but complete". 31 Because of his unsuitability for a community service order or an order that sentence be served by way of periodic detention, it was put to his Honour that any custodial sentence to be imposed ought to be suspended. He rejected that. 32 His Honour was also alive to the applicant's lack of frankness with Dr Wilcox, in his omission to attribute the symptoms upon which she reported to his criminal conduct and the charges he was facing. He also referred to "a significant degree of deviousness" by him in responses he gave to clients who sought confirmation of their insurance status. 33 His Honour then proceeded to impose the sentences outlined above. The application for leave to appeal 34 No grounds of appeal appear to have been filed. Appended to an amended application for leave to appeal was a document entitled "Amended Submissions". 35 These were, in toto, in the following terms: "1. The applicant was born … [in] 1964 and had no prior convictions. 2. The applicant is now residing with his parents … and is applying for reassessment by the Probation and Parole Service as to his eligibility for community service and periodic detention, such further report will be available at the hearing of this application. 3. A solid body of evidence was presented to his Honour both in oral evidence and documentary form which was favourable to the applicant. 4. The prosecution did not oppose the imposition of periodic detention. 5. His Honour failed to give sufficient weight to the strong family and community ties of the applicant." 36 The difficulty for the applicant is that, to the extent that these submissions are intended to challenge the adequacy of consideration given to subjective circumstances, they run straight up against the express words in the Remarks on Sentence. His Honour was fully aware of all of the subjective circumstances. In the case of the applicant, the options of a Community Service Order or imprisonment to be served by way of periodic detention were not available by reason of Mr Blundell's interstate residence. 37 No evidence was adduced to support the assertion that appears as paragraph 2 of the "Amended Submissions", and no oral submissions were advanced in its support. In any event, the evidence before the sentencing judge was to the contrary, as set out above. His Honour cannot be held to have erred in imposing sentence on the basis of the facts as they then existed. 38 Counsel who appeared for the applicant placed heavy weight on what she called the "principle of parsimony". The argument derived from a judgment of Adams J (who did not claim to be the originator of the "principle") in DB v R; DNN v R [2007] NSWCCA 27. At [10] his Honour said: "… It is a fundamental assumption of sentencing jurisprudence that in no case will only one sentence be correct … In every other case the circumstances will justify a range of sentences, often quite a wide range, that may properly be passed. Although not articulated, so far as I am aware, in the decisions of this Court, it seems to me that it is also fundamental that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing … should be that which is imposed. This has been called the principle of parsimony, a phrase that originated in the judgment of Napier CJ in Webb v O'Sullivan (1952) SASR 65 at 66 and has become common in Victoria see, eg, R v Storey (1996) [1998] 1 VR 359 at 366; R v PP (2003) 142 A Crim R 369 at 374. To impose a more severe sentence is, ex hypothesi , to intrude other inappropriate purposes into the administration of criminal justice. It is trite that minds may well reasonably differ as to what this minimum sentence might be in the circumstances of any particular case. Whether one applies this approach or not, it is unarguable that more than one sentence will invariably be warranted in law. This assumption is fundamental to the application of s 6(3) of the [ Criminal Appeal ] Act [1912]." (I can detect, in Webb v O'Sullivan , no reference to "the principle of parsimony".) 39 The other members of the bench in DB; DNN were McClellan CJ at CL and Latham J, neither of whom endorsed the observations. Neither do I. Indeed, it seems to me that there is a fundamental contradiction in the paragraph: his Honour plainly accepts, as indeed he must, the well recognised and thoroughly entrenched principle that, in any case, a range of sentences exists. Where a sentencing judge imposes a sentence within that range, it will not be held to be erroneous, notwithstanding that another judge might have selected a different sentence. That cannot stand with the proposition, said to be "fundamental", that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing should be that which is imposed. The two simply cannot stand together. 40 Nor is the proposition supported by the authorities cited. In Webb Napier CJ was dealing with an appeal against a sentence imposed by a magistrate in respect of an offence of driving whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control. It appears that the relevant legislation provided for an increased sentence in respect of a second offence. At first instance, the magistrate had in fact imposed a sentence in excess of that which could lawfully be awarded in respect of a first offence. In fact, as the record showed, the offence in question was a second offence. Nevertheless, Napier CJ then said: " In cases of this kind , where the discretion of the court is so much at large, I think that it is a mistake to have any rule of thumb. The court should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest ." (italics added) 41 However, that was in a context in which his Honour had held: "… it is a second offence, but … it is apparent that it was an infraction which approximated in gravity to the minimum rather than to the maximum contemplated by the statute, that is to say, for a second offence … … regard should be had to the lower as well as to the upper limit of the penalties prescribed. Treating this as the second offence, the gravity approximates to the lower end of the scale, and there is no reason why the penalty should not be assessed upon that basis …" 42 In my opinion Napier CJ was not purporting to lay down any rule or principle of sentencing. His remarks were confined to the circumstances of the case that was before him. 43 It is true that in both R v Storey [1998] 1 VR 359 and R v PP [2003] VSCA 100; 142 A Crim R 369, the Court mentioned – in passing – "the principle of parsimony". In Storey the Victorian Court of Appeal was dealing with an application for leave to appeal against sentences imposed following pleas of guilty to charges of trafficking in a drug of dependence, of being in possession of a drug of dependence and of unlawful possession of a pistol. At p 366 the Court considered the approach to sentencing that distinguishes between aggravating and mitigating circumstances and rejected a rigid distinction between "circumstances of the offender" and circumstances of the offence. In that context their Honours said: "Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single 'right' answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the 'instinctive synthesis' which takes account of the various purposes for which sentences are imposed – just punishment, deterrence, rehabilitation, denunciation, protection of the community – and which pays due regard to principles of totality, parity, parsimony and the like … " (italics added; internal references omitted) 44 Their Honours did not explain what they meant or understood by "the principle of parsimony" and cited no authority for its application to the sentencing law of Victoria. 45 In PP Callaway JA, with whom Winneke P agreed, was dealing with a 15 year old who had been convicted of manslaughter. The observations made were to do with principles applicable to the sentencing of children. His Honour said: "What is required in every case is a sound discretionary judgment that gives appropriate weight, and usually great weight, to youthful immaturity, the better prospects that a young person has for rehabilitation and the desirability of keeping such offenders out of the adult prison system. Those considerations reinforce and complement the common law principle of parsimony and statutory provisions such as s 5(3) and (4) of the Sentencing Act [ 1991 ]." 46 As in Storey, the allusion was made in passing, and is not supported by references to any authority that establishes "the principle of parsimony" to be a sentencing principle applicable in Victoria. Nor was any explanation or interpretation of the term given. 47 I do not read these judgments as containing or endorsing a proposition that mandates that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing must be that which is imposed. That is inconsistent with the notion of a range of sentences, and the discretions properly open to sentencing judges. I do not accept that "the principle of parsimony", at least as, on one construction of DB; DNN, it appears to have been interpreted by Adams J, is part of the sentencing law of NSW. In Kelly v The Queen [2007] NSWCCA 357 at [30] Basten JA rejected that construction of the judgment in DB; DNN. Adams J, who, coincidentally, was also a member of that Bench, agreed with Basten JA. 48 For completeness, I extract para [30] of Kelly: "To suggest that there will not be, almost inevitably, a range of sentences which could appropriately be characterised as 'warranted in law' is to misunderstand his Honour's judgment; Adams J expressly stated the contrary in the balance of [10] through to [12]. If the 'principle of parsimony' is taken to imply that there cannot be such a range, that language should be abandoned. Indeed, 'parsimony' is a slightly curious word to use in this context, albeit it has, as his Honour noted, a respectable lineage in Victoria. In the South Australian case to which Adams J referred, Webb v O'Sullivan [1952] SASR 65 at 66, Napier CJ, in dealing with a traffic offence, had merely stated: 'Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.'" 49 There are, nevertheless, some troubling features in this application. The offences were committed in the first half of 2002. The applicant was not sentenced until July 2007. No explanation emerged for the very long delay. It is apparent, from some discussion between the sentencing judge and counsel, that additional charges had been laid against both brothers. In 2006 a different District Court judge dismissed those charges against Richard Blundell, as a consequence of which the DPP elected not to proceed against the applicant in respect of the same or similar charges. It may be that the pending trial on those charges provides some explanation for the five years which elapsed between the offences and ultimate sentencing. The materials before this Court do not make clear the dates on which the offences were discovered, or charges first laid. 50 In any event, the fact remains that the applicant came for sentence five years after his offending. The evidence disclosed significant steps towards rehabilitation. But that was all before the sentencing judge, and was taken into account by him. 51 The most troubling aspect, however, is the question of relativity with the sentences ultimately imposed upon the applicant's brother, Richard Blundell. I have used the term "relativity", and deliberately avoided the term "parity" because, it seems to me, the facts of the case do not fit easily within the authorities that are concerned with parity: Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997] HCA 26; 189 CLR 295. 52 Although the two brothers were charged with offences of the same kind, committed at about the same time, and the gravamen of their offences was similar if not identical, the actual frauds they perpetrated were on different clients, and in vastly different sums. There is much suspicion that the two were acting in concert, but that was not the way the Crown elected to conduct the prosecution, and this Court cannot be satisfied, and cannot act on the basis that each brother was liable for the defalcations actually committed by the other. It is possible, if unlikely, that each of the two hit upon a scheme of salvaging the financial position of the firm in the same way, without disclosing that to the other. 53 The result is that Richard Blundell stood to be sentenced for the nine offences that he admitted, involving just under $17,000, while the applicant stood to be sentenced for three offences involving $146,000. Fraud on such a magnitude cannot, in my opinion, be met with anything less than a full time custodial sentence. There was no error by the sentencing judge in so concluding. 54 Nor was there any error in his assessment of the length of the overall sentence. 55 I would grant leave to appeal but dismiss the appeal. Counsel heard on sentencing on 25 March 2008 56 The Applicant is eligible for and entitled to release on parole on 11 November 2008. The total sentence will expire on 11 August 2009. 57 Direct the Applicant be released on parole at the expiration of the non-parole period. ********** 31/03/2008 - correction of solicitor on the record for the applicant - Paragraph(s) Cover sheet 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.