New South Wales Court of Criminal Appeal CITATION: WAKEFIELD v R [2010] NSWCCA 12 HEARING DATE(S): 3 February 2010 JUDGMENT DATE: 11 February 2010 JUDGMENT OF: Grove J at 1; Simpson J at 38; RA Hulme J at 39 DECISION: Appeal allowed in part. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Fraud by company officer - Multiple offences over extended period - Sentencing judge not satisfied that offender has good prospects of rehabilitation - Setting of non-parole period - Special circumstances not found - Effect of cumulation on proportion of non-parole period to head sentence - Adjustment appropriate - Otherwise no case for intervention by appellate court shown CATEGORY: Principal judgment Elyard v Regina [2006] NSWCCA 43 R v Christoff (2003) 140 A Crim R 45 R v Dunn [2007] NSWCCA 312 R v Fidow (2004) NSWCCA 172 R v Ibraham [2005] NSWCCA 43 CASES CITED : R v Kaliti [2001] NSWCCA 268 R v Kama (2000) 110 A Crim R 47 R v Lyndon [2003] NSWCCA 152 R v Simpson (2001) 53 NSWLR 704 R v Vuni [2006] NSWCCA 171 The Queen v De Simoni (1981) 147 CLR 383 The Queen v Dinsdale (2000) 202 CLR 321 PARTIES: Andrew Stephen WAKEFIELD - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/9969 COUNSEL: W Hunt - Applicant P Leask - Respondent/Crown SOLICITORS: S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/0605 LOWER COURT JUDICIAL OFFICER: King DCJ LOWER COURT DATE OF DECISION: 7/11/2008, 5/11/2009 IN THE COURT OF CRIMINAL APPEAL CCA 2008/9969 GROVE J SIMPSON J RA HULME J 11 February 2010 Andrew Stephen WAKEFIELD v R Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by King DCJ in Sydney District Court. The applicant had been committed for sentence following pleas of guilty at Downing Centre Local Court on charges of what might shortly be described as fraud by an officer of a company. In the event he appeared for sentence in the District Court on nine counts of such an offence with a further eighteen similar charges being taken into account pursuant to the Form 1 procedure. On eight charges (1 – 7 and 9) his Honour imposed fixed terms of imprisonment for two years commencing on 29 August 2008. These sentences were to be served concurrently with each other. On the remaining count (8) and taking into account the Form 1 offences, his Honour imposed a sentence of imprisonment consisting of a non-parole period of 3 years commencing on 29 August 2009 and expiring on 28 August 2012 with a balance term of 1 year. 2 The practical effect of the sentences created a continuous term of custody for 4 years prior to eligibility for parole for a potential period of 1 year. 3 In his Remarks on Sentence his Honour dealt in detail with the facts of the offences and counsel for the applicant acknowledged in his submissions that there was no challenge to the recitation of them. In that circumstance, and bearing in mind the ambit of challenge in the grounds advanced by the applicant, it will suffice for present purposes to describe the criminal conduct only generally. 4 The applicant was employed by the Nestle Company from about 1993. By 2000 he was appointed to a position described as "Category Manager Confectionary Independents". His duties and authorities included the provision of gifts, discounts, rebates and prizes to retailers of the company's products. 5 The applicant participated in a scheme whereby funds which should have been distributed for those purposes were redirected for his own use. The applicant sometimes received the benefit of the funds indirectly by payment for holidays, travel, clothing and other items. It is not presently necessary to digress into an examination of his assertions concerning similar participation by other company employees including those senior to him. 6 His Honour observed that the Crown accepted that offences of the nature charged had been occurring prior to the applicant being engaged but he found that he "not only took over the pre-existing activities but took the offences to a new level by recruiting firms and individuals to be parties to defrauding of Nestle". 7 The loss to Nestle relating to the nine counts and the eighteen charges on the Form 1 totalled $626,467.92. His Honour found that at least $153,446 was provided directly to the applicant alone whilst the remainder was used in payments for goods and services either by him alone or jointly with others. 8 These findings were not challenged. 9 Civil proceedings by Nestle did not result in any restitution being obtained and his Honour made an order for compensation to be paid by the applicant in the amount of the larger sum abovementioned. 10 The applicant relied upon four grounds of appeal numbered in the notice 1, 2,3 and 5, a ground numbered 4 was abandoned. 11 Ground 1: The learned sentencing judge misstated the period of offending involving the applicant and so over-estimated the total criminality of the offences brought against him. 12 In his Remarks on Sentence his Honour stated that the offences were committed between 4 September 2000 and 28 May 2004. The emphasis has been added. Those dates define the period during which the applicant occupied the position of Category Manager Confectionary Independents. 13 Counsel for the applicant has pointed out that analysis of the specifications in the counts and in the charges on the Form 1 shows that the earliest offence charged occurred on 1 December 2000 and the latest was charged to have taken place on 19 March 2004. Of course, that analysis does not undermine the literal accuracy of the range mentioned by his Honour but it was submitted that "his Honour's misstatement over-estimated the period of offending by more than five months". 14 The argument was developed to assert that "by stating a period that must have incorporated offences not brought against the applicant, (his Honour) fell into error by taking into account erroneous material in aggravation of the applicant's offending". Reference was made to The Queen v De Simoni (1981) 147 CLR 383. The argument should be rejected. The dates mentioned by his Honour had obvious relevance to the applicant's holding the position which enabled him to perpetrate the frauds. There was no indication that the applicant was being punished for uncharged offences either during the five months calculated by counsel or any other time. To the contrary his Honour was careful to avoid so doing. Inter alia he said: "The offences occurred at least between the period of 4 September 2000 and 28 May 2004, which is a lengthy period. Although the offender is not to be sentenced for matters other than those which he has been charged with, it is of note that on the agreed facts it appears that the offender has otherwise benefited in the past from funds transferred improperly from the company by others who were later concerned in these matters. But, as I say, Mr Wakefield is only to be sentenced in relation to those matters that are brought against him. Of course the only matters bought (sic) against him are those where he was the person responsible for improperly authorising the actual payment." 15 There was therefore no indication of any breach of principle such as those discussed by the High Court in De Simoni. 16 Ground 2 The learned sentencing judge failed to assess properly, or at all, the applicant's prospects of rehabilitation. 17 The Remarks on Sentence do not contain the expression "prospects of rehabilitation". That absence does not offer a conclusion that his Honour overlooked that aspect of the applicant's subjective case. The applicant's contention was that, in declining to find special circumstances it must be assumed that his Honour rejected the notion that the applicant had good prospects of rehabilitation. I would uphold a Crown submission that such an assumption should not be made. Attention was drawn to a number of matters which would operate to counter a reliable prediction that the applicant had favourable prospects of rehabilitation. 18 These included that, despite a recent substantial income over a significant period no effort had been made to make restitution for the losses and that the motivation of the applicant for revealing information was to diminish his own role rather than to assist in the investigation of his assertions of misconduct by others. His Honour observed that he had difficulty in accepting that the applicant was genuinely contrite and remorseful. The applicant gave evidence in the proceedings and it was open to his Honour to form an impression thereby and he observed that the applicant impressed him in his evidence as "being a salesman attempting to put the best gloss on a defective product". 19 It is to be noted that his Honour did not find that the applicant's prospects of rehabilitation were poor. An adverse finding to that effect would have made more relevant an examination of the evidence concerning the applicant's post offence stable relationship and employment and weighing them against matters which had been found to be adverse. Compare Elyard v Regina [2006] NSWCCA 43. His Honour was simply not satisfied that it had been shown that prospects of rehabilitation were good. 20 No error by his Honour has been demonstrated and it is plain that express findings which he made would have inhibited any positive conclusion such as is now sought pursuant to this ground. 21 Ground 3 The learned sentencing judge was in error in not finding special circumstances. 22 There are two aspects to this ground. First, whether his Honour erred in not finding special circumstances within the meaning of s 44 of the sentencing legislation, and second, if he did not so err, whether there was error in the ratio which emerged from the cumulated sentences whereby the minimum period of custody before eligibility for parole was 80 percent of the total term. 23 A finding of special circumstances involves a discretionary judgment. In R v Fidow [2004] NSWCCA 172 it was said: "Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in R v Simpson (2001) 53 NSWLR 704, it is necessary that the circumstances be sufficiently special to justify a variation." 24 The written submissions on behalf of the applicant directed attention first to the departure from the formula in s 44. 25 The learned sentencing judge when imposing sentence on count 8 said: "I sentence you to a total term of the sentence of four years. I do not find special circumstances. I impose a non-parole period of three years, which is to commence one year after the commencement of the fixed sentence that I have already imposed in relation to each of the eight other counts. Accordingly, the non-parole period will commence on 29 September 2009, and it will expire on 28 September 2012. The balance of the term of that sentence of four years is one year. That is to commence on 29 September 2012, and to expire on 28 September 2013. I have also taken into account, in the way that I have structured the sentence, the totality of the sentences. Accordingly, Mr Wakefield, you will first be eligible for parole on 28 September 2012, and you will be subject to a further term of one year." (The stated dates were corrected to substitute August for September, but the need for this has no impact on the point being sought to be made.) 26 No reference was made to the effect of the partial cumulation whereby the balance term then set for count 8 created a minimum custodial term of 80 percent of the total sentence. It is true that, whilst the statute requires reasons to be stated for reducing the non-parole period against the stated formulation, no such requirement has been legislated if it is increased. However it has been stated in this Court more than once that it is expected that in circumstances where there is such an increase some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight. In R v Dunn [2007] NSWCCA 312 it was said that this was especially the case where cumulation had taken place. Other examples of intervention by this Court in similar circumstances can be found in R v Lyndon [2003] NSWCCA 152; R v Ibraham [2005] NSWCCA 43. 27 It is clear, as the Crown Prosecutor submitted, that his Honour revealed an express intention that the potential parole period would be twelve months but that expression does not overcome the silence about the proportion of a minimum custody to total term. 28 In my view, it cannot safely be concluded that the matter was not simply overlooked (and neither counsel at the hearing drew his Honour's attention to it) and this Court should intervene to the extent of applying the statutory formulation. 29 It was further submitted that his Honour should have found special circumstances and further reduced the non-parole period in favour of the applicant on the basis that he had good prospects of rehabilitation and was being required to serve a sentence for the first time. The issue of rehabilitation has been sufficiently dealt with in relation to the previous ground. It is well recognized that first committal into custody may not be sufficient to justify a finding of special circumstances and his Honour was not obliged so to find: R v Kama (2000) 110 A Crim R 47: R v Christoff (2003) 140 A Crim R 45; R v Kaliti [2001] NSWCCA 268. 30 His Honour was not obliged to find special circumstances for the reason advanced nor for any other reason and his discretion in this regard has not been shown to have miscarried. 31 Ground 5 The sentence is manifestly excessive. 32 In support of this ground the applicant presented a series of references to sentences in cases of various frauds. Unsurprisingly, none of these involved conduct exactly matching that of the applicant. Nothing will be gained by reproducing the schedule of cases. It was candidly acknowledged by counsel in written submissions that statistics present a blunt tool and the number of cases was, in any event, insufficient to provide real assistance. 33 To establish that a sentence is manifestly excessive, it is required to demonstrate that it was unreasonable or plainly unjust: The Queen v Dinsdale (2000) 202 CLR 321; R v Vuni [2006] NSWCCA 171. 34 The applicant's offences continued over a long period of time. The financial loss to the employer has been noted. The offences were committed to sustain what the applicant described to a psychologist as a "pampered lifestyle". 35 It is not necessary to recapitulate adverse aspects of the applicant's offending which his Honour noted. The sentence was well within the range of the sound exercise of discretion. 36 Subject to the adjustment of the proportion of the non-parole period to head sentence above indicated, the grounds of appeal fail. 37 I propose the following orders: (i) Leave to appeal against sentence granted. (ii) Appeal allowed in part. (iii) (a) Sentences of fixed terms of imprisonment for 2 years on counts 1-7 and 9 commencing on 29 August 2008 and expiring on 28 August 2010 confirmed. (b) Sentence on count 8 quashed and in lieu thereof (taking into account the matters on the Form 1) the applicant sentenced to imprisonment consisting of a non-parole period of 2 years 9 months commencing on 29 August 2009 and expiring on 28 May 2012 with a balance term of 1 year 3 months commencing on 29 May 2012 and expiring on 28 August 2013. (iv) 28 May 2012 is specified as the earliest date of eligibility of the applicant for parole. 38 SIMPSON J: I agree with Grove J. 39 RA HULME J: I agree with Grove J. ********** 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.