Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Haropula v R [2011] NSWCCA 57 Hearing dates: 16 February 2011 Decision date: 16 February 2011 Before: McClellan CJ at CL at [1] Johnson J at [20] McCallum J at [21] Decision: 1. Grant leave to appeal 2. Dismiss the appeal Catchwords: CRIMINAL - sentence appeal - fraud - manifest excess - relevance of psychological history when criminality assessed - repayment of monies - appeal dismissed. Legislation Cited: Crimes Act NSW 1900 Category: Principal judgment Parties: Mava Haropula (Applicant) The Crown Representation: Counsel: G D Wendler (Applicant) J Pickering (Crown) Solicitors: Van Houten Law (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2009/11959 Decision under appeal Date of Decision: 2010-05-10 00:00:00 Before: Black DCJ File Number(s): 2009/11959 Judgment 1The applicant pleaded guilty to three counts of being an officer of a body corporate and taking for his own benefit monies of the Lismore Neighbourhood Centre contrary to s 173 of the Crimes Act NSW 1900. The offence carries a maximum penalty of 10 years imprisonment. The sentencing judge imposed a sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years for count 1. He imposed a fixed term of 3 years imprisonment for counts 2 and 3 making that sentence wholly concurrent with the sentence in relation to count 1. Accordingly the total effective sentence was that imposed with respect to count 1. 2The sentencing judge allowed the applicant a discount of 25% for his plea of guilty and having regard to the circumstances of his family made a finding of special circumstances. 3The applicant became the financial manager of the Lismore Neighbourhood Centre in 2006. Shortly after he commenced in this role he began to defraud the Centre. Between 15 August 2006 and 29 October 2009 he took a total sum of $67,050.36 from the Centre. None of this has been repaid. 4The applicant had previously been convicted in Queensland for offences of dishonesty. On 30 January 2004 he was sentenced at Ipswich in respect of two counts of fraud when he was an employee. He was sentenced to 3 years imprisonment and required to serve 6 months of that sentence. On 16 December 2009 he was convicted and sentenced at Townsville for one count of fraud and two counts of attempted fraud arising from the unauthorised use of credit cards. The Townsville offences were committed while the applicant was on bail for the offences the subject of the present proceedings. 5The sentencing judge was aware of the applicant's previous history of fraudulent behaviour. He was also provided with a copy of a report from a psychologist which had been tendered to the Queensland court when he was sentenced for the credit card offences. That report is the subject of ground 1 for the present application. 6The applicant gave evidence at his sentence hearing during which there was a discussion of his disposition of the monies which he obtained from the Centre. He said that a substantial proportion was provided to assist a family who was in unfortunate circumstances due to the death of the father. His Honour's finding in relation to the monies paid to the Renagi family is the subject of the second ground of appeal. Apart from these issues the applicant submitted that the sentence was manifestly excessive. Ground 1: The sentencing judge did not adequately consider the relevance of the psychological history and mental state of the applicant when he assessed the applicant's level of criminality. 7As I have indicated a report from Robert M Walkley, psychologist, was tendered to his Honour. The report was tendered by the Crown Prosecutor as required by his obligation to fairness, the report having apparently been obtained from authorities in Queensland. 8The report contained a lengthy history which had been taken from the applicant including his account of communications with an imaginary person called "Russ". The report speaks of episodic communications between the applicant and "Russ" including an occasion when "Russ advised him to get found guilty on an offence in North Queensland and hence, if gaoled he would be closer to his family." The psychologist diagnosed the applicant as suffering from a mood disorder with psychotic features and a differential diagnosis of a schizoaffective disorder. 9When giving evidence before the sentencing judge the applicant did not confirm the history he gave to Mr Walkley. Although he was asked whether he believed he needed psychological assistance and he said that he would benefit from it, he was not asked whether the history he gave to the psychologist was truthful or accurate. As it happens, when giving evidence, the applicant said that the person who told him to commit the Queensland offences was a real person rather than an imaginary friend. The account which he gave continues to have some extraordinary features and he said that his colleague at the University had suggested that he should commit an offence in Townsville. However, he did not suggest that it was a fictitious person called "Russ." 10The sentencing judge was alert to these issues and in the course of submissions to his Honour expressed considerable reservations about the account the applicant gave to the psychologist. His Honour made plain that as the evidence stood before him it would be difficult to place any reliance upon the report. 11The applicant submitted to this Court that the sentencing judge failed to have adequate regard to the applicant's psychological history and mental state. That complaint focused upon the report of Mr Walkley. An examination of the transcript makes plain that the submission is without foundation. His Honour placed little weight in the psychologist's report and having regard to the applicant's evidence and the matters to which I have referred that approach was entirely justified. Ground 2: The sentencing judge erred by finding that the money paid to the Renagi family did not get "even near half the money he defrauded Lismore Neighbourhood Centre." 12The applicant submitted that the finding which his Honour made was not open. When giving evidence the applicant said that he had gratuitously given about "$40,000" of misappropriated monies to the Renagi family. That family were apparently in distress following the death of the father when the children lost the collateral benefits attached to their father's Ausaid scholarship to study in Australia. The applicant also said that he had applied $15,000 of the monies for payment to a migration agent who had assisted the Renagi family with applications for permanent residency. 13His Honour did not accept the applicant's account and expressly indicated that the evidence could not justify a finding that he paid "even near half the money that he defrauded Lismore Neighbourhood Centre of" to assist the Renagi family. 14To my mind this finding was clearly open. The applicant's evidence was inconsistent. In his evidence in chief he said he used about $40,000 to assist the Renagi family but when cross-examined suggested it may have been as much as $56,000. His Honour was alert to these different statements. During the sentencing hearing the issue became one of controversy and the proceedings were adjourned so that Mrs Renagi could give evidence. Ultimately there was evidence which indicated that the Renagi families total education expenses were $25,490 but only $4,562 was paid during the period of the applicant's fraudulent activities. Counsel for the applicant at the sentencing hearing accepted that there were difficulties in relation to the applicant's claim to have paid all of the education expenses. As the transcript makes plain counsel also accepted that there were problems in establishing the amount that the applicant may have paid to assist the Renagi family with immigration problems. 15In these circumstances I am completely satisfied that the finding his Honour was open and correct. There is no substance in the second ground of appeal. Ground 3: That in all the circumstances the sentence imposed upon the applicant was manifestly excessive. 16The applicant was required to be sentenced as a person who had previously been convicted of crimes of dishonesty. The applicant submitted that he should have been charged with one count and that by being charged with 3 offences his sentence has become unreasonably inflated. However, to my mind it was rational to charge the applicant with 3 offences. Each count related to different accounts which the applicant accessed for his fraudulent activities. In fact the applicant had committed 64 separate fraudulent acts. In any event his Honour made his sentences for counts 2 and 3 wholly concurrent with count 1. 17The amount of money taken by the applicant was substantial and his activities involved repeated acts of dishonesty over a period of 14 months. Although the applicant may have put some of the monies toward assisting the Renagi family the evidence indicates that the greater portion was taken for his own purposes. In so doing he depleted the funds of a community organisation. Both personal and general deterrence required significant recognition in his sentencing. There was evidence before his Honour of the potential hardship which would be suffered by the applicant's family if he was incarcerated. However, the sentencing judge found that the hardship did not reach the level of being exceptional. Although the family has difficulties particularly because of the health of the applicant's wife and the disabilities of their youngest child I am not persuaded that his Honour's finding was not open. 18Although his Honour did not find exceptional circumstances he did recognise the family's difficulties and made a finding of special circumstances and adjusted the non-parole period. To my mind this was an appropriate course to take. However in all the circumstances I am not persuaded that the sentence which his Honour imposed was manifestly excessive. 19I would grant leave to appeal but dismiss the appeal. 20JOHNSON J: For the reasons given by the Chief Judge at Common Law I too would grant leave to appeal the order that the appeal be dismissed 21McCALLUM J: I agree with the orders proposed by the Chief Judge at Common Law for the reasons his Honour has given. ********** 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. Decision last updated: 05 April 2011