Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Butler v Regina [2012] NSWCCA 54 Hearing dates: 26 March 2012 Decision date: 05 April 2012 Before: Beazley JA at [1]; Harrison J at [29]; McCallum J at [30] Decision: 1. Grant leave to appeal; 2. Appeal against the sentence imposed in respect of the s 308C(1) offences be allowed; 3. Set aside the sentences imposed by the trial judge and in lieu thereof, sentence the applicant as follows: (i) On each charge contrary to s 308C(1) the applicant is sentenced to imprisonment for a fixed term of 2 years commencing on 9 September 2010 and expiring on 8 September 2012; (ii) On each charge contrary to s 178BA(1) the applicant is sentenced to imprisonment for a fixed term of imprisonment for 3 years commencing on 9 September 2010 and expiring on 8 September 2013; (iii) On the charge contrary to s 193B(3) the applicant is sentenced to imprisonment for a non-parole period of 3 years commencing on 9 September 2010 and expiring on 8 September 2013 with a balance of term of 2 years imprisonment expiring on 8 September 2015. Catchwords: CRIMINAL LAW - application for leave to appeal - appeal against sentence - sentencing judge erred with respect to maximum penalty - whether sentencing judge erred by imposing the maximum penalty - whether sentence in total is manifestly excessive - Crimes Act 1900, ss 178BA(1), 193B(3), 308C(1) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Muldrock v The Queen [2011] HCA 39 Category: Principal judgment Parties: Rhys Butler (Applicant) Regina (Respondent) Representation: P Winch (Applicant) S Bowers (Respondent) Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2009/244740 Decision under appeal Citation: R v Rhys David Butler Date of Decision: 2010-09-10 00:00:00 Before: Robison DCJ File Number(s): 2009/244740 Judgment 1BEAZLEY JA: The applicant seeks leave to appeal against the severity of the sentences imposed upon him in respect of four charges of causing an unauthorised computer function with the intention of committing a serious indictable offence, namely stealing, contrary to the Crimes Act 1900, s 308C(1). The maximum penalty for an offence contrary to s 308C(1), which particularises stealing as the serious indictable offence, is imprisonment for 5 years: see the Crimes Act, s 117. 2The s 308C(1) offences formed part of a series of offences, totalling over 300 in all, committed whilst the applicant was an employee of the Commonwealth Bank. The other offences were as follows: 18 charges contrary to s 178BA(1) of obtaining money by deception. The maximum penalty for this offence is 5 years imprisonment. One charge contrary to s 193B(3) of recklessly dealing with the proceeds of crime in the sum of $454,290. The maximum penalty for this offence is 10 years imprisonment. A total of 294 charges contrary to s 178BA(1) and s 308C(1) dealt with pursuant to the Form 1 procedure: see the Crimes (Sentencing Procedure) Act 1999, s 33. 3The applicant commenced employment with the Commonwealth Bank on 25 October 2005 in the Group Security Section. He was initially employed as a temporary employee. He moved to the Direct Banking Section relatively quickly and was employed in a full-time position in January 2007. He was promoted to assistant team leader and was responsible for making decisions and managing staff. 4During the time he worked in the group security section, he was given access to parts of the bank's computer systems which enabled a verification of its client's details. From late 2008, he began to defraud the bank and its clients by assuming client identities and obtaining credit cards in the names of these clients. 5The applicant's conduct came to notice as a result of the bank discovering similar conduct by another person. He was arrested on 5 November 2010. When interviewed by police he made full and frank admissions to the offences with which he was originally charged. As a result of the applicant's conduct, the bank was required to reimburse the client victims of the fraud in the amount of $454,290, being the amount involved in the s 193(B)(3) offence. 6The applicant pleaded guilty at the Penrith Local Court on 7 May 2010. He was remanded to the District Court, where he adhered to his pleas of guilty. He was sentenced by Robison DCJ on 10 September 2009. His Honour imposed the following sentences: (i) On each charge contrary to s 178BA(1) to imprisonment for a fixed term of imprisonment for 3 years commencing on 9 September 2010 and expiring on 8 September 2013. His Honour declined to set a non-parole period because the structure of the sentences to be imposed made it inappropriate. His Honour stated that in each of the matters the Form 1 had been taken into account. (ii) On each charge contrary to s 308C(1) to imprisonment for a non-parole period of 3 years commencing on 8 December 2010 and expiring on 7 December 2013 with a balance of term of 2 years imprisonment expiring on 7 December 2015. (iii) On the charge contrary to s 193B(3) to imprisonment for a non-parole period of 3 years commencing on 8 December 2010 and expiring on 7 December 2013 with a balance of term of 2 years imprisonment expiring on 7 December 2015. 7The total effective sentence was 5 years and 3 months comprised of a total effective non-parole period of 3 years and 3 months commencing on 9 September 2010 and expiring 7 December 2013 with a balance of term of 2 years expiring on 7 December 2015. In imposing sentence, his Honour allowed a 25 per cent discount for the full utilitarian value of the applicant's early plea. 8The applicant was 37 years of age at the time of sentence. His Honour observed that the applicant experienced a very troubled childhood, characterised by physical, mental and sexual abuse at the hands of his father. His mother died when he was 10 years of age. The applicant had developed a serious gambling problem which commenced when he was about 20 years of age. This was accompanied by illicit drug addiction from about the age of 25. 9According to the Probation and Parole Pre-Sentence Report, the applicant attributed his conduct to an attempt to mask the personal pain experienced as a result of his abusive childhood. He believed that his gambling and drug addictions spiralled out of control to the point that he became involved in offending behaviour in order to finance his addictions. However, he eventually became addicted to the financial benefit of his criminal behaviour and began to use the proceeds to purchase personal items and gifts for family and friends. The applicant developed suicidal thoughts prior to his sentence and was referred to the Blacktown Community Mental Health Team, where he came under treatment for what was described as his "tenuous mental health". The probation and parole officer considered that the applicant may require ongoing and long-term support in order for him to deal with the complex life issues affecting him. 10The trial judge accepted that the applicant had an "absolutely horrific upbringing". Notwithstanding that, up until the time of the commission of these offences, the applicant had a steady employment history and he was supported by strong testimonial evidence. His Honour accepted the applicant was remorseful for his conduct. His Honour considered the applicant clearly needed help and rehabilitation and that he would not be able to do that on his own. 11His Honour categorised the applicant's offending conduct as involving a serious breach of trust, not only in respect of the bank but also in relation to its customers. He accepted that the applicant's addictive gambling habit was the essential motivation for his criminal activity. The applicant had offered reparation but his Honour was not able to determine whether that was realistically achievable. 12His Honour took into account the need for general deterrence which he considered "loom[ed] large". In terms of objective seriousness, his Honour considered that the offending was at least in the mid range of seriousness and perhaps towards the high end of the range. A sentence of imprisonment was inevitable on his Honour's assessment. His Honour found special circumstances. The issues on the appeal 13The applicant seeks leave to appeal against sentence on the following grounds: (a) The learned sentencing judge was misled and consequently erred by stating that the maximum penalty for an offence pursuant to s 308C(1) was 10 years imprisonment when it was 5 years. (b) The learned sentencing judge erred by failing to give a discount for the pleas of guilty entered for the offences pursuant to s 308C(1). (c) The sentencing judge erred by imposing the maximum penalty for the offences pursuant to s 308C(1). (d) The sentence imposed for the s 308C(1) offences and in total is manifestly excessive. 14The Crown conceded that the trial judge incorrectly stated the maximum penalty in relation to the s 308C(1) offence as 10 years rather than 5 years imprisonment. The error arose as a result of misinformation given to the court by the Crown. It follows that ground (a) of the application to appeal against sentence must be allowed. 15The consequence of his Honour's error was that his Honour imposed a sentence of 5 years imprisonment for each of the s 308C(1) sentences. The maximum penalty is one that is reserved for cases that fall into the worst category of case for the offence in question. The Crown conceded that this case did not fall into that category of offences nor did his Honour make a finding to that effect. Accordingly, ground (c) should be allowed. 16A further effect of the imposition of the maximum penalty for the s 308C(1) offences was that the applicant was not given the benefit of the 25 per cent discount in respect of these offences that his Honour otherwise considered should be afforded for the utilitarian value of the early pleas of guilty. It follows that ground (b) must also be allowed. 17The Crown conceded that given these errors, the sentence in respect of the s 308C(1) offences was manifestly excessive and that it could not be said that no lesser sentence was warranted at law: the Criminal Appeal Act 1912, s 6(3). However, the Crown contended that although the sentence for those offences required adjustment, the total effective sentence should not be reduced. The Crown accepted that the Court needed to re-sentence and submitted that in re-sentencing, the following matters were relevant: There is no applicable standard non-parole period. Each of the offences had Forms 1 attached listing offences to be taken into account. The commission of each of the s 308B(1) offences was planned and organised over a significant period of time and involved significant breaches of trust. A 25 per cent discount is appropriate as the pleas were entered in the Local Court. The applicant was found to be remorseful. Special circumstances were found and the ratio of the non-parole period to the total sentence for each offence was altered to be 60 per cent. The applicant had a criminal history but it did not at the time of sentencing contain offences for dishonesty. The relevant subjective features were set out by his Honour at 4-6 of his remarks on sentence. General deterrence is a very significant factor. 18In oral submissions, the Crown emphasised the second of these matters, namely, that each of the s 308C(1) offences had Form 1 offences attached to it, but that the trial judge had failed to take those offences into account. In total, there were 42 offences contained in five separate Form 1 Notices. 19There is no doubt that this Court needs to re-sentence the applicant in respect of the s 308C(1) offences. The ultimate question for the Court's determination is whether that should result in a reduced overall sentence. I will turn to that shortly. Before doing so, it is necessary to refer to the applicant's conduct and circumstances whilst he has been in prison. 20The applicant filed an affidavit, affirmed on 19 March 2012, upon which he seeks to rely. In his affidavit, he describes his period in custody as having been "distressing". However, he stated that he was determined to make the best of his circumstances by focusing on self-improvement through education and participation in employment opportunities. In this regard, the applicant has held several employment positions, namely Education Clerk, Clerk to the Assistant Superintendent of Industries and Clerk to the Manager of Industries. The applicant is currently employed as a clerk in the Affordable Housing Department, which involves building houses for the Aboriginal community. 21In addition, the applicant has completed a number of TAFE courses, including Responsible Conduct of Gambling. He has also attended a two-day gambling awareness workshop and weekly Alcoholics Anonymous, Narcotics Anonymous and Gambling Anonymous classes. He has also completed the "Getting Smart" 12 step recovery programme which he considers has given him skills to take into the future. 22The applicant has the continuing support of close friendships as well as family support, although the latter has been constrained by the poor health and financial circumstances of his brother and sister. 23Senior counsel for the applicant did not contest that the factors listed by the Crown (see at [17] above) were relevant to re-sentencing. However, he submitted that there had been double counting of the criminality involved in the s 178BA(1) offences and the offence pursuant to s 193B(3). He contended those offences involved the same effective criminality, as the amount involved in the s 193B(3) offence was the total of the individual amounts concerned in the s 178BA(1) offences. There is a point in this submission. The s 193B(3) offence represented the totality, in dollar amount, of the applicant's offending under s 178BA(1). Although properly chargeable as a separate offence, the s 178BA(1) offences were the occasions upon which the applicant obtained funds which he then spent on his own purposes. 24In my opinion, that is a sufficient reason for the Court to reduce the sentence. In addition, when considering totality, his Honour would have had to take into account the sentence he imposed in respect of the s 308C offences. The significant reduction in the sentences now imposed for those offences impacts upon an assessment of the totality of sentences imposed. That provides an additional reason why the overall sentence in this matter should be reduced. Re-sentence 25I am of the opinion that the appropriate sentence on each of the s 308C(1) counts is imprisonment for a fixed term of 24 months. As the trial judge said, the applicant's conduct involved a serious breach of trust. However, there are compelling subjective circumstances to which regard must be had as well as the attempt the applicant has made to date to rehabilitate himself. Allowance must also be made for his early plea. In this regard, I would apply the same 25 per cent discount as did the trial judge. The offences were objectively serious but an assessment as to precisely where they lie in the hypothetical range is not required: see Muldrock v The Queen [2011] HCA 39 at [25]. In this case, the objective seriousness of the offence is to be discerned from the number of individual occasions of offending, the period over which the offending occurred and the amount involved. 26The question which next arises is how the overall sentences should be structured. The trial judge's sentencing provided for an accumulation of 3 months between the s 178BA(1) offences on the one hand and the s 308C(1) offences and the s 193B(3) offence on the other. On this sentencing structure, the s 308C(1) offences and the s 193B(3) offence were made concurrent. The sentence for the s 178BA offences expired on 8 September 2013. The non-parole periods for the s 308C(1) offences and the s 193B(3) expired on the same date, namely, in 7 December 2013 and the balance of term in respect of each expired on 7 December 2015. 27Whilst there was no error in the manner in which the trial judge structured the sentences, given the view I have expressed at [19], it has become necessary to restructure the way in which the sentences for the s 178BA(1) and s 193B(3) offences are imposed. 28Accordingly, I propose the following orders: 1. Grant leave to appeal; 2. Appeal against the sentence imposed in respect of the s 308C(1) offences be allowed; 3. Set aside the sentences imposed by the trial judge and in lieu thereof, sentence the applicant as follows: (i) On each charge contrary to s 308C(1) the applicant is sentenced to imprisonment for a fixed term of 2 years commencing on 9 September 2010 and expiring on 8 September 2012; (ii) On each charge contrary to s 178BA(1) the applicant is sentenced to imprisonment for a fixed term of imprisonment for 3 years commencing on 9 September 2010 and expiring on 8 September 2013; (iii) On the charge contrary to s 193B(3) the applicant is sentenced to imprisonment for a non-parole period of 3 years commencing on 9 September 2010 and expiring on 8 September 2013 with a balance of term of 2 years imprisonment expiring on 8 September 2015. 29HARRISON J: I agree with Beazley JA. 30McCALLUM J: I agree with Beazley JA. ********** 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: 10 April 2012