Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HENNESSY, Michael John v R [2012] NSWCCA 241 Hearing dates: 02/10/2012 Decision date: 21 November 2012 Before: McClellan CJ at CL at [1] Rothman J at [2] Adamson J at [55] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - sentence - requirement to fix appropriate sentence for each offence and then consider questions of accumulation or concurrence - accumulation and concurrence - relevance of capacity to deal with charge summarily - manifest excess and totality - appeal dismissed Legislation Cited: Australian Passports Act 1938 (Cth) Crimes Act 1914 (Cth) Criminal Code (Cth) Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 House v R [1936] HCA 40; (1936) 55 CLR 499 Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Grenfell [2009] NSWCCA 162 R v Leighton [2010] NSWCCA 280 R v Vuni [2006] NSWCCA 171 Wong v R [2001] HCA 64; (2001) 207 CLR 584 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Michael John Hennessy (Appellant) Regina (Respondent) Representation: Counsel: A Cook (Appellant) A N Williams (Respondent) Solicitors: Legal Aid Commission of NSW (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2010/90370 Decision under appeal Date of Decision: 2011-04-21 00:00:00 Before: Cogswell DCJ File Number(s): 2010/90370 Judgment 1McCLELLAN CJ at CL: I agree with Rothman J. 2ROTHMAN J: Michael John Hennessy seeks leave to appeal the sentence imposed upon him by the District Court on 21 April 2011. Mr Hennessy pleaded guilty to 3 counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth), each relating to a particular and different time period, and to 4 counts of obtain financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth). He also pleaded guilty to one count of making a false statement contrary to s 10(1)(a) of the Australian Passports Act 1938 (Cth). 3Mr Hennessy was sentenced as follows: in relation to each of the three offences under s 29D of the Crimes Act to 3 years' imprisonment in respect of each offence, to be served concurrently and to commence on 21 April 2011 and expire on 20 April 2014; in relation to each of the four offences under s 134.2(1) of the Criminal Code to 3 years' imprisonment in respect of each offence, to be served concurrently and to commence on 21 April 2012 and expire on 20 April 2015; and in relation to the offence under s 10(1)(a) of the Australian Passports Act to 12 months' imprisonment to commence on 21 April 2015 and expire on 20 April 2016. Mr Hennessy was ordered to be released on and from 20 October 2013, after serving imprisonment of 2 years and 6 months, upon the giving of security of $50, without surety, by recognisance, to be of good behaviour for the balance of the sentence. 4Further, Mr Hennessy was ordered to pay reparation to the Commonwealth in the amount of $73,830.03. 5Mr Hennessy seeks leave to appeal the sentence and raises 3 grounds: (i)The sentencing judge erred in imposing the same penalty for all offences in counts 1 to 7; (ii)The sentencing judge erred in failing to consider that the offences could have been dealt with summarily; and (iii)The sentence imposed was, in all the circumstances, manifestly excessive. Facts 6Mr Hennessy received Centrelink payments in two names, Michael John Hennessy and Michael James Hanson. He was not entitled to the payments received in the name of Michael James Hanson. To obtain the payments in that name, Mr Hennessy organised a number of false documents. 7In relation to count 1, Mr Hennessy applied for Job Search Allowance in the name of Michael Hanson. He was paid this allowance from 14 September 1991 to 28 August 1992. 8In relation to count 2, Mr Hennessy applied for Newstart Allowance in the name of Michael Hanson. He was paid this allowance from 28 September 1992 to 18 June 1993. 9In relation to count 3, Mr Hennessy applied for Newstart Allowance in the name of Michael Hanson. He was paid this allowance from 17 July 1993 until 22 April 1994. 10In relation to count 4, Mr Hennessy lodged a claim for Newstart Allowance in the name of Michael Hanson in January 2003. To support his application the appellant provided a letter, which was signed in the name of Michael Hanson, indicating he had ceased work, a false Australian Passport, a false New South Wales Birth Certificate, a letter purporting to be signed by Michael Hanson's employer and financial information from various entities. He was paid Newstart Allowance from 24 December 2002 until 14 April 2004. 11In relation to count 5, Mr Hennessy lodged a claim for Newstart Mature Age Allowance in the name of Michael Hanson. After the claim was rejected, Mr Hennessy provided a number of false documents. As a result, he received payments from 16 September 2003 until 14 April 2004. 12Count 6 relates to further Newstart Allowance payments received by Mr Hennessy in the name of Michael Hanson from 6 April 2005 until 14 July 2005. False documentation was provided in order to obtain these payments. 13In relation to count 7, Mr Hennessy lodged a claim for the Age Pension in the name of Michael Hanson. He received the Pension as a result of this claim from 15 July 2005 until 21 February 2008. Once more, false documentation was provided to support the claim. 14In relation to count 8, Mr Hennessy obtained a false passport in the name of Michael James Hanson in October 2002. 15In relation to counts 1 - 3, Centrelink payments were made to a Commonwealth Bank account in the name of Michael James Hanson. In relation to counts 4 - 7, payments were made to a St George Bank account in the name of Michael James Hanson. Other amounts were received in the appellant's real name. 16During the same period, Mr Hennessy, in his own name lodged a number of other claims, including claims for the Sole Parent Pension and the Disability Support Pension. During the relevant time, Mr Hennessy also had a National Australia Bank account in his name. 17During the execution of a search warrant, the police located a number of diaries, which record when Centrelink payments, in both names, were to be received, the bank balances of the accounts in both names, and a large number of other documents. 18The appellant, as a consequence of his fraudulent activity was overpaid an amount of $74,970.03 by Centrelink. Ground 1: Fixing of the same penalty for all or most offences 19The submissions on behalf of Mr Hennessy are that there was error in the fixing of the penalty for each of the offences in counts 1 - 7 because his Honour imposed the same penalty (3 years' imprisonment) for each of the counts. Each count, as previously stated, involves a different sum of money and different time periods. 20As a consequence, the appellant submits that the objective gravity of each offence was not comparable and some differentiation in penalty was required. 21A sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence together with questions of totality: Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at 624, per McHugh, Hayne and Callinan JJ. Sentencing is not a process that leads to a single correct answer arrived at by some process of mathematical precision: Pearce v R and Markarian v R [2005] HCA 25; (2005) 228 CLR 357. 22In fixing the sentence of 3 years for each of the offences to which counts 1 - 7 refer, his Honour expressly applied s 16A of the Crimes Act and looked at the nature of each offence. It cannot be said of any one of the sentences imposed for counts 1 - 7 that it is an inappropriate, manifestly excessive or an otherwise inappropriate sentence. 23Ultimately, Mr Hennessy must establish that there is a different level of criminality associated with each of the offences or some of the offences as against others. The matter to which Mr Hennessy points is confined to the fact that each involved a different sum of money and occurred over different periods of time. Usually, such matters will affect the seriousness of the criminal conduct. However, in this case, the offences are almost identical, involve the same degree of planning and are manifestations of the same criminal intent. While it may have been better for his Honour to have fixed different sentences for each offence, there is a point at which the criticism is one of form rather than substance. 24As long as each sentence is within the range applicable for the criminal conduct and the level of accumulation and concurrency is such that there is no error in totality, it is imposing too strict a regime on sentencing judges to require them to fix a different sentence for each offence charged. Ultimately, as the High Court has made clear in Pearce, the task is one of fixing an appropriate sentence duration for each offence and thereafter considering the degree of concurrence or accumulation that reflects the totality of criminal conduct. 25This ground of appeal fails. Ground 2: Failure to consider the capacity to deal with the issues summarily 26The parties before the Court agree that the offences could have been dealt with summarily pursuant to s 4H of the Crimes Act. The potential for summary disposal was not raised as a consideration in the sentencing proceedings and not expressly referred to by the sentencing judge. Nevertheless, the sentencing judge has dealt with such offences on numerous occasions. 27The Crown submits that the fact that the issue was not raised by counsel before the sentencing judge supports an inference that the principle relied upon by Mr Hennessy has no application to the appeal: see Zreika v R [2012] NSWCCA 44 at [76], [80] and [83], per Johnson J with whom McClellan CJ at CL and I agreed. 28In this case, the theoretical availability of summary disposal must be qualified by the seriousness and extent of the fraud and dishonest activity. The offences for contravening s 29D of the Crimes Act and for obtaining a financial advantage contrary to s 134.2(1) of the Criminal Code each carry a maximum sentence of 10 years' imprisonment. Given the extent and nature of the fraud perpetrated, it cannot be said that the election of the Commonwealth DPP to prosecute the matters on indictment in the District Court was in any way inappropriate or could be subject to criticism. Nor did the applicant suggest such criticism. Indeed, on one view a decision, in this case, to prosecute at the Local Court may have been inappropriate, because a sentence appropriate to the level of criminality could not have been imposed. 29Unless it can be said that the mere fact that an offence may be dealt with summarily necessarily requires the imposition of a less severe sentence, no criticism can be made of his Honour in fixing the sentences at the level that he did. 30None of these sentences are out of the range or unavailable for the criminality of the offence and the circumstances of the offender. 31I reiterate my comments, recited in Zreika at [140], to the following effect: "The general approach was reiterated by me in Stanford v Regina [2007] NSWCCA 73 (McClellan CJ at CL and Hulme J agreeing) at [50] in which I said: 'A court may have regard on sentence, in a matter dealt with by the court on indictment, to the fact that the matter could have been dealt with by way of summary disposal: R v Sandford (1994) 72 A Crim R 160 at 195. The obverse is also true; a court may choose, for good reason, not to have regard to that fact. In this instance the prosecuting authority chose to have the matter dealt with in the District Court. The exercise of that power was correct and cannot be the subject of criticism. So much is conceded by the applicant. The criminality of the offence in question was too serious to be dealt with by the Local Court. In those circumstances, the sentencing judge is required to deal with the matter in accordance with ordinary principle. The sentencing judge is required to have regard to ... the maximum sentence that may be imposed and the general principles applicable either under the common law or statute to the fixing of the sentence. The jurisdictional limit for a sentence, if the matter were to have been processed in the Local Court, is not a constraining element (or any element) in those circumstances: R v Crombie [1999] NSWCCA 297 at [14]-[16]; R v El Masri [2005] NSWCCA 167 at [29], [30]. This ground of appeal fails'." 32I also refer, without repeating, to the comments of Johnson J, with which comments McClellan CJ at CL and I agreed at [102] - [107] in Zreika. 33The principles are clear. No error of the kind necessary has been established that would warrant an interference with the sentences imposed on the basis that appropriate regard was not had to the availability of summary disposal. This ground of appeal also fails. Ground 3: Manifest excess and totality 34As has been made clear on a number of occasions, to establish manifest excess as a ground of appeal, an applicant for leave to appeal must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325; Markarian v R at [26] - [28]; R v Vuni [2006] NSWCCA 171 at [33]. 35As has also been made clear on a number of occasions, there is no single correct sentence that can be imposed. Judges on appeal are not able to set aside or to overturn a sentence simply on the basis that they would have imposed a different sentence. Such a view is an insufficient basis for appellate intervention. In order to justify intervention, there must be error of the requisite kind: House v R [1936] HCA 40; (1936) 55 CLR 499. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at [26]; Markarian v R at [25], [27]. 36The learned sentencing judge grouped the offences, as is obvious from the description of the sentences earlier in these reasons, and made each of the contraventions of s 29D wholly concurrent and each of the contraventions of s 134.2(1) of the Criminal Code wholly concurrent. Further, the obtain-financial-advantage-by-deception sentences were accumulated by 12 months on top of the sentence imposed for defrauding the Commonwealth. The sentence for count 8 (false passport) was further accumulated by another 12 months. 37It was entirely appropriate to require that each of the sentences for contravention of s 29D of the Crimes Act, the defrauding the Commonwealth offences, be served concurrently. While each is a separate offence, occurring at a separate time and over different periods of time, the result of which was obtaining different amounts of money, the criminal culpability for all of them was essentially identical. 38Further, taken as a group, the offences were, as his Honour indicated, well organised, well planned and sophisticated. In this assessment his Honour was correct. The appellant kept meticulous records and effected a complicated series of acts in order to carry out the criminal conduct. 39Further, in relation to the four offences of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code, likewise, it was entirely appropriate for his Honour to impose sentences that were to be served wholly concurrently. Again, while each of the offences is separate, involving different periods of time, different amounts of money and different physical acts, each offence was the implementation of a well-planned, well-organised and meticulous scheme for obtaining money from the Commonwealth by utilising a false identity. 40The obtaining of that false identity required planning and a number of criminal acts each of which are relevant to each of the offences. Further, it is appropriate that there be an accumulation of the sentences over that which was imposed for the offences of defrauding the Commonwealth. 41Lastly, the obtaining of a false passport involves a number of acts, which are similar in intent to those for which sentences were imposed for defrauding the Commonwealth and for dishonestly obtaining financial advantage by deception. Nevertheless, the offence is a quite separate offence and requires a degree of accumulation beyond the sentences imposed for the other two groups of offences. 42His Honour had regard to each of the matters in s 16A of the Crimes Act relevant to the exercise being undertaken. In particular, his Honour had regard to the provisions of s 16A(2)(c) in that a number of the offences formed part of a course of conduct consisting of a series of criminal acts of the same or similar character. 43Mr Hennessy submits that, if, as can be expected, a 25 per cent discount for the plea of guilty has been effected, the starting point for the sentence in the passport offence would have been 16 months' imprisonment. It is said that, in the objective and subjective circumstances of the case for Mr Hennessy, this starting point was too high, particularly when it is being wholly accumulated on the other sentences. 44Firstly, the sentencing judge did not specify the actual quantum of the discount to be allowed. Nevertheless, the discount was said to have been one for a willingness to facilitate the course of justice (Remarks on Sentence, [45]). 45The passport offence was an essential ingredient in Mr Hennessy's continued deception of Centrelink. Moreover, the passport offence is, as his Honour the sentencing judge makes clear, a serious matter striking at Australian sovereignty and the power of the Australian Government to control the country's affairs. 46I agree with his Honour's assessment of the seriousness of the offence and I do not consider that a starting point of 16 months is outside the range of sentences available to his Honour. As a consequence, even assuming a 25 per cent discount, and assuming a starting point of 16 months, this criticism of his Honour's sentence for the passport offence is unfounded. 47Mr Hennessy further submits that his Honour misused the sentences imposed in the judgments of R v Grenfell [2009] NSWCCA 162 and R v Leighton [2010] NSWCCA 280 when fixing the sentences in relation to the fraud and dishonestly obtaining a financial advantage by deception. 48One of the matters of distinction to which Mr Hennessy points is the amount of money obtained by the offenders in each of the cases. The amount of money is a relevant factor in determining the seriousness of criminal conduct, but it is not the determinant of appropriate sentence to be imposed. 49Consistency in sentencing is an appropriate goal to be obtained by a consistent application of the appropriate principles established by the legislature or otherwise applicable under the general law: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [77] - [78]. 50As has been made clear on a number of occasions, equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect: Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 608, cited with approval in Green v R; Quinn v R (2011) HCA 49; (2011) 244 CLR 462 at [28]. Consistency in the punishment of offences against the criminal law is a fundamental element in a rational and fair system of criminal justice: Green & Quinn. In relation to co-offenders it finds expression in the parity principle. In relation to offenders who are not co-offenders, it finds expression in the principle of consistency in sentencing: see Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at 588 - 589, cited with approval in Green v R; Quinn v R at [30], per French CJ, Crennan and Kiefel JJ and at [119] - [123], per Bell J with whom Heydon J agreed. 51The fact, if it be the fact, that there are distinct differences that are relevant to the sentencing exercise between the facts and circumstances of the offences for which a sentence was imposed in Grenfell and Leighton is not to the point, unless it can be said that the sentence imposed by the sentencing judge on Mr Hennessy was inconsistent in the sense used in the principle of consistency in sentencing. That is, that the sentence gave rise to a legitimate sense of grievance because the sentence imposed was outside the range defined by Grenfell and Leighton and other cases of like offences. In my view, the sentences imposed by his Honour on Mr Hennessy are not outside the range and are not, in the relevant sense, sentences that are inconsistent with the sentences imposed by the Court in Grenfell and Leighton. Conclusion 52Overall, the sentences imposed by his Honour for each offence, and as an aggregate, are not unreasonable or plainly unjust and do not warrant interference by this Court. 53Given the seriousness of the offences and the period over which they occurred, no different sentence is warranted and the sentences, as an aggregate, represent a sentence of a severity appropriate in all of the circumstances of the offence and of the offender. 54As a consequence of the foregoing, I propose that the Court grant leave to appeal and dismiss the appeal. 55ADAMSON J: I agree with Rothman 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. Decision last updated: 22 November 2012