R v Charters [1998] VSC 226; [1998] VICSC 2 (10 February 1998)

Last Updated: 8 April 1998

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 163/1997

THE QUEEN

v.

DAVID ROBERT CHARTERS

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JUDGES: WINNEKE, P., BROOKING and CALLAWAY, JJ.A.

WHERE HELD: Melbourne

DATE OF HEARING: 10 February 1998

DATE OF JUDGMENT: 10 February 1998

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CATCHWORDS: Criminal law - Appeal against sentence - Obtaining property by deception - Judge misinformed of time at which plea of guilty was first entered - Whether judge gave sufficient weight to plea of guilty - Attempt to feign intellectual disability - Standard of proof - Sentencing Act 1991, s.5(2)(e).

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APPEARANCES: Counsel Solicitors

For the Crown Mr J.D. McArdle P.C. Wood, Solicitor

for Public Prosecutions

For the Applicant Mr B.R. Keating Slink & Keating

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WINNEKE, P.: I invite Callaway, J.A. to give the first judgment in this application.

CALLAWAY, J.A.: The applicant, who is now aged 38, pleaded guilty in the County Court to one count of obtaining property by deception contrary to s.81 of the Crimes Act 1958. The maximum penalty for an offence against that section is ten years' imprisonment. After hearing a plea for leniency on his behalf, which began on 28th August and ended on 2nd September 1997, the learned sentencing judge sentenced the applicant on the latter date to three years' imprisonment with a non-parole period of two years. A declaration was made regarding 15 days' pre-sentence detention and restitution was ordered in the sum of $2,580.

The applicant seeks leave to appeal against sentence on three grounds which were substituted for the original grounds of appeal by order of the Registrar made on 9th February 1998. The amended grounds are:

1. The learned sentencing judge failed to give any, or

sufficient, weight to the plea of guilty.

2. The finding of her Honour that she did not accept as reliable that the applicant was presently suffering serious health problems was against the weight of the evidence.

3. The sentence was in all the circumstances of the case manifestly excessive.

Before turning to those grounds it is desirable to say something of the circumstances in which the offence was committed. In March 1996 the applicant, being recently divorced, re-opened a long-dormant relationship with one Jacinta O'Bree. On or about 4th June 1996 the couple began to discuss, and then to organise, moving with Ms O'Bree's children to northern New South Wales. At that time the applicant's own four-wheel drive vehicle had been repossessed and Ms O'Bree's vehicle was inadequate for the task ahead. The applicant told her that he would "finance" a new vehicle.

On 14th June 1996 he attended the Frankston premises of a motor vehicle dealer, Stewart Webster Land Rover, where he discussed arrangements to finance the purchase of a new Land Rover with the business manager, Mr James Karakostas. A purchase price of $54,500 had previously been agreed between the applicant and a salesman. The applicant advised Mr Karakostas that he wished to borrow the entire sum, subject to his payment of a refundable deposit in the sum of $2,580. Using responses provided by the applicant, Mr Karakostas completed an application for finance and a statement of assets and liabilities on his behalf. The applicant signed each document. The primary assertions recorded in them were that he was a clergyman employed by the Parish of St Andrews, of which a Mrs Lugg was said to be the secretary, and that he had $25,000 in the bank. Mr Karakostas told the applicant that he required documentary confirmation of the applicant's income and savings, and the applicant left the premises, promising to provide the required proof.

On 17th June 1996 he was advised that his finance application had been approved subject to the provision of the requisite documentation. The applicant said that he would "shuffle a few bank accounts" and then bring in the papers. The next day he opened a new cheque account and also a passbook account at the Cranbourne branch of the National Australia Bank, paying a cheque in the sum of $2,500 into the cheque account and a cheque in the sum of $25,000 into the passbook account. He then obtained, in relation to the second account, a passbook and a print-out of his account balance.

Later that afternoon the applicant returned to the premises of Stewart Webster Land Rover and showed Mr Karakostas his new bank passbook with a credit balance of $25,000. He also produced a document presented as an employment reference, which was on the letterhead of the "Parish of St Andrews - Church of England" and stated that the applicant was employed by the parish on a gross income of $24,480 per annum with allowances of $2,500, free accommodation and other benefits. The document bore a signature purporting to be that of Mrs Helen Lugg. The letter was a fake, the information was false and the signature was forged.

On the basis of the passbook balance and the letter to which I have referred, and on provision of a deposit cheque in the sum of $2,580, the applicant signed the finance agreement and Mr Karakostas gave him possession of the Land Rover.

Both the cheques that had been paid into the newly-established National Australia Bank accounts were drawn upon an account opened by the applicant at the Cranbourne branch of the Westpac Bank on 15th May 1996. He opened that and another account using documentation under the name Wayne David Charters and cheques drawn upon a Commonwealth Bank account operated in one of the applicant's names. No cheque in the sequence was supported by sufficient funds in the drawing account and every cheque, including the cheques used by the applicant to establish his $25,000 bank balance and to pay the $2,580 deposit, was dishonoured.

After taking possession of the vehicle the applicant returned to Ms O'Bree's home and, loading a substantial quantity of personal belongings on to a trailer, they departed the next morning for northern Australia. They travelled together with Ms O'Bree's three children as far as Cairns, where, without warning, the applicant abandoned the group and continued on by himself in the Land Rover.

He was arrested in Adelaide on 19th August 1996. When interviewed concerning the alleged offence he declined to comment.

Counsel opened the plea before the learned sentencing judge by submitting that the applicant had suffered from a severe intellectual disability from an early age and that that disability was of such severity that he was not an appropriate vehicle for general deterrence. The first two days of the plea were devoted to evidence tendered by both sides bearing on that issue. The submission was withdrawn on 1st September 1997. Counsel conceded, in the light of the evidence that had been led, that his client was a man of normal intelligence, albeit suffering from some psychiatric and physical disorders.

The course of the plea over those two days was described by the learned judge in the course of her sentencing remarks. After referring to counsel's opening, her Honour turned to the evidence, saying:

"On your behalf you initially relied upon Dr Gilligan and Dr Walton. Dr Gilligan was a consultant neurologist who, with other specialists, has examined you from time to time and had available to him testing carried out when you were 13 years of age. He formed the opinion, on the basis of psychological testing performed on you, first at the age of 13 and again at the age of 32 years, that you were at the border line retarded range. A further assessment performed some six months later indicated that your intellectual capacity had plummeted even further than this.

Dr Walton, a psychiatrist, who had seen you from time to time since 1991, gave me emphatic evidence that his professional assessment of you was that you were indeed of borderline intelligence and that you would find gaol more difficult as a result of your intellectual disability.

You were a man whom he described in his report as having a thoroughly documented history of intellectual impairment."

Mention was then made of the evidence of Dr Simon Crowe, a consulting neuropsychologist called by the Crown, a record of interview in connection with an earlier offence and the change in the tenor of the plea. Her Honour said:

" Notwithstanding then that it is no longer an issue in this trial as to whether or not you have an intellectual disability, I note and adopt as a fact to be taken into account in sentencing you, Dr Crowe's evidence, that he believed that you had deliberately attempted to present yourself as intellectually disabled in the test that he conducted upon you. He told me that in many of the answers to the questions to psychological testing undertaken your score was less than would be obtained by chance. You claim not to be able to spell words such as 'make, cook or must' and you could not read simple words such as 'book, tree or animal'. You identified a picture of a helicopter as an aeroplane and purported to identify a picture of a tennis racket as a musical instrument.

Even more damning was the production by the prosecution of a six hour record of interview in relation to your previous offence in 1991 which occupied some 210 pages of transcript and which identified you as not only having been engaged in a sophisticated sales tax fraud but also of conversing fluently and with a fair degree of expertise with the police informant in that matter.

Dr Crowe had the time to read only 20 pages of that interview and in his opinion it was nonsensical to suggest that a man who could express himself in the way you did in that interview was in any way intellectually disabled. I have had the opportunity to scan the complete document and I agree entirely."

After referring to other evidence, her Honour continued:

" Although Dr Walton suggested that changes in personality might occur in times of depression, in my view, the overwhelming and inescapable inference to be drawn from the evidence that I have heard is that you deliberately set out to fool Dr Walton, Dr Gilligan and Dr Crowe as to your true mental state and that Dr Walton and Dr Gilligan were so fooled.

In my view, it is a reasonable inference and indeed the only inference for me to draw from the stage that this plea reached prior to your withdrawing your claim to intellectual disability, that this claim was a fabrication and was purposely made in order to avoid the proper consequences of your criminal behaviour in relation to the offence for which I am to sentence you.

I am aware that I should not draw a conclusion adverse to your interests unless I am satisfied of the truth of that conclusion beyond all reasonable doubt. I have therefore assessed the evidence which I have heard in this case carefully and in addition to the matters I have detailed so far, I have also taken into account the evidence given before me by your brother, Peter Charters, on your behalf."

That evidence was discussed, together with the applicant's having practised as a marriage celebrant and obtained a variety of academic qualifications. He had been placed under the care of Intellectually Disabled Services for a two-year period ending in 1994, but the officer of the Human Services Department who had been responsible for his case did not think that he had the profile of a disabled person. She thought the department had been, or at all events might well have been, deceived. Her Honour concluded:

" I have dealt with the matters which were the subject of the evidence in this plea in some detail because it is evident to me that, in sentencing you, I sentence you not simply as a man of normal intelligence who comes before me having undertaken a deception of some sophistication but a man who has also, as I have said, attempted to avoid taking responsibility for his actions by pretending to this court that he was, in fact, intellectually disabled and so seeking that the mercy of the court, which is properly reserved for genuine cases of intellectual disability, should therefore be extended to you."

It is against that background that I turn to the first ground of appeal. Mr Keating, who did not appear below, relied on s.5(2)(e) of the Sentencing Act 1991, the judgment of Charles, J.A. in R. v. Donnelly (1997) 91 A.Crim.R. 550 at p.555 and my judgment in R. v. Duncan (Court of Appeal, unreported, 26th May 1997). He pointed out that s.5(2)(e) provides that in sentencing an offender a court must have regard to whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so.

In the present case the applicant pleaded not guilty at the conclusion of the committal proceedings. He pleaded guilty when arraigned before a different judge in the County Court on 28th May 1997. At the commencement of the plea the learned sentencing judge was wrongly informed that the applicant had not previously been arraigned. Accordingly he was arraigned before her and again pleaded guilty. Reference was made to that plea at the beginning of her Honour's sentencing remarks, where she spoke of "a plea of guilty which you made at the commencement of this, the fourth day of this plea hearing". Mr Keating very properly conceded that that was a slip and her Honour intended to refer to the commencement of the plea.

Two distinct points fall for consideration under this ground of appeal. The first is whether any significance attaches to her Honour's having been misinformed of the stage in the proceedings at which the applicant pleaded guilty. Section 5(2)(e), like other paragraphs of s.5(2), requires the judge to have regard to material that is properly before him or her. For example, regard must be had to the nature and gravity of the offence: that means the nature and gravity of the offence as disclosed by that material. So too with the presence of aggravating or mitigating factors or, to take an example from paragraphs later inserted in the sub-section, the personal circumstances of any victim or the injury, loss or damage resulting directly from the offence. There is no reason to think that her Honour failed to obey the statutory injunction to have regard to the information concerning the plea of guilty that had been placed before her.

The second point is whether it can be discerned from the sentencing remarks and the sentence imposed that insufficient weight was given to it. It has frequently been explained that what is called for convenience the discount for a plea of guilty may be given for more than one reason. Sometimes the plea evidences remorse or gives good grounds for being optimistic about the prisoner's prospects of rehabilitation. That cannot be said here, having regard to the way in which the plea, on instructions, was conducted over the first two days and her Honour's findings, which I have set out earlier in these reasons. A discount, albeit a smaller discount, may nevertheless be given to reflect the public utility in those who are guilty pleading guilty. But, in the first place, such mitigation of punishment as may be justified is extended in the exercise of the wide discretion that is conferred on the sentencing judge and, secondly, the proper course to take depends very much on the facts of the case. This was not a case, for example, where a victim would otherwise have been required to re-live a traumatic experience or where the Crown would have had to engage in a long and expensive trial, and public time and the time of expert witnesses was wasted by the manner in which the plea was conducted. In those circumstances it is hardly surprising to my mind that her Honour mentioned the plea of guilty at the beginning of her sentencing remarks but did not refer to it again. It cannot be inferred from those sentencing remarks or from the sentence itself that that factor was given insufficient weight.

The focus of Mr Keating's attack under ground 2 was that the learned judge did not accept as reliable evidence that the applicant was presently suffering serious health problems, namely chronic migraine, mood disorder and anxiety state. Her Honour was invited to be satisfied of those matters from the evidence of Dr Gilligan and Dr Walton, but, as she pointed out, their evidence was based entirely on the symptoms reported to them by the applicant. There was no organic basis found for any of those medical disorders and she had already found that the applicant had set out to deceive them as to his true intellectual capacity. Accordingly, her Honour said, she did not accept as reliable "any diagnosis of severe incapacity or disability in so far as it is found on your description of your complaints to these doctors [my emphasis]."

Her Honour then said that there was other, older evidence of incapacitating migraines from the age of 13 and traumatic events affecting the applicant's early life. In her view that evidence did establish that the applicant had had some history of emotional disturbance and migraines in the past. In relation to whether he was still suffering serious health problems of that kind, there was the evidence of the medication that he was presently taking and the evidence of his brother. The learned judge said that she was extremely wary of accepting the evidence of current medication as painting a true picture of the applicant's medical condition and emphasised the limited character of the evidence that the applicant's brother had been able to give. They had had limited contact with each other until the recent months during which the applicant, released on bail, had been living with his brother.

Mr Keating pressed us with what was in effect a presumption of continuance, that emotional disturbance and migraines in the past were likely to have continued into the present, and that her Honour's refusal to make the finding suggested on behalf of the applicant at the plea was against the evidence. As these were circumstances of mitigation, he was constrained to submit that her Honour was bound to be satisfied on the balance of probabilities that the applicant was still suffering from such a severe emotional disorder or migraines as to affect the sentencing task. As Mr McArdle, who appeared for the respondent, pointed out, that is a submission that is to be evaluated, among other things, mindful of the fact that the applicant did not himself give evidence at the plea.

I am not persuaded that her Honour was bound to take a more favourable view of the applicant's health than she did. I add for completeness that her Honour had no hesitation in accepting that the applicant suffered from a painful condition in his shoulders and was awaiting surgery to correct that condition and that that was a disability that she should take into account.

In expressing my conclusion as I have, I cast no doubt on her Honour's having applied a higher standard to the question whether the applicant had deliberately sought to deceive the court. That was a different matter altogether. I doubt that it is properly described as a circumstance of aggravation, but it was an important finding adverse to the applicant. Once made, it lessened the significance that the plea of guilty might otherwise have had, cast an unfavourable light on his prospects of rehabilitation and also, I think, had a bearing on specific deterrence.

The third ground of appeal was that the sentence is manifestly excessive. Mr Keating reminded us that the Land Rover was recovered, apparently undamaged; the applicant did not sell it or attempt to change its identity; the financial loss consisted only of the $2,580 the subject of the restitution order and further loss that was said below to be of the order of $11,000. (Nevertheless, as the learned judge pointed out, this was not an offence committed in circumstances of destitution or financial hardship. It was committed because the applicant and Ms O'Bree needed such a vehicle for their proposed move.) Other factors on which Mr Keating relied included the applicant's circumstances at the time of the offence, which I understood to refer in part to his marital and emotional circumstances; his health; the level of abuse that he had suffered in his earlier life; the fact that this was his first term of actual incarceration; and the willingness of his brother and his wife to support him if a more lenient sentencing disposition were adopted.

It is clear that the applicant did suffer a level of abuse in his early life; the learned prosecutor in the course of the plea conceded as much. It is also true that this is his first experience of prison, but it is not his first experience of offending. He admitted 41 previous convictions from six court appearances between 1978 and 1992, including numerous offences of dishonesty. He has consistently benefitted from merciful sentences, including his being placed under the care of Intellectually Disabled Services in conjunction with a suspended sentence of nine months' imprisonment in 1992. The learned judge was well entitled to say that his alleged intellectual disability may not have been challenged on that occasion. It was conceded that her Honour took into account the various factors on which reliance was placed, but the submission was made, in implied reliance on s.5(3) of the Sentencing Act, that a shorter sentence of imprisonment would have achieved the purposes for which the sentence was imposed. Having regard to the nature of the offence and the planning that went into it, the findings that her Honour made, only one of which was challenged and that unsuccessfully, and the applicant's prior history, the purposes to be achieved included not only appropriate punishment but also both general and specific deterrence. In my opinion the weight that her Honour gave to these matters was well within the scope of a sound exercise of discretion.

Notwithstanding Mr Keating's careful submission, I can detect no error in the sentence and I would dismiss the application.

WINNEKE, P.: I agree.

BROOKING, J.A.: I also agree. Her Honour's reasons for sentence are not only unexceptionable but also admirably careful and complete.

WINNEKE, P.: The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

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CERTIFICATE

I certify that this and the 12 preceding pages are

a true copy of the reasons for judgment of the Court of

Appeal of the Supreme Court of Victoria (Winneke, P., Brooking and Callaway, JJ.A.) delivered on 10 February

1998.

DATED this day of 1998.

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Associate