Regina v Gregory Robert Beeforth No. 60233/95 Sentencing [1999] NSWSC 1402 (31 October 1999)

COURT
IN THE SUPREME COURT OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
GLEESON CJ(2), ALLEN(1) AND SULLY(3) JJ
HRNG
SYDNEY
#DATE
24:11:1995
#ADD 1:4:1996


  Counsel for the Appellant       P M Skinner


  Solicitors for the Appellant    Legal Aid Commission


  Counsel for the Respondent      T L Buddin with C O'Donnell


  Solicitors for the Respondent   Commonwealth Director of Public
                                  Prosecutions
ORDER
  Appeal allowed
JUDGE1
ALLEN J  This is an application for leave to appeal
against the severity of
sentences.


2.  The applicant escaped from Cessnock Gaol on 17 July 1995 and was at large
for 159 days before
he was recognised by police at Liverpool and arrested. He
was taken into custody. At the police station he was searched and seven
$100
Australian bank notes, as they appeared to be, were located in his wallet.
Each bore the same serial number.


3.  With the
permission of the applicant the police took him to his hotel room
and searched it. There they found, in various containers, bundles
of what
appeared to be $100 Australian bank notes, as well as one note which appeared
to be an Australian bank note of $50, and yet
a further one of face value of
$10. All the notes were counterfeit. The whole series contained the same
number. The total face value
of counterfeit money was $101,560.


4.  Also found at the hotel room were the paper and equipment necessary to
produce this counterfeit
currency, the technique involved being scanning by
computer and printing with a bubble printer.


5.  The applicant was frank to
the police as to his involvement. He told them
that he had produced the counterfeit currency for two men, known to him
respectively
as Frank and Rob, and that they had wanted him to produce
currency to a face value in all of $3,000,000 for the purpose of purchasing
drugs. He said he expected to be paid $10,000 for his part in the operation.
The equipment and supplies for the operation had been
provided by these men.


6.  The applicant also said that he already had uttered approximately seventy
of the $100 counterfeit notes
at a variety of places including Goulburn,
Sydney, Melbourne and Adelaide. He said he also uttered about twenty
counterfeit $100
notes in Sydney over a three or four week period. He claimed
that for each note he uttered he received about $70 or $80 which he
used to
support himself whilst he planned his next move.


7.  He faced three charges and he pleaded guilty to each of them. The
first
charge was the counterfeiting of the money. The second charge was the uttering
of the money to which I have referred. The third
was the possession of the
counterfeit money.


8.  The applicant was 48 years of age at the time he came up for sentence
before Armitage
DCJ (as he then was). He had a criminal record, which could
only be described as appalling, for offences of dishonesty. I shall ignore
earlier convictions and pick up his record in 1989. In that year he was
convicted of obtaining property by false pretences, there
being in all four
counts, and he received an aggregate sentence of six months' imprisonment. In
the same year, less than three months
later, he was sentenced to three years'
imprisonment for a number of offences of receiving, obtaining things by
deception, and fraudulent
conversion as a bailee. In March 1994 he was
sentenced for various offences to an effective minimum term of four years and
six months'
imprisonment with an additional term of eighteen months. Those
offences again were offences in the category of obtaining things by
deception
by making false instruments, and using false instruments in an attempt to
deceive. In the same month he was dealt with
for larceny as a servant and for
five offences of making a false instrument and five offences of using a false
instrument. For those
matters he was sentenced to a fixed term of two years.
Taken into account on that occasion were five additional offences of obtaining
benefit by deception, one offence of false pretences, four further offences on
a different occasion of obtaining benefit by deception, and three further
offences
of the same class, as well as one additional matter.


9.  He had absolutely nothing to recommend him when he came before his Honour.
He started off with having been at large, after escaping from lawful custody,
for 159 days before police picked him up.


10.  What
his Honour did was to sentence him in respect of escaping from
lawful custody to a term of imprisonment of eighteen months commencing
on 1
May 1998. The reason for the late commencement of the escaping offence is that
he first had to complete the sentence he was
serving when he escaped plus the
159 days he was at large.


11.  In respect of the counterfeiting of the money his Honour took as
a
starting point a term of nine years. He then stated that, having regard to
various matters raised on the applicant's behalf, and
in particular his plea
of guilty and his co-operation with the police, the term should be reduced to
seven years. The next step he
took was that he noted that the sentence imposed
would be served in a prison in this State, where remissions do not apply. He
took
that into account as required by section 16G of the Commonwealth Crimes
Act, 1914, and reduced the seven years down to five and a half years. When he
came to the non-parole period what he did was that he indicated
that there was
nothing which required any unusual approach to be taken and he fixed a
non-parole period of three and a half years.


12.  He fixed the commencing date of the sentence for the counterfeiting as 31
October 1999 (being the expiration of the sentence
for the escape).


13.  I may deal more briefly with the sentence for the uttering and the
possession as they were, in effect, embraced
within the sentence for the
counterfeiting. As to the uttering, the sentence was fixed at four and a half
years, also commencing
on 31 October 1999, and as to the possession the
sentence was fixed at three years commencing on the same day. In each case the
approach
taken by his Honour was that taken in respect of the counterfeiting
offence.


14.  A number of grounds of appeal have been relied
upon. It is convenient to
go directly to the one which the Crown concedes is made good. It is that the
reduction from the figure
of seven years' imprisonment, which his Honour
arrived at in respect of the counterfeiting after taking into account the plea
of
guilty and co-operation, down to five and a half years involved a discount
for the absence of remissions of only 21.42 per cent.
The argument is that it
should have been one-third in accordance with what was stated by this Court in
DPP (Cth) v El Karhani  (1990) 21 NSWLR 370. In that case the Court in its
joint judgment said (at 384, 385): 
    "The High Court of Australia and this Court have emphasised,
    in the fixing of non-parole (and hence parole) periods, that
    arbitrary formulae are to be avoided. This is so both for
 
  reasons of general legal principle and for reasons specific
    to sentencing. The general principle is clear. A statutory
   
discretion must be exercised individually by reference to the
    purposes for which Parliament has provided it and upon the
   
basis of the facts of each individual case. Its exercise may
    not be harnessed to preconceived rules or fixed formulae,
    however
convenient they may be to the busy decision-maker:
    Norbis v Norbis [1986] HCA 17;  (1986) 161 CLR 513. This is not to say that
    a pattern may not emerge from many cases over time. But the
    function of the decision-maker is not
to be surrendered to
    formulae, especially if they are arbitrary and precise. If
    Parliament wishes to permit the discretion
to be exercised in
    such a way it may so provide: see also Bugmy v The Queen [1990] HCA 18;  (1990)
    64 ALJR 309;  92 ALR 552 and R v Chee Ben Lian (at 13).
    Therefore, it is necessary in each case to make an individual
    judgment of what should be done
by way of the adjustment
    provided for by s 16G.

    It is inappropriate to take into account that throughout
    Australia the
reduction of custodial sentences for remissions
    and the like is about one third of the sentence. Again, this
    is not a fixed
ratio. But given the individualised 'adjustment'
    called for by s 16G, it is an appropriate starting point."


15.  What was said
in El Karhani does not warrant treating what is said to be
"an appropriate starting point" as if it were a rule of law that it is
to be
the adjustment made in every case. To elevate what is very commonly done to
the status of a rule of law would be to fly in
the teeth of what was said in
El Karhani in words that were quite clearly and carefully framed.
Nevertheless, the Court accepts that
commonly a deduction of one-third is
allowed. Whilst departure, in an appropriate case, from such a deduction would
be entirely proper
it would be desirable, where the departure is substantial,
for the sentencing judge to indicate the reason for the particular deduction
which he is making.


16.  In the present case there have been very good reasons why Armitage DCJ
made a deduction which comes to
less than 22 per cent but, in the absence of
any elucidation by his Honour of his reasons for taking that course, I would
infer that
his Honour has fallen into error in that respect.


17.  Were the one-third deduction to be applied in the present case the
sentence
in respect of the counterfeiting would be reduced from seven years,
not to five and a half years but to four years and eight months.
That would be
a significant difference.


18.  A similar approach taken in respect of the uttering and the possession
convictions
would result in sentences of imprisonment of about four years and
about three years respectively.


19.  I turn briefly to the other
grounds of appeal. There is no substance in
any of them.


20.  The first is that the sentence was manifestly excessive. In dealing
with
that I shall assume that the sentences to be considered would be those arrived
at by a one-third deduction, namely four years
and eight months' imprisonment
for the counterfeiting offence, four years for the uttering offence, and three
years for the possession
offence. All those sentences are being served
concurrently. So regarded the sentences are clearly well within the normal
sentencing
range.


21.  The Court has been referred to a number of cases dealing with
counterfeiting. A typical one, and perhaps the one most
directly in point, is
Regina v Rohde  (1985) 17 A Crim R 166. But that offers no assistance to the
appellant. It was a Crown appeal. True it is that the amount involved was
substantial - almost
$5,000,000 of counterfeit notes. But Rohde was a man who
not only pleaded guilty but had no prior convictions. He had shown remorse.
The sentencing judge was satisfied that before he was apprehended he had
decided to abandon the criminal enterprise. Nevertheless,
on a Crown appeal
the head sentence of five years' imprisonment with a minimum term of three
years offers no comfort to the present
applicant with his appalling criminal
record. That is so even though the sentence, imposed in Victoria, would
attract remissions.


22.  Complaint is made that insufficient consideration was given by his Honour
to the applicant's co-operation with the authorities
and to his plea of
guilty. All I can say is I think he was very lucky indeed to get two years for
that. He was caught out and his
plea of guilty was a recognition of it.
Moreover, his co-operation with the authorities was found by his Honour on the
evidence which
was before him, and properly so found, to have been of
virtually no practical utility at all.


23.  Finally, the applicant complains
of what is said to be the failure by his
Honour to apply the principle of totality. The reference to "totality" is
perhaps inappropriate.
In the course of argument it became apparent that what
the real complaint was was that the commencing date of the sentences in
respect
of the currency sentences are so far in the future that the sentences
are far more onerous than like sentences taking effect immediately
would be.
The reality of that must be conceded immediately. It is obvious. However,
there is no reason, in my view, to suppose that
a sentencing judge as
experienced as Armitage DCJ would not have taken that into account. It is not
the law that a sentencing judge
has to refer to every consideration no matter
how obvious it might be lest he otherwise be considered to have fallen into
appealable
error because of his failure to do so.


24.  I come now to the practical implications of what I have said. I am of the
view that
leave to appeal should be granted and the appeal allowed. The
sentence in respect of the counterfeiting should be quashed and that
in lieu
thereof the appellant be sentenced to imprisonment for four years and eight
months commencing on 31 October 1999. The sentence
in respect of the uttering
should be quashed and in lieu thereof the appellant be sentenced to
imprisonment for four years commencing
on 31 October 1999. The sentence in
respect of the possession should be quashed and in lieu thereof the appellant
be sentenced to
imprisonment for three years commencing on 31 October 1999. It
should be ordered that time served is to count. The forfeiture order
should be
confirmed.


25.  That leaves one matter. The non-parole period fixed by his Honour was
three and a half years. He fixed
that in relation to all of the offences. In
my judgment that was the absolute minimum time which this appellant should
serve in custody
for those very grave offences, notwithstanding the remote
date in the future when the service of the sentences will commence.
Accordingly
I propose that the non-parole period be for three and a half years
commencing on 31 October 1999.
JUDGE2
GLEESON CJ  I agree.


2.
 The orders of the Court will be as proposed by Allen J. The order for
forfeiture is confirmed.
JUDGE3
SULLY J  I am in general agreement
with what has been proposed by Allen J but
I wish to add one or two brief observations of my own. Reasonable consistency
in sentencing
is always a desirable sentencing objective. It is one thing to
propose a reasonable consistency now entails that an allowance in
the order of
thirty-three and a third per cent is appropriate as a starting point for the
purposes of section 16G of the Commonwealth
Crimes Act. But it is an entirely
different proposition that any sentence is vulnerable which can be analysed
mathematically so as to suggest
a section 16G adjustment of less than
thirty-three and a third per cent. I do not assent to the latter proposition.


2.  As to the
proposition that a sentencing Judge should expose a detailed
process of reasoning leading to an adjustment of less than thirty-three
and a
third per cent, I would not assent to any attempt to establish with the
authority of this Court an inflexible rule of law or
of practice to that
effect. Past experience in this Court should surely have taught by now that
mathematical artifice in connection
with sentencing does not need that, or
indeed any other, kind of encouragement by Courts of appellate jurisdiction.


3.  As well,
clear and firm support should be given, in my opinion, to the
principles discussed in the decision of a different bench of this Court
in
Regina v Beavan.


4.  Subject to those matters I agree with the orders proposed.