Citation: Regina v Phillis [2001] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 28 March 2001
Judge(s): Heydon JA, Bell J, Smart AJ
Background
The appellant had pleaded guilty in the District Court to 15 counts of obtaining money by deception, one count of possessing counterfeit currency, and had 56 further deception matters taken into account on a Form 2. The deception offences arose from a failed publishing business, where he had circulated dishonoured cheques through multiple accounts to keep the enterprise afloat. The total amounts involved across all charges exceeded $240,000.
The counterfeit currency charge related to 100 counterfeit $100 banknotes the appellant said he found in a bag at a bus shelter. His account, which the Crown accepted was not contradicted by any evidence, was that he did not suspect the notes were counterfeit until after he had already handed over $1,800 worth of them at a post office.
At the sentence hearing, no one focused on whether the mental element required for the possession offence, namely knowledge that the money was or was likely to be counterfeit, was present at the same time the appellant had the notes in his possession. The appellant challenged only the sentence for the counterfeit currency offence on appeal.
Legal Issues
- Whether the sentencing judge made adequate findings of fact about when the appellant acquired knowledge that the notes were counterfeit, and whether that knowledge existed at the time of possession rather than only after he had spent part of the money
- Whether the sentence of six months imprisonment for possession of counterfeit currency was excessive in light of any error in the factual findings underpinning it
- Whether the commencement dates of the deception sentences required consequential adjustment
Decision
Smart AJ, with whom Heydon JA and Bell J agreed, identified a significant problem with the sentencing below: the sentencing judge had not made any findings about when the appellant first knew, or suspected, that the notes were counterfeit. This was critical because the offence required coincidence between the act of possession and the relevant mental element.
The Court accepted that the appellant's consistent account, given both to police and in evidence, was that he did not suspect the notes were counterfeit until after he attended the Epping Post Office and observed the postal assistant's reaction. The Crown acknowledged there was no evidence contradicting that account, only strong suspicions. On that basis, the Court treated the amount properly the subject of the charge as the $8,200 the appellant still had in his possession after spending $1,800, rather than the full $10,000.
Smart AJ considered remitting the matter for resentencing in the District Court but declined to do so because the six-month sentence had already expired. The Court resentenced the appellant on the counterfeit currency count, substituting a fixed term of one month in place of the original six months, reflecting the reduced culpability established by the factual findings the sentencing judge had failed to make.
Consequential adjustments were made to the commencement dates of the deception sentences to account for the time already served on the counterfeit currency sentence.
Orders Made
- Leave to appeal against the deception sentences refused
- Leave to appeal against the six-month sentence for possession of counterfeit currency granted; sentence quashed and substituted with a fixed term of one month, commencing 18 January 2000 and ending 17 February 2000
- Commencement date of the minimum term (18 months) for the principal deception count (count 7, plus Form 2 matters) varied from 18 July 2000 to 18 February 2000, with consequential adjustment to the finishing date of both the minimum and additional terms
- Commencement date of each 12-month fixed-term sentence for the remaining deception counts varied from 18 July 2000 to 18 February 2000, with consequential adjustment to expiry dates
Key Takeaways
- A conviction and sentence for possessing counterfeit currency requires that the accused's knowledge (that the money was or was likely to be counterfeit) coincide with the act of possession; a sentencing judge must make clear findings about when that mental element arose.
- Where no evidence contradicted the appellant's consistent account of when he formed the relevant suspicion, the Court of Criminal Appeal treated that account as the factual basis for sentencing, even in the face of strong circumstantial suspicion to the contrary.
- Failure to address the timing of the mental element at the sentence hearing constituted an error that justified appellate intervention and resentencing.
- Once error is established, the Court of Criminal Appeal will resentence rather than remit where the original sentence has already been served and further delay and expense are unwarranted.
- Sentencing for multiple related offences requires attention to the principle of totality, including consequential adjustment of commencement dates when one sentence in a sequence is altered.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA (obtain money by deception)
- Crimes (Currency) Act 1981 (Cth), s 9(1) (possession of counterfeit money)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
Cases:
- The Queen v de Simoni (1981) 147 CLR 383