Ghamraoui v R [2009] NSWCCA 111 | Case summary

17 April 2009 Harry GHAMRAOUI v R Judgment 1 GROVE J: The applicant, Harry Ghamraoui, seeks leave to appeal against severity of sentence imposed by Knox DCJ. The impositions reflected two indictments as well as offences brought before the Court pursuant to a certificate under s 166 of the Criminal Procedure Act. His Honour was also asked to take into account further offences on a Form 1 when dealing with charges on the first indictment. 2 The applicant advances a single ground of appeal "the sentencing judge erred in the application of his finding of 'special circumstances'." In a written submission by senior counsel for the applicant it was sought that this Court formulate some general principles in respect to the determination of non-parole periods where an offender is sentenced for multiple offences and, in particular, establish an approved approach to determination of an "overall non-parole period" for cumulated sentences. I do not find that necessary for the determination of the present application nor do I regard it as a suitable vehicle for the exercise which the submission invited. 3 Having regard to the narrow compass raised in the single ground, it will suffice to summarize the applicant's crimes in broad description rather than by reciting the detail of individual ingredients. The first indictment consisted of seven counts together with six further offences to be taken into account on a Form 1, and the second indictment charged a single count and, as mentioned, three charges were brought forward to be dealt with on a s 166 certificate. 4 At the time of offending the applicant worked as a mortgage broker. The first indictment related to two separate real estate transactions and they can be referred to by the properties locations involved. 5 In July 2003 the Mount Pritchard property was sold for $210,000, one of the purchasers being the applicant's then wife. The applicant sought a loan in the sum of $472,500 on the security of the property in respect of a purported purchase by one Peter Gantos. There is no such person as Peter Gantos. In the course of dealing, the applicant submitted various false documents relating to this non existent person and he also presented a valuation which he had arranged which inflated the alleged market value of the property to $525,000. 6 Based upon these various falsities a sham conveyance was settled and funds were provided by an incoming mortgagee. These were distributed but the bulk was ultimately received by the applicant. No payments on the loan were ever made. When the fraud was detected, the property was seized and sold with a final nett loss to a mortgage insurer of $199,326.05. 7 The second transaction to which charges in the first indictment related was a property at Granville. The applicant's brother, who was known by several names, some of which had been registered from time to time, was put forward as the purchaser of the property and he sought, through the applicant, mortgage funds. To advance the transaction the applicant presented a number of false documents including a birth certificate and a driving licence and engaged in a series of misrepresentations. 8 When this transaction was settled the bulk of the funds advanced by the mortgagee was paid into the account of the vendor and the balance was disbursed to a person purporting to be the applicant's brother, to solicitors, to a local government council and the Office of State Revenue. Other than a brokerage fee of $6,200 (part of which was shared) it is not apparent exactly what benefit, if any, was received by the applicant who had, nevertheless been very active in perpetrating the fraud as the various counts revealed. Although some payments were made pursuant to the mortgage, these ceased in about April 2004. The property was seized and sold resulting in a nett loss to mortgage insurers of $164,640.57. The applicant gave evidence in the sentencing proceedings and agreed that the losses from his offences totalled about $364,000. No attempt at restitution had been made and his Honour found that there was no likelihood of it taking place. 9 The second indictment charged robbery from the person. At about 9.35pm on Thursday 27 July 2006 the victim was driving his vehicle in Heathcote Road with his seven year old son riding as a passenger. The applicant followed in another vehicle for about eight kilometres and then began flashing his headlights, illuminating an indicator light and driving alongside the victim's car, swerving towards it, slowing down and eventually forcing it to stop. The victim locked his doors and windows but the applicant alighted and spoke to the victim who opened his window. The applicant demanded money. The victim said he did not have very much but produced his wallet, from which the applicant removed two banknotes of a total value of $30. The applicant then ran to his car and drove away. The victim went straight to a police station and reported the matter. 10 On all counts on the first indictment (taking into account Form 1 matters) his Honour sentenced the applicant to fixed terms of imprisonment to be served concurrently with the longest term of 3 years 6 months directed to commence on 18 April 2007 and expiring on 17 October 2010. 11 On a count of robbery in the second indictment, his Honour sentenced the applicant to imprisonment consisting of a non-parole period of 2 years and 6 months commencing on 18 April 2010 and expiring on 17 October 2012 with a balance term of 1 year and 3 months. 12 Sentences of fixed terms for the offences (driving with menaces, disqualified driver and negligent driving) on the s 166 certificate were to be served concurrently with the non-parole period set in respect of the sentence for robbery. 13 The overall effect of the impositions was to create a head sentence of 6 years 9 months with a minimum term of custody before eligibility for parole of 5 years 6 months. 14 His Honour made findings concerning subjective matters pertinent to the applicant, both in his favour and otherwise. None of these findings is the subject of challenge and in the light of the limited issue presented by the ground of appeal it is not necessary to summarize them. It might be mentioned however, that the applicant has a significant record of prior offending not the least of which was a sentence in 1997 of 3 years (minimum term 18 months) for robbery in company. 15 The ratio of minimum custody (combining the fixed terms on the first indictment sentences and the non-parole period on the second) to total sentence is about 81 percent. The ratio derivable from the specification in s 44 of the Crimes (Sentencing Procedure) Act 1999 is 75 percent. The terms of subsection (2) are that the balance term must not exceed one-third of the non-parole period unless the Court decides there are special circumstances for its being more. 16 His Honour's remarks included two relevant references. He said: " Special circumstances 177 It was submitted on behalf of the offender that there should be a finding of special circumstances based on: the offender's age the prospects of rehabilitation based on the family support available to him the periods of accumulation of sentences. 178 In my view there are only limited circumstances which could be regarded as warranting an adjustment to the statutory ratio. That should be of the order of 66.66%." and later: "185 The question then arises as to whether the sentences are appropriate from the point of view of the total effective sentence. In my view, having had the opportunity over the intervening period to reflect on the different kinds of criminality involved, the facts and the requirements of general and specific deterrence the penalty proposed is appropriate. 186 In terms of transparency of discounts, the sentences reflect a discount for the plea of 15% and a finding of special circumstances of 66 and 2/3%." 17 It is argued on behalf of the applicant that there were circumstances evidenced which were capable of amounting to special circumstances within the meaning of s 44 including the specification of cumulation of sentences. That may be accepted but his Honour was under no obligation to make such a finding. However, although it is complained that his Honour did not say whether he accepted the submission above quoted from his remarks, he obviously did to the extent of the limit which he expressed. It was only in respect of the sentence on the second indictment that he set a non-parole period and, as he indicated, it was set at "66.66 percent" (of the head sentence for that offence). 18 The essential complaint of the applicant is that his Honour did not apply that arithmetic to the effective cumulated sentence. When his Honour said that, after reflection "the penalty proposed is appropriate" for the different kinds of criminality involved, I would infer that he had considered the ingredients of the total sentence and their relationship with each other: cf NRW v R [2008] NSWCCAA 318 at [25]. 19 The Court was referred to the judgment of Latham J in Hung Lo v R [2005] 159 A Crim R 71 at 85 where her Honour had observed a stated intention to find special circumstances, not implemented in a cumulated overall term, which gave an appearance that the effect was overlooked. 20 Similarly, in Perry v R [2006] 166 A Crim R 385 Rothman J said "where a sentencing judge's reasons disclose an intention to reflect a ratio no greater than the 3:1 prescribed by the Act, and no reasons are given for an overall sentence which does not reflect that ratio, an appeal court will generally consider that not to be a deliberate departure rather an understandable mistake of the effect of cumulative sentencing." 21 In the present instance, his Honour's remarks do not reveal an intention to achieve a result different from the effective imposition. In addition to his express statement of reflection, his concluding remarks specified the total effect of non-parole and parole periods. It is true that he did not articulate the arithmetical ratio but it has not been demonstrated that any mistake was made. 22 The statutory provision in s 44 (2) does not impose a "norm" but vests a power, subject to applying the special circumstances to extend the balance term beyond one third of the non-parole period. The statute does not inhibit the setting of a balance term which is less than one third of the non-parole period. When his Honour referred to the appropriate sentence from the point of view of total effective sentence he no doubt had in mind, inter alia, the considerable practical benefit to the applicant of the order for concurrency of service of all sentences for all offences committed in respect of the entirely separate frauds concerning the Mount Pritchard and Granville properties. 23 As abovementioned, there was evidence which could have supported a finding of special circumstances and it would seem highly likely to have avoided this appeal, given the limited scope of the ground, if his Honour had simply specified his reasons. His remarks on sentence extended over 187 numbered paragraphs which give an impression of reflecting an implementation of some sort of checklist. A search for reasons within such prolixity of expression should not be necessary. Such verbosity would scarcely be likely to fulfil the primary purpose of remarks on sentence of informing the offender in language that the offender should be able to understand, of the reasons why he or she is being required to serve the sentence being imposed. 24 I am nevertheless unpersuaded that his Honour fell into the error alleged in the ground of appeal. 25 I would grant leave to appeal against sentence but dismiss the appeal.

26 HOWIE J: I have read in draft the judgment of Grove J and gratefully adopt his statement of the facts and his analysis of the sentences imposed by the sentencing Judge. I agree generally with his Honour's reasons for dismissing the appeal. In particular I wish to associate myself with his Honour's criticism of the length and contents of the sentencing remarks. 27 Quite frankly I do not understand what his Honour was intending to achieve by way of a non-parole period. I am not as confident as Grove J that the Judge understood the implications of what he had done. However, I agree that there is no need to lay down a guideline on the issue of imposing a non-parole period in a case where there is accumulation of sentences. It should be unnecessary for this Court to remind judges that they should stand back and consider the effects of the accumulation of sentences both on the issue of totality and the relationship between the overall non-parole period and the overall total sentence. There should be no difficulty in understanding that it may be necessary to find special circumstances in respect of a sentence which is to be made cumulative, either in whole or in part, with another sentence in order to ensure that the overall term of imprisonment bears the statutory relationship between the minimum period to be served before eligibility for parole and the total term of the sentence if this is the intended result. There is nothing either controversial or unconventional in that approach and cases can be found expounding it since 1993. 28 The criticism I would make of the remarks in the present case is that, if a judge in a case where sentences are made cumulative intends that the result will be that the relationship between the minimum period to be served and the total term is to be greater than the statutory ratio, then the judge should say so. The judge does not have to give reasons for arriving at that result, but he or she should at least acknowledge that is the result that was intended. It should not be left to this Court to try to determine the intention of the judge. The different results of appeals where this issue has arisen simply depend upon the particular facts of the matter and the particular conclusion reached by the Court as to whether there had been error or not. 29 In the event I do not have to determine whether the Judge in this case intended the result achieved, as even if there were error I would dismiss the appeal because no lesser minimum period of custody is warranted. The sentencing discretion was exercised in a way that in my opinion was unduly favourable to the applicant and was difficult to justify from sentencing principle. For example, the sentence for the robbery was itself very lenient and the leniency extended by making it partly concurrent with the sentence imposed for the fraud offences. Yet the offence was committed while the applicant was on bail for the fraud offences and the offence was a completely separate act of serious criminality. Further, I do not understand how the sentences for the fraud offences were made concurrent with each other. 30 In my opinion the sentences imposed were lenient and any further reduction of the minimum term would result in a sentence that was verging on the inadequate to properly reflect the applicant's criminality and appropriately signify deterrence both general and specific.

Ghamraoui v R

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