Payda v R

Court of Criminal Appeal (NSW)|2013-04-26|Before: Hoeben CJ, Latham J, Barr AJ

Judgment 1Hoeben CJ at CL: I agree with Barr AJ. 2Latham J: I agree with Barr AJ. 3Barr AJ: Yogesh Anant Payda has applied for leave to appeal against sentences imposed by Judge Bennett, SC in the District Court.

The Facts 4The applicant was born on 6 April 1981 and named Yogesh Chandra Soni. In 1993 he changed his name to Yogesh Payda. In 1996 he changed it to Yogesh Anant Paida. He married Nerissa Nickl in 1996. Her father is Peter Nickl. In 2003 he applied to American Express for a credit card, using his wife's name. That was done without her knowledge. He also applied for and obtained a secondary card in his birth name. He ran up a bill exceeding $18,000 and his wife was obliged to enter into an agreement with American Express to discharge the debt. She agreed to do so rather than report the applicant's fraud to the police out of a desire to protect the two children of their marriage. She left the applicant in 2007 and it took her until 2010 to pay off the debt. 5On 8 June 2008 the applicant began serving sentences for a number of frauds he had committed. He was housed at Silverwater Correctional Centre and there met a fellow inmate, John Arthur Blaikie. Mr Blaikie had two bank accounts containing sums exceeding $100,000. The applicant was due to be released on parole and told Mr Blaikie that he had nowhere to live. Mr Blaikie agreed to let him live at his house in a Sydney suburb. He supplied details of the address as well as his mobile telephone number. The Probation and Parole Service refused to approve the applicant's residing at Mr Blaikie's premises and when he was released to parole on 10 March 2009 the applicant lived in other premises, approved by the Service. He changed the residential address registered on his driving licence to Mr Blaikie's address. He rented a Post Office box and provided the false driving licence as evidence of residence. He was obliged to stay in touch with the Probation and Parole Service and for that purpose supplied particulars, including Mr Blaikie's telephone number.

The first offence: obtaining a financial advantage by deception 6Mr Nickl had an American Express card. Between 31 May and 1 December 2005, without Mr Nickl's knowledge the applicant applied to American Express for a supplementary card on the same account. American Express issued the requested card and the applicant ran up a debt of $68,550.40. Mr Nickl reported the matter to the police in 2010. The applicant was convicted of obtaining a financial advantage by deception, contrary to s 178BA Crimes Act 1900. The maximum penalty for an offence under that section is imprisonment for five years.

The second offence: stealing property from a dwelling house 7After his release to parole on 10 March 2009, the Applicant collected Mr Blaikie's house keys from Mr Blaikie's son. Using them, he entered Mr Blaikie's house and stole a quantity of personal possessions, including a fur coat, watches, cash and foreign currency. All the items were recovered in due course from the applicant's premises. Stealing property from a dwelling-house is contrary to s 148 Crimes Act 1900 and attracts a maximum penalty of imprisonment for seven years.

The third offence: obtaining a financial advantage by deception 8On 14 May 2009 the applicant sent a facsimile to Mr Blaikie's bank, purporting to be from Mr Blaikie, requesting- (1)that the bank use a Post Office box identified in the facsimile for correspondence; (2)the transfer of $1,500 from Mr Blaikie's passbook account to his cash investment account; (3)that the bank supply appropriate forms of authority for another person to operate Mr Blaikie's account because of his disability; (4)the closure of Mr Blaikie's passbook account; and (5)that the bank open a pensioner security account in Mr Blaikie's name, with cheque book access. 9The applicant provided his own mobile telephone number as a contact number for Mr Blaikie. 10The bank complied with the requests, opening a new pensioner security account in Mr Blaikie's name. The closing balance of his passbook account, $77,839.91, was transferred to the pensioner security account. The bank sent to the Post Office box address supplied an application for a key card, a cheque book and internet banking linking the cash investment account and the new pensioner security account. 11Between 18 May and 4 August 2009 the applicant reduced the balance in the pensioner security account from $77,839.91 to $19.14 through internet banking, ATM transactions and cheque transactions. 12This offence was contrary to s 178BA Crimes Act 1900.

The fourth offence: making a false statement to obtain money 13On 13 March 2009 the applicant applied online to Bank West in the name of Yogesh Anant Payda for a housing loan $350,000 for the purchase of a dwelling worth $500,000. He gave Mr Blaikie's address as his residential address and said that he had rented there for five years. He provided a false driver's licence and said that he was employed as a legal professional, naming a company, and had been for four years and eight months. He said that he earned $138,000 per anum and had $400,000 in savings and a car worth $80,000. He declared that the information was true and correct and that no information had been withheld. He was unemployed and in receipt of Centrelink benefits. 14This offence was contrary to s 178BB Crimes Act 1900 and attracted a maximum penalty of five years' imprisonment.

The fifth offence: obtaining a financial advantage by deception 15On the 14 August 2009 a visa card issued to another person was used to register fraudulently the company the applicant named as his employer in the fourth offence. The transaction was made without authority.

The sixth offence: making a false statement with intent to obtain money 16On 27 August 2009 the applicant enquired online to a finance broker for pre-approval of a car loan, using an Optus wireless service email address. The applicant gave his name as Yogesh Anant Payda and gave a mobile telephone number. He said that he was in full time employment and needed to borrow $35,000 over four years. He provided Mr Blaikie's address. At the company's request the applicant forwarded a written application, saying that he received a car allowance of $8,500 per annum. He provided a false driver's licence. He falsely stated that he had been renting his current premises for four years and nine months. He used Mr Blaikie's name as a personal referee and gave a false address for him. He falsely stated that he was employed as a technical manager for the company previously referred to and said that he had worked there for four years and seven months and had a monthly income after tax of $4,800. He said that he had $43,000 in cash in the bank and a home valued at a sum a little short of $500,000 which was subject to a mortgage of $350,000. He knew that these statements were untrue.

The seventh offence: forging a Commonwealth document for a person to accept as genuine 17The applicant provided a further document for the finance broker seeking finance through Esanda. He supplied an Australian Taxation Office notice of assessment in his own name. It had been altered to represent the year ending 30 June 2009. The address and issue date had been altered. The document was intended to be used dishonestly to induce the broker and Esanda to accept it as genuine. Relying on it, Esanda approved a loan of $36,670. On 7 September 2009 the applicant signed a loan contract with Esanda as well as a formal credit application and an assessment report declaring the information provided to be true and correct. The commission of this offence enabled the applicant to acquire a motor vehicle. 18This was an offence contrary to the Criminal Code Act 1995 (Cth), s 145.1 (5), and attracted a maximum penalty of 10 years' imprisonment.

The eighth offence: using a false instrument with intent to induce another person to accept it as genuine 19On 14 August 2009, using a company registration agency within the Australian Securities and Investments Commission, the applicant lodged online a form applying for registration as an Australian company and gave a proposed company name and a proposed principal place of business. The director and shareholders were listed as Mr Blaikie. A false share certificate purporting to be in Mr Blaikie's name was used. Payment was made using a Visa card purporting to be in Mr Blaikie's name. Mr Blaikie had nothing to do with the application and knew nothing of it. 20The offence was contrary to s 300(2) Crimes Act 1900 and attracted a maximum penalty of imprisonment for 10 years.

The ninth offence: obtaining a financial advantage by deception 21Between 14 October and 5 November 2009 the applicant made a number of unauthorised transactions the total value of which exceeded $14,000, using an American Express card issued in a name not his own. He also used Mr Blaikie's name and address, providing forms purporting to have been signed by Mr Blaikie, who knew nothing of these transactions.

The tenth offence: obtaining a financial advantage by deception 22A member of the Royal Australian Navy lost an Australian Defence Force credit card issued by Diners Club. The applicant acquired the card and used it to conduct transactions worth $ 1,705.33. In doing so he called himself John Blaikie.

The eleventh offence: obtaining money by deception 23The applicant was living at Colo Vale and fire damaged his premises, rendering them uninhabitable. His former wife allowed him to move into her premises while he looked for somewhere to stay. Between 19 January and 17 February 2010, while living at his former wife's house, he gained access to her bank account and transferred $6,800 from that account to an account of his own in another institution. When she asked him about the matter he told her that the bank had made a mistake and that he would try to sort it out. 24His former wife reported him to the police and they arrested him. 25When sentencing the applicant for the first offence his Honour took into account his criminality in 13 other offences of fraud under the law of New South Wales. His Honour summarised those offences thus at RS 23-27: The first is, obtain money by deception contrary to s 178BA (1) of the Crimes Act. In June 2005 the offender obtained a Mastercard from Bankwest in the name Peter Nicol without the victim's knowledge. He withdrew funds from the account via automatic teller machines and paid for holidays at Airlie Beach and Daydream Island. The amount of that fraud was $3,928. The second offence is making a false statement to obtain money, contrary to s 178BB (1) of the Crimes Act. In June 2005 the offender made an application to Bankwest for a Mastercard in the name of Peter Nicol. He completed the application and signed as Peter Nicol. He provided particulars of a referee in the name Dr Yogesh Anant Payda of an address in Wentworthville with a stated occupation of medical practitioner. A Mastercard was issued with a credit limit of $4,000. In November 2009 Peter Nicol received a final notice in relation to the debt accrued on a credit card. It was then $5,891.62. The third offence is making a false statement contrary to s 178BB (1) of the Crimes Act. On 12 March 2009 the offender made an application to BMW Finance in the course of negotiations to acquire a four wheel drive BMW motor car. He completed the application in the name of Yogesh Ananpayda of the Carlingford address. He provided a contact phone number. He represented his employer to be NSR Industries Pty Limited of which he had been a director for four years. The company did not exist at that time. He gave the name of John Blaikie of Carlingford as a personal referee. He provided a false computer generated payslip representing a monthly salary of $6,416.66. The application was approved by BMW Finance for the sum of $52,795. This was intended to be used to acquire a motor vehicle. The fourth offence is making a false statement, s 178BB of the Crimes Act. On 29 May 2009 the offender made an internet application to the ANZ Bank for a low rate Mastercard. He represented his employer to be NSR Industries of Campbelltown. He gave a mobile phone number and an email address. He intended to obtain credit facility to an amount of $5,000 by way of that application. The fifth offence, making a false statement, s 178BB of the Crimes Act. On 16 June 2009 at Mittagong the offender applied for a tenancy in a property at Colo Vale through a real estate agent at Mittagong at a rent of $680 per week. He made the application in the name Yogesh Anant Payda and provided a false driver's licence number and false occupation. He gave the name of John Blaikie as a personal referee. He claimed to be the legal director of NSR Industries of Carlingford with a salary of $110,000 and $35,000 investment income. He was looking to obtain a benefit of $17,678.64 representing the value of the rental accommodation that he was seeking. The sixth offence is making a false statement, s 178BB of the Crimes Act. Between 5 August 2009 and 5 September 2009 the offender completed a pre-approved credit application and submitted it to Platinum Car Loans to finance an Audi Q5TDI vehicle for the purchase price of $70,000. He gave a false address and false particulars. He claimed to be the manager of NSR Industries of Colo Vale where he had been employed for seven years and six months with a salary of $91,000. He claimed to have $350,000 in superannuation and cash in a bank account amounting to $43,000. He gave John Blaikie of Mittagong as a referee. He completed a declaration that the contents of the application were true and correct. The seventh offence, s 178BB of the Crimes Act, on 18 September 2009 the offender made application to the Shell Company in the name of John Blaikie for a fuel account. He represented that he was John Blaikie a director of NSR Industries at Colo Vale. He claimed a fuel bill of $5,000 per month. The guarantor was nominated as John Blaikie of Carlingford and it was witnessed in the name Oesh Soni of Mittagong. He intended to obtain $5,000 credit each month by means of these representations. The eighth matter, making a false statement, again s 178BB of the Crimes Act. On 22 December 2009 Telstra Business forwarded a sales enquiry to a Telstra dealership following an on line request by the offender using the name Ogesh Aida of NSR Industries of Colo Vale and Mittagong. He was looking to obtain three Apple iPhones as authorised signatory for the company; the total cost of the phones over twenty four months was $6,408. The ninth matter, using a false instrument, s 300 (2) of the Crimes Act. As part of the application to BMW Finance the offender provided a copy of a New South Wales driver's licence by fax. It purported to be the licence of Yogesh Anant Payda with a changed address to Sunnybank Queensland with the offender's date of birth. The number was changed to a number that did not exist in the licence's registry in New South Wales. The tenth item is using a false instrument again contrary to s 300 (2) of the Crimes Act. The offender provided a letter of employment to a real estate agent at Mittagong purporting to be from NSR Corporation dated 10 June 2009. The letter represented him to be a full time employee of the company with the position of legal director since 2005 and a salary of $110,000. The letter was signed John Blaikie, director. It contained a false ABN. It was to obtain rental premises. The next item is using a copy of a false instrument contrary to s 301 (2) of the Crimes Act. The offender received correspondence from Bankwest in relation to the application he submitted to obtain finance in March 2009. He made significant alterations to the correspondence and used the altered document for other fraudulent activity. It falsely represented that he was in the process of purchasing property in Mittagong. He used this document by way of a fax to induce Esanda Finance to approve an application for a loan of $41,690.18. The next item is using a copy of a false instrument, s 301 (2) of the Crimes Act. He supplied a false PAYG payment summary to Esanda Finance between August and September 2009 in an attempt to obtain finance. It misrepresented his address to be the Carlingford premises. It showed gross payments of $75,000. It purported to be signed by John Blaikie. The document was in fact signed by the offender. And the final New South Wales offence to be taken into account is the use copy of a false instrument, s 301 (2) of the Crimes Act. On 22 December 2009 the offender applied to Telstra Business for three smart phones and faxed a copy of his New South Wales driver's licence, which had been altered in respect of the number. It was sent to a Shane Penrose of Accent Business Technology. It was part of the scheme upon which he had engaged to obtain the three Apple iPhones. 26When sentencing the applicant for the seventh offence, a Commonwealth offence, his Honour took into account the applicant's commission of two other Commonwealth offences. His Honour summarised them thus at RS 33-34: The additional offences to be taken into account on that matter are the [appropriation of] an article from the post, contrary to s 471.1 (1)(a)(ii) of the Criminal Code Act. On 12 March 2009 the offender, having been released from custody on 10 March, attended Mittagong post office to rent a post box, as earlier described. He provided false and misleading particulars on the application, including the Carlingford address. He provided his real driver's licence, which was accepted for identification purposes. He then caused all mail directed to John Blaikie, care of the Carlingford address, to be delivered to the post office box at Mittagong. The offender intercepted and opened the mail addressed to Blaikie. The Commonwealth Bank had re-directed correspondence to the post office box in relation to the accounts of John Blaikie at the request of the offender, as earlier described. The other Commonwealth offence is connect to a network with intent to commit a serious offence, contrary to s 474.14(1) of the Criminal Code. The offender became acquainted with a person named Ali Kocer in custody. Kocer has an extensive history of fraud. The offender used a telecommunications network with the intention of obtaining from Kocer stolen credit card numbers, which the offender intended to use to commit further serious offences. The investigators were able to access the stored information in the form of text messages and conversations stored in an Apple iPhone, revealing the details of conversations between the offender and Kocer.

The Antecedents 27The applicant had a substantial record of offences of dishonesty. There were other offences as well, but I can leave aside consideration of them. 28On 29 August 1989 the applicant committed one offence of forge and another of utter. In the District Court he was given the benefit on each of a recognisance to be of good behaviour for three years. 29Between October 1988 and February 1989 he misappropriated property and stole property. In the Brisbane Magistrates' Court he was given the benefit of a recognisance for two years. 30On 10 July 2006 he was arrested on four charges of obtaining money by deception. In the Local Court he was convicted and sentenced on each to imprisonment for 12 months. On appeal to the District Court the sentences for two of the offences were reduced to nine months' periodic detention and on each of the others he was given the benefit of a two year bond. 31On 9 January 2008 the periodic detention orders were revoked, probably as a result of the next succeeding matter. 32On 16 February 2008 he was charged on two counts of obtaining money by deception. In the Local Court he was convicted and sentenced to 16 months' imprisonment on each. On appeal to the District Court he was sentenced to 6 months' imprisonment on the first and 10 months' imprisonment, including 6 months' non-parole, on the second. 33On 30 July 2008 he was charged on ten counts of obtaining money by deception. In the Local Court he was convicted and sentenced to a number of concurrent terms of imprisonment which amounted to a sentence of 12 months' imprisonment with a non-parole period of 9 months. The commencement date of the sentences was 21 January 2010. On appeal to the District Court the commencement date of the sentences was changed to 12 March 2010, making his earliest release date 11 December 2010.

The Applicant's Subjective Case 34The applicant did not give evidence before his Honour. A report of Tim Watson-Munro, consultant forensic psychologist, was tendered. His Honour's summary and findings were expressed thus at RS 38-42- The only material that has been presented on his behalf is a sympathetic report from psychologist Tim Watson-Munro who describes the offender in the consultation on 15 February 2011 as a co-operative though highly anxious man. He is said to have a complex clinical history compounded in recent times after having sustained a fracture to the right femur whilst showering in prison. There is no suggestion that that was suffered other than in a simple accident when he slipped over. It resulted in surgery in hospital where he remained for four days. He has been diagnosed with osteoporosis; he is also lactose intolerant; he was submitted to psychometric testing which indicated a high degree of unresolved symptomatology. It is said that his condition has been aggravated by his insight to the seriousness of the current matters before the Court and in this context, he acknowledged, that he would benefit from appropriate treatment both in gaol and upon the completion of his non-parole period. This appears to have been a realisation that has come to him late in the sequence of events when one considers the prosecutions that preceded this. He was born in Fiji in April 1961 of Indian descent. He has three sisters aged 48, 45 and 40 and they have with him a positive and supportive relationship. One lives in Brisbane and the others are both overseas. His parents of 75 years of age are domiciled in Brisbane. The offender came to Australia at an early age and spent three years in primary school in country New South Wales until the family relocated to Brisbane. There he attended high school. He left school at 18 after completing the equivalent of the Higher School Certificate and matriculated to the University of Queensland where he completed a science degree majoring in computer sciences over three years. Upon graduation he worked for a computer company for about five years. He then returned to university and commenced a masters degree in quantum physics which continued for about six years. He reports that he was advised that a further two years study would lead to his PhD but at that point he developed an interest in the law. There has been a history of employment in various capacities including with an environmental company in New South Wales installing solar power equipment. It is said that he was working in this capacity at the time of his arrest. There is a name for the company given in the report; I have nothing from the offender to confirm the representations attributed to him by Mr Watson-Munro. Prior to his arrest he was living in Brisbane with his parents for nine months during which he said he was working for a vending company. He was married at the age of 22 to a woman of 18 years. This was arranged, they were together for eight years, and they have a 21 year old. That marriage failed and he remarried in 1996. He is now separated from his second wife after his most recent custodial sentence. She is 30 years of age and they have a 13 year old son and a 12 year old daughter. He maintains contact with his children by telephone. He said there were on going stressors in the marriage and he said that his former wife had taken out apprehended violence orders and so had he. It is said that he has a long standing depression, anxiety, and a low self esteem, compounded by what is said to be his forensic history and his failed marriages. At 42 years of age he began gambling in the context of falling in with the wrong company. The gambling was predominantly on horses on the weekends. He claims to have lost three homes and the total of approximately $1.2 million over a seven year period. As time passed his gambling escalated to on-line bets with the TAB and this led to the deterioration of his second marriage. He said that he would start at the TAB at 11am and would remain there until the last race. Apart from the impact on the marriage this was deleterious to his financial circumstances. In conjunction with gambling he would abuse alcohol. He denied the use of illicit drugs. There is said to have been an attempt at marriage counselling through agencies including the Salvation Army, a private practitioner and a psychologist in Mittagong. These were not to any avail however. Following his separation he lived with his parents and claims that he had no difficulties there because he was supported and loved. Separation occurred, he said, about four years before the preparation of this report, which was 11 May 2011. He said he wanted to come to New South Wales to see his children and to apply for joint custody but when he returned here there was a re-engagement with gambling which escalated in his depressed and anxious state. In the course of this he would self medicate with excessive use of alcohol. He is said to have detoxified whilst incarcerated and although he has had no treatment he has insight into the nexus between his psychologicalproblems and his offending. When eventually released he will return to Queensland. He is attributed with the following history and I quote from page 2 of the report. "To closer history taking Mr Payda stated that in the lead up to the offences he was in a state of financial desperation. He stated that he had separate accounts to his wife and that he owed her money and with her putting pressure on him to repay the debt. It was in this context that he evidently attempted to take out loans by using her name. He stated that the loss of his properties which in total had incurred substantial mortgages to fund his addition further reduced his self esteem, with him owing about $8,000 per month with him earning approximately this in the absence of gambling. He stated however that he was also in a negative equity position and constantly chasing his losses." He is isolated in Goulburn prison where is being held. His parents are burdened with ill health; his father suffers from diabetes and high blood pressure and his mother with arthritis. She is apparently in remission from breast cancer, diagnosed two years ago after chemo and radiotherapy. His sense of guilt has been increased because of the impact of his incarceration upon his parents. Despite his criminal history he wishes to study law. This is suggested to reflect of a high degree of naiveté in terms of his perception of events. The psychometric testing is said to have confirmed his high level of unresolved psychological distress particularly in relation to depression, anxiety and low self esteem. He suffers chronic sleep disturbance, diurnal variation of mood during the day as is typically encountered, it is said, with addictive disorders with a tendency toward highly impulsive behaviour when under emotional distress. It is said that he is now socially withdrawn and feels considerable guilt regarding his actions and the impact his behaviour has had on significant others in his life. In item 3 beneath the heading Opinion it is written "Your client satisfies the requisite diagnostic criteria for a gambling [addiction], and adjustment disorder with features of major depression and a substance abuse disorder involving alcohol, according to DSM-IVTR criteria. His clinical picture has been compounded by a range of health problems inclusive of a recent fracture to the right femur which required surgical intervention. He is enduring chronic pain at the site of the break and despairs for the future. Appropriate testing confirms the level of his malaise in the present. (4) On a more positive note however he is well supported by his elderly parents who are insistent on him returning to Queensland upon his release from gaol. He is also meditating and reading both Hindu and Buddhist texts. It is clear however that this man requires intensive psychotherapy and given the level of his depression in all likelihood appropriate psychotropic medication. This should occur in prison and beyond with him receiving cognitive behaviour therapy focussed upon the underlying causes of his gambling [addiction], his depression, anxiety and low self esteem, coupled with specific training addressing relapse prevention in terms of both his gambling and binge drinking. He impresses as an intelligent individual and I believe with appropriate structure, supervision and treatment some positive gains can be achieved in terms of his forensic prognosis." I view the representations attributed to the accused with circumspection as suggested by the Court of Criminal Appeal should occur when there is no evidence that has been presented in such a fashion that it might be tested: R v Qutami (citation omitted).

The sentences 35For the State offences his Honour imposed an aggregate sentence comprising a head sentence of 5 years and 9 months, commencing on 11 December 2010 and ending on 10 September 2016, and set a non parole period of 3 years, expiring on 10 December 2013. In accordance with s 53A (2) Crimes (Sentencing Procedure) Act 1999 his Honour specified the sentences he would have imposed for the individual State counts thus - Offence Number Sentence Prescribed Maximum Sentence 1 3 years 9 months 5 years 2 2 years 3 months 7 years 3 3 years 5 years 4 3 years 5 years 5 1 year 5 years 6 2 years 3 months 5 years 8 3 years 9 months 10 years 9 2 years 3 months 5 years 10 1 year 6 months 5 years 11 2 years 3 months 5 years

36For the Commonwealth offence his Honour imposed a head sentence of 3 years 10 months commencing on 11 December 2012 and expiring on 10 October 2016 and set a non parole period of 2 years commencing on 11 December 2012 and expiring on 10 December 2014. 37The effective sentence for all offences was a head sentence of 5 years and 10 months with a non parole period of 4 years.

The Grounds of Appeal The applicant was not represented by any legal practitioner in his appeal. He framed his own grounds of appeal and filed written submissions.

Ground 1: On sentencing Hon Bennett DCJ taken into account' Federal offences dating 20th July 1990 and placed undue weight. 38Particulars of the applicant's prior offences were put before his Honour. That was appropriate, since his Honour was required to consider whether his prior criminality might properly be regarded as an aggravating feature or, should his Honour consider the record of previous convictions not to be significant, as a mitigating feature entitling the applicant to a more lenient sentence. Having reviewed the applicant's prior conduct and having considered submissions made on his behalf, his Honour said this at RS 42-43- It is acknowledged that he is not entitled to any leniency from what otherwise will be a proportionate sentence because of the antecedent he has accumulated and the commission of these offences whilst subject to conditional liberty in many cases. 39I have read the whole of the rest of his Honour's long and careful remarks on sentence, but nowhere does it appear that his Honour regarded the applicant's record as aggravating his criminality. His Honour's findings went no further than to establish that the applicant was disentitled to leniency on this account.

Ground 2: Appellant pleaded guilty in Goulburn Local Court and was given maximum sentence on Sequence 13 40The applicant submitted that his Honour gave no weight to his early plea of guilty but imposed the maximum sentence for the first offence. 41The transcript shows that the applicant has misunderstood what happened on sentence. His Honour acknowledged at RS 19 that the applicant pleaded guilty in the Local Court and stated his intention to allow a discount of 25 per cent in acknowledgment. In fulfilment of his intention his Honour took a starting point of 5 years, the maximum sentence for the first offence, and reduced it to 3 years and 9 months. The applicant does not take the point in his written submissions but I should remark that a sentence which takes at its starting point the maximum available period of imprisonment might at first seem harsh. However, his Honour took into account the 13 other frauds, one of which was committed in 2005 and the others between the middle and the end of 2009, any of which, if individually charged, would have exposed the applicant to a sentence in a range up to 5 years and for which he was otherwise to receive no sentence. 42In my opinion the starting point and the sentence of three years and nine months arrived at by his Honour were within the proper limits of his Honour's sentencing discretion.

Ground 3: Guilty pleas entered on Sequences 56, 20, 19, 30, 31, 36, 29, 50, 59, 58 are subject to discount which was not given or indicated otherwise 43Under this ground the applicant repeated the assertion that his Honour failed to reflect his early plea of guilty in the sentences imposed for the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh counts. 44The applicant is mistaken. His Honour stated at RS 10- The offender pleaded guilty in the Local Court...he may accordingly receive a discount of 25 per cent from the sentences that might otherwise have applied... 45His Honour repeated at RS 19 that the applicant should have a discount of 25 per cent for the utilitarian value of his pleas. There was a further reference at RS 43. 46When sentencing the applicant for the State offences his Honour imposed an aggregate sentence pursuant to the provision of s 53A Crimes (Sentencing Procedure) Act 1990. That was a sentence of five years and three months. In doing so his Honour stated, as required by subs (2) (b), the sentence he would have imposed for each offence. They are set out in the table above next to the applicable maximum sentences. They vary between one year and three years nine months. It cannot be demonstrated from the individual hypothetical sentences that his Honour did not give effect to his stated intention, nor can that conclusion be drawn from the resulting aggregate sentence. 47The same may be said about the Commonwealth offence, the seventh offence, which resulted in a head sentence of three years 10 months. The maximum penalty was imprisonment for 10 years. 48This ground of appeal has not been made good.

Ground 4: Appellant placed in custody on 12 March 2010. As appellantwas arrested on these offences the commencement date shouldreflect such. 49The applicant was arrested on 12 March 2010 and held in custody charged with the present offences. However, he was not held in custody for the present offences alone. He had been sentenced on 21 January 2010 in the Local Court at Penrith to periods of imprisonment of 12 months dating from that day. He appealed to the District Court and on 10 May 2010 the Court ordered the sentences to commence on 12 March 2010, the day of his arrest. The offences concerned were 10 counts of obtaining money by deception, committed on 30 July 2008. 50The applicant's counsel on sentence submitted that his sentences should be backdated to commence on the 12 March 2010. His Honour declined to do so and said this at RS 18-19 - Counsel submitted that although it was within the Court's discretion to commence the sentences I am about to impose on the date of the expiration of the non-parole period most recently served, that is 11 December 2010, I might still consider that the overlap between the periods of offending to be such that the commencement date should be earlier. The premise advanced was that if the investigation had been more efficient, all matters would have been brought to account within the same time frame, with an appropriate structure of the sentences with concurrence as well as accumulation to properly reflect the totality of the offending upon which he engaged. His ready pleas to the present matters might also bear witness to the course the offender would have taken had the matters now before the Court been charged earlier. Implicit in the submission is the proposition that there has been a measure of delay for which the offender ought not to suffer, for the conduct of the prosecution of these present matters was beyond his control. Against the analysis of the history of the criminal misconduct of the offender, I am not persuaded that in the exercise of my discretion I ought to commence these sentences before 11 December 2010. 51Although his Honour had the discretion to start the sentences on 12 March 2010, as the applicant's counsel submitted, his Honour was bound to regard the seriousness of the offences for which the applicant was then serving sentences. His Honour was entitled to regard 10 instances of obtaining money by deception as substantial and I am not persuaded that his Honour erred in declining to backdate the sentences as requested. In my opinion his Honour's rejection of counsel's submission fell within the proper bounds of his sentencing discretion.

Ground 5: Sentence of Federal offences to commence after State offences that is being served and failure of court to explain sentence 52The applicant submitted that in fixing the commencement date of the Commonwealth offence, offence 7, his Honour erred in not complying with the requirements s 19 Crimes Act 1914 (Cth). 53At the time of sentence the applicant was serving the sentences for the 10 counts of obtaining a financial advantage by deception which commenced on 12 March 2010. The longest of those sentences were of 12 months, expiring on 11 March 2011, with non-parole periods of 9 months expiring on 11 December 2010. 54Section 19 is as follows- Section 19 Cumulative, partly cumulative or concurrent sentences (1) Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that: (a) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (b) if a nonparole period applies in respect of any State or Territory sentences-the first federal sentence to commence after the end of that nonparole period commences immediately after the end of the period. (2) Where: (a) a person is convicted of 2 or more federal offences at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences. (3) Where: (a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each federal sentence commences but so that: (c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (d) if a nonparole period applies in respect of any State or Territory sentences-the first federal sentence to commence after the end of that nonparole period commences immediately after the end of the period. (4) For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the firstmentioned sentence. 55His Honour ordered the sentence for offence seven to commence on 11 December 2012. It was submitted that in order to comply with the requirement of s 19 (1) (b) the sentence had to commence at the latest on the expiry of the non-parole periods of the sentences I have mentioned. 56The purpose of s 19, it seems to me, is to ensure that when sentences for Commonwealth offences are grafted onto the terms of existing sentences, the custody they mandate should be continuous. So if the only sentences under consideration had been those dealt with at the District Court and that for the seventh offence the requirements of s 19 would not have been met. There would have been a gap of two years between the expiry of the non-parole period of the former and the commencement of the latter. 57But that argument does not take into account the existence of the other sentences for which his Honour had to impose sentence or the effect of s 16E Crimes Act 1914 (Cth). Section 16E is as follows - Section16E Commencement of sentences (1) Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of nonparole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence. (2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a nonparole period fixed in respect of that sentence: (a) may be reduced by the period that the person has been in custody for the offence; or (b) is to commence on the day on which the person was taken into custody for the offence; the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a nonparole period fixed in respect of that sentence. (3) Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a nonparole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned. 58His Honour was aware of the provisions of the section. At RS 46 his Honour said- I note that, pursuant to s 16E of the Crimes Act 1914 (Commonwealth), the commencement of sentences and the commencement of non-parole periods governed by the law of this State will apply to the offender for these Federal offences subject to the provisions of subs (2) and subs (3) of s 16E. Thus for the Commonwealth offence, Sequence 36, and taking into account the additional offences that are included in the form relevant to that, the offender is sentenced to imprisonment of three years and ten months. That sentence shall commence on 11 December 2012 and expire on 10 October 2016. 59His Honour was thereby satisfied, as he was entitled to be, that he could apply the law of New South Wales in selecting a commencement date for the sentence on the Commonwealth offence. By s 47(2) Crimes (Sentencing Procedure) Act 1990- (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. 60The sentence imposed by his Honour accorded with subs (2) (b). It commenced on a day after that on which it was imposed and it was partly concurrent with other sentences imposed at the same time. Moreover, the result of all the sentences imposed was that there was a continuous period, beginning on 11 December 2010 and ending on the expiry of the Commonwealth non-parole period on 10 December 2014, during which the applicant was to be held in custody without eligibility for parole. So the provisions of s19 were met. 61It was submitted also that his Honour failed to explain the sentence to him as required by s 16F Crimes Act 1914 (Cth). 62The section is as follows- Section 16 F Court to explain sentence (1) Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period including, in particular, an explanation: (a) that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and (b) that, if a parole order is made, the order will be subject to conditions; and (c) that the parole order may be amended or revoked; and (d) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions. (2) Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation: (a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and (b) of the conditions to which the order is subject; and (c) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and (d) that any recognizance given in accordance with the order may be discharged or varied under section 20AA. 63At RS 48 his Honour said this- In relation to the Commonwealth offences upon which I have sentenced you in respect of one and taken the other two into account, I have imposed a sentence of three years and ten months commencing on 11 December 2012 to expire on 10 October 2016. I've specified a non-parole period of two years to expire on 10 December 2014. You will be eligible for consideration for parole at the expiration of that period. You will be first eligible for consideration of parole in these matters on 10 December 2014 and after that time you will be subject to parole until 10 October 2016, assuming that you are able to persuade the parole authorities that you are deserving of parole. 64In my opinion what his Honour told the applicant complied with s 16F. 65This ground of appeal has not been made good.

Ground 6: Appellant's health not fully taken into account 66It was submitted that his Honour had not comprehended the full extent of an accident the applicant had suffered while being held in custody. The only evidence of this lay in passages in the report of Mr Watson-Munro. In his introduction Mr Watson-Munro said this - Your client describes a complex clinical history which has been compounded in recent times by him sustaining a fracture to the right femur whilst showering in prison. He was evidently conveyed by ambulance to the Prince of Wales Hospital for surgery on the injury where he remained for four days. This was approximately three months prior to my assessment of him in February. He stated that he has now been diagnosed with Osteoporosis and that he is also lactose intolerant. Your client's problems were noted at a clinical level and confirmed through appropriate psychometric testing, which indicates a high degree of unresolved symptomatology. His condition has been aggravated by his insight to the seriousness of the current matters before the Court and in this context he acknowledged that he would benefit from appropriate treatment both in jail and upon the completion of his non parole period. 67Under the heading Drug, Alcohol, Psychological and Gambling History Mr Watson-Munro included this paragraph - Mr Payda acknowledged a substantial escalation in his depression since his re-arrest which has been further compounded by his fractured femur and hospitalisation. He reported very poor sleep and claims to have lost approximately 17 kg in weight. He is a vegetarian with low levels of iron and claims that during the course of the surgery he required four pints of blood. He stated that he has had no treatment in prison but attempts to deal with his problems through meditation. He is evidently of Hindu extraction. 68Finally this appeared under the heading Opinion - 3. Your client satisfies the requisite diagnostic criteria for a Gambling Addiction, an Adjustment Disorder with features of Major Depression and a Substance Abuse Disorder involving alcohol, according to DSM-IV TR criteria. His clinical picture has been compounded by a range of health problems inclusive of a recent fracture to the right femur which required surgical intervention. He is enduring chronic pain at the site of the break and despairs for the future. Appropriate testing confirms the level of his malaise in the present. 69His Honour dealt with the topic in these words at RS 38 - The only material that has been presented on his behalf is a sympathetic report from psychologist Tim Watson-Munro who describes the offender in the consultation on 15 February 2011 as a co-operative though highly anxious man. He is said to have a complex clinical history compounded in recent times after having sustained a fracture to the right femur whilst showering in prison. There is no suggestion that that was suffered other than in a simple accident when he slipped over. It resulted in surgery in hospital where he remained for four days. He has been diagnosed with osteoporosis; he is also lactose intolerant; he was submitted to psychometric testing which indicated a high degree of unresolved symptomatology. It is said that his condition has been aggravated by his insight to the seriousness of the current matters before the Court and in this context, he acknowledged, that he would benefit from appropriate treatment both in gaol and upon the completion of his non-parole period. This appears to have been a realisation that has come to him late in the sequence of events when one considers the prosecutions that preceded this. 70It seems to me that what his Honour said in that extract adequately summarised what Mr Watson-Munro had said. There was no evidence to the effect that the injury had caused the applicant any hardship in custody or that it would render his imprisonment more burdensome. Neither was there evidence that his medical needs could not be met while he was in custody. It seems to me that on the material put before his Honour there was no case for mitigation on any ground of that kind. 71The applicant appended to his written submissions copies of documents produced by Justice Health. They comprised clinical notes dealing with his accident and the treatment administered. They could all have been subpoenaed to be produced at the District Court for the sentence and no reason is advanced why they were not tendered in that Court. However, I have read them. They really take the matter no further than the position his Honour understood to obtain. They would not advance his case or give any more support for an argument on mitigation on the ground of the state of his health than was available before the sentencing Judge. 72This ground of appeal has not been made good.

The Application Generally 73Although there is no ground of appeal that complains that the total effective sentence imposed was excessive, the applicant has said or implied that that was so. I have considered the totality of his criminality and the total effective sentence imposed by his Honour. In my opinion the sentence imposed fell within the proper range of his Honour's sentencing discretion. 74I would grant leave to appeal but would dismiss the appeal.

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: 23 May 2013

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