R v Latumetan & Murwanto [2003] NSWCCA 70 | Case summary

Friday 21 March 2003 REGINA v LIESA LATUMETAN REGINA v TOMMY MURWANTO Judgment 1 STUDDERT J: Liesa Latumetan and Tommy Murwanto each pleaded guilty to eight offences of making false statements with intent to obtain financial advantage. Each applicant also pleaded guilty to possession of a falsified passport. 2 In the case of Liesa Latumetan, the court was also asked to consider sixty-eight counts of making false statements with intent to obtain advantage, three counts of obtaining credit by fraud and four counts of obtaining a New South Wales driver's licence by deception. 3 In the case of Tommy Murwanto, the court was also asked to take into account sixty-two counts of making false statements with intent to obtain advantage, six counts of obtaining credit by fraud and six counts of obtaining a New South Wales driver's licence by deception. 4 On 8 April 2002 Tupman DCJ in the District Court sentenced the applicant Liesa Latumetan on the first of the two counts of making a false statement with intent to obtain financial advantage to a fixed term of twenty-two months imprisonment, to commence on 1 September 2001 and to expire on 30 June 2003. Her Honour took into account the Form 1 matters in imposing that sentence. For the remaining offences of making false statements with intent to obtain a financial advantage, her Honour imposed on each count a fixed term of eighteen months imprisonment, to commence on 1 September 2001 and to expire on 28 February 2003. For the passport offence, her Honour imposed a fixed term of six months, to commence on 1 July 2003 and to expire on 31 December 2003. 5 The applicant, Tommy Murwanto, was sentenced in like fashion. On the first of the offences of making a false statement with intent to obtain financial advantage, her Honour imposed a fixed term of twenty-two months imprisonment, again to commence on 1 September 2001 and to expire on 30 June 2003. On the remaining counts directed to the like offences, her Honour imposed a fixed term of eighteen months imprisonment, to commence on 1 September 2001 and to expire on 28 February 2003. For the possession of the falsified passport, her Honour once again imposed a sentence of six months, to be served cumulatively on the fixed term sentence of twenty-two months. Hence that sentence will expire on 31 December 2003. 6 Each applicant seeks leave to appeal against the sentences imposed. 7 The applicants are husband and wife. They have been separately represented before this Court but each pursues the same grounds of appeal. 8 Whilst the offences to be considered for each of the applicants were not precisely the same, there was a very substantial overlap in the offences committed by each applicant and her Honour saw no reason to distinguish between the criminality of the applicants and hence the identical sentences. In this Court it has not been contended that any other approach should be taken. 9 Section 178BB of the Crimes Act imposes a maximum penalty of five years imprisonment for the category of offences the subject of the first eight counts in these cases. Section 9A of the Passports Act imposes a maximum penalty of two years imprisonment for the possession of a falsified passport. 10 Addressing firstly the offences under s 178BB of the Crimes Act a statement of facts was tendered without objection on sentence and her Honour set out the relevant facts in her remarks on sentence. In brief, over a period from 24 July until 19 December 2000 the applicants lodged seven applications for credit with the NRMA in false names. These applications were supported by false driver's licences and false documentation. Six of the applications were approved and funds were obtained on credit. 11 In the case of the applicant Liesa Latumetan, there was an additional offence on 21 December 2000 of a like type, but no credit was ultimately forthcoming. In the case of the applicant Tommy Murwanto, the offence not in common with that of his wife was, nevertheless, of a similar nature. On 19 December 2000 he submitted an application for credit in a false name supported by a false driver's licence and a card with a limit of $5000 was approved and forwarded to a false address but it was subsequently blocked because of suspicion that arose. 12 The Form 1 offences which the court was asked to take into account can be summarised thus: for the applicant Liesa Latumetan, there were seventy-five offences altogether, being sixty-eight offences of making false statements to obtain financial advantage, three offences of obtaining credit by fraud and four offences of obtaining a driver's licence by deception. 13 In the case of the applicant Tommy Murwanto, there were sixty-two offences of making a false statement to obtain financial advantage and six offences of obtaining a driver's licence by deception. These Form 1 offences involved applications for credit made to the NRMA and other financial institutions and involved the provision of false information supported by false documents, particularly driver's licences. 14 Her Honour found in consequence of the fraudulent conduct of the applicants that they obtained $183,214.58 from the various finance companies they had targeted and that a further $346,000 had been sought by way of credit but declined. In all then, her Honour found that the applicants sought a total of $529,200 by the use of false and fraudulent documents. 15 The applicants were arrested on 5 July 2001 when they made full admissions to the police as to what they had done and her Honour also found that the applicants assisted by taking police to their home and surrendering items of furniture and other objects bought by them in consequence of successful credit applications that had been made. There was, however, a substantial amount outstanding at the time the applicants were sentenced and this included an amount of $109,000-odd that had been taken on applications to the NRMA. 16 This brings me to the passport offences. After they had been arrested and charged for the crimes above described, these applicants were admitted to bail. They used passports of two persons who had entered Australia at Darwin from Indonesia in the preparation of the false passports with which they endeavoured to leave the country. They were apprehended at Sydney Airport on 1 September 2001 and thereafter remained in custody up until the time of being sentenced. This is reflected in the backdating of the sentences imposed upon the applicants. Her Honour noted that the applicants were classified by the Department of Immigration as illegal non-citizens, to be deported following any sentence. 17 This brings me to the ground upon which each applicant submits that the sentencing process miscarried. It is submitted that her Honour erred in declining to set a non-parole period. 18 The reason why her Honour took this course was expressed as follows: "In the circumstances of each of the prisoners, particularly their immigration status and the fact there is to be an accumulated sentence under the Passports Act , I do not propose to set any non-parole period in relation to the sentences pursuant to section 178BB." 19 It is well settled that the prospect of deportation was not a matter properly to be taken into account for sentencing purposes. In being so influenced by this factor, her Honour fell into error; see R v Chi Sun Tsui (1985) 1 NSWLR 308; R v Shrestha (1991) 173 CLR 48; R v Montenegro (unreported) NSWCCA 15 February 1991; R v Chase (unreported) NSWCCA 19 October 1990; R v Ferus (unreported) NSWCCA 23 August 1991; R v Ndubuisi (unreported) NSWCCA 27 March 1992 and R v Jap (unreported) NSWCCA 20 July 1998. 20 Her Honour approached her sentencing task bringing into account the Form 1 matters concerning each applicant in determining the appropriate sentence for the first of the offences under s 178BB. She then proceeded to impose concurrent sentences on the remaining counts against that section. I see no error in that approach and consequently I see no error in the imposition of fixed terms in relation to those sentences directed to be served concurrently and attracting a lesser sentence than in respect of the first count. 21 Nor do I perceive error in the imposition of the fixed term for the passport offence. Under the Commonwealth Crimes Act, the obligation to set a non-parole period does not arise in respect of a sentence under three years and the requirement to make a recognisance release order does not arise in respect of a sentence not exceeding six months: see ss 19AB and 19AC. 22 Her Honour made no error in failing to set a non-parole period for the passport offence and I do not understand it to have been contended by either applicant that the sentence of six months for that offence was inappropriate. For my part I would not regard it as being so. 23 What I perceive to be the error in the sentences imposed is to be found in the sentences imposed for the first count for each applicant, i.e. the fixed term sentences of twenty-two months. 24 Section 44(1) of the Crimes (Sentencing Procedure) Act 1999, as it applied to her Honour's sentencing task, required that the term of the sentence be set and then that a non-parole period be set unless, pursuant to s 45(1), there was reason for declining to set such a period. 25 It has not been contended in this case that her Honour considered any reason for declining to set a non-parole period for the sentences of twenty-two months other than that stated and set out earlier. Nor has the Crown sought to argue that there were good reasons for declining to set a non-parole period not disclosed in her Honour's remarks on sentence. 26 Error has been demonstrated in the failure of the judge to set a non-parole period for the benefit of each applicant in passing sentence on the first count against each applicant. 27 Whilst conceding that her Honour was in error in declining to set a non-parole period because of the liability to deportation upon release, the Crown has submitted, nevertheless, that this Court should not intervene because the establishment of error is, of itself, not sufficient to warrant the intervention of the Court. Attention was drawn to s 6(3) of the Criminal Appeal Act and to the decision in R v Simpson [2001] 53 NSWLR 704 and, in particular, the judgment of the Chief Justice at 79 and of Sully J at 100. 28 This submission, of course, enlivens the necessity to assess the objective gravity of the offences committed and to weigh the relevant objective features. 29 In my opinion her Honour was correct to categorise the offences as amounting to serious frauds. The amounts involved were substantial. Inevitably, the offences involved planning and the offences were committed over a period of some five months. 30 The applicant Murwanto was thirty-eight years of age at the time of sentence and his wife was also thirty-eight years of age. Neither had a criminal record. The applicants came to Australia from Indonesia where the applicant Murwanto had been a bank manager. He lost money in the share market and came to Australia with a view to earning what was required to pay his debts in Indonesia. The judge accepted that the applicants found themselves desperate to obtain funds to repay their debts, their business enterprises in Australia not having proved successful. 31 Not all the funds unlawfully obtained by their criminal activity were used in an attempt to discharge the Indonesian debts. Her Honour found that some of the money was used to maintain: "a very comfortable lifestyle in Sydney. The [applicants] and their family, although perhaps not living in the lap of luxury, did not either live in poor circumstances. They lived well, driving good cars, in decent houses with good furniture. Their lifestyle was supported by the funds they obtained through these frauds." 32 In their favour, the sentencing judge found each of the applicants to be remorseful and to have been behaving creditably whilst in custody. 33 Her Honour took into account the utilitarian value of the pleas and their timing. Her Honour considered that the timing of the pleas indicated the applicants' desire to assist the administration of justice and that the utilitarian value of the pleas warranted a twenty-five per cent discount. To my mind that was an appropriate approach. 34 The Crown submitted that the Court would not be constrained to impose a head sentence at or lower than the fixed terms that were imposed at first instance. In support of this submission, the Court's attention was drawn to the decisions in R v Montenegro (supra) and R v Ndubuisi (supra). In each of those cases the head sentences which the Court of Criminal Appeal imposed exceeded the fixed term sentences erroneously set. I observe, however, that in each of those cases when the Court of Criminal Appeal came to re-sentencing, the non-parole period that was fixed was lower than the fixed term sentence had been. 35 Another case to which this Court's attention was drawn was R v Ferus (supra). In Ferus the applicant was sentenced to a fixed term sentence of six years and the Court of Criminal Appeal, whilst considering a head sentence of six years to be at the lower end of the range, concluded that it would be improper for the Court to impose a greater sentence because no cross-appeal had been lodged. The Court proceeded to set a non-parole period whilst retaining the head sentence of six years. 36 It is to be observed that no cross-appeal has been lodged in the present case. To my mind it would not be appropriate to re-sentence in such a manner as to bring about the result of a longer head sentence in all the circumstances of this case. 37 In the matter of R v Chase (supra), the sentencing judge imposed a fixed term sentence being influenced so to do by erroneously taking into account the expectation that the prisoner would be deported as soon as the prison term set expired. In that case the judge indicated that the fixed term which he was setting would have been the minimum term he would have imposed had it not been for the probability of deportation. The appeal was dismissed because the court determined that the fixed term was not excessive and because there was no Crown appeal against the inadequacy of sentence in not fixing an additional term. 38 The present case is to be distinguished from R v Chase because her Honour did not specify that the fixed term which was being set would have been the non-parole period that would have been set but for the prospect of deportation. The fact that her Honour had in mind that the applicants would be deported and, therefore, did not set a non-parole period may invite an inference that her Honour would have set a non-parole period had she perceived it to be appropriate that the applicants should be released any earlier than at the expiration of a period of twenty-two months, but that is not an inference which the Court of Criminal Appeal drew in R v Montenegro, R v Ndubuisi or R v Ferus and, accordingly, I do not think it appropriate to draw such an inference here. 39 I have not found this an easy matter at all. However, ultimately it seems to me that this Court should intervene and each applicant should be re-sentenced in order to be afforded the opportunity of a non-parole period. 40 The Crown has taken the Court to a number of decisions to support its submission that the applicants ought to be sentenced to a head sentence not less than the term of twenty-two months that was set. Mr Hamill and Ms Francis, on the other hand, have submitted that these sentences ought to be regarded as having been within the range. 41 To my mind the sentence imposed on the first count for each applicant was at the bottom of the range. However, as I say, it seems to me now that the applicants should be re-sentenced and that non-parole periods should be set. 42 Some submission was advanced that the Court ought to find special circumstances which would warrant the setting of a non-parole period, lowering the non-parole period that would otherwise be set and increasing the period during which the applicants might enjoy the opportunity of parole. I do not accept that submission in all the circumstances of this case. In any event, it seems to me that the non-parole period which I propose in the sentences I am about to propose is the minimum period which each applicant should be required to serve. 43 For the reasons I have expressed, the orders that I propose in relation to each of the applicants are as follows:

R v Latumetan & Murwanto

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