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[2003] NSWCCA 45
Court of Criminal Appeal (NSW)
2003-02-28
O'Keefe J, Bell J, Dr P
Original judgment source is linked above.
Introduction 1 Following verdicts of guilty found by a jury consequent on a trial in the District Court, Kandiah Bojan (the Applicant) was sentenced on 15 February 2002 to a term of imprisonment for three years with a non parole period of two years on each of four counts of obtaining money by deception contrary to s 178BA of the Crimes Act 1900. The offences were committed during the period from 1 April to 23 April 2001. The sentences were backdated so as to commence on the date on which the Applicant had been convicted - namely 25 January 2002, and were ordered to be served concurrently. As a consequence the non parole period is due to expire on 24 January 2004. The maximum penalty provided in respect of each offence is imprisonment for five years. 2 The Applicant gave notice of appeal in relation to both his convictions and the severity of his sentences. However, he subsequently gave notice of abandonment of the appeal in respect of his convictions, advising that he wished to proceed only on the appeal against the sentences imposed on him. 3 The ground of appeal relied on is that the sentences were manifestly excessive and that lesser sentences were warranted in the circumstances.
Background 4 The Applicant, who was 50 years old at the time he was sentenced, is an extremely well educated man. He was born in Sri Lanka, where he was educated to matriculation level. He then travelled to the United Kingdom, where he completed a combined Bachelor of Science and Engineering Degree at the University of London and the Middlesex Polytechnic. Thereafter he worked for many years as an engineer on major projects in Bahrain and Saudi Arabia. He migrated to Australia in 1990 and added a qualification as a real estate agent to his already substantial qualifications. 5 No doubt his university education and practical experience as an engineer gave him a knowledge of building and construction. Shortly before April 2001 he approached Omar Kali (the victim), who was apparently involved in the building trade, and informed him that if he paid $20,000 to the Applicant, he would get the victim a large glazing and gyprock contract. Between 1 April and 23 April 2001, further representations of a like kind were made to the victim, as a consequence of which he paid to the Applicant four amounts totalling $5,200. This total was made up as follows:
by which lastmentioned date the victim had run out of money. There was in fact no glazing or gyprock contract, and as a result of the deceptions practiced by the Applicant, the victim was deprived of his $5,200 in respect of which it does not appear any repayment or offer of recompense has been made by the Applicant. 6 At the time of the commission of the offences in April 2001, the Applicant was on parole. That was as a result of having pleaded guilty in July 1997 to nine charges of fraudulent misappropriation contrary to s 178A of the Crimes Act 1900. These were committed in 1995 and 1996. He then asked the sentencing court to take into account 129 other similar offences. The total amount involved in the Applicant's frauds was $1,646,055.55. 7 Payne DCJ imposed sentences of imprisonment which amounted effectively in all to six years, with an effective minimum term of three years, and an additional term of a further three years. The sentences were fixed to commence on 31 July 1997 with the minimum term to expire on 30 July 2000 and the additional term on 30 July 2003. 8 The Applicant was granted parole on 30 July 2000, however his parole was revoked on 7 June 2001 consequent upon his arrest on 6 June 2001 for offences charged to have been committed in the period from December 2000 to January 2001: ie. not the offence the subject of the present application. Bail was granted to him on 7 June 2001 in respect of those charges, but was revoked on the same day due to his breach of a condition of parole. He was returned to custody on 16 June 2001 and was charged with the offences the subject of the present appeal on 2 October 2001 whilst he was still serving the additional term imposed by Payne DCJ.
Argument 9 Counsel for the Applicant submitted that concurrent sentences of three years with concurrent non parole periods of two years were excessive and thus involved error when regard was had to:
(i) the objective seriousness of the crimes, measured by reference to the amounts involved;
(ii) the undue emphasis placed by the Judge on the aggravating factor that the offences were committed whilst the Applicant was on bail. This was an error that occurred, so the argument ran, because the Judge failed to make any allowance for the fact that the Applicant had been returned to custody to serve the balance of the sentence imposed in respect of the earlier offences and that this, in effect, involved an element of double punishment. It was argued that the Judge "should have allowed at least some partial concurrence with (the) sentence (imposed) and the balance of the additional term being served", so as to take account of the principle of totality and avoid the appearance of double punishment. 10 The argument in support of this second ground of appeal was premised on the proposition that it was the arrest of the Applicant for the offences involved in the present appeal that caused his parole in respect of the sentences imposed by Payne DCJ in 1997 to be revoked. This premise is not correct. It was for the offences of dishonesty in December 2000 to January 2001 that his parole was revoked. Whilst the Applicant was subsequently acquitted of those offences, this did not occur until 19 August 2002, and he was not charged with the offences the subject of the present appeal until 2 October 2001. His remaining in custody was thus not a consequence of the present charges, and the backdating of his sentences, if any, should not be beyond 2 October 2001. That means that the period the subject of dispute is some 16 weeks. 11 In pressing the argument under consideration, counsel for the Applicant relied upon what was said by David Kirby J in Regina v Kaiva (NSWCCA, 9 November 1998, unreported) that: "His Honour expressly took into account as a circumstance of aggravation, the fact that the offence was committed whilst the Applicant was on parole. That was entirely appropriate. … Having taken that matter into account, to then not back-date the sentence gives the appearance of penalising the prisoner for a second time in respect of the same matter. That, it seems to me, is … undesirable." 12 It should be noted that David Kirby J did not say that not to back-date the sentence in the circumstances in Regina v Kaiva (supra) constituted an error of law. His remarks were directed towards appearances, and the undesirability of giving an appearance of double punishment for the same offence. In the present case the sequence of events is not, in my opinion, such as to give the appearance of double punishment, and thus the sentencing is not open to the criticism that it involved an element that was "undesirable". 13 In the course of his judgment in Regina v Kaiva, David Kirby J cited with approval comments made by Badgery Parker J in Regina v Deeble (NSWCCA, 19 September 1991, unreported) in which, having adverted to the appropriateness of taking into account pre-sentence custody for the offences under sentence, he acknowledged that there "may be occasions when it is not desirable to back-date the sentence." 14 Furthermore, "the betrayal of parole (is) a matter which (has) to be regarded very seriously." (Regina v Loh [2000] NSWCCA 23, unreported, per Wood CJ at CL). In that case, the breach of parole was constituted by the very offences that were being considered by the sentencing court. That is different from the present case, and more likely to give rise to the appearance referred to by David Kirby J in Regina v Kaiva (supra). Notwithstanding such a situation, in Loh Wood CJ at CL stressed the need to regard offences committed whilst on parole "very seriously". Such an approach is well illustrated by the decision of Regina v Jones (NSWCCA, 30 June 1994, unreported) in which it was said: "It would … accord with the moral indignation of the community … that severe sentences be imposed by the courts upon those offenders who abuse their conditional liberty to which they have been allowed for prior offences (or alleged prior offences) … " (per Finlay J) 15 In the present case, the Judge expressly turned his mind to the question of backdating the sentence to the date on which the Applicant went into custody, ie in June 2001. His Honour did not exercise the discretion conferred by s 47(2) to take such a course because the Applicant was in custody following the revocation of his parole; not for the offences for which he was about to be sentenced, but for other matters, and he so remained until he was convicted on 25 January 2002. This reason is consonant with the principles set out in s 47(3). It is to the date of his conviction for the subject offences that his Honour backdated the sentences. Such a backdating accords with the terms of s 47(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The situation created by backdating the sentences to the date of conviction did not, in my opinion in the circumstances of the case, give the appearance of double-punishment, nor did it create an undesirable situation, and it did not involve any error of law. Nor do I think that considerations of the principle of totality were infringed. 16 In my opinion this specific basis of attack on the sentence fails. 17 The argument advanced in support of the first ground of appeal was that the sentences fell outside the range of the sentences imposed in respect of offences under s 178BA of the Crimes Act 1900. In determining that range, it was submitted that the objective seriousness of the offence was to be determined mainly by reference to the harm occasioned to the victim of the offences (in this case the amount of money involved). 18 The objective seriousness of the offence is an important factor, indeed the starting point in the process, of determining the appropriate sentence. The extent of the harm done is one factor in determining objective seriousness. The amount of money involved may be, and often is, one way of measuring seriousness. But there are other factors that are relevant as well, and these were present in the case under appeal. The offences were committed as part of a criminal scheme devised by the Applicant, a highly educated and intelligent man, and were committed against the background of his antecedent criminal history. They were committed whilst he was on parole. These matters weighed heavily with the Judge and properly so. Although he described the offences per se as falling within "the mid-range of offences for dishonesty," he also said that they should be regarded as serious "because they tend to undermine the trust that those engaged in business negotiations place in each other". In my opinion this is a fair description of the offences. Furthermore, his Honour, correctly in my view, thought that both specific and general deterrence were important so as to "(bring) home to those engaged in deception to unjustly enrich themselves, and to others in a community who might be tempted to act as the offender did in this case, that if they do and are caught, they can ordinarily expect to be subject to a custodial term of some severity except in the most exceptional case." 19 In my opinion, the Judge did not fall into error in the way in which he dealt with the objective seriousness of the offences. This basis of challenge to the sentence fails. 20 The final challenge to the sentence was based on the terms of s 47 of the Crimes (Sentencing Procedure) Act 1999. It depended on the proposition that if the Judge structured the sentences so that the Applicant had to serve six months beyond that which he may have served for his earlier sentences had parole not been granted, this involved an error. An analysis of the Remarks on Sentence reveals that His Honour did not act in the manner postulated by this argument. There is nothing in his Honour's Remarks on Sentence to suggest that he was endeavouring or intending to accumulate the sentences he was imposing on the previous full terms. Counsel for the Applicant was not able to direct the attention of the Court to any particular passage in this regard. In my opinion, this challenge fails. 21 When regard is had to the Remarks on Sentence taken as a whole, to the factors considered by the Judge to be relevant to the sentences imposed, including but not limited to the seriousness of the offences in the circumstances, I am of opinion that it cannot properly be said that the sentences in the present case were manifestly excessive. 22 I would propose that leave to appeal be refused. 23 BELL J: I agree.
Formal Order 24 Leave to appeal refused. **********
Last Modified: 03/04/2003 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.
Regina
Bojan
CITATION : Regina v Bojan [2003] NSWCCA 45 HEARING DATE(S) : 26/02/03 JUDGMENT DATE : 28 February 2003
CATCHWORDS : Criminal law - Appeal - Severity - Breach of parole - Backdating of sentence - No appearance of double punishment - Amount of money involved only one factor in determining seriousness - Criminal scheme - Serious deception LEGISLATION CITED : Crimes Act 1900; ss 178A, 178BA, Crimes (Sentencing Procedure) Act 1999; ss 47(1)(a), 47(2), 47(3) Regina v Deeble (NSWCCA, 19 September 1991, unreported) CASES CITED : Regina v Kaiva (NSWCCA, 9 November 1998, unreported) Regina v Jones (NSWCCA, 30 June 1994, unreported) Regina v Loh ([2000] NSWCCA 23, unreported) PARTIES : Regina Kandiah Bojan FILE NUMBER(S) : CCA 60071/02 COUNSEL : Mr A Haesler - Applicant Dr P J P Power SC - Crown SOLICITORS : Mr D J Humphreys - Applicant Ms S E O'Connor - Crown