REGINA v. ELACHI [2003] NSWCCA 24

1 HULME J: I will ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: This is an application for leave to appeal against sentences imposed in the Campbelltown District Court in proceedings on 13 June, 14 June and 17 June 2002. 3 The applicant came forward for sentence on three counts of obtain financial advantage by deception. That crime is punishable by imprisonment for a maximum of five years. He also came forward on two counts of use false instrument. That crime is punishable by a maximum of imprisonment for 10 years. 4 In addition, there were three form ones on which various offences were stipulated: on the first Form One, three counts of obtain money by deception, one count of possession of prohibited plant and one count of goods in custody; on the second Form One, three counts of attempt to attempt to obtain money by deception; on the third Form One, four counts of use false instrument and one count of failure to appear. 5 In respect of those matters, the trial judge imposed on count one, count two and count three, taking into account the offences in the first Form One, on count one and those in the second Form One on count three, a sentence of imprisonment for three years and four months to commence on 1 January 2002. The trial judge stipulated a non-parole period of two years to commence on 1 January 2002 and to expire on 31 December 2003. 6 On counts four and five the trial judge passed a sentence of imprisonment for four years to commence on 1 January 2002 and stipulated a similar non-parole period to that already ordered. 7 That meant that the overall sentence for these offences, including for the matters taken into account on the various form ones, was an overall sentence of four years with a two year non-parole period to commence on 1 January 2002. 8 The applicant had an utterly appalling record for offences of fraud. He was dealt with for some 24 offences of fraud in 1995, being sentenced to various fixed terms of imprisonment of four months and one minimum term of 15 months, commencing on 10 March 1995 with an additional term of five months. He lodged appeals in respect of the sentences. Those appeals were dismissed but the commencement date of the sentences were varied. 9 He had been dealt with also at the Fairfield Local Court in 1995 on 50 counts of obtain financial advantage by deception. An all grounds appeal to the District Court was dismissed. 10 He was also dealt with on 14 January 2002 in the District Court for obtaining financial advantage by deception and sentenced to imprisonment for two years and six months to commence on 20 October 2001 but to be released on entering a recognisance on 19 October 2002 under s.20(1)(b) to be of good behaviour for one year and six months and accept supervision. Reference was made, not surprisingly, to his being afforded psychiatric help as recommended. 11 The complex of sentences presented to his honour when sentencing was such that the effect of his Honour's orders was that the applicant would be required to serve a period of two years imprisonment in respect of the 19 offences, which were committed by the applicant between June 1994 and August 2001. He received the significant benefit of serving those sentences partially concurrently with the non-parole period of the sentences for the unrelated and, in the main, earlier offences. 12 It is accepted by his counsel and asserted by the Crown that the effective result is that due to the non-parole period for those earlier offences, the applicant will be required to serve in custody just over 14 months referrable to the offences about the sentences for which he complains. 13 The short facts relating to those offences were set out in the appellant's written submissions in tabular form. Essentially the applicant sought finance from the St. George Bank and Esanda Finance using false documentation to enable loans to be provided to him. These loans were on occasion used to purchase motor vehicles. 14 In the case of Esanda Finance, some $59,000 was obtained by means of the fraud and has not been recovered. The total amount of money the applicant's frauds produced and which has not been recovered is $131,292, after allowing for the value of two of the motor vehicles which were recovered. 15 The ground of appeal that was asserted, although expressed to refer to the sentences as being manifestly excessive, on analysis asserted that the trial judge had failed to carry over into the actual sentences the content of what he had said during the proceedings concerning assistance furnished by the applicant to authorities. A document was provided to him in respect of that matter. It is not necessary to refer to its contents in detail here. It is also not necessary now to review the procedure before the learned trial judge which led to his making remarks during the hearing which indicated that he had, at that point, favourably regarded the applicant's assistance. 16 His Honour said during the progress of the sentencing proceedings that he would refer to the relevant matter in his final remarks and that he was thinking of giving a substantial benefit "if not the maximum benefit for Cartwright". His Honour further indicated, however, that it was necessary to evaluate that material in the course of his consideration of the case as a whole. Although he did indicate he would give particular reasons on that matter rather than incorporating them in his remarks in general, he apparently did not do so. He did, however, make reference to the sentence that he was imposing, having as its starting point, the figure of six years which he would have imposed but for the features that he said he was intending to mention. He referred to assistance in the investigation and preparation of the case against the applicant. In due course in his reasons his Honour refers to a total discount of 33%, thus reducing the sentence from six years to four years. 17 It is contended here that when one has regard to his Honour's remarks on sentence he has failed to afford to the applicant in the result the full credit for the "Cartwright deduction" he had referred to earlier in the sentencing process. It is submitted that in the context of the applicant's timely plea of guilty and subjective circumstances the failure to afford the applicant that deduction so taints the sentence that it is no longer "warranted in law" and hence this court exercising its powers under s.6 of the Criminal Appeal Act 1912 should intervene. 18 It is accepted that the pleas of guilty, indicated both remorse and real utilitarian assistance. The quarrel with the sentences, however, as expressed in the oral argument put to us today, is not so much with the end result, ie., the sum total of the considerations his Honour had to take into account but with one component. The total sentence, on its face, in respect of the matters for which the applicant came forward for sentence and having regard to his prior record is remarkably lenient particularly when one takes into account its effect on the other sentences the applicant is required to serve. 19 The error, if any, that his Honour made and, in that regard, I am not persuaded he did more than give consideration to that which he said he would consider, is one that in my view did not translate in the final product into such a sentence as exceeded that which was proportionate and appropriate. Section 23 of the Crimes (Sentencing Procedure) Act 1999 which provides for the court to impose a lesser penalty than it would otherwise impose, having regard to assistance, by subsection 3 provides:- "A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 20 Section 22 which provides for the guilty plea to be taken into account is not so qualified expressly, although there is authority in this court for the proposition that the reduction must not result in a sentence which is unreasonably disproportionate. 21 Section 6 of the Criminal Appeal Act 1912 only entitles this court to intervene in the event that the final sentence is tainted by error, either as exceeding that which is appropriately within the range of the exercise of a sound discretion or as otherwise tainted by legal error. 22 In Regina v. Cocking [1999] NSWCCA 311, Sully, J., said at para.22:- "If it be the case that the view that I have about its application in the present matter is incorrect, so that error in law has been demonstrated on the part of the sentencing judge. I myself would then think it wholly appropriate to give proper effect to the relevant provision of the Criminal Appeal Act which enjoins this court to consider for itself whether or not a different sentence, be it a greater or a lesser one, is 'warranted in law' . In that regard I respectfully agree with what was said by Lee, AJ. in The Queen v. Stephen Lorne Astill (No 2) 1994 64 ACR 289. At 303-304 his Honour says:- 'When an appeal is brought to the court under s.5(1) it may well be that the court will consider the sentence passed to be 'warranted in law' even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features or his selection of the substantial matters which guide him to his conclusions. In such a case the appeal fails. Even when the court concludes that the judge has made a mistake of law the court may still hold that the sentence is not excessive and should stand. A good illustration of such a case is Oastler (unreported) CCA (NSW) 7 October 1992.'" 23 His Honour went on to refer to Regina v. Oastler (CCA, unreported 7 October 1992) in which important errors of law had been made by the trial judge in the process of reaching a decision which was upheld, nonetheless, as appropriate in the end result. His Honour went on to say that in the event that the court were of the view that a sentence of lesser severity was not warranted in law it was incumbent upon the Court of Criminal Appeal to reject the application or the appeal. With those remarks, the Chief Justice and Grove, J. agreed. 24 In my view, this is such a case as was referred to by Sully, J. I see no basis upon which it has been made out that any lesser sentence might appropriately have been passed for these offences, such as to attract the court's jurisdiction under s.6(1). 25 The matter having been fully argued, I would be of the view that leave to appeal should be granted but the appeal dismissed. 26 HULME, J: I agree with the orders proposed by Greg James, J. The sentence imposed by Moore, DCJ. was lenient, if not unduly so. 27 Having regard to the terms of s.23 of the Crimes (Sentencing Procedure) Act 1999 and s.6 of the Criminal Appeal Act 1912, it is my view, substantially for the reasons advanced by Greg James, J., that the application for leave to appeal should be granted but the appeal should be dismissed. 28 SHAW, J: I also agree with the judgment of Greg James, J., taking the view that the ultimate sentence was moderate in its impact upon the appellant. I would like to acknowledge the strength of the submissions put by Mr. Wilkinson for the applicant in his written and oral submissions. I think he said everything that one could possibly say on behalf of his client and putting it at its highest he has argued for a discount of 50% as not being inappropriate but nonetheless, it is a question of looking at the ultimate result of the sentencing process and I think it is very hard to argue that that ultimate result is in some way untoward or unjust. 29 Having said that, I think it is important to maintain and affirm the Cartwright principle in which Justices Hunt and Badgery-Parker said that it is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice and give evidence against those offenders in relation to whom they have given such information. However, the trial judge did apply a discount in relation to that factor and in the result I think no manifest unfairness has been demonstrated. 30 HULME, J: The order of the court is that leave to appeal is granted but the appeal is dismissed. **********

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