Hosainy v R [2010] NSWCCA 311
Jiang v R [2010] NSWCCA 277
Kentwell v The Queen [2014] HCA 37
Source
Original judgment source is linked above.
Catchwords
224 A Crim R 82
Hello v REl-Skaf v RBakkour v RHosainy v R [2010] NSWCCA 311
Jiang v R [2010] NSWCCA 277
Kentwell v The Queen [2014] HCA 37252 CLR 601
Khoury v R [2011] NSWCCA 118
R v Bothra [2012] NSWDC 158
R v Cappadona & Anor [2001] NSWCCA 194156 A Crim R 478
R v Murphy [2009] NSWDC 58
R v Todd [1982] 2 NSWLR 517
R v Webb [2004] NSWCCA 330
Judgment (10 paragraphs)
[1]
The applicant's personal circumstances
The applicant was born in 1972 and so he was aged 32 to 37 at the time of the offences.
The judge noted that he had a criminal history in Queensland. In the early 1990's he was dealt with for seven offences of demanding money with intent to steal and threaten to assault; five charges of passing valueless cheques; two of impersonating a police officer; break and enter with intent; and stealing. For these he received fines and community based sentencing options. Her Honour regarded it as a record that disentitled the applicant to leniency.
The applicant did not give evidence in the sentencing proceedings so her Honour was reluctant to give much weight to the content of the various reports that were tendered. She noted that statements he made to Dr Olav Nielssen, forensic psychiatrist, as to being born to an Aboriginal father, having been raised in a traditional Aboriginal community in Central Australia and not having attended primary school, were contrary to agreed facts and his own evidence in the trial which included that neither of his parents were Aboriginal and that he lived with his mother and attended primary and high school in Queensland until he was 15. He gave a similar false account to the author of a Pre-Sentence Report and to his current wife.
The judge did accept, however, that the applicant had sustained a subarachnoid haemorrhage in 2000 and underwent an aneurism repair. During 2007 and 2008 he presented at hospital complaining of severe headache, dizziness and blurred vision. Testing raised the possibility of him having suffered a stroke.
Her Honour noted that the applicant was the father of a child with both of the female victims. He was now in a relationship with Ms Carol Sequeira whom he had known for over three years. She is a registered nurse and they had met when he was in hospital. They had been married for two years and she was pregnant at the time of sentencing. Ms Sequeira gave evidence in which she described the applicant as being slow in cognitive function. She said that he suffered from depression and low self-esteem and appeared withdrawn at times.
Dr Nielssen made diagnoses in late 2012 of (1) brain injury from subarachnoid haemorrhage and (2) possible underlying bipolar disorder. Her Honour quoted from the report to the effect that the diagnosis of brain injury was based on a history of memory problems and personality change following the subarachnoid haemorrhage; the corroborative information in documents; and the applicant's presentation in interview "in which it seemed that he had mild cognitive impairment, presenting with slowing of his responses and difficulty retrieving information".
The judge noted that Dr Nielssen formed a clinical impression in two interviews and he considered that the applicant was genuinely slow in retrieving information and was not feigning.
Her Honour clearly respected Dr Nielssen's opinion, saying that he "is a very experienced forensic psychiatrist and his opinion must be given considerable weight". However, she noted the contrast with the evidence of a man who was called by the applicant to give evidence at the sentence hearing about the applicant's effective work as an agent selling a pay-tv product door to door in 2011. He described the applicant as "an exceptional performer" who did not have difficulty in learning about the product, expressing himself and interacting with customers. Her Honour also noted a contrast between Dr Nielssen's impression of the applicant and his performance in the witness box in his trial in which over two days he did not appear to have difficulty understanding and answering questions in chief or in cross-examination.
The judge accepted that the applicant had suffered an aneurism and she referred to Dr Nielssen's opinion that this may have exacerbated his propensity to commit criminal acts and might have contributed to more impaired judgment. But she said that whatever cognitive difficulties he presently had they did not play much of a role in the commission of the offences. She did, however, accept that the diagnosis of possible bipolar disorder and associated manic episodes may have made a contribution and she took this into account in assessing the weight to be given to general deterrence. On the other hand, she considered that protection of the community must also be taken into account.
Counsel who appeared for the applicant on sentence (but not at trial) disavowed any reliance upon the report of Dr Nielssen as establishing any of the three matters referred to by Sperling J in R v Hemsley [2004] NSWCCA 228 at [33]-[35]. Through counsel, the applicant accepted that there was no nexus between his mental condition and the offending which would otherwise have reduced his moral culpability and lessened the weight to be given to denunciation and punishment; he was not a less appropriate vehicle for general deterrence; and it would not render his time in custody more difficult. Counsel submitted that the applicant's mental condition was relevant generally in relation to his overall subjective case insofar as it affected his day to day functioning.
Her Honour noted that the applicant maintained his innocence; he was not remorseful; and this did not augur well for his rehabilitation. But on the positive side, the applicant enjoyed the support of his wife and others in the community, particularly members of a church.
[2]
Other matters taken into account in the assessment of sentence
The judge noted that eight years had elapsed since the first of the offences. She stated that the "considerable delay" would be taken into account.
Her Honour had regard to sentencing in other more or less comparable cases and specifically mentioned R v Hare [2007] NSWCCA 303 with its schedule of cases involving sentencing under s 178BA of the Crimes Act. She noted the contrast that in all of the cases there had been pleas of guilty for which the offenders received a benefit to which the applicant was not entitled.
Finally, her Honour alluded to the principle of totality and the need for some accumulation of sentences. Special circumstances for imposing a non-parole period less than the usual three-quarters of the overall term were found on the basis of the applicant's need for a longer period of supervision on parole.
[3]
Specific issues raised in support of the application
In written submissions filed with the notice of application for leave to appeal the following specific issues were raised:
1. The judge did not outline special circumstances relating to the delivered sentence.
2. The judge failed to take into account ongoing medical issues leading up to sentence.
3. The applicant has been placed into protective custody.
4. The sentence is manifestly excessive.
Further written material was filed on 29 June, 4 and 11 July 2016. Generally this material amplified aspects of some of the above matters which I will deal with in turn.
[4]
Special circumstances
As mentioned above, the judge made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). She reduced the non-parole component of the aggregate sentence from the usual 75 per cent of the overall term to 62.5 per cent. The decision to make such a finding, and the extent to which it is given effect, is a matter for a sentencing judge's evaluation and discretion: R v Cramp [2004] NSWCCA 264 at [31]; R v Fidow [2004] NSWCCA 172 at [19]; Jiang v R [2010] NSWCCA 277 at [83]. I cannot discern any error in the manner in which it was exercised in this case. It certainly cannot be said that the judge was required to reduce the non-parole period further than she did.
[5]
Medical issues
The sentencing judge was clearly cognisant of the applicant's medical issues. While she expressed some reservations about the conclusions of Dr Nielssen she was not entirely dismissive of them. She clearly did accept that the applicant had experienced a subarachnoid haemorrhage and an aneurism in 2000 and she referred to his presentation at hospital in 2007-2008 with symptoms of a possible stroke. She reduced the weight she would give to general deterrence because of the possible influence upon the applicant's offending behaviour of his suspected bipolar disorder. This was a somewhat generous approach given the submissions of the applicant's counsel to which I have referred (above at [26]).
Her Honour was not required to accept uncritically all that was presented to her. Her reasons for some scepticism about the applicant experiencing cognitive difficulties were open to her; she had the advantage of having seen the applicant give evidence over two days in his trial in 2012. Further, the evidence relating to the applicant's success in employment in 2011 was also available for her Honour to take into account.
The applicant referred to the judge commenting only on significant events in 2000 and 2007-2008 and submitted that she failed to consider that his brain injury was "a continuing medical condition that impedes on factors of the offender's quality of life, his mental and physical health and his ability to give representation to facts". Her Honour certainly referred to the significant events that occurred at those times but it was a matter for her to assess whether there was ongoing effect in the years that followed. Her finding that "whatever cognitive difficulties the offender now has appear to have played little significant role in the offences" suggests that she appreciated that there were ongoing difficulties to some extent.
Findings of fact by sentencing judges are matters almost uniquely in their province; this Court will only intervene if error is established. The submissions for the applicant appear to suffer from a misunderstanding that this Court is rehearing the matter afresh. The point is not whether this Court would make the same finding but whether the finding was open to be made by the judge.
On my review of all of the materials it is not apparent to me that there was any error in the manner in which the judge assessed and took into account the applicant's medical issues.
The applicant's submissions also seek to place before this Court information about his medical condition that was not placed before the judge; some of which could not have been because it relates to events that have occurred since he was sentenced. There are strict limits on this Court's ability to receive "fresh" or "new" evidence: see, for example, Khoury v R [2011] NSWCCA 118 at [104]-[121]. No principled basis has been shown in this case for such evidence to be received.
The same applies to a number of documents that were tendered by the applicant at the hearing of the application. (They were marked MFI 1 and 2.) The Crown objected to the Court receiving them other than if error was found and it was required to re-sentence. The documents comprise literature in relation to aneurysmal subarachnoid haemorrhage and material from Justice Health, dating from after the applicant was sentenced, in relation to his medical condition. Having regard to what I have said in the preceding paragraph, the Crown's objection was well-founded.
[6]
Protective custody
The applicant referred to having experienced a period of protective custody following an assault upon him in gaol subsequent to sentencing. Again, no basis has been shown for evidence of this to be received on appeal.
[7]
Other matters raised by the applicant
Included in the written material provided to the Court by the applicant was correspondence in relation to complaints he had lodged with the Office of the Legal Services Commissioner and paperwork in relation to some success he achieved in having his legal costs assessed. The complaints concerned the lawyers who appeared at the applicant's trial. When the sentence proceedings were due to take place on 26 October 2012 the judge was informed that the applicant had withdrawn his instructions. This necessitated an adjournment of the proceedings until the following February. Such matters are not relevant to a question of whether error is disclosed in the manner in which sentence was assessed by the primary judge.
The applicant also provided a narrative of his progress in custody. He has engaged in educational programs and employment (and he annexed some supporting documentation in this regard). He has been well-behaved and retains the support of his wife and child. Again, these are matters that could only be considered if error was found and the Court was required to exercise the sentencing discretion afresh.
[8]
The sentence is manifestly excessive
The applicant contended that he was deserving of further leniency on account of a number of factors.
First, the offences dated back to 2004, some six and a half years before they were reported to the police. It was contended that delay in having the matter finalised had left him in a position of uncertainty and this should have been taken into account. He cited R v Todd [1982] 2 NSWLR 517 where (at 519) Street CJ referred to delay being a relevant factor where there had been progress towards rehabilitation in the intervening period; where the offender had been left in a state of uncertain suspense as to what will happen to him; and where fairness required understanding and flexibility of approach when sentencing for a stale crime.
The judge specifically said that she was taking into account that "there has been considerable delay in the matters being finalised". She also took into account that the applicant "has not been convicted of any other offence over the period from 2004 to date" (ROS 11). Within the material available to this Court there is no explanation for the delay in the prosecution of the matters concerning Ms Rochelle and Mr Smith, such offences having occurred in the period 2004 to 2006. But it is noteworthy that the indicative sentences for each of those offences were relatively modest; two of 10 months and the balance being 6 months or less.
In relation to the matters referred to in R v Todd there was no evidence of any specific detriment or adverse consequence experienced by the applicant as a result of delay.
The second factor was that the applicant spent a period of just under two years on conditional bail with strict reporting conditions seven days a week. This is not correct (as he conceded at the hearing). He was on bail from November 2010 until the jury's verdict in August 2012. The only onerous aspect of the bail was a requirement to report to police. Initially that was required on a daily basis. After six months it was reduced to three times a week and a further six months later it was reduced to once a week. It was submitted by counsel for the applicant that the judge should extend an element of leniency by virtue of the fact that he had been on bail for a significant period. The problem is that this was not a particularly onerous bail regime. There was no evidence that it imposed any particular hardship upon the applicant. It was not some pre-sentence quasi-custodial situation that required any amelioration of the sentence.
In R v Cartwright (1989) 17 NSWLR 243 the offender was under a very strict regime for a period of eight months in order for him to provide active assistance to authorities. It was held that this amounted to "quasi-custody" for which this Court reduced the sentence by six months. By way of contrast, bail conditions requiring an offender to remain at home except when attending his employment, reporting to police or attending court and medical appointments were regarded in R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at [18] as not mandating mitigation of the sentence. Similarly, see Hello v R; El-Skaf v R; Bakkour v R; Hosainy v R [2010] NSWCCA 311 at [45]-[50] where the bail conditions included a curfew.
The bail conditions in the present case were similar to those placed upon the offender in R v Dennis (Court of Criminal Appeal (NSW), 14 December 1992, unrep) where it was held by James J (Hunt CJ at CL and Carruthers J agreeing):
"I would not regard these bail conditions either individually or collectively as being particularly onerous or stringent. The bail conditions did not impose any really serious restriction on the applicant's liberty. The sentencing judge did not err in not having regard to the conditions of the applicant's bail during the period before he was sentenced."
See, similarly, FP v R [2012] NSWCCA 182; 224 A Crim R 82 at [311]-[313].
The third factor relied upon by the applicant concerned reference to other cases which, he submitted, indicated that the sentence was unduly excessive: R v Cappadona & Anor [2001] NSWCCA 194; 122 A Crim R 52; R v Kilpatrick [2005] NSWCCA 351; 156 A Crim R 478; R v Bothra [2012] NSWDC 158; R v Murphy [2009] NSWDC 58.
R v Cappadona & Anor is not at all comparable. It involved sustained and serious tax fraud over an extended period of time. But the sentence imposed upon the male offender after a successful Crown appeal was affected by considerations of early pleas of guilty, substantial and valuable assistance to authorities, the since repealed s 16G of the Crimes Act 1914 (Cth), and double jeopardy. Other significant considerations included exemplary prior character and sacrifice in making full reparation to the Australian Taxation Office.
R v Kilpatrick is somewhat similar in that it involved a multitude of offences (65 in fact) against s 178BA for which the total sentence imposed was 7 years. The total amount defrauded was about $2.6 million but it was shared amongst a number of co-offenders. The offender had virtually no prior record. He had entered early pleas of guilty. He had sold a property for $1.35 million in order to make some reparation. Without these favourable features which are unavailable to the applicant in the present case, the sentence could well have been considerably higher than that which he received.
R v Bothra involved sentencing for an offence of dealing with the proceeds of crime but it related to the offender's involvement in a $1.1 million conspiracy to defraud a bank by taking money from a customer's account. He was an employee of the bank and his role was important but he was not the leading offender. He was genuinely remorseful and had good rehabilitation prospects. Valuable assistance to authorities and an early plea of guilty brought a reduction of the otherwise appropriate sentence (6 years 6 months reduced to 3 years 3 months).
R v Murphy involved an employee defrauding a stockbroking firm by diverting three sums of money from its payroll to her own bank account with the total sum being just under $20,000. She received concurrent terms of 2 years imprisonment to be served by way of periodic detention following early pleas of guilty. This case is so dissimilar to the present case that it warrants no further mention.
The schedule of cases annexed to the judgment of McClellan CJ at CL in R v Hare does not assist the applicant. It clearly demonstrates a range of sentencing outcomes in a range of cases with varying objective and subjective factual circumstances. It is important to bear in mind as the primary judge did that each of the cases involved offenders who had pleaded guilty and received some reduction of their sentence on that account. The impression gained from the schedule does not support the contention that the sentence in the present case is beyond the bounds of the legitimate exercise of the judge's sentencing discretion.
Helpful written submissions for the Crown identified the following matters within the findings of the sentencing judge in support of its contention that the sentence is not manifestly excessive:
The offences involved an intricate web of deception of three victims over a five year period.
The money taken was significant to the victims.
The applicant's motivation was greed.
The applicant was not entitled to the leniency that could otherwise have been afforded to a person of prior good character.
Such cognitive difficulties the applicant now has played a relatively insignificant role in his offending.
The applicant maintained his innocence; he was not remorseful; and this did not augur well for his rehabilitation.
Some accumulation of individual sentences was required to reflect the criminality in multiple offences against three victims.
I recently provided a summary of the principles relating to a ground asserting that a sentence is manifestly excessive in Alrubae v R [2016] NSWCCA 142 at [32] which, for convenience, I will repeat:
"Key aspects of the principles are that appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust. See, for example, Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]."
The applicant's offending involved sustained dishonesty over a lengthy period of time at significant cost to his three victims, and particularly Ms Hogan. There was little available to him by way of mitigation in his subjective case. I am not persuaded that the sentence was unreasonable or unjust. It was a sentence that was available to be imposed in a sound exercise of the judge's discretion.
[9]
Order
With my conclusion being that none of the matters raised by the applicant have merit, I propose the following order:
Extension of time in which to apply for leave to appeal against sentence refused.
ADAMSON J: I agree with R A Hulme J.
[10]
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Decision last updated: 15 August 2016
R A HULME J: Mr Wadari Wiriyanjara ("the applicant") was sentenced by her Honour Judge Hock in the District Court to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years in respect of 27 offences of dishonestly obtaining a financial advantage by deception.
The offences were contrary to s 178BA(1) of the Crimes Act 1900 (NSW) (since repealed) which prescribed a maximum penalty of imprisonment of 5 years.
The applicant pleaded not guilty to each of the offences but was found guilty by a jury in a two-week trial in August 2012. (There were verdicts of not guilty for 3 of the 30 counts in the indictment.) He was sentenced on 15 March 2013.
He filed a notice of intention to appeal four days after he was sentenced. Its effect was extended until 31 March 2014 when it expired. Two years later, on 17 March 2016, three years after he had been sentenced, he filed notices of applications for leave to appeal and for an extension of time. The reason for the delay proferred in the latter is both inaccurate and inadequate: "My time lapse occurred during legal aid review which finalised in November, 7 mths after it ran out".
The Crown opposes an extension of time on the basis that the proposed appeal lacks merit. That, of course, requires the merits to be considered in order to determine whether it would be in the interests of justice to grant the application: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 616 [37].
The applicant (who is not legally represented) notified the following proposed grounds of appeal but, as will be seen below, he sought to augment his complaints about the sentence in his written submissions:
1. Manifestly excessive sentence.
2. Summing up from sentencing brief.