Alabbasi v The State of Western Australia
[2012] WASCA 133
•6 JULY 2012
ALABBASI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 133
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 133 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:71/2012 | 25 JUNE 2012 | |
| Coram: | BUSS JA MAZZA JA | 6/07/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | MOHAMMED ALABBASI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Fraud and attempted fraud offences Breach of suspended sentence Effect of sentence on parents Totality principle Turns on own facts |
Legislation: | Sentencing Act 1995 (WA) |
Case References: | Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALABBASI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 133 CORAM : BUSS JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 765 of 2009, IND 1177 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Fraud and attempted fraud offences - Breach of suspended sentence - Effect of sentence on parents - Totality principle - Turns on own facts
(Page 2)
Legislation:
Sentencing Act 1995 (WA)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Wilson v The State of Western Australia [2010] WASCA 82
(Page 3)
1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against a total effective sentence of 4 years' immediate imprisonment with eligibility for parole imposed by Stevenson DCJ on 18 November 2011. This sentence was in relation to numerous dishonesty offences committed by the appellant between 2006 and 2011.
3 The details of the appellant's offending are somewhat complicated, but are, in essence, as follows.
4 In 2006 the appellant, who is a pathological gambler, committed 53 counts of fraud by using credit cards belonging to others, and then using the funds he obtained to place bets on the TAB website to the total value of $42,842.58. These offences were dealt with in the Perth Magistrates Court on 25 June 2007 by way of an intensive supervision order.
5 The appellant breached this order by further offending. Again, the appellant fraudulently used a credit card on 16 occasions to place bets on the TAB website. This time the total amount defrauded by the appellant was $200,110. The appellant pleaded guilty in the Perth District Court to 16 counts of fraud contained in indictment 765 of 2009. On 1 October 2009, Kennedy CJDC sentenced the appellant to 16 months imprisonment, suspended on conditions for 16 months. Her Honour imposed the same penalty to be served concurrently for breaching the intensive supervision order made in the Perth Magistrates Court.
6 The appellant breached Kennedy CJDC's conditional suspended imprisonment order by failing to report as required to the relevant officer of the Department of Corrective Services. As a result, on 29 June 2010, Scott DCJ imposed a 16 month term of imprisonment suspended without conditions for 18 months to commence on that day.
7 It is to be observed that as a result of the orders made by Kennedy CJDC and Scott DCJ, the appellant was subject to a suspended imprisonment order of one kind or another from 1 October 2009 until 29 December 2011.
8 Between 10 August 2009 and 29 January 2011, the appellant committed 12 counts of attempted fraud and 11 counts of fraud. These 23 counts were contained in indictment 1177 of 2011. He also committed an offence of stealing which was set out in a notice pursuant to s 32 of the Sentencing Act 1995 (WA).
(Page 4)
9 The appellant pleaded guilty on the fast-track system to these offences before Stevenson DCJ on 18 November 2011. As a consequence, Stevenson DCJ was required to deal with the appellant not only for the offences in indictment 1177 of 2011 and a s 32 notice, but also for breaching the suspended imprisonment order made by Scott DCJ pursuant to s 80 of the Sentencing Act.
10 The facts of the appellant's offending in respect of nearly all the offences in indictment 1177 of 2011 bore a close resemblance to the appellant's previous offending. In relation to counts 1 and 2 and 4 to 21, the appellant, by the fraudulent use of bank accounts and credit cards obtained or attempted to obtain funds for the purpose of on-line gambling. The total amount defrauded, or attempted to be defrauded was $322,716.20.
11 The facts of counts 3, 22 and 23 are somewhat different. With respect to count 3, the appellant advertised for sale on eBay, a mobile telephone for $600. The victim paid the money to the appellant, but the appellant failed to send the mobile telephone. With respect to each of counts 22 and 23, the appellant went to a Telstra shop purporting to purchase mobile telephones. On the first occasion, using false identity papers he obtained three mobile telephones worth in total $1,623.60: count 22. On the second occasion, he unsuccessfully attempted to obtain, using the same false identity papers, two more mobile telephones.
12 The stealing offence, the subject of the s 32 notice, concerned the theft by the appellant of a jacket worth $150 from Myers.
13 Stevenson DCJ sentenced the appellant to a total of 2 years 8 months' imprisonment for the offences the subject of indictment 1177 of 2011 and the s 32 notice. In addition, he ordered the appellant to serve the 16 month term of imprisonment which had been suspended. It is in this way that the total effective term of 4 years' imprisonment was structured.
The grounds of appeal
14 The appellant has represented himself in these proceedings. Similar to many self-represented litigants, he did not appreciate that before this court can intervene to impose a lesser sentence, it is necessary for him to demonstrate that the sentencing judge made a material error, whether express or implied: Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P and Owen JA).
(Page 5)
15 Neither the appellant's notice of appeal nor his written and oral submissions attempt to identify any error on his Honour's part. In reality, the appellant's submissions were simply a plea to resentence him. He told the court that his elderly parents, who live in New South Wales, are unwell and they need him to look after them. He said that his mother, in particular, was very upset by his incarceration. With passion, the appellant attempted to impress on this court that he was very sorry for his offending. He said that he would not offend again. He asked for 'one more chance' to reform.
16 Taking the appellant's submissions at their highest, it could be said that he was alleging two errors on the part of the learned sentencing judge. First, his Honour should have taken into account the impact of any sentence upon his parents. Second, that the total effective sentence breached the first limb of the totality principle. In fairness to the appellant, I will deal with his appeal on the basis that these are the errors he alleges.
17 The appellant's statements about his parents were not supported by any evidence beyond his assertions from the bar table. The law is clear that the impact of a sentence upon others is only mitigating in exceptional circumstances. There is no cogent material before the court that could justify this conclusion. In any event, the asserted impact upon his parents, unfortunate as it may be, is not unusual and could not be regarded as mitigatory.
18 The totality principle is well-known. It was concisely described by Owen JA in Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 in these terms:
The totality principle and the authorities in which it has been explained are well known. The principle has been described as having two limbs. First, a judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. Secondly, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release: see the authorities collected in Pollock v The State of Western Australia [2009] WASCA 121 [24] - [25].
A phrase often used to describe the practical application of the totality principle is that the judge, having fixed terms for the individual offences, should stand back and 'take a last look' to ensure that the aggregate term properly measures the overall criminality involved and that it is not crushing. In my view this is an apt description of the process and is a
(Page 6)
- prudent step that a judicial officer should take in finalising the task of sentencing for multiple offences [36] - [37].
19 There is nothing in the appellant's submissions that could conceivably support the notion that the total effective sentence imposed upon the appellant was crushing as that term is understood. If there is any merit in this argument, it is only on the basis of an alleged breach of the first limb of the totality principle, that is, that the total effective sentence of 4 years' imprisonment was not a just and appropriate measure of the total criminality involved in the appellant's offending.
20 The first limb of the totality principle obliged his Honour to have regard to the total effect of the sentences imposed on the offences within indictment 1177 of 2011 and the order requiring the appellant to serve the period of 16 months' imprisonment which had previously been suspended.
21 His Honour's sentencing remarks reveal that he had 'one last look at the sentence' to ensure that it was an appropriate reflection of the appellant's overall criminality: ts 95. It cannot be said that his Honour did not have regard to issues of totality.
22 The question remains, was the total effective sentence an appropriate measure of the appellant's overall criminality?
23 The appellant's dishonesty continued, largely unabated, from 2006 until 2011. Over that period he defrauded, or attempted to defraud, large sums of money to fuel his gambling addiction. Despite the imposition of an intensive supervision order, a conditional suspended imprisonment order and a suspended imprisonment order, all of which he breached, the appellant was unable to control this addiction and kept offending.
24 The reports before the learned sentencing judge painted a pessimistic picture of the appellant's present ability to rehabilitate. The pre-sentence report noted that the appellant appeared to lack victim empathy and that he displayed limited insight into his offending and its consequences. The pre-sentence report author questioned both the appellant's sincerity and motivation to address his gambling addiction. The psychiatric report written by Dr Mark Hall, noted that the appellant is a pathological gambler and abuses both alcohol and hashish. In his opinion, the appellant has an antisocial personality disorder which is 'the basis for his willingness to finance his gambling through criminal means'. In Dr Hall's opinion, despite the appellant's assurances of remorse and contrition, he is likely to offend in the same vein in the future.
(Page 7)
25 The only real mitigating factor was the appellant's pleas of guilty. There was otherwise little to be said in mitigation. At 27 years of age, the appellant could no longer claim youth as a mitigatory factor. There is no evidence that his personal history which shows that he and his family fled Iraq and came to Australia via Saudi Arabia has, in a material way, impacted adversely upon him.
26 Having regard to his persistent criminality, personal deterrence and the protection of the public were important sentencing considerations. Of course, in offending of this kind, general deterrence must also be given considerable weight.
27 His Honour was correct to accumulate the sentence he imposed on indictment 1177 of 2011 with the sentence to be served for breaching the suspended imprisonment orders. Had his Honour ordered that the 16 month term of imprisonment be served concurrently, the appellant would not have been adequately punished for his earlier offending.
28 In my opinion, the total effective sentence of 4 years' imprisonment did not infringe the first limb of the totality principle.
Conclusion and orders
29 The appellant's appeal has no reasonable prospect of succeeding. Leave to appeal must be refused. The appeal must be dismissed.
30 I make the following orders:
1. Leave to appeal is refused.
2. The appeal is dismissed.
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