Assi v R
[2006] NSWCCA 257
•24 August 2006
CITATION: Assi v Regina [2006] NSWCCA 257
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 09/08/2006
JUDGMENT DATE:
24 August 2006JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 31 DECISION: Leave to appeal is granted and the appeal is allowed but only so far as it is necessary to address the discrepancy in the period of the overall non-parole period specified and the date given for the expiry of the non-parole period. In respect of count 4 the non-parole period specified is quashed and in lieu there be specified a non-parole period of 6 months to expire on 16 August 2009, the date upon which the applicant is eligible to be released to parole.; The sentences imposed for contempt in the Supreme Court on 4 March 2005 are each to commence on 17 August 2009 and the non-parole period of 3 months is to expire on 16 November 2009 the date upon which the applicant is to be released to parole. The total term of each sentence is to expire on 17 August 2010. CATCHWORDS: Criminal Law - Sentencing - Fraud offences committed while on bail and parole for similar offences - relevance of pathological gambling addiction - whether sentences manifestly excessive. LEGISLATION CITED: Crimes Act 1900 - ss 178A, 178BA CASES CITED: R v Molesworth [1999] NSWCCA 43 PARTIES: Joseph Assi v Regina FILE NUMBER(S): CCA 2006/406 COUNSEL: D. Woodburne - Crown
Applicant in personSOLICITORS: S. Kavanagh - Crown
Applicant in personLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0360 LOWER COURT JUDICIAL OFFICER: Latham DCJ LOWER COURT DATE OF DECISION: 17/02/2005
2006/406
THURSDAY 24 AUGUST 2006TOBIAS JA
HOWIE J
ROTHMAN J
1 TOBIAS JA: I agree with Howie J.
2 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court by Latham DCJ, as she then was (the Judge). On 19 November 2004 the applicant pleaded guilty to four counts on an indictment, being two counts of fraudulent misappropriation contrary to s 178A of the Crimes Act and two counts of obtaining money by deception contrary to s 178BA of the same Act. In respect of the s 178A offences the maximum penalty is imprisonment for seven years and in respect of the s 178BA the maximum penalty is imprisonment for five years. There was also before the court a Form 1 setting out seven offences, being three offences contrary to s 178A and four offences contrary to s 178BA.
3 On 17 February 2005 the Judge pronounced sentences to the following effect:
Count 1: imprisonment for five years to date from 17 February 2005 with a non-parole period of three years to expire on 16 February 2008.
Count 2: imprisonment for three years to date from 17 February 2005 with no non-parole period.
Count 4: imprisonment for three and a half years to date from 17 February 2009 with a non-parole period of nine months to expire on 16 November 2009.Count 3: imprisonment for four years to date from 17 February 2007 with a non-parole of two years to expire on 16 February 2009.
This is an effective sentence of imprisonment for seven and a half years with a minimum period to be served of four years and nine months. The applicant is eligible to be released to parole on 16 November 2009.
4 It is to be noted that the Judge did not specify that she had taken into account the matters on the Form 1 when sentencing for any of the counts on the indictment. However, the Judge had indicated during the sentencing proceedings that she was amending the Form 1 to specify that the matters were to be taken into account when sentencing for the offences committed on 18 November 2002, that is the third count on the indictment. The applicant was legally represented at the hearing and there was no objection to the Judge taking that course. The Judge in the sentencing remarks indicated that the applicant had asked her to take the matters into account on the third count.
5 On the back of the indictment the sentences are noted to the following effect:
Count 3 (together with the matters on the Form 1): a sentence of imprisonment for five years to date from 17.2.2005 with a non-parole period of three years to expire on 16.2.2008.
Count 2: a sentence of imprisonment for three years fixed term to date from 17.2.2005 and to expire on 16.2.2008.
Count 1: a sentence of imprisonment for four years to date from 17.2.2007 with a non-parole period of 2 yrs to expire on 16.2.2009
The effective head sentence is seven and a half years with a non-parole period of four and a half years.Count 4: a sentence of imprisonment for three and a half years to date from 17.2.2009 with a non-parole period of nine months to expire on 16.11.2009.
6 It is obvious that the sentences noted on the back of the indictment are inconsistent with the sentences as pronounced by the Judge in so far as counts 1 and 3 are concerned. However it is also obvious that the sentences as entered on the indictment, the record of the District Court, are in conformity with what the Judge intended, in that the longest sentence was going to apply to the third count taking into account the matters on the Form 1. The applicant conceded that this was so at the hearing before this Court.
7 The applicant appeared for himself for the purposes of this application. He originally relied upon six grounds of appeal and filed written submissions in support of them. At the hearing of the appeal, however, he abandoned the first two grounds as a result of what the Crown had written in response to them. The following grounds were argued by the applicant:
3. The sentencing judge's sentence was uncertain in that her Honour intended to sentenced the Appellant to a Non-Parole Period ("NPP") of 4½ years, but the dates of the sentences culminate in a NPP of 4 years 9 months.
4. The sentence on Count 1 is manifestly excessive in that a 5 years sentence (or, a 4 year sentence) for fraudulently misappropriating $7,250 is inappropriate and not within the range of sentencing for the objective and subjective circumstances of the Appellant.
6. The sentencing judge failed to give sufficient weight to the fact that 3 (Counts 2-5) of the 4 offences occurred over a period of only 5 months, and that the other offence (Count one) occurred in a period of time prior to the Appellant serving a custodial sentence.5. The sentence on Count 2 is manifestly excessive in that a fixed 3 year sentence for obtaining $10,000 by deception is inappropriate and not within the range of sentencing for the objective and subjective circumstances of the Appellant
8 The facts can be stated relatively briefly and are derived from an agreed statement of facts tendered before the Judge. The applicant was a former solicitor, his practising certificate being cancelled in April 1999 for dishonesty offences. He was at the time of the offences for which he was being sentenced subject to an order of the Supreme Court forbidding him from holding himself out to be a solicitor.
9 The applicant had known the victim of the first count on the indictment and the first matter on the Form 1, Mr Napoli, since 1997 and had acted for him as a solicitor in a number of matters. In March 2001 Mr Napoli consulted the applicant and was advised to set up a trust in respect of a unit he owned. Mr Napoli was informed that stamp duty of $11,240 was to be paid on the trust document. On 2 May 2001 Mr Napoli handed the applicant $7,250 on account of stamp duty and was given a receipt. The applicant showed him what purported to be a trust document. On 21 May 2001 Mr Napoli handed the applicant a further cash sum of $4000 and received another receipt. In June 2001 the applicant handed Mr Napoli what purported to be a stamped trust document showing that duty of $11,240 had been paid. Mr Napoli then signed the document. In October of that year Mr Napoli became concerned about the trust document and made inquiries with the tax office and the law society. He spoke to the applicant who said to give him the original of the document and he would take care of things. Mr Napoli gave him the document but thereafter was never able to make contact with the applicant again. The stamp on the document proved to be a forgery. Mr Napoli never recovered the money he had paid to the applicant.
10 The second count on the indictment related to the applicant’s dealings with Mr Zaher, an accountant. He required a solicitor because of difficulties arising with his landlord and was referred to the applicant. Mr Zaher spoke to the applicant by phone. The applicant advised him that he was aware of his problems and that Mr Zaher had a good case against the landlord. The applicant indicated that he was prepared to act for him and required $10,000 in legal fees and $2,000 court costs. On 7 August 2002 Mr Zaher attended on the applicant’s premises in Market Street and the applicant introduced himself as a solicitor. He advised Mr Zaher that he only handled trade and commercial disputes and operated from home. Mr Zaher was advised that the $10,000 would be held in trust and returned if he were unsuccessful in the legal proceedings. If that were the case, he would only be liable for the court fees. He also told Mr Zaher that he would charge $300 an hour up to a total of $3,000 if the matter were settled out of court.
11 Mr Zaher obtained a bank cheque for $10,000 and handed it to the applicant. In return he received a letter of agreement and a receipt for $12,000. Mr Zaher noticed the discrepancy in the receipt and was informed by the applicant that it was a mistake. On that date, 7 November, the cheque was paid into the applicant’s account with Crown Casino in Melbourne. On 14 August Mr Zaher spoke to the applicant about what action he had taken in his matter and at his request was sent a letter by the applicant on 15 August advising him that he had written to the landlord’s solicitors. In September 2002 the matter was resolved and on 25 November Mr Zaher spoke to the applicant requesting the return of his money. It was agreed between them that the applicant was be paid $500 for the letter he had written and the $10,000 returned. Mr Zaher sent the applicant a cheque for $500 but never received any money in return. When police spoke to the applicant about this complaint he told them it was a civil matter.
12 Count 3 and the fifth matter on the Form 1 related to the applicant’s dealings with Mr and Ms Afram who sought his assistance in the purchase of a house in Condell Park. Ms Afram informed the applicant that she wished to pay a deposit of 20 per cent but he advised her to pay 10 per cent to the agent and place the other 10 per cent together with an amount for stamp duty into his trust account. A little time later the applicant advised Ms Afram to pay the 10 per cent to the agent and this she did. A few days later the applicant told her to obtain two cheques, one for the balance of the deposit in the sum of $42,200 and one for stamp duty in an amount of $16,500. He also told her he wanted $1,500 in cash as his fees. He instructed her to make the cheques payable to him as they were to be banked into his trust account.
13 Ms Afram had a cheque drawn payable to the applicant for $16,500 and the applicant came to her house to collect it. The cheque was paid into an account at the Crown Casino. This amount gave rise to the matter on the Form 1. Ms Afram later drew a cheque for $42,200 payable to the applicant. Again the applicant came to her home and collected the cheque and was given $1,500 in cash as fees for acting on her behalf. That cheque was also paid into an account at Crown Casino. A few weeks later the applicant advised Ms Afram that the matter could not be settled because of a caveat on the title. Later he informed her that settlement would occur on 15 January 2003. However, the day before settlement the applicant advised that settlement was further delayed. Ms Afram and her husband indicated that they would not proceed further and the applicant told them they would have their money refunded. However, the vendor declined to cancel the contract, as there was no obstacle to settlement. The applicant assured Ms Afram that he was a solicitor and would sort out the problem. In September 2003 the applicant informed Ms Afram that he had used her money and was obtaining a loan to repay her. She and her husband never received any of the money paid to the applicant.
14 Count 4 and the sixth matter on the Form 1 related to dealings between the applicant and Mr and Mrs Germanos. They were interested in purchasing a unit in Concord, however, an offer was made by another purchaser. They were recommended to the applicant as a solicitor by a mutual friend. Ms Germanos contacted the applicant and was advised that, if they offered more money to the vendor, they might be successful. On 13 December 2002 she provided the applicant with a cheque payable to the applicant for $18,000. He later advised her that he needed a further $23,000 and on 20 December 2002 a cheque in this amount was given to the applicant as deposit for the purchase. He was also to be paid $1,000 in solicitor’s fees. The applicant issued a receipt for $40,000. When the unit was sold to the other party, Ms Germanos asked the applicant to return their money. On 4 February 2003 the applicant handed them a cheque for $41,000. However, they did not bank the cheque and requested the applicant deposit cash into their account. On 5 February the applicant deposited a cheque but it was later dishonoured. On 18 February a sum of $1,000 was banked into the account but Mr and Ms Germanos never received any other money from the applicant. The two cheques given to the applicant were banked into an account at Crown Casino.
15 As a result of the frauds committed by the applicant he received $82,000 in respect of the matters on the indictment and $140,000 from the Form 1 matters. The offences were committed over a period from 2 May 2001 to 24 January 2003. The offence in the first count on the indictment was committed while the applicant was on bail for dishonesty offences for which he was later gaoled. The other offences on the indictment and six of the matters on the Form 1 were committed while the applicant was on parole.
16 A pre-sentence report was in evidence before the Judge. It disclosed that the applicant, who was aged 44 years, immigrated from Lebanon in 1969 and became an Australian citizen in 1970. Since 2003 he has been in a de facto partnership and has a young child from that relationship. He told the officer preparing the report that he believed his partner and child helped him to refrain from offending. The officer thought that the de facto was very naïve as to the applicant’s criminal behaviour. The applicant has degrees in law and history. He was admitted as a solicitor in 1994. At the time of the report the applicant was working as a management consultant.
17 The applicant said that he expressed feelings of guilt and anguish for the offences. He told the officer that he used the money to play Baccarat at the Crown Casino in order to refund money he had stolen in the past. In a pre-sentence report prepared for the earlier offences it was noted that the applicant had a gambling addiction and the view had been expressed that he was not motivated to address the problem. The report prepared for the later sentencing proceedings indicated that the applicant was abstaining from gambling and that his attitude seemed more positive.
18 There was also in evidence a report from a psychiatrist, Dr Allcock. He reported that the applicant commenced gambling in 1997 at the age of 36. Eventually he was gambling $1,000 per hand and attending the casino every day. His gambling led to the offences for which he was gaoled in 2001 and for which he served a non-parole period of six months. On his release he fulfilled his promise of never attending Star City Casino again by switching to the Crown Casino. The applicant told the psychiatrist that he made the decision to cease gambling on New Years Eve 2003 after finding out that his partner was pregnant. He said that he had no urge to gamble in the future. The psychiatrist believed that he was unlikely to offend again.
19 The Judge gave the applicant the benefit of a discount of 10 per cent for the pleas of guilty coming on the first day of his trial for those offences. The Judge referred to Dr Allcock’s assessment of the likelihood of re-offending and indicated that this view must be “cautiously received” because of his re-offending while on parole. The Judge noted some evidence of contrition but added that it was “born of discovery”. Her Honour stated that the offences “call for considerable emphasis on the principles of general and specific deterrence, punishment and denunciation in the sentences to be imposed”. She also noted that the applicant had offended in breach of a position of trust that he had secured over the victims by holding out that he was a solicitor.
20 The applicant addressed this Court and it is clear from what he said and from his written submissions that he is a highly intelligent man. It is also clear that he is deeply distressed because of his current situation. He was accompanied by his partner, his child and apparently other members of his immediate family. He stressed to the Court that his gambling had been his downfall and that he had made a belated, but genuine, commitment to reform since committing the offences for which he was sentenced.
21 He sought to rely upon an affidavit detailing his plans to attend a programme offered by the Salvation Army to assist gamblers and outlining the progress he had made towards obtaining a degree in psychology from the University of Southern Queensland. The affidavit asks the Court to make orders permitting him to attend the Salvation Army course and then to suspend the balance of his sentence. However, it was made clear to the applicant, and he appeared to understand, that the Court could only consider this material if it became necessary to exercise its discretion in re-sentencing him.
22 The Crown conceded that the third ground of appeal had merit in that her Honour’s intention as stated on the back of the indictment was to impose an overall non-parole period of four and a half years but the sentences as imposed resulted in a non-parole period of four years and nine months. The Crown accepted that the applicant should receive the benefit of any doubt arising from this discrepancy and that the Court should readjust the sentences to lessen the total non-parole period by three months.
23 The applicant’s major complaint was that the sentences were manifestly excessive having regard to the amount of money involved in his frauds and the fact that he was suffering at the time from a pathological state so far as his compulsion to gamble was concerned. Although he accepted that his offending while on parole was a seriously aggravating factor, he pointed to the fact that he had been released to parole without the benefit of any guidance or counselling to assist in overcoming his gambling addiction. He noted that Dr Allnut believed that he was unlikely to re-offend particularly if he were given the support of counselling such as could be provided by the Salvation Army.
24 The applicant asked the Court to take into account that, because of his gambling addiction, he operated at the time of his offending under the illusion that he would be able to repay any money he obtained by his frauds from his further gambling winnings. Therefore, he argued, he never intended to permanently deprive any of his victims of their money and thus his moral and criminal culpability was significantly diminished.
25 The applicant asked the Court to consider making the sentences for the first three counts completely concurrent so that the non-parole period that her Honour intended to impose would be reduced by a further period of 12 months. He submitted that the sentence would then properly reflect his subjective circumstances and the pro-active steps he had taken to address his gambling and its consequential criminal behaviour.
26 There is in my view no error in the sentences imposed by her Honour or evidence from the remarks on sentence. The applicant must understand that this Court is only authorised to interfere if patent error can be shown or where the Court is satisfied that the sentence imposed is plainly unjust. Objectively the applicant’s offences were very serious. They were calculated frauds intended to obtain for him gambling funds by deceiving his victims into trusting in him as a solicitor who was acting in their best interests. They were all committed while he was on conditional liberty and the majority of them after he had served a period in custody for the very same criminal behaviour.
27 The applicant was apparently treated with considerable leniency by the Local Court in 2001. No doubt this was due in part because of his gambling habit and his promises of reform. The applicant acknowledged so much to this Court. Yet very shortly after his release to parole he set about defrauding ordinary members of the community of large sums of money by preying on their trust in a person who they believed to be a member of the legal profession. Although his gambling habit may explain his fall into such serious criminal conduct and give some hope of rehabilitation in the future, it has been held to be a rare case where an offender can seek mitigation of penalty based upon an addiction to gambling, even where it is pathological: R v Molesworth [1999] NSWCCA 43. In my opinion because of the fact that the bulk of these offences were committed while on parole for the very same type of criminal conduct and because the offences were premeditated and calculated to deprive people of substantial sums of money, they fall outside that rare case where significant allowance might be made for the applicant’s compulsion to gamble.
28 Although the amounts of money involved in the charges were not as substantial as, unfortunately, is sometime the case in frauds of this type, the amount of loss to the victim is only one of the relevant considerations in determining the seriousness of the offences and it is not necessarily decisive. It is important to recognise in this case that the offences on the indictment and in the Form1 represented a period of repeated offending in which the applicant set about achieving a fund of money that he could use for his gambling needs and at the same time promoting false expectations in the minds of his victims who came to him for his assistance as a trusted member of the legal profession.
29 Apart from arguing that the overall sentence was too harsh, the applicant could advance no reason why the Judge was in error in making the sentence for the first count partially cumulative with the sentence for the third count. Although the offence in the first count was committed prior to his receiving a gaol sentence in 2001, as has already been noted it was committed while on bail for those offences and was a separate and distinct act of serious criminality from both those matters and the other offences for which sentence was passed by her Honour. I am far from convinced that the total sentence imposed was disproportionate to the total criminality before the Judge.
30 I would propose that leave to appeal be granted and the appeal be allowed but only in so far as it is necessary to address the apparent discrepancy in the period of the overall non-parole period specified and the date given for the expiry of the non-parole period. Therefore, I propose that in respect of count 4 the non-parole period specified by the Judge be quashed and in lieu there be specified a non-parole period of 6 months to expire on 16 August 2009, the date upon which the applicant is eligible to be released to parole.
31 ROTHMAN J: I agree with Howie J.
6 October 2006
32 THE COURT Since the Court delivered its judgment in this matter it has become apparent that the Court should make a further order as a consequence of reducing the non-parole period imposed in the District Court by Latham DCJ. This is necessary because on 4 March 2005 the applicant was sentenced in the Supreme Court to concurrent sentences consisting of a non-parole period of 3 months and a head sentence of 12 months in respect of charges of contempt. These sentences were to commence on 17 November 2009, that is the date upon which the non-parole period of the sentences imposed in the District court expired.
Because the effective non-parole period of the sentences imposed by Latham DCJ will now expire on 16 August 2009, there is a gap between the expiration of that non-parole period and the commencement of the sentences for contempt. This problem can be cured by altering the commencement date of the contempt sentences by utilisation of the provisions of s 59 of the Crimes (Sentencing Procedure) Act.
Accordingly the Court orders that the sentences imposed for contempt in the Supreme Court on 4 March 2005 are each to commence on 17 August 2009 and the non-parole period of 3 months is to expire on 16 November 2009 the date upon which the applicant is to be released to parole. The total term of each sentence is to expire on 16 August 2010.
06/10/2006 - Cover sheet amended and additional paragraph added. - Paragraph(s) 32
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