Dermish v Commonwealth Director of Public Prosecutions No. Scgrg-98-1674 Judgment No. S98

[1999] SASC 98

DERMISH v COMMONWEALTH DPP
[1999] SASC 98

Magistrates Appeal: Criminal
Nyland J

1. This is an appeal against sentence. The appellant was charged on an information dated 16 December 1997 with three offences of opening an account with a bank by using a name which was false, contrary to s24(1) of the Financial Transaction Reports Act 1988.

2. The appellant was further charged on an information dated 6 August 1998, together with a co-offender, Terrence Geoffrey Hunter, with 12 counts of opening an account in a false name, contrary to s24(1) of the Financial Transaction Reports Act 1988 and 11 counts of operating an account in a false name, contrary to s24(2) of that Act. The penalty prescribed by s24(6) of the Act for each of these offences is imprisonment for a maximum period of two years.

3. Section 4J(1) of the Crimes Act 1914 provides, however, that an indictable offence against the law of the Commonwealth which is punishable by imprisonment for a period not exceeding 10 years may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.

4. Section 4J(3)(a) provides that in such a case, where the offence is punishable by imprisonment for a period not exceeding five years, the penalty is a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units or both.  In this case, there was an agreement between the prosecution and the appellant that the matter be dealt with summarily.  As a result the appellant was liable to be imprisoned for a maximum period of 12 months with respect to each of his offences.

5. On 25 November 1998, the appellant appeared before a stipendiary magistrate in the Adelaide Magistrates Court and pleaded guilty to all of the charges against him.  He was represented by Mr Stokes of counsel.  Mr Ford appeared on behalf of the prosecution.  An agreed statement of facts was placed before the magistrate.  The following is a summary of that statement.

6. Between 10 September 1997 and 14 October 1997, the appellant opened accounts with 12 various financial institutions by using false identities.  He produced documents containing false identification such as Medicare cards, birth certificates and references from purported employers to the financial establishments.  The appellant would then make a deposit in the account and apply for a loan to upgrade his furniture, repair a boat or purchase goods.  The deposit of his own money was then withdrawn and paid into fictitious accounts which had been opened by Hunter under the name of Arthur Rockett.  The moneys would then be withdrawn from that account by Hunter.  Two loan applications which had been approved were stopped through police intervention.

7. The learned magistrate, in his remarks on penalty, indicated that he regarded the opening and operation of the various accounts as one transaction for the purposes of sentencing. He noted that in the case of the appellant, the total deficiency was $78,637. He took into account the early intimation of a plea and indicated that he proposed to reduce the sentence by one-third. On the complaint which contained three charges, the magistrate made an order for reparation in the sum of $23,637 and ordered that the appellant be convicted and imprisoned for 12 months, commencing from 25 November 1997. On the information containing 23 counts, the magistrate made a further reparation order against the appellant in the sum of $55,000, making the total reparation amount $78,637. Pursuant to the provisions of s4K of the Crimes Act 1914, he then imposed one penalty with respect to all counts, which was a sentence of four years, commencing from 25 November 1997. He fixed a non-parole period of two years.

8. The submissions made by Mr Stokes on behalf of the appellant are set out in the affidavit of Timothy Dibden, sworn on 29 January 1999.  Mr Stokes referred to the appellant’s early plea and the fact that the appellant had been in custody for exactly one year since his apprehension.  This was of particular relevance as the appellant, who ordinarily resided in New South Wales, had been deprived of the support of his family and friends during this period of incarceration and in a sense had done time harder than other prisoners who had family in this State.  Mr Stokes also referred to the appellant’s lack of prior record and his otherwise good character.  He provided the magistrate with a number of references that referred to the appellant’s good character.  In particular, Mr Stokes referred to the reference obtained from Mr Perry, an air-conditioning and insulation specialist who had previously employed the appellant in the capacity of operations manager.  That reference indicated that the appellant’s position in the company was still open for him.

9. Mr Stokes referred at some length to the report of Mr Fugler, a psychologist.  That report refers to the appellant having been introduced to cocaine about 18 months earlier and thereafter developing an expensive addiction.  It mentions that the appellant, as a result of that addiction, got into financial difficulties and was obtaining the drug on credit.  Eventually he ended up owing $8,000 to a group of dealers who he reported to be connected with the Russian/Ukrainian Mafia.  It was suggested by members of the group that he raise money by approaching various banks and applying for loans and it was this group who supplied the false identification and money to establish accounts and knowledge with respect to the banking system.  The appellant believed he had no other choice than to participate.  Each successful loan resulted in $2,000 being reduced off his account with the group continuing to supply him with cocaine.  Mr Fugler’s conclusion was:

   “Your client reported a previous history of stability, pro social behaviour, educational and employment achievement, and low drug use.  Mr Dermish does not present as an individual given to criminal activity.  He has considerable support from family members and others within the community.  No areas of psychological dysfunction are present.  He is ashamed and remorseful with respect to his dishonesty.  Mr Dermish realises his mistakes and is determined not to present before the Court gain or become involved in further drug use.  Unless there are other aspects to this case of which I am not aware, I would expect your client to have an excellent prognosis and the offending behaviour exhibited in the present matters to be an aberration.”

10. I understand that in the course of his submissions before the magistrate, Mr Stokes expanded on the way in which the appellant had been manipulated.  He referred to the violent and dangerous nature of the Russian/Ukrainian Mafia, who were mainly former KGB officers, and the manner in which they followed through with threats of retribution and violence against those who informed upon them or who did not co-operate with them.  He said that it was Russian gangsters who had set up and operated the scheme and had involved the appellant and Hunter.  Mr Stokes acknowledged that a period of imprisonment was inevitable.  He submitted, however, in the light of the plea of guilty, the previous good character, the factual circumstances surrounding the involvement in the matter, the fact that the appellant was unlikely to appear again before the criminal justice system and the period of time already spent in custody, that the appellant should receive a term of imprisonment with immediate release or alternatively a short period before being released.

11. According to Mr Stokes, the magistrate then adjourned briefly to read the various references and the psychological assessment.  When he returned to court he indicated that he had in mind a minimum term of 18 months, but not immediate release, unless the prosecutor sought to persuade him otherwise.  On the basis of that information, Mr Stokes indicated that he had nothing further to say.  The prosecutor summarised some of the matters he had mentioned earlier.  The magistrate thereafter turned to the appellant in the dock and pronounced the sentence to which I have already referred without suggesting to defence counsel that he had altered the view he had initially proposed.

12. On the hearing of this appeal, Mr Stokes indicated that if he had been aware that the learned magistrate intended to increase the penalty beyond that which had previously been intimated he would have sought to make further submissions on behalf of the appellant.  Those submissions would have included further references relating to other employment opportunities and arrangements deriving therefrom with respect to making restitution.  He said he would also have referred the learned magistrate to the sentence imposed in the matter of Beckett (sentencing remarks delivered by Judge Lowrie in the District Court on 2 June 1998).  Beckett pleaded guilty to 34 counts of false pretences and one count of attempted false pretences committed over a period of almost one year.  The total amount involved was $115,000.  The circumstances of the offending were remarkably similar to the present case.  Beckett, as part of a scheme devised and co-ordinated by someone in the eastern States, had opened numerous accounts with banks in Adelaide using false names and a variety of false documentation.  He had no prior record and had pleaded guilty at an early date.  The District Court judge sentenced Beckett to imprisonment for four years with a non-parole period of 18 months.

13. I subsequently requested a report from the magistrate in an endeavour to clarify this matter.  In that report, the magistrate indicated that he believed that he had intimated that this was not a case for immediate release, and that he had in mind a non-parole period of about 18 months to be back-dated to 25 November 1997, that being the date the appellant was taken into custody.  He said nothing about the length of the head sentence.  He went on to say in his report “To put it colloquially, it was not a judicial promise set in concrete”.

14. The magistrate had no memory of Mr Stokes saying that, unless the position was to change, he would have nothing further to say.  The magistrate conceded, however, that he could have done so and he had simply forgotten.  The magistrate also commented that the fact that the prosecutor made further submissions should have made it obvious to everyone that he was seeking to persuade him otherwise.

15. In this case, the magistrate understandably took a serious view of the appellant’s conduct.  Although the series of frauds were perpetrated over a relatively short time, each of the offences was well planned and executed with numerous documents containing false identities.  Clearly, it was a matter which called for a strong deterrent penalty.  It does appear, however, that there may have been a misunderstanding which meant that all relevant information was not placed before the magistrate.  There was a considerable body of material which indicated that the appellant was a good prospect for rehabilitation.  As a result of the magistrate not having all relevant information it would seem that he has imposed a sentence which is manifestly excessive, at least in so far as the non-parole period is concerned.  In the circumstances, I propose to allow the appeal to the extent that the non-parole period will be reduced to 18 months.