EVANGELISTA v POLICE
[2004] SASC 313
•30 September 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EVANGELISTA v POLICE
Judgment of The Honourable Justice Anderson
30 September 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
Appellant obtained approximately $170,000 by fraudulent means from the ANZ bank - the Magistrate imposed head sentence of four years, reduced to three years for guilty plea - imposed non-parole period of twenty-one months - appeal on several grounds including: sentence was manifestly excessive, the Magistrate failed to have adequate regard of appellant's circumstances, the Magistrate failed to refer to the totality principle in his sentencing remarks, the Magistrate erred by referring to sentencing standards, the Magistrate should have susptended sentence. During the appeal, it was argued that the appellant's contrition is of significance. Held: the Magistrate did not err, he took into account all of the relevant circumstances of the appellant including the factors relevant to suspending the sentence, he did refer to the totality principle, and the reference to 'sentencing standards' meant a reference to similar cases of this nature. Held: appeal dismissed.
EVANGELISTA v POLICE
[2004] SASC 313
ANDERSON J In this matter the appellant is appealing against the sentence imposed by a Magistrate on 1 July 2004. A short version of the facts is that the appellant, with intent to defraud, obtained from the ANZ Bank a sum of $171,862.00 by six payments.
The appellant obtained a loan for the purpose of refinancing an existing loan to construct a residence at Upper Sturt. He provided false invoices to the bank in the name of a non-existent organisation and thereby received progress payments on the construction of the home which did not take place.
The learned Magistrate described the offending as, “premeditated, deliberate and repetitive” [at 7]. It involved the creation of a fictitious personality, the preparation of three bogus invoices and the opening of a bank account in that fictitious name.
The bank eventually sold the property as mortgagee and recovered $85,000 to off-set its loss.
The details of the appellant’s background and personal circumstances are set out by the Magistrate and also in a report prepared by Dr Jules Begg, a specialist psychiatrist. The report is dated 14 January 2004. Dr Begg does not consider that the appellant was suffering from a psychiatric illness as such. The essence of his report is that the appellant was looking for praise from others for success and he was involved in gambling and drug-use. Both the gambling and drug-use require counselling, according to Dr Begg.
The appellant’s record for offences of a similar nature is very poor. He has been convicted regularly from 1990 up until 1994 in New South Wales, Western Australia and Queensland for offences of dishonesty on many occasions.
The appellant pleaded guilty before the learned Magistrate, and the learned Magistrate thereby reduced the sentence by one quarter on account of the plea of guilty. As a result, a term of four years imprisonment was reduced to three years imprisonment. The learned Magistrate then fixed a non-parole period and took into account the impact of imprisonment and the effect on the appellant’s wife and young child and fixed a non-parole period of twenty-one months but declined to suspend the sentence.
The appeal against the decision of the learned Magistrate is that the sentence was manifestly excessive. It was suggested in particular that the learned Magistrate failed to have adequate regard to the personal circumstances of the appellant.
In my view, the learned Magistrate took into account all the personal circumstances of the appellant, and had proper regard to the nature of the offence and its premeditation together with the appellant’s prior record.
Additional grounds of appeal were allowed with the consent of the Crown. It was suggested that there were mistakes by the learned Magistrate because of incorrect factual information provided by the prosecution. In argument it was apparent that these amounted to nothing of consequence, and having heard argument on these topics, I am not convinced that they were of any significant influence in the reasoning of the learned Magistrate.
Most of the time in this appeal was spent on the question of restitution, recovery and repayment. The facts are, as I have already indicated, that as a result of the bank’s sale of the property, $85,000 or approximately half of the amount unlawfully obtained from the bank was recovered. A lot of the time before me was spent arguing about the aspect of contrition in relation to the restitution on the basis of a suggestion that, of his own free will and without any pressure from the bank, the appellant sold the house. That is plainly not so on perusal of the documents which were tendered before me by the Crown.
Whilst the repayment of the amount of $85,000 is relevant in relation to restitution, I take no account of it in relation to the suggested contrition of the appellant because he had no role to play. I make it clear that despite the fact that I believe that the submission which was made, based on the instructions of the appellant, was misleading, I do not take that into account as against the appellant in considering the merits of his appeal.
It was also argued that the learned Magistrate was wrong in that he did not refer to the totality principle in his sentencing remarks. In my view the learned Magistrate clearly did have regard to the totality principles by virtue of the reasoning throughout the whole of his sentencing remarks. In my view the sentence imposed was not so crushing as to warrant a reduction on this aspect.
It was also suggested that the learned Magistrate was in error when referring to sentencing “standards” concerning serious fraud. The learned Magistrate did use the word “standards” which strictly was not correct in relation to fraud offences, but clearly he meant that he took account of sentencing remarks made by this court in other cases.
In my view, in relation to the question of whether the sentence should be suspended, the learned Magistrate did not fall into error. In my view he considered appropriately the full range of sentencing options from his sentencing remarks at [20] and [25], and correctly declined to suspend the sentence.
Given the pre-meditation, the steps deliberately taken in preparation for the crime, the repetition of the crime by six separate payments and the fact that this was yet another crime of dishonesty by the appellant, I do not regard either the head sentence of four years, reduced to three for the plea of guilty, nor the non-parole period of 21 months as manifestly excessive.
In my view, therefore, none of the appeal grounds succeed and the appeal is therefore dismissed.
0
0
0