R v Bojan - [2003] NSWCCA 45

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Bojan [2003] NSWCCA 45

FILE NUMBER(S):
60071/02

HEARING DATE(S): 26/02/03

JUDGMENT DATE: 28/02/2003

PARTIES:
Regina
Kandiah Bojan

JUDGMENT OF: O'Keefe J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1134

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL:
Mr A Haesler - Applicant
Dr P J P Power SC - Crown

SOLICITORS:
Mr D J Humphreys - Applicant
Ms S E O'Connor - Crown

CATCHWORDS:
Criminal law
Appeal
Severity
Breach of parole
Backdating of sentence
No appearance of double punishment
Amount of money involved only one factor in determining seriousness
Criminal scheme
Serious deception

LEGISLATION CITED:
Crimes Act 1900; ss 178A, 178BA,
Crimes (Sentencing Procedure) Act 1999; ss 47(1)(a), 47(2), 47(3)

DECISION:
Leave to appeal refused.

JUDGMENT:

- 8 -

IN THE COURT OF
CRIMINAL APPEAL

60071/02
O’Keefe J
Bell J
28 February 2003

Regina v Kandiah Bojan

Judgment

O’KEEFE J:
Introduction

Following verdicts of guilty found by a jury consequent on a trial in the District Court, Kandiah Bojan (the Applicant) was sentenced on 15 February 2002 to a term of imprisonment for three years with a non parole period of two years on each of four counts of obtaining money by deception contrary to s 178BA of the Crimes Act 1900. The offences were committed during the period from 1 April to 23 April 2001. The sentences were backdated so as to commence on the date on which the Applicant had been convicted – namely 25 January 2002, and were ordered to be served concurrently. As a consequence the non parole period is due to expire on 24 January 2004. The maximum penalty provided in respect of each offence is imprisonment for five years.
The Applicant gave notice of appeal in relation to both his convictions and the severity of his sentences. However, he subsequently gave notice of abandonment of the appeal in respect of his convictions, advising that he wished to proceed only on the appeal against the sentences imposed on him.
The ground of appeal relied on is that the sentences were manifestly excessive and that lesser sentences were warranted in the circumstances.
Background
The Applicant, who was 50 years old at the time he was sentenced, is an extremely well educated man. He was born in Sri Lanka, where he was educated to matriculation level. He then travelled to the United Kingdom, where he completed a combined Bachelor of Science and Engineering Degree at the University of London and the Middlesex Polytechnic. Thereafter he worked for many years as an engineer on major projects in Bahrain and Saudi Arabia. He migrated to Australia in 1990 and added a qualification as a real estate agent to his already substantial qualifications.
No doubt his university education and practical experience as an engineer gave him a knowledge of building and construction. Shortly before April 2001 he approached Omar Kali (the victim), who was apparently involved in the building trade, and informed him that if he paid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bojan

Details

AGLC: R v Bojan [2003] NSWCCA 45
Case: [2003] NSWCCA 45
Decision Date: 28 February 2003

CaseChat Overview and Summary

In the matter of R v Bojan, the applicant appealed against his sentence on the grounds that it was manifestly excessive and that lesser sentences were warranted. The applicant, who was on parole at the time, committed a series of deceptions against a victim, resulting in the victim being deprived of $5,200. The applicant was a highly educated man with a background in engineering and real estate, and had previously been convicted of similar offences. The applicant's previous convictions amounted to a total of $1,646,055.55 in fraudulent misappropriations.

The legal issue before the court was whether the sentence imposed by Payne DCJ was manifestly excessive. The applicant argued that the amount of money involved was only one factor in determining the seriousness of the offence and that the criminal scheme was a serious deception. The court had to consider the seriousness of the offence, the applicant's criminal history, and the need for deterrence and rehabilitation.

The court found that the sentence imposed by Payne DCJ was not manifestly excessive. The court noted that the amount of money involved was not the only factor in determining the seriousness of the offence, and that the criminal scheme was a serious deception. However, the court also noted that the applicant had a history of similar offences and that the sentence imposed was necessary to achieve the purposes of denunciation, deterrence, and rehabilitation. The court also noted that the applicant had been granted parole and had breached the conditions of his parole, which resulted in his arrest and subsequent sentencing. The court found that the sentence imposed was appropriate and not manifestly excessive.

The court dismissed the applicant's appeal against his sentence. The court found that the sentence imposed by Payne DCJ was not manifestly excessive and that lesser sentences were not warranted in the circumstances. The applicant's argument that the amount of money involved was only one factor in determining the seriousness of the offence was rejected by the court. The court found that the criminal scheme was a serious deception and that the applicant's criminal history warranted a significant sentence. The court also noted that the sentence imposed was necessary to achieve the purposes of denunciation, deterrence, and rehabilitation. The applicant's appeal against his sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The ground of appeal relied on is that the sentences were manifestly excessive and that lesser sentences were warranted in the circumstances. Background The Applicant, who was 50 years old at the time he was sentenced, is an extremely well educated man. He was born in Sri Lanka, where he was educated to matriculation level. He then travelled to the United Kingdom, where he completed a combined Bachelor of Science and Engineering Degree at the University of London and the Middlesex Polytechnic. Thereafter he worked for many years as an engineer on major projects in Bahrain and Saudi Arabia. He migrated to Australia in 1990 and added a qualification as a real estate agent to his already substantial qualifications. No doubt his university education and practical experience as an engineer gave him a knowledge of building and construction. Shortly before April 2001 he approached Omar Kali (the victim), who was apparently involved in the building trade, and informed him that if he paid $20,000 to the Applicant, he would get the victim a large glazing and gyprock contract. Between 1 April and 23 April 2001, further representations of a like kind were made to the victim, as a consequence of which he paid to the Applicant four amounts totalling $5,200. This total was made up as follows:(i) $2000 – between 1 April and 16 April 2001;(ii) $1,500 – on or about 17 April 2001;(iii) $900 – on or about 17 April 2001; and(iv) $800 – on or about 23 April 2001by which lastmentioned date the victim had run out of money. There was in fact no glazing or gyprock contract, and as a result of the deceptions practiced by the Applicant, the victim was deprived of his $5,200 in respect of which it does not appear any repayment or offer of recompense has been made by the Applicant. At the time of the commission of the offences in April 2001, the Applicant was on parole. That was as a result of having pleaded guilty in July 1997 to nine charges of fraudulent misappropriation contrary to s 178A of the Crimes Act 1900. These were committed in 1995 and 1996. He then asked the sentencing court to take into account 129 other similar offences. The total amount involved in the Applicant’s frauds was $1,646,055.55. Payne DCJ imposed sentences of imprisonment which amounted effectively in all to six years, with an effective minimum term of three years, and an additional term of a further three years. The sentences were fixed to commence on 31 July 1997 with the minimum term to expire on 30 July 2000 and the additional term on 30 July 2003. The Applicant was granted parole on 30 July 2000, however his parole was revoked on 7 June 2001 consequent upon his arrest on 6 June 2001 for offences charged to have been committed in the period from December 2000 to January 2001: ie. not the offence the subject of the present application. Bail was granted to him on 7 June 2001 in respect of those charges, but was revoked on the same day due to his breach of a condition of parole. He was returned to custody on 16 June 2001 and was charged with the offences the subject of the present appeal on 2 October 2001 whilst he was still serving the additional term imposed by Payne DCJ.Argument

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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