R v Denigris - [2005] NSWCCA 228

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Denigris [2005] NSWCCA 228

FILE NUMBER(S):
2005/91

HEARING DATE(S): 14/06/05

JUDGMENT DATE: 04/07/2005

PARTIES:
REGINA v Tony DENIGRIS

JUDGMENT OF: James J Howie J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0515

LOWER COURT JUDICIAL OFFICER: Gibson ADCJ

COUNSEL:
PR Boulten SC - Applicant
Ms DM Woodburne - Respondent

SOLICITORS:
V Havryliv - Ford Criminal Lawyers - Applicant
S Kavanagh - Respondent

CATCHWORDS:
CRIMINAL LAW - sentence - guilty plea to offences of - engaging in money laundering - obtaining money by deception - making a false instrument - using a false instrument - obtaining a valuable thing by deception - whether the sentencing judge erred in failing to order concurrent sentences in respect of some of the charges - whether the applicant has a justifiable sense of grievance - disparity between applicant's sentence and that of another offender in relation to the same criminal enterprise - whether the sentencing judge gave inadequate weight to the applicant's pleas of guilty and assistance to authorities - whether fraud sentence manifestly excessive

LEGISLATION CITED:
Confiscation of Proceeds of Crime Act
Crimes Act
Crimes (Sentencing Procedure) Act

DECISION:
Leave to appeal against sentence granted - appeal allowed in part - otherwise the sentences imposed by the sentencing judge confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/91
JAMES J
HOWIE J
ROTHMAN J
Monday 4 July 2005

REGINA v Tony DENIGRIS

Judgment

JAMES J: Tony Denigris applied for leave to appeal against sentences imposed on him in the District Court on 26 February 2004 by his Honour Judge Gibson QC. Judge Gibson sentenced the applicant for the following offences.
An offence (described in the proceedings on sentence as offence 1) committed on 1 November 1999 of engaging in money laundering, an offence under s 73(2) of the Confiscation of Proceeds of Crime Act 1989, for which the maximum penalty is imprisonment for twenty years or 2000 penalty units or both.
Eight offences (described in the proceedings on sentence as offences 2 to 9 respectively) committed between 19 August 1999 and 1 November 1999 of obtaining money by deception from Australian Guarantee Corporation Limited (“AGC”), being offences under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years.
Three offences (described in the proceedings on sentence as offences 10, 11 and 12 respectively) committed in September 1999 of making a false instrument, being an offence under s 300(1) of the Crimes Act, for which the maximum penalty is imprisonment for ten years; using a false instrument, being an offence under s 300(2) of the Crimes Act, for which the maximum penalty is imprisonment for ten years; and obtaining money by deception, being an offence under s 178BA of the Crimes Act carrying a maximum penalty of imprisonment for five years.
An offence (described in the proceedings on sentence as offence 13), which was another offence under s 178BA of the Crimes Act of obtaining a valuable thing by deception.
The applicant had pleaded guilty to all of the offences in the Local Court and had been committed to the District Court for sentence.
Judge Gibson imposed the following sentences:-
For the offence of money laundering, a sentence of a fixed term of imprisonment of one year, which was ordered to commence on 20 November 2002 so as to take into account the applicant’s pre-sentence custody.
For offences 10, 11 and 12, concurrent sentences of one and a half years, with a non-parole period of one year commencing on 20 November 2003.
For offence 13, a sentence of two years with a non-parole period of one year commencing on 20 November 2004.
For offences 2 to 9, concurrent sentences of three years with a non-parole period of one year commencing on 20 November 2005.
The total effect of the sentences imposed by his Honour was that the applicant was sentenced to sentences totalling six years with non-parole periods totalling four years.
The facts of the offences were briefly stated in a schedule of offences attached to the committal for sentence papers and by his Honour in his remarks on sentence.
The eight offences of obtaining money by deception from AGC (offences 2 to 9) were committed by obtaining money from AGC by submitting to it applications for loans to finance the acquisition of computer equipment, which did not in fact exist. In all but one of the applications the purported applicant was a fictitious person for whom a false identity had been created. In one of the applications (offence 6) the applicant was a real person, a man named George Leslie Hovan who was a solicitor. The sentencing judge described the applicant’s role in offences 2 to 9 by saying in his remarks on sentence that “the prisoner who has, apparently… superior skills with computers was responsible for setting up the false documentation”.
The total amount of money dishonestly obtained from AGC was $354,211.24. The amount of money dishonestly obtained from AGC by the sixth offence was $101,761, which was the largest amount of money obtained by any of offences 2 to 9.
The offence of money laundering (offence 1) was committed by the applicant engaging in a transaction involving some of the money which had been advanced by AGC on the application for finance by Mr Hovan. It will be necessary to refer in more detail to the facts of this offence in considering one of the applicant’s grounds of appeal against sentence.
Offences 10, 11 and 12 were committed by the applicant making, and then submitting, an application form for an American Express Charge Card in the name of a fictitious person and then obtaining the sum of $13,696 by using the charge card.
The offence of obtaining a valuable thing by deception (offence 13) was committed by obtaining an orange juice machine valued at $7,950 by using a stolen cheque.
None of the money or property dishonestly obtained was repaid or recovered, except that in respect of the sixth offence Mr Hovan, at the time the applicant was sentenced, had repaid more than $40,000.
In his remarks on sentence delivered on 26 February 2004 Judge Gibson noted some of the subjective circumstances of the applicant. The applicant was born on 26 October 1964 in Italy. At the time he was sentenced he was married with five children.
Judge Gibson found that the applicant had done well in custody (having been in custody since November 2002), both working in the prison and also assisting young prisoners who were at risk.
It was agreed by the Crown that the applicant’s pleas of guilty had been entered at the earliest possible moment. Judge Gibson accepted that the pleas of guilty were some evidence of contrition.
Judge Gibson noted that the applicant had told a psychologist who had prepared a report about the applicant that he had received a degree in computer science from the University of Technology Sydney in 1991 but that university had no record of the applicant having received a degree.
The applicant had a number of previous convictions for offences of dishonesty for which he had been fined, placed on recognisances or sentenced to imprisonment to be served by way of periodic detention. Orders that the applicant pay compensation had been made against the applicant and some of the money dishonestly obtained from AGC had been applied in making payments under these compensation orders.
His Honour said in his remarks on sentence that he had read what he described as “the sealed material” and said that he would take it into consideration but “not to a great extent”.
I have already mentioned that one of the applications to AGC was made in the name of a real person Mr George Leslie Hovan.
Mr Hovan had been sentenced by Judge Gibson earlier on the same day (26 February 2004) for three offences, to all of which Mr Hovan had pleaded guilty. Mr Hovan was sentenced for one offence under s 178BB of the Crimes Act of concurring in making a statement which he knew to be false in a material particular, namely that the loan being applied for to AGC was required for the acquisition of computer equipment. Mr Hovan had not been charged with, and was therefore not sentenced for, any other offence having any connection with the offences for which the applicant was sentenced. The other two offences for which Mr Hovan was sentenced which were offences of making and using a false instrument, were completely unrelated to any of the offences for which the applicant was sentenced.
For the offence under s 178BB of the Crimes Act Judge Gibson sentenced Mr Hovan to a fixed term of imprisonment of one year commencing on 26 February 2004, Mr Hovan having been at liberty on bail until he was sentenced. The sentences imposed by Judge Gibson on Mr Hovan for the offences of making and using a false instrument were concurrent sentences of three and a half years commencing on 26 February 2005 with non-parole periods expiring on 25 August 2006.
An appeal by Mr Hovan against the sentences imposed on him by Judge Gibson was successful (R v Hovan [2005] NSWCCA 179). The Court of Criminal Appeal considered that, if an appropriate discount had been allowed to Mr Hovan for his pleas of guilty and for assistance he had provided, the sentencing judge’s starting point before allowing this discount, would have been manifestly excessive. In lieu of the sentences imposed by Judge Gibson Mr Hovan was sentenced by the Court of Criminal Appeal, for the offence under s 178BB of the Crimes Act to a fixed term of imprisonment of six months commencing on 26 February 2004 and for the offences of making and using a false instrument to concurrent terms of imprisonment of two and a half years with a non-parole period of twelve months commencing on 26 August 2004.
The proceedings for the sentencing of the applicant were protracted and it is necessary briefly to outline the history of the proceedings.
The hearing of the proceedings commenced on 3 March 2003 before his Honour Judge Blackmore. On 3 March a police officer Detective Mitchell gave evidence.
On the following day 4 March 2003 the applicant gave evidence before Judge Blackmore. In his evidence the applicant made allegations about how the offences of dishonestly obtaining money from AGC had been committed, including attributing a leading role in the commission of all of the eight offences to Mr Hovan. On 4 March 2003 the proceedings on sentence were stood over to enable police to investigate allegations the applicant had made in his evidence.
On 29 April 2003 a police officer Constable Hopper made a statement in which he reported on the investigation into the allegations made by the applicant.
The proceedings for the sentencing of the applicant were mentioned on a number of occasions over the next few months, without much progress being made. Eventually both the proceedings for the sentencing of the applicant and the proceedings for the sentencing of Mr Hovan came before Judge Gibson (and not Judge Blackmore) on 31 October 2003 and were again before his Honour on a number of subsequent occasions.
Transcripts of the proceedings before Judge Blackmore on 3 and 4 March 2003 were handed up to Judge Gibson on 7 November 2003 and were treated as part of the evidence in the proceedings before Judge Gibson for the sentencing of the applicant. On 5 February 2004 the applicant gave evidence before Judge Gibson in which he said that what he had told Judge Blackmore in his evidence on 4 March 2004 was true.
I can now turn to the grounds of appeal against sentence.
1. His Honour erred by failing to order the sentence of 12 months fixed term imprisonment in relation to the charge of money laundering to be served concurrently with the sentences in relation to the charges involving breaches of s 178BA of the Crimes Act concerning frauds committed upon AGC
As I stated earlier in this judgment, the offence of money laundering was committed by the applicant engaging in a transaction involving some of the money which had been advanced by AGC on the application for finance by Mr Hovan. On 29 October 1999 the sum of $103,796, which had been advanced by AGC, was paid into a bank account controlled by the applicant. On 1 November 1999 the sum of $84,000 was withdrawn from that account and a sum of $5,177 was withdrawn from another account and the combined sums were used to purchase a bank cheque in favour of Mr Hovan. The withdrawal of the money from the bank account controlled by the applicant was the basis of the money laundering charge.
It was submitted by counsel for the applicant that the money laundering offence was really part of the offence of obtaining money by deception from AGC and therefore the sentence for the money laundering offence should have been made fully concurrent with the sentence for the offence under s 178BA.
The submission derives some support from a passage in the sentencing judge’s remarks on sentence in which his Honour said:-
“The charge of money laundering arises out of the transaction with Hovan and it involves the paying of money into an account of Hovan and it is really part of the matter in which the money was obtained and a portion given to Hovan. It was, in fact, part of the same transaction and whilst it carries a penalty of twenty years, in my view, is the least of the matters contained in the thirteen”
A sentencing court has a broad discretion in deciding whether sentences being imposed for a number of offences should be served concurrently or cumulatively. See Crimes (Sentencing Procedure) Act s 55 and R v Scott [2005] NSWCCA 152 at pars 31 and 32 per Howie J. However, notwithstanding the breadth of a sentencing court’s discretion in deciding whether sentences should be served concurrently or wholly or partly cumulatively, I consider that the sentencing judge did err in imposing a sentence as long as twelve months for the money laundering offence and ordering that there be no concurrency between that sentence and the sentence for the related offence under s 178BA. I would not, however, allow the first ground of appeal in full. There was some, even if minor, additional criminality in the commission of the money laundering offence.
In my opinion, the sentences for the money laundering offence and for the relevant offence under s 178BA (offence 6) should be varied. The sentence for the offence of money laundering should be reduced to a fixed term of imprisonment of six months. The sentence for offence 6 should be varied from a sentence of three years with a non-parole period of twelve months to a fixed term of imprisonment of nine months, to commence three months after the commencement of the sentence for the money laundering offence and hence to be partly concurrent with it. These variations to the sentences for the money laundering offence and offence 6 would not change the overall effect of the sentences imposed on the applicant.
2. His Honour’s sentencing exercise miscarried in relation to both the money laundering charge and the charge under s 178BA concerning the money obtained from AGC for George Hovan because the applicant is left with a justifiable sense of grievance because of the disparity between the sentences that he received and the sentence Mr Hovan received in relation to the same criminal enterprise
The applicant, in a statement he made to police on 8 August 2002, after he had been charged with all thirteen offences but while he was still at liberty on bail and in evidence given by him before Judge Blackmore on 4 March 2003, asserted that Mr Hovan had participated, and had indeed played a leading role, in all of the eight dishonest applications for finance made to AGC. However, whereas the applicant was charged with an offence under s 178BA of the Crimes Act in respect of all eight applications to AGC, Mr Hovan was charged with an offence in respect of one only of the applications, being the application made by Mr Hovan in his own name. In respect of this application the applicant was charged with an offence under s 178BA of the Crimes Act (offence 6) and also with an offence of money laundering (offence 1); while Mr Hovan was charged with a single offence under s 178BB of the Crimes Act. For the offence under s 178BA of the Crimes Act the applicant was sentenced by Judge Gibson to a term of imprisonment for three years with a non-parole period of one year and for the offence of money laundering the applicant was sentenced by Judge Gibson to a term of imprisonment for one year, which Judge Gibson did not make even partly concurrent with any of the other sentences imposed on the applicant. For the offence under s 178BB of the Crimes Act Mr Hovan was sentenced by the Court of Criminal Appeal, after his successful appeal, to a fixed term of imprisonment of six months.
It was submitted by counsel for the applicant that the disparity between the sentences passed on the applicant and the sentence passed on Mr Hovan for their participation in the same criminal enterprise was such as to engender a justifiable sense of grievance in the applicant Lowe v The Queen (1984) 154 CLR 606 especially at 613 per Mason J.
I do not consider that this submission by counsel for the applicant should be accepted.
The variations which I have held should be made to the sentences imposed on the applicant for the money laundering and offence 6 remove much of any apparent disparity between the sentences imposed on the applicant and the sentence imposed on Mr Hovan.
Furthermore, even after allowing for the requirement under Pearce v The Queen (1998) 194 CLR 610 that a judge sentencing an offender for more than one offence should fix an appropriate sentence for each offence, a comparison of the sentences imposed on the applicant for the offence under s 178BA and the money laundering offence with the sentence ultimately imposed on Mr Hovan for the offence under s 178BB is made more complicated, if not invalidated, by the other sentences which were imposed on each of them. For example, it would be quite misleading to regard the applicant as having been sentenced by Judge Gibson to a term of imprisonment for three years for the offence under s 178BA, without also having regard to the fact that Judge Gibson made that sentence fully concurrent with sentences imposed on the applicant for no fewer than seven other offences under s 178BA.
Mr Hovan’s criminality in committing his offence was mitigated to some extent, in comparison with the applicant’s criminality in committing his two offences and the applicant’s criminality in committing his other offences under s 178BA, by the circumstances that Mr Hovan was a real, and not a fictitious, person and was accordingly a person against whom AGC could have recourse and Mr Hovan was sentenced by both Judge Gibson and by the Court of Criminal Appeal on the basis that, although he had participated in giving a false reason for his seeking the loan, he had always intended to repay any money lent and by the time he was sentenced by Judge Gibson he had repaid more than $40,000 of the loan. The Court of Criminal Appeal in allowing Mr Hovan’s appeal accepted that he would be making full restitution when a contract for the sale of a property was settled.
There was a great disparity between the personal circumstances of Mr Hovan and those of the applicant. Mr Hovan had no previous criminal convictions, whereas the applicant had previous criminal convictions for offences of dishonesty.
I would reject this ground of appeal.
3. His Honour erred by giving inadequate weight to the applicant’s plea of guilty
4. His Honour erred by giving inadequate weight to the applicant’s assistance to authorities
These two grounds of appeal were argued together in both the written submissions and the oral submissions made on behalf of the applicant.
I have already mentioned that the sentencing judge said in his remarks on sentence that it was agreed that the applicant’s pleas of guilty had been entered at the earliest possible moment. Although the sentencing judge made no further reference in his remarks on sentence to the applicant’s pleas of guilty, I consider that it can be inferred from his Honour’s characterising the pleas of guilty as having been entered at the earliest possible moment that his Honour allowed a discount of 25 percent or close to 25 percent for the utilitarian value of the applicant’s pleas of guilty.

As regards assistance, I have already referred to a statement his Honour made in his remarks on sentence:- “I have read the sealed material and will, in accordance with its terms, take it into consideration, not to a great extent”.
In determining the ground of appeal relating to assistance it is necessary to have regard to certain events.
I have already referred to the statement the applicant made on 8 August 2002. In this statement he made many incriminating allegations against Mr Hovan and against an employee of AGC, who I will refer to as JP. The applicant alleged that JP had been a party to the criminal enterprises to obtain money dishonestly from AGC.
On 28 February 2003 a detective superintendent being the Manager of the Fraud Squad New South Wales Police made an affidavit, to which was annexed a report by Detective Mitchell and a comment on Detective Mitchell’s report by a superior officer. This affidavit became exhibit C13 in the proceedings on sentence.
In his report Detective Mitchell said that the statement given by the applicant contained “some irregularities which are not supported by other evidence” and “despite Denigris providing a statement, little material gain was realised by police as a result”.
The superior officer commented:-
“I agree with the report of Detective Mitchell. I also note the sequence of events outlined by Antony Denigris suggests that George Hovan was involved in this series of frauds at the outset, whereas the Birks fraud is the last of this series of frauds. I also note that we did not rely on the evidence of Antony Denigris in order to prosecute Mr Hovan at committal”.
In her affidavit the Manager of the Fraud Squad said that she had conducted appropriate enquiries and was satisfied that the contents of Detective Mitchell’s report were true. She also supported the comments of Detective Mitchell’s superior officer.
On 4 March 2003 the applicant gave evidence in the proceedings on sentence, which was generally in accordance with the statement he had previously made but in which he offered some further information. The parts of the applicant’s evidence of 4 March 2003 which were particularly relied on by counsel for the applicant on this application were evidence of what the applicant said had been the role played by JP in the offences of dishonestly obtaining money from AGC; evidence that, secreted in an air conditioning shaft in the wall of an apartment in the Regis Towers Block in the City, was a bag containing documents about other false identities which had not already been disclosed; and evidence that a number of mobile phones had been bought by the applicant and distributed to other persons participating in the criminal enterprises, including Mr Hovan.
The applicant had already made many allegations against JP in his statement of 8 August 2002. In his evidence given on 3 March 2003 Detective Mitchell said that JP had indeed been employed by AGC during the period in which the offences were committed (and was still employed by AGC) and that he had been a loan applications officer having responsibility for the preliminary screening of loan applications. Detective Mitchell gave evidence that he had not found any evidence linking JP to any of the offences and that JP had not been charged with any criminal offence.
As stated earlier in this judgment, the proceedings on sentence were adjourned on 4 March 2003 to enable police to investigate the further allegations made by the applicant in the evidence he had given on that day. An account of these further investigations was given by Constable Hopper in his statement, which became exhibit C16 in the proceedings on sentence.
In his statement Constable Hopper said that, as a result of information supplied by the applicant, a number of documents had been discovered by police, including a number of drivers’ licences in an air conditioning vent in a wall of the apartment in the Regis Towers building. However, Constable Hopper concluded his affidavit by saying:-
“25. As the result of my enquiries and based on what Denigris has told me, I do not believe Denigris is entitled to a further affidavit regarding his ‘assistance’ to police in this matter…
26. The investigation subsequent to 4 March 2003 did not reveal any new information relating to the direct involvement of George Leslie Hovan in any crime….”
It was submitted by counsel for the applicant that the applicant should have received a significant discount in sentence for the assistance he had provided and that the sentencing judge had erred in holding that he would not allow a discount “to a great extent”. It was submitted that the use by his Honour of the expression “the sealed material” showed that his Honour had limited his consideration of the assistance provided by the applicant to “the sealed material” and had failed to take into consideration all of the evidence about the assistance provided by the applicant.
I do not consider that the sentencing judge should be regarded, by his use of the expression “the sealed material”, as having failed to take into consideration all of the evidence about assistance provided by the applicant. The expression “the sealed material” was not well chosen but, in my opinion, was intended by his Honour simply to mean “the evidence about assistance”. There was in fact no “sealed material” before his Honour. The affidavit by the Manager of the Fraud Squad and the statement by Constable Hopper were admitted into evidence as ordinary exhibits in the proceedings on sentence.
In my opinion, it was open to his Honour to conclude that he should not give any substantial discount for assistance. His Honour was entitled to give weight to the assessments of Detective Mitchell and his superior officers and of Constable Hopper that such assistance as the applicant had provided had been of little value. Such assistance as the applicant had provided had not led to any charge being brought against JP or to any further charge being brought against Mr Hovan.
It would also have been open to the sentencing judge, in assessing the value as assistance of alleged information provided by the applicant, to take into account the unfavourable view his Honour had clearly formed of the applicant’s credibility. In his remarks on sentence his Honour twice described the applicant as “glib” and found that the applicant in giving evidence before his Honour had “come across” as “willing to say things that he thought might be beneficial to his cause”. The applicant had, of course, by his own admission committed a number of offences of dishonesty and he had previous criminal convictions for offences of dishonesty.
I would not uphold either the third or the fourth grounds of appeal and I would not conclude that the sentencing judge, in order to arrive at the sentences he imposed after allowing a discount for the early pleas of guilty and a small discount for assistance, must have adopted, as a starting point before allowing the discounts, a putative sentence of a length which would have been manifestly excessive.
5. The sentence in relation to the fraud upon Food Equipment Distributions Pty Ltd is manifestly excessive
It may be arguable that the sentence imposed on the applicant for offence 13 was disproportionately severe, when compared with the sentences imposed on the applicant for offences 2 to 9, which, in my opinion, were lenient. However, viewed as a separate sentence, the sentence imposed on the applicant for offence 13 did not, in my opinion, exceed the upper limit of a proper exercise of his Honour’s sentencing discretion and I would reject the fifth ground of appeal.
Having dealt with all the grounds of appeal, I consider that the following orders should be made:-
Leave to appeal against sentence granted.
Allow the appeal against sentence in part.
Quash the sentence imposed by the sentencing judge for the money laundering offence and in lieu thereof impose a sentence of a fixed term of imprisonment of six months commencing on 20 November 2002.
Quash the sentence imposed by the sentencing judge for offence 6 of dishonestly obtaining money by deception on the application by George Hovan and in lieu thereof impose a sentence of a fixed term of imprisonment of nine months commencing on 20 February 2003 and expiring on 19 November 2003.
Otherwise confirm the sentences imposed by the sentencing judge including the concurrent sentences of three years with a non-parole period of twelve months commencing on 20 November 2005 for offences 2, 3, 4, 5, 7, 8 and 9.
HOWIE J: I agree with James J.
ROTHMAN J: I agree with the judgment of James J and the orders proposed.

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LAST UPDATED: 03/08/2005