R v JW

[2010] NSWCCA 39

New South Wales
Court of Criminal Appeal

CITATION:	GOLUBOVIC, Jonny v R [2010] NSWCCA 39
HEARING DATE(S):	12 February 2010
JUDGMENT DATE:	4 March 2010
JUDGMENT OF:	McClellan CJatCL at 1; Howie J at 2; Harrison J at 3
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – sentence appeal – where applicant convicted of numerous offences of obtaining property by deception contrary to s 178BA(1) Crimes Act 1900 – where value of property exceeded $250,000 – where applicant sentenced to effective non-parole period of 18 months – whether sentencing judge erred in not imposing entirely concurrent sentences for all offences – whether sentencing judge erred in allowing only 40 per cent combined discount for early plea and assistance to authorities – whether sentencing procedure conducted on basis of agreed facts erroneous – whether sentence manifestly excessive – appeal dismissed.
LEGISLATION CITED:	Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Della-Vedova v R [2009] NSWCCA 107 MAJW v R [2009] NSWCCA 255 R v XX [2009] NSWCCA 115 S v R [2008] NSWCCA 186 SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
PARTIES:	Jonny Golubovic (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2009/10667; 2009/10668
COUNSEL:	F Veltro (Respondent)
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/11/0619; 2009/11/0620; 2009/11/0621
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	28 August 2009 (date of sentence)

2009/10667
2009/10668

McCLELLAN CJ at CL
HOWIE J
HARRISON J

4 March 2010

Jonny GOLUBOVIC v R

Judgment

1 McCLELLAN CJ at CL: I agree with Harrison J.

2 HOWIE J: I agree with Harrison J.

3 HARRISON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 28 August 2009 by Berman DCJ. He was sentenced to an aggregate sentence of 3 years imprisonment comprised of a non-parole period of 18 months and a balance of term of 18 months. His non-parole period is due to expire on 15 April 2010, so that disposition of this appeal is attended by some urgency. The applicant was unrepresented at the hearing in this Court. He filed detailed written submissions to which I have had regard. However, in the events that I will shortly describe, it is my opinion that the application is wholly without merit and that the appeal should be dismissed.

Background

4 The applicant was arrested and charged with all offences on 16 October 2008. He has been in custody since that time. He entered pleas of guilty at the Central Local Court on 9 July 2009 to the following six offences:

Count 1 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act 1900 (4 plasma television sets $7906).

Count 2 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act (De Lorenzo hair products valued at $8636.75).

Count 3 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act (air travel tickets $9036.49).

Count 4 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act (air travel tickets $4953.88).

Count 5 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act (receive finance for vehicle $65,746.10).

Count 6 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act (receive finance for vehicle $82,759.10).

5 The offence of obtain property by deception under s 178BA carries a maximum penalty of imprisonment for 5 years.

6 In addition the applicant admitted having committed 34 offences that were taken into account on three separate Form 1s in the following manner:

Count 1 - a Form 1 containing two further offences of obtain property by deception.

Count 2 - a Form 1 containing one count of make a false instrument, one count of use a false instrument and one count of obtain property by deception.

Count 6 - a Form 1 containing two counts of have false instrument, one count of larceny, twenty-five counts of obtain property by deception and one count of receiving.

7 His Honour sentenced the applicant in the following way:

Count 1 : a fixed term of 1 year imprisonment to date from 16 October 2008 and to expire on 15 October 2009 (to be served concurrently with the sentences imposed for counts 3, 4 and 5).

Count 2 : a fixed term of 1 year imprisonment to date from 16 April 2009 and to expire on 15 April 2010.

Count 3 : a fixed term of 1 year imprisonment to date from 16 October 2008 and to expire on 15 October 2009 (to be served concurrently with the sentences imposed for counts 1, 4 and 5).

Count 4 : a fixed term of 1 year imprisonment to date from 16 October 2008 and to expire on 15 October 2009 (to be served concurrently with the sentences imposed for counts 1, 3 and 5).

Count 5 : a fixed term of 1 year imprisonment to date from 16 October 2008 and to expire on 15 October 2009 (to be served concurrently with the sentences imposed for counts 1, 3 and 4).

Count 6 : 2 years imprisonment to date from 16 October 2009 and to expire on 15 October 2011 with a non-parole period of 6 months to date from 16 October 2009 and to expire on 15 April 2010.

Facts

8 The agreed facts disclose that the offences were committed between March 2007 and March 2008. The offences were investigated by three different groups of police officers. Three separate statements of agreed facts were tendered during the sentence proceedings.

9 The first set of offences (count 1 and two matters on a Form 1) involved the applicant, during February and March 2008, arranging for the order and delivery of four 42 inch plasma television sets using details of credit cards he did not have authority to use. The matters on the Form 1 involved the applicant obtaining a further two television sets and a laptop computer in the same manner.

10 The second set of offences (count 2 and three matters on a Form 1) involved the applicant arranging for the purchase of and obtaining various hair products from De Lorenzo Hair and Cosmetic Research Pty Ltd. These offences took place in August 2007. The applicant falsely represented himself to be 'Fabian Ranogajer' and that he ran a salon in Leichhardt called 'Empire Hair'. He applied for and obtained a credit account with the supplier using false information. On 17 August 2007 the applicant placed an order and obtained $7526.30 worth of hair products. On 28 August 2007 he contacted the supplier (using the name 'Giovanni' from 'Empire Hair') and paid for the previous order using details of a credit card that he was not authorised to use. He also placed an order for a further $8636.75 worth of goods. The applicant attended the warehouse of the supplier and obtained these goods. The following day he placed a further order for $2550.75 worth of goods but asked if he could pay $2000 then and the balance at a later date. The applicant used details of the same credit card he had used earlier. He did not however collect these goods.

11 On 31 August 2007, another customer contacted the supplier and complained of a number of unauthorised payments that had been deducted from his credit card in favour of the supplier. The supplier ascertained that the credit card number in question corresponded with the details of the credit card provided by the applicant. The supplier suffered a loss of $18,163.05. During the course of the investigation into these offences, the applicant declined to take part in a line up in relation to the offence. He also declined to take part in a record of interview.

12 The third set of offences (counts 3, 4, 5 & 6, along with 29 matters on a Form 1) involve criminal conduct that spanned the period from May 2007 to December 2007. On 18 May 2007 the applicant booked accommodation over the internet using the name 'John Ranogajec' and a stolen credit card. Police were subsequently contacted and a search warrant was executed at the hotel room occupied by the applicant at the time. A number of items were seized, including 13 credit cards, banking information, diaries containing various credit card details and expiry dates, a German drivers licence with a photograph of the applicant along with a Medicare card and false Australian citizenship certificate all in the name of 'Mome Donevski'. There were also an eftpos card and credit card receipts from the Terrigal Flight Centre.

13 The applicant was arrested and conveyed to Gosford Police Station. He agreed to be electronically interviewed and provided various explanations. He was released, without charge, pending further investigation and inquiries.

14 Those investigations subsequently disclosed that the Medicare card in the name of Mome Donevski was a genuine card that had been reported stolen in February 2007. Both the German drivers licence bearing the name of Mome Donevski (which bore a recent photograph of the applicant) and the Australian citizenship certificate in the same name were high quality forgeries that contained several security features.

15 On 4 April 2007 the applicant used credit card details he was not authorised to use to obtain plane tickets over the internet with Qantas worth $4953.88. On 8 April 2007 the applicant used credit card details he was not authorised to use to obtain plane tickets from the Terrigal Flight Centre to the value of $9036.49.

16 On 18 June 2007 the applicant opened a bank account at a Westpac branch in Hobart, Tasmania in the name of Johny Fabian Ranogajec. A false Citizenship Certificate was used by the applicant to open this account. The applicant subsequently made an application for a personal loan in the amount of $59,500 in order to purchase a new motor vehicle worth $41,500 and for $18,000 to be credited to his account. In support of his application he provided false employment details. The bank subsequently provided the applicant with a bank cheque for $41,500 made out to 'Larke Hoskins Honda' and credited his account with $18,000. On 5 October 2007, using an alias, the applicant registered a company with the Australian Securities & Investment Commission in the name of 'Honda Larke Hoskins Pty Ltd'. He then opened another bank account at ANZ Bank, Bathurst Street Branch, in the name of 'Honda Larke Hoskins Pty Ltd'. He deposited the cheque for $41,500 into this account and completely withdrew the proceeds in varying amounts of less than $10,000 over the following days.

17 On 20 November 2007 the applicant opened a bank account in the name of 'Jon Mason' at the King and Castlereagh Streets branch of Westpac. At the time, according to records kept by the Registry of Births Deaths and Marriages, 'Jon Mason' was the applicant's legal name though he was also using the name 'Johny Fabian Ranogajec'.

18 On 18 December 2007 the applicant made an application for a personal loan in order to purchase a new 2007 Audi A4 motor vehicle for $54,750 and for a further $20,250 to be credited to his account. In support of the loan application the applicant provided false employment details. These details involved an assertion that he was employed as specialist manager by a company called 'Oceana Trade' and that he earned a monthly net income of $3,618. The applicant arranged for two payments to be made to his account in early December with the narrative 'Oceana Pay'. Further investigations revealed that a company by the name of 'Oceana Trade' was registered on 27 November 2007 by the applicant using the alias Johny Fabian Ranogajec.

19 On 21 December 2007 the applicant obtained a bank cheque for $54,750 made out to Audi Centre, Sydney and had the amount of $20,250 credited to his account. That same day the applicant registered a company with ASIC in the name of 'Audi Centre Sydney NSW Pty Ltd'. He then attended the St George Bank (Pitt and Market Street Branch) and opened a bank account in the name of 'Audi Centre Sydney NSW Pty Ltd'. He deposited the cheque for $54,750 into that account and proceeded to withdraw the amount in various amounts over the following days.

20 The matters on the Form 1 that relate to count 6 involve the applicant obtaining various other goods and services using credit card details that he was not authorised to use.

21 The applicant declined to take part in an ERISP in respect to these matters.

Grounds of appeal

22 There are effectively four grounds of appeal numbered by the applicant as follows:

Ground 1(a) : The judge erred in not imposing entirely concurrent sentences.

Ground 1(b) : The judge erred in allowing only 40 per cent by way of a combined discount for guilty plea, remorse and assistance to the authorities.

Ground 2 : The judge erred in proceeding to sentence on the basis of the three statements of agreed facts.

Ground 3 : The sentence imposed is manifestly excessive – the discount for assisting police was arbitrarily selected without proper regard to the value of that assistance.

Ground 3

23 This ground of appeal can conveniently be dealt with first. It is important at the outset to record that the applicant was engaged in an extensive and sophisticated series of criminal acts. They were neither spontaneous nor opportunistic but on the contrary premeditated, well planned and exquisitely calculated to effect a criminal purpose. The applicant committed some of the offences whilst on bail. The face value of the property and money involved in all of the offences amounted to almost $270,000 ($269,726).

24 The aggregate effect of the sentences imposed for all of these 40 offences was a non-parole period of imprisonment of 18 months commencing on 15 October 2008 and expiring on15 April 2010. Putting aside for the moment the first three grounds of appeal, I consider that these sentences are not only not manifestly excessive but on the contrary approach what might be regarded as manifestly inadequate.

25 His Honour characterised the offending and his view of the applicant in the following passage from his remarks on sentence:

"The prospects for the offender's future, as far as re-offending is concerned, are good. I consider that he is unlikely to re-offend. It remains the case, despite all the positive things that I have said about the offender, however, that he was a serious criminal for that year long period. He was using other people's money for his own purposes. He was living a lifestyle he could not afford and that included the taking of drugs. He chose to continue that lifestyle through harming others in a financial way. His regular decisions to fund his lifestyle through criminal misconduct must require that the offender receives a significant custodial sentence. It would of course be a much longer sentence in the absence of the matters I have referred to."

26 It is unnecessary and inappropriate to speculate upon the issue of the applicant's prospects of re-offending. His Honour had the benefit of helpful submissions on the issue as well as the opportunity to observe the applicant giving evidence. Limiting these observations to an analysis of the several offences charged, it is difficult to accept that an effective non-parole period of only 18 months adequately reflects the objective seriousness of the offences. Accepting that his Honour in some fashion formulated the sentences so as to give the applicant a combined discount for his early plea of guilty and his assistance to authorities of 40 per cent, I do not even so consider that the sentences can be described as manifestly excessive or anything like it.

27 This is sufficient to dispose of ground 3.

Ground 1(a)

28 This ground of appeal is conspicuously without any merit. As will be apparent, his Honour was called upon to sentence the applicant for six separate counts with a further 34 matters to be taken into account. The sentences imposed for counts 1, 3, 4 and 5 were wholly concurrent. The sentence for count 2 was partly accumulated with these four counts. The sentence for count 6 was wholly accumulated with all other sentences.

29 The extent of any accumulation is a matter of discretion for the sentencing judge. In R v XX [2009] NSWCCA 115, the principles were outlined at [52] by Hall J as follows:

"[52] There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:-


(1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing.

(2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is 'not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed' but his Honour observed that 'this is not an inflexible rule' and ' [t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct' .

(3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12].

(4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253.

(5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27].

(6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27].

(7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence'."

30 The offences were separate and distinct. There were also separate victims. They were committed at different times over a 12-month period. The sentences for each offence ought necessarily to have reflected these facts. It could be argued that they did not. If anything, the extent of his Honour's accumulation of the sentences in this case was considerably more favourable to the applicant than it was unfavourable.

31 The applicant has not demonstrated any error in the approach taken by his Honour and certainly not an error that would lead this Court to intervene in his favour.

Ground 1(b)

32 This Court has dealt with this issue in a number of well-known cases. One of those is S v R [2008] NSWCCA 186 in which Bell JA said the following at [9]:

"[9 Section 23 of the Sentencing Procedure Act permits a court to impose a lesser penalty than it would otherwise impose having regard to the degree to which the offender has assisted (or undertaken to assist) law enforcement authorities in relation to the offence concerned or any other offence. A lesser penalty imposed under s 23(1) must not be unreasonably disproportionate to the nature and circumstances of the offence (s 23(3)). As Howie J (with whose reasons Simpson J agreed) pointed out in SZ v R [2007] NSWCCA 19; 168 A Crim R 249, there is a limit to the extent to which an otherwise appropriate sentence can be discounted and yet still produce a sentence that is not unreasonably disproportionate to the offence. Commonly, an offender who undertakes to assist the authorities (either in the investigation of the offence or other offences) will plead guilty at an early time and thus be entitled to a discount at the top of the range promulgated in the guideline judgment: R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. In such a case there will necessarily be less room to discount the sentence in order to reflect the offender's assistance to the authorities without infringing the command of s 23(3) of the Sentencing Procedure Act ."

33 His Honour dealt with the matter upon the basis of material contained in a sealed envelope that has not be shown to this Court. His Honour's remarks on sentence are relevantly as follows:

"I am going to say very little about a matter that is significantly in the offender's favour. The evidence is in a sealed envelope and it reveals the extent to which the offender is prepared to assist the authorities and has assisted the authorities. Not only will I be circumspect about what I can say but these remarks on sentence will, contrary to my usual practice, not be published on the internet.

As well as demonstrating the genuineness of his remorse the assistance is deserving of a discount on the sentence that I would have imposed. I will not assess it separately from the discount that the offender will get for pleading guilty at the earliest opportunity but will say that the sentence I will impose upon the offender will be forty percent less than it would have been had there not been the plea of guilty and assistance.

There is an element of uncertainty about just what the offender will do to assist the authorities. It is not the offender's fault. It is because matters are still at an unsettled stage. It might turn out to be that the offender does something which would have suggested a discount higher than forty percent but I have to assess matters as they are today.

One of the consequences for the offender is that he is now in protective custody. The conditions under which he is now kept in his cell for between twenty-one and twenty-three hours a day are much different to the conditions he previously enjoyed as a reception sweeper. I will take this matter firmly into account in assessing the appropriate sentence. It has also been taken into account in determining the level of discount for assistance that I mentioned earlier."

34 His Honour was not required to assess or quantify the value of the plea of guilty separately from the allowance to be made for assistance: SZ v The Queen [2007] NSWCCA 19 at [11], [42] – [48]; (2007) 168 A Crim R 249.

35 His Honour's decision to allow the discount was an exercise in discretion: MAJW v R [2009] NSWCCA 255 at [60]. No error in his Honour's approach to this task can be seen. His decision to allow a discount of 40 per cent was well within the appropriate range available to him.

36 This ground of appeal fails.

Ground 2

37 The representatives of the Crown and the applicant settled what amounted to the agreed facts tendered on sentence. None was the subject of any dispute. There was no uncertainty as to what the parties had agreed, nor was there any dispute about the essential factual substratum of the applicant's criminal conduct: cf Della-Vedova v R [2009] NSWCCA 107.

38 The passage from his Honour's remarks on sentence which would appear to have inspired this ground of appeal is as follows:

"Working out precisely what the offender did has not been easy in the present case. It seems that there were three different groups of police investigating the offender's various misconduct. That has led to the matter being presented in court by the DPP today almost as though the three matters are unrelated to each other. I can quite understand why the three different groups of police would for example, prepare three different statements of facts, but why it remained in that state when it was presented to the court today is inexplicable. I mean no criticism of the solicitor appearing for the DPP today, I suspect that it is not her fault that she was given this material late but I do want to say that it is those who prepared the matter for court who showed an inability or an unwillingness to assist the court to the extent that I consider it disrespectful when matters are presented in the way they were presented today. The DPP has once again acted merely as a courier service, taking documents given to them by police, maybe changing one or two things here and there and then presenting them to the court. The court deserves better.

However, with that disclaimer it seems that the offender's conduct began on 28 March 2007 …"

39 It seems apparent that the sentencing proceedings were complicated by the large number of offences committed by the applicant over the course of a year. His Honour's criticisms were directed to the presentation of the case. He did not say that he was unable, albeit with more effort than should have been necessary, to master the facts and work out precisely what was alleged. He did not say that he was unable to deal with the matter appropriately.

40 There is no error that the applicant can point to in the approach taken by his Honour in the circumstances.

Conclusion

41 As I earlier observed, the applicant is unrepresented. I have made an allowance for that fact in considering the grounds of appeal. However, none of the grounds of appeal has merit and the appeal should be dismissed.

Orders

42 I consider that the following orders should be made:

1. Grant leave to appeal.

2. Appeal dismissed.

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