R v Lakalaka

[2001] NSWCCA 31

CITATION:	R v LAKALAKA [2001] NSWCCA 31
FILE NUMBER(S):	CCA 60138/2000
HEARING DATE(S):	21 February 2001
JUDGMENT DATE:	21 February 2001
PARTIES :	Regina Soane LAKALAKA
JUDGMENT OF:	Grove J at 1; Hulme J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0013
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL :	Crown: PG Berman SC Appellant: In person
SOLICITORS:	Crown: SE O'Connor Appellant: In person
DECISION:	Appeal dismissed

- 6 -

IN THE COURT OF
CRIMINAL APPEAL

No: 60138/00

GROVE J

HULME J

Wednesday 21 February 2001


REGINA -v- Soane LAKALAKA

JUDGMENT

1    GROVE J : I will ask Hulme J to give the first judgment.

2    HULME J: On 18 February 2000 this applicant for leave to appeal was sentenced by Judge Christie in respect of a number of offences. He seeks leave to appeal against the sentence imposed.

3    One indictment charged four offences of dishonestly obtaining on four separate occasions in January to April 1992 money from a Rita Singh by falsely representing that he was a Federal Police officer working for the Immigration Department and he would assist in obtaining permanent resident status for her mother and brother. The amounts the subject of these charges totalled $51,170.

4    Another indictment contained four similar charges relating to the obtaining in about October 1997 of $6500 from a Maqbool Ahmed by similar pretences.

5    A third indictment charged the applicant with two offences. One was of falsely representing to one Mere Rokotuimatai in November 1991 that he was a Commonwealth officer working for the Department of Immigration and Ethnic Affairs and undertaking to obtain permanent resident status for some family. The second was of, in January 1993, falsely representing himself to be a Federal Police officer.

6    There were in addition thirteen further offences on a Form 1 which his Honour was asked to take into account. Five of these related to further offences of obtaining money by deception from Mrs Singh and related to amounts totalling $29,500, taking the total sum of which she was defrauded to $90,670. Four of these further offences related to obtaining money by deception from Mr Ahmed and related to amounts totalling $3950, taking the total sum of which he was defrauded to $10,450. The other four offences were of passing valueless cheques in the total sum of $550 on 1 and 2 January 1993. The time periods of the offences against Mrs Singh and Mr Ahmed were the same as encompassed by the charges relating to them.

7    On one of the charges involving Mrs Singh, his Honour imposed a sentence of four years imprisonment, including a minimum term of two and a half years. In respect of the other seven counts in the first two indictments I have mentioned, his Honour imposed fixed terms of twelve months imprisonment, concurrent with themselves and concurrent with the two and a half years minimum term. In respect of the two counts in the third indictment, his Honour imposed fixed terms of imprisonment of six months, again concurrent with the two and a half year term.

8    The Crown case was described as strong, if not irresistible. However, the applicant was given credit for his plea, described by his Honour as close to the earliest opportunity. The applicant had, however, sought to withdraw his plea a week before he was sentenced.

9    The applicant's criminal record consisted of a series of offences dealt with in January 1993, including assault occasioning actual bodily harm and possession of a loaded firearm; another series in 1995 relating to the passing of five valueless cheques; one offence dealt with in 1997 of dishonestly obtaining financial advantage by deception; and one dealt with in 1999 of obtaining property by passing a cheque not met on presentation. One aspect of that record which found no mention in Judge Christie's remarks on sentence was that, in consequence of the assault occasioning actual bodily harm charge, the applicant was placed on a section 558 recognisance for two years. This was thus current when he impersonated a police officer and was a matter of aggravation.

10    The applicant was a single parent with two young children. This, his plea, and the fact he had never been to gaol before were reason, according to his Honour, to reduce the penalty from the maximum available, which he stated in the case of Mrs Singh was five years, and to find special circumstances.

11    Notwithstanding that the applicant has revealed nothing that his Honour was prepared to believe about what had happened to the moneys and was found to have little or no remorse, his Honour said:-
"Having regard to the fact that he has never been to goal before, I have no difficulty in assessing his prospects of rehabilitation as being very good."

12 With respect to his Honour, the matters referred to in the last two paragraphs contain a number of errors, all in favour of the applicant. In the first place, the maximum penalty for each, not the totality, of the charges involving Mrs Singh was, under s 178BA of the Crimes Act, five years, making a theoretical maximum of twenty and a practical maximum sentence well in excess of five years. The offences involving Mrs Singh referred to in the Form 1 also merited punishment: see R v Morgan 70 A Crim R 368.

13    The offences involving Mr Ahmed, the second victim, committed at a very different time and displaying another significant display of premeditated criminality - I make the assumption favourable to the applicant that these were not but instances of one course of criminality extending over a period of six years - rendered the applicant liable to a further substantial term of imprisonment, again well exceeding five years.

14    Secondly, at least as his Honour seems to have used it, the fact that the applicant was a single parent with two young children was no reason to reduce the penalty. Authorities such as R v Byrne (1998) 104 A Crim R 456 indicate that hardship to a family needs to be far more exceptional than that before it should be taken into account. There is not one regime of sentencing for parents and another for persons without children.

15    Thirdly, there is no basis in logic for inferring from the mere absence of prior gaol experience that an offender's prospects of rehabilitation are good or very good. As Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477:
"An inference may be made only as the most probable deduction from the established facts (and) it must at least be a deduction which may reasonably be drawn from them."


16    Elementary rules of logic and legal reasoning do not disappear just because the particular proceedings require judges to impose sentences. A fortiori is there no basis for inferring good prospects of rehabilitation when the offender concerned has displayed a lifestyle of dishonesty extending over almost a decade and shows no remorse for his conduct.

17    Specific matters on which the applicant, who appeared for himself, sought to rely were set forth in an affidavit which the Court took as the applicant's submissions. In it the applicant referred, inter alia, to the fact his wife had walked out on the family after the youngest child was born, that since he was sentenced his children had suffered some health problems and that he himself had had a blood clot under his brain. He also said he had turned to God and, as this was the year of Jubilee in the Christian Church, it was a time for forgiveness to be shown to those who had committed offences in the past.

18    So far as this matter is concerned, the duty of this Court is to administer the law, not to forgive. If the applicant is interested in forgiveness, he should seek it from his victims who, it might be added, may well be more accommodating in that regard if the applicant returns the moneys of which he defrauded them.

19    As indicated above, more weight than should have been was given by Judge Christie to the applicant's family situation at and prior to the time of sentence. Except in unusual circumstances not here relevant, before this Court interferes with a sentence, error by the sentencing judge must be shown. By definition, the health problems suffered by the applicant and his children since his incarceration cannot meet this criteria.

20    The applicant also took issue with a remark of Judge Christie to the effect the author of the pre-sentence report had experienced difficulty in finding the applicant. Indeed, in oral submissions the applicant suggested there was no pre-sentence report. The Court has been furnished with one, which has all the hallmarks of being appropriate to this case, and his Honour referred to one. So that last submission must be rejected.

21    In response to Judge Christie's remark to which I have referred, the applicant pointed out that at the time he had been reporting thrice weekly to the police as a condition of his bail. Be that as it may, the report makes it clear that its author did have the difficulty to which his Honour referred and that he had made more than reasonable efforts to contact the applicant.

22    The applicant also submitted that the sentence gave inadequate recognition to the fact that "this was my first offence". This submission would carry more weight if, after being dealt with for other offences in 1993, he had reformed. He did not. He went on to the other offences referred to in his antecedents and to the offences against Mr Ahmed. In any event, some first offences are so serious that they require significant punishment and the applicant's first offence against Mrs Singh was followed by seven or eight others against her.

23    There were a few other matters of less significance to which the applicant referred, but I do not regard it as necessary to deal specifically with them. Even putting aside the errors in the applicant's favour, to which I have referred, there is no conceivable basis for contending that the sentences were excessive. When the applicant's pre-meditated criminality, yielding to him over $90,000, is compared with the terms of the relevant statutory provisions, he is fortunate he did not receive a substantially heavier sentence.

24    The applicant for leave to appeal should be granted but the appeal dismissed.

25    GROVE J : I agree with Hulme J. The orders of the Court therefore will be as he has proposed.

oOo