R v Nehme
[2005] VSCA 208
•17 August 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 147 of 2005
| THE QUEEN |
| v. |
| LOUIS NEHME |
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JUDGES: | CALLAWAY, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 August 2005 | |
DATE OF JUDGMENT: | 17 August 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 208 | |
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Criminal Law – Sentencing – Attempting to obtain property by deception – Fraud carefully planned – False statement to police – Home detention order – Whether judge fettered discretion when considering such disposition – Eight months’ imprisonment not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.C. Cain | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Galbally Rolfe |
CALLAWAY, J.A.:
I invite Chernov, J.A. to deliver the first judgment.
CHERNOV, J.A.:
The appellant, who is now aged 35 years, pleaded guilty on 12 May 2005 in the County Court at Melbourne to one count of attempting to obtain property by deception (count 1) and one count of making a false report to police (count 2). The maximum custodial penalty for the offences was, respectively, five years and one year. The appellant admitted four prior convictions from three court appearances, but, as the learned sentencing judge said in his sentencing remarks, the only conviction that is relevant for present purposes is that for theft in 1992. In respect of that offence, the appellant was sentenced in New South Wales to a total effective sentence of four months' imprisonment.
On 19 May 2005, after hearing a plea in mitigation made on his behalf on 12 and 19 May, the appellant was sentenced to eight months' imprisonment on count 1 and was fined $2,000 in respect of count 2. By notice filed on 23 May 2005 the appellant sought leave to appeal against the sentence imposed on count 1 and, on 29 July 2005, a single judge of this Court granted his application pursuant to s.582 of the Crimes Act 1958. In his full statement of grounds, filed on 1 August 2005, the appellant set out six grounds of appeal. Before turning to them, it is necessary to state briefly the circumstances of the offending and the appellant's relevant personal circumstances.
Circumstances of the offending
The offending involved the appellant seeking to obtain, in February 2004, property valued at over $60,000 from his insurer under a "new for old" policy of insurance on the false basis that a large number of expensive items, which he said were owned by him, had been stolen from his house while he was overseas. Before making the fraudulent claim and filing a false report with the police concerning the
alleged burglary and theft, the appellant made detailed preparations for the purpose of being in a position to demonstrate to the insurer that he had been burgled and that a number of the more expensive items of property that he claimed had been stolen belonged to him. To that end he borrowed valuable electronic equipment from a number of friends, which he set up in his house, photographed and then returned to its owners. He relied on the photographs to support his claim of ownership. The appellant also produced in support of his claim manuals and receipts for those items, which his friends had supplied to him. The property that he claimed was stolen included two DVD players, two CD players, several pieces of stereo and camera equipment, a plasma television, jewellery, a computer and monitor, a fax machine and other office equipment and several power tools. He also left signs in his house that were consistent with thieves having broken into it. Thus, he damaged the door to make it appear as if it had been kicked in by intruders. In addition, the appellant falsely told the insurance company that he had removed his car from the garage before going on his overseas trip. He did so in order to make more plausible the claim that burglars had been able to steal, without being seen, such a large number of items – as it meant that they would have been able to load the items into a vehicle parked in the appellant’s garage.
An investigation into the claim was commenced immediately by the insurance company. After conducting preliminary investigations, it became suspicious and appointed an external investigator to review the claim. It also requested that the appellant provide it with further documentation for the purpose of proving that he owned some of the claimed items. Coincidentally with that, or as a consequence of that action, on 30 March 2004 the appellant telephoned the insurer to say that he wished to withdraw the claim. Notwithstanding this, however, he was interviewed by police in relation to the claim on 7 May 2004. It appears that, at the time, the police were satisfied that the claim was genuine and, later that day, apparently on the advice of his then solicitor, the appellant reinstated his claim with the insurer, accusing it of harassing him and threatening to take the matter to the Ombudsman if his claim was not resolved to his satisfaction. Later, the insurer referred the matter to the police for further investigation, and, on 26 October 2004, the appellant's former girlfriend was questioned in relation to the claim. She told the police that the "break-in" had been staged by the appellant for the purpose of making a fraudulent insurance claim and provided them with details of the scheme. No doubt as a consequence of this, the appellant was interviewed by police on 7 November 2004 and, in the course of it, admitted the offending conduct. In the event, no payment was made by the insurer on the claim, although it did incur approximately $1,400 in costs in conducting its investigation into the matter. The appellant subsequently reimbursed the insurer for this amount, as his Honour noted.
Personal circumstances
Turning to the appellant's personal circumstances, as the learned sentencing judge noted in his sentencing remarks, the appellant came from a Lebanese family background. He attended school in Sydney, where most of his family lives, his father having passed away in 1997. He was educated to Year 9, after which he commenced a hairdressing apprenticeship, but failed to make a commitment to this career path and, according to his counsel who made the plea in mitigation on his behalf, became aimless. In July 1992 he was convicted and sentenced as I have indicated. In 1999 he moved to Victoria and in 2000 he established his own small business. Not long thereafter, he began to live a lifestyle that was well beyond his means, portraying himself as a "high flyer" and becoming involved in the use of recreational drugs. As a result, he incurred significant debts and, at the time of the offending, owed approximately $30,000 to credit card companies. As his Honour noted, "[the appellant] saw the false claim against the insurer ... as being a means of returning [him] to a position of some liquidity".
In July 2004 the appellant commenced a relationship with his current wife, whom he married in January 2005. On the advice of a friend, he purchased a house in South Melbourne from which he conducted his billboard business. At the date of sentence, the appellant's business had, according to his counsel, become a going concern, but his Honour was told that, if he were away from his business for any length of time, it may suffer or even fail. His Honour was also told that the appellant had consolidated, by the time of sentence, his debts and was attempting to pay them off. His wife gave evidence that he was remorseful for his offending conduct and that he had a complete change of attitude to life and had ceased living beyond his means. A close friend of the appellant also spoke of his change in attitude and lifestyle and said that the appellant's meeting his wife had marked a turning point in his life and that, since that time, he had come back "down to earth".
Grounds of appeal
I now turn to the grounds of appeal and deal with them in the order in which they were argued
Grounds 2, 3 and 5
Mr Holdenson, who appeared before us for the appellant, put his principal case under these grounds in a number of ways, but essentially it was that his Honour fettered his discretion by assuming that the appellant's prior conviction, to which reference has been made, precluded him from being regarded as suitable for a home detention disposition. Counsel contended that his Honour did not treat the prior conviction as merely tilting the decision against the making of a such an order, but wrongly regarded it as determinative of the home detention disposition issue. The vice in his Honour's reasoning, it was said, consisted in his treating the prior conviction as excluding the appellant from being considered as a suitable person for a home detention order.
In support of this argument, Mr Holdenson pointed to what his Honour said to the appellant's then counsel during the hearing of the plea in mitigation, namely, that he considered the only problem in respect of making the proposed order was the appellant's prior conviction for dishonesty, which, his Honour said, had evidently not deterred him from similar offending. A little later, his Honour again said that the appellant had not learned from this experience. These statements showed, said counsel, that his Honour considered that the appellant's prior conviction precluded him from being considered as a suitable person for such a disposition. Such reasoning, said Mr Holdenson, amounted to specific error, given that the existence of a prior conviction does not preclude the making of a home detention order.
I consider, however, that it is apparent from the transcript that his Honour did not misdirect himself as claimed. In making the impugned statements, the learned sentencing judge did no more, I think, than put to counsel a matter that his Honour considered to be relevant to the appellant's suitability for the proposed sentencing disposition. It plain from the material that his Honour regarded the appellant's prior conviction as only one of the matters to which he ought to have regard for sentencing purposes. The other matters included other sentencing options, the circumstances of the offender and offending, as well as mitigating factors and applicable sentencing principles. In his sentencing remarks, that were made shortly after his Honour heard counsel's submissions, on 19 May, the learned sentencing judge set out with some care the circumstances of the offending and of the appellant, including mitigating factors, and the parties' respective submissions on sentence, including those made on that day. His Honour then emphasised that he had considered "all available sentencing options, including home detention", but concluded that the only appropriate sentence was one of immediate imprisonment. At its highest, the learned sentencing judge said that the appellant's prior conviction was a factor which, having regard to all other relevant sentencing matters, made the proposed sentencing disposition inappropriate. In the end, this factor ultimately tilted the decision against making the order sought on the appellant's behalf. In my view, this did not constitute error.
I mention for completeness that Mr Holdenson also contended under cover of these grounds that his Honour accorded undue "pre-eminence" to the appellant's prior conviction, thereby denying the possibility that the mitigating factors had such weight as to warrant a home detention order. I think this claim should also be rejected. There is nothing in his Honour's carefully constructed sentencing remarks that justifies the inference for which counsel contends. As I have indicated, his Honour treated this aggravating factor as one of the matters relevant for sentencing purposes and as a reason for considering the appellant as a person who was not suitable for such a sentencing disposition.
Thus, I think, grounds 2, 3 and 5 should fail.
Ground 6
Under cover of this ground, Mr Holdenson's essential contention was that, when exercising his sentencing discretion, his Honour failed to give any or any sufficient weight to evidence, which counsel said the judge had accepted, that showed that the appellant had "unequivocally learnt his lesson" and that, thus, he was unlikely to re-offend. It seems to me that this submission was based on two assumptions. The first was that the sentence was unduly excessive, thereby indicating that these matters were not given any or any sufficient weight. The second was that his Honour accepted the above evidence. In my view, neither assumption is justified.
First, for reasons I will give later, I consider that the sentence was not manifestly excessive. Secondly, I think that his Honour did not accept that the appellant had unequivocally learnt his lesson or that he is unlikely to re-offend. That is not to deny, however, that the learned sentencing judge reached the conclusion that the appellant's prospects of rehabilitation were reasonable. In support of the claim that his Honour accepted the evidence in question, counsel referred in particular to paragraphs [14]-[16] of his Honour's sentencing remarks. I have already referred to the gist of the evidence that was dealt with in these paragraphs, namely, the evidence given by the appellant's wife and his friend. His Honour clearly regarded them as impressive and credible witnesses. But the passages on which counsel relied do not establish that his Honour accepted all the matters for which counsel contended. As I have said, his Honour probably regarded that evidence as showing the appellant's sound progress towards rehabilitation. But it does not follow that he accepted that the appellant had "learnt his lesson" or was "unlikely to re-offend". That his Honour had a reservation about these matters is made apparent by his observations, made in the context of speaking of the appellant's rehabilitation, that he "hoped" that he had turned his life around and that "perhaps" the appellant has recognised that there were other more important values in life than living a high life. I note for completeness that, earlier in his sentencing remarks, his Honour noted that the sentence imposed on the appellant in respect of his earlier conviction had little, if any, deterrent effect upon him and that he was "clearly a man of demonstrated dishonest disposition". In all the circumstances, therefore, I consider that it would be wrong to assume that his Honour accepted all the evidence given at the plea in mitigation as was claimed by counsel.
For like reasons, I would reject the argument put on behalf of the appellant under cover of this ground that his Honour failed to achieve the aim of having the sentence reflect the above factors.
Thus, I think that ground 6 should fail.
Grounds 1 and 4
In support of the claim, made under these grounds, that the sentence is plainly beyond range, Mr Holdenson pointed to a considerable number of mitigating circumstances that operate in the appellant's favour and contended that, in the light of them, the sentence of eight months' imprisonment is manifestly excessive. Counsel said that it is apparent that his Honour gave too much weight to the appellant's prior conviction and too little weight to his prospects of rehabilitation.
It is not necessary to refer to all the mitigating circumstances listed by counsel. But it should be said that a number of them are significant for sentencing purposes. Thus, for example, the appellant is entitled to the benefit of a considerable sentencing discount, given his early plea of guilty (and the confession that he made to the police in November 2004). Importantly, the appellant's prospects of rehabilitation must be regarded as reasonable, notwithstanding that, for the reasons given, I do not accept that his Honour concluded that his progress in that regard was as Mr Holdenson had contended. In my view, the rehabilitative prospects of the appellant are a strong mitigating factor. Furthermore, it may also be said that the learned sentencing judge accepted that the appellant had demonstrated some remorse. In that context, I note, however, that the appellant made his fraudulent claim on the insurer in February 2004, but it was only after he was confronted with what was essentially a fait accompli, consequent upon his girlfriend having informed the police of the scam in October 2004, that he confessed to the police. Be that as it may, the above and other mitigating circumstances were all considered by his Honour and were clearly taken into account for sentencing purposes.
On the other hand, the offence in question is a serious one and the offending conduct was also of a very serious kind. I note in particular that it was motivated by greed, the amount sought was considerable and involved a great deal of planning and effort on the part of the appellant in order to deceive the insurer. Moreover, fraud of this nature is not easy to detect and on many occasions the investigation process takes considerable effort and funds. Furthermore, the appellant pursued his fraudulent claim with the insurer for some time, notwithstanding that the police were investigating the matter. And, at least at some stage, he did so with vigour, making the threats to which I have referred. It is also plain that the principle of general deterrence is an important consideration in this case and it cannot be said that specific deterrence is totally irrelevant. In the circumstances, I consider that it cannot be said that the sentence was beyond the relevant range. Thus, in my view, grounds 1 and 4 should fail.
Notwithstanding that Mr Holdenson has said everything that could be said in favour of the appellant's case, in my opinion the appeal should be dismissed.
CALLAWAY, J.A.:
I agree.
VINCENT, J.A.:
I also agree.
CALLAWAY, J.A.:
The order of the Court is:
Appeal dismissed.
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