R v Ramirez

[1999] NSWCCA 406

CITATION:	R v Ramirez [1999] NSWCCA 406
FILE NUMBER(S):	CCA 60251/99
HEARING DATE(S):	08/12/99
JUDGMENT DATE:	8 December 1999
PARTIES :	Regina v Aidelyn Ramirez
JUDGMENT OF:	James J; Sperling J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1310
LOWER COURT JUDICIAL OFFICER:	Viney DCJ

COUNSEL:	CK Maxwell QC (Crown) DA Marr (Applicant)
SOLICITORS:	SE O'Connor (Crown) Doran Roberts & Co (Applicant)
CATCHWORDS:	Criminal law and procedure - sentencing - no question of principle
DECISION:	Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL

60251/99

James J
Sperling J

Wednesday 8 December 1999

REGINA v AIDELYN RAMIREZ

JUDGMENT

1   JAMES J: Aidelyn Ramirez has applied for leave to appeal against sentences imposed on her on 16 April 1999 in the District Court by his Honour Judge Viney. She had pleaded guilty to eight counts of using a false instrument, three counts of making a false instrument, and three counts of making a false statement with intent to obtain a financial advantage. The applicant was sentenced on each count of using a false instrument to a fixed term of penal servitude of three months to date from 8 February 2000 and on each count of making a false instrument or making a false statement with intent to obtain a financial advantage to a fixed term of penal servitude of six months also to date from 8 February 2000. Judge Viney made the sentences imposed commence from 8 February 2000, because on 10 October 1997 Judge Johnston had sentenced the applicant to sentences of four years, including minimum terms of two years six months commencing on 8 August 1997 and expiring on 7 February 2000.

2   In his remarks on sentence Judge Viney concisely summarised the facts of the offences. The applicant had passed valueless cheques to Coles and K-Mart, and had given false information in applications for credit at Grace Bros. The offences had been committed at various times between 18 August 1993 and 22 March 1997.

3   In his remarks on sentence Judge Viney rejected a claim made by the applicant, which was recorded in certain documents before his Honour, that the applicant had a gambling problem. His Honour found that the applicant is "simply a crook, she uses whatever pretext is available to excuse her blatant dishonesty."

His Honour commented;
"This woman seems to write cheques on closed accounts and manipulates bank accounts and credit accounts with a flamboyance which is quite bizarre. She seems able to convince people that she has immense wealth at her disposal and creates fantasies of grandeur that take people in."

4   His Honour noted that the applicant had a criminal history which included convictions for offences of dishonesty.

5   On 26 October 1993, his Honour had himself sentenced the applicant to terms of imprisonment on three charges of making a false statement. The applicant had committed the first three offences for which she was sentenced by his Honour on 16 April 1999, while she was on remand for the sentences which were pronounced by his Honour on 26 October 1993.

6   As I have already indicated, Judge Johnston sentenced the applicant on 10 October 1997 to sentences of penal servitude for four years, consisting of minimum terms of two years six months and additional terms of one year and six months, on two counts of obtaining a benefit by deception and two counts of fraudulent misappropriation. In sentencing the applicant on 10 October 1997 Judge Johnston took into account a total of twenty-nine further offences.

7   A number of submissions were made by counsel for the applicant in either written or oral submissions.

8   1. It was submitted that his Honour had taken into account an irrelevant consideration or had made a finding that was not reasonably open, when he stated in his remarks on sentence, "she has conned innocent people out of huge amounts of money." It was pointed out that the amounts involved in the present charges could not be described as “huge”.

9   I do not consider that this submission, which was made in the written submissions, should be upheld. His Honour was not suggesting that in committing the offences for which he was sentencing the applicant, the applicant had deprived innocent people of huge amounts of money. If that had been his Honour's view, then his Honour would have imposed much heavier sentences than the quite modest sentences he in fact imposed. In other parts of his remarks on sentence his Honour stated the amounts involved in the offences for which he was sentencing the applicant and commented that the amounts involved were mostly relatively small amounts.

10   His Honour’s statement was probably based on some of the amounts involved in the offences for which the applicant was sentenced by Judge Johnston. His Honour made the statement in the course of explaining why he had concluded that he could not rely on anything the applicant said being truthful.

11   2. It was submitted that the sentencing judge had failed to give proper weight to a concession made by the Crown. In his remarks on sentence Judge Viney said;

"The Crown concedes that if the paperwork had been available, all of these matters would have been included in the Form 1 or Form 2 when Johnston J dealt with her, so Mr Carter argues that I should impose sentences that would allow her the same date for release to parole as his Honour did. After all there were twenty-nine matters on the Form 1 in that case, what difference would another fourteen make? They are mostly relatively small amounts."

12   It was submitted on behalf of the applicant that by having sentences imposed on her, over and above the sentences imposed on her by Judge Johnston, the applicant had been subjected to a kind of double jeopardy.

13   I do not consider that these submissions should be accepted. I see no error in the response Judge Viney himself made in his remarks on sentence to the submission made by counsel for the applicant in the proceedings on sentence. His Honour said;

"I am afraid I cannot totally accept that approach. Surely, if there were these additional fourteen matters, the sentence would have had to have been higher. In my view something extra is called for."

14   The sentences imposed by Judge Viney were sentences of three months or six months, and could not, on any view, be described as heavy sentences. In my view, his Honour did not commit any error in taking the course that he did.

15   3. It was submitted that the sentencing judge erred in not giving weight to the applicant's serious gambling addiction.

16   In my opinion, this submission should not be accepted. The applicant did not herself give any evidence in the proceedings on sentence. The evidence that the applicant had a gambling problem was in a report by the psychiatrist Dr Lewin, who recorded in his report, as part of the history provided to him by the applicant, that the applicant had experienced difficulties in controlling her gambling. Judge Viney also had before him Judge Johnston’s remarks on sentence in which reference was made to a claimed gambling problem. Judge Viney did not accept that the applicant had a gambling problem. His Honour noted that, when the applicant had appeared before him in 1993, she had given a different excuse for having committed the offences for which she was then being sentenced; namely, that she had purchased a boutique in a shopping centre, which had failed. It was in this context that his Honour said that he could not rely on the truthfulness of anything the applicant said.

17   In any event, even if the history of the alleged gambling problem was accurate, Dr Lewin did not consider that it explained the applicant's conduct. In his report Dr Lewin said;

"Mrs Ramirez attempted to explain her problems in terms of a gambling addiction. It seemed to me that this did not accurately explain her current predicament, rather there appeared to be a life long pattern of dependency in relationships and a failure to learn from experience."

18   Even if the commission of the offences was attributable to a gambling problem, that in my opinion would have attracted little by way of mitigation of penalty.

19   4. It was lastly submitted that the sentences imposed were manifestly excessive. It was said that the offences were minor.

20   In my opinion, the quite modest sentences imposed by Judge Viney cannot be regarded as manifestly excessive. The sentences of up to six months imposed by his Honour would have the effect of entrenching on the additional terms of the sentences imposed by Judge Johnston to the extent of six months but would still permit the applicant to be eligible for release on parole during the last 12 months of the sentences imposed by Judge Johnston.

21   I would propose that leave to appeal be granted but that the appeal against sentence be dismissed.

SPERLING: I agree.

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