R v Selvakulalingam

[2015] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SELVAKULALINGAM

[2015] SASCFC 41

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Lovell)

2 April 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - GENERALLY

Appeal against sentence.  The defendant pleaded guilty to 14 offences of dishonestly dealing with a document and 13 offences of deception on two informations. The first information charged 24 of the offences and related to conduct against one victim and companies he owned or controlled.  The second information charged the remaining three offences and related to conduct against three other entities.  The defendant had been in custody since his arrest on 15 February 2013.  The sentencing Judge imposed a sentence of eight years and six months, with a five year non-parole period, commencing 5 September 2013. The Judge held that the defendant had had the benefit of a deduction for time in custody between 15 February and 5 September 2013 when earlier sentenced by a Magistrate on unrelated charges.

Whether the head sentence and the non-parole period were manifestly excessive having regard to the circumstances of the case.  Whether the sentencing Judge erred in failing to order that the two sentences imposed in respect of each information be served concurrently, or in the alternative, erred in not imposing one sentence.  Whether the Judge erred in failing to order that the sentence commence on the date the defendant was first taken into custody.

Held per the Court: Appeal dismissed. No error was demonstrated on the part of the Judge.  The commencement date for the sentence was within the Judge’s discretion. The Judge gave effect to partial concurrency through his consideration of the principle of totality.  The sentence of imprisonment of eight years and six months, with a non-parole period of five years was well within the sentencing discretion of the Judge.

Criminal Law Consolidation Act 1935 (SA) s 139 and s 140; Criminal Law (Sentencing Act) 1988 (SA) s 18A and s 30, referred to.

R v SELVAKULALINGAM
[2015] SASCFC 41

Court of Criminal Appeal:       Gray, Sulan and Lovell JJ

THE COURT.

1. This is an appeal against sentence.

   Introduction

   The Charges and the Pleas

2. The appellant and defendant, Sivakulendran Selvakulalingam, pleaded guilty at his arraignment on 4 July 2014 to 14 offences of dishonestly dealing with a document,[1] and 13 offences of deception.[2]  The offences were committed over a period of approximately 18 months between about 8 June 2011 and 12 December 2012.  Each offence carried a maximum term of imprisonment of ten years.

   [1]    Criminal Law Consolidation Act 1935 (SA) section 140.

   [2]    Criminal Law Consolidation Act 1935 (SA) section 139.

3. The defendant was arraigned and pleaded guilty to offences on two informations.  The first, dated 4 July 2014, charged 11 counts of dishonestly dealing with a document and 13 counts of the charge of deception.  This information replaced an earlier information charging the above and many more counts.  The second information was dated 7 April 2014 and charged three counts of dishonestly dealing with a document and one count of theft.  The Director of Public Prosecutions accepted the pleas of guilty to the three counts of dishonesty in full satisfaction of the second information.

4. The defendant was further charged with seven breaches of a good behaviour bond entered into following his pleas of guilty to seven further counts of dishonesty between 23 July 2010 and 30 October 2010.  These offences involved breaches of provisions of the Bankruptcy Act 1966 (Cth) and were the subject of Crimes Act 1914 (Cth) proceedings brought by the Commonwealth of Australia. On 24 August 2012, a Magistrate convicted the defendant in respect of each of the 2010 offences of dishonesty, but ordered that he be released without passing a sentence on his recognisance to be of good behaviour for a period of six months. The defendant admitted to the breach of his recognisance to be of good behaviour.

   The Sentence

5. The defendant was sentenced by the Chief Judge of the District Court as follows:

   I would have started with a single sentence on the Information dated 4 July 2014, on which you pleaded guilty to 24 crimes, of imprisonment for eight years. I would have reduced that to a single sentence of imprisonment for six years and nine months to reflect your ultimate guilty pleas.

   For the three offences to which you pleaded guilty on the Information dated 7 April 2014 I would have started with a single sentence of imprisonment for five years. You committed this offending after your offending in 2011 and after your earlier offending had become known. I would have reduced that sentence to a single sentence of imprisonment for four years to reflect your pleas of guilty.

   Those two terms of imprisonment, which I would have accumulated, total 10 years and nine months.

   On the basis of totality I reduce that period to a sentence of imprisonment for eight years and six months. On that head sentence, I fix a non-parole period of imprisonment for five years.

   On the application to enforce the breached bond, you will be convicted of the seven offences, the subject of that bond, without further penalty.

   Your head sentence and your non-parole period will commence on 5 September 2013.

6. Although section 18A of the Criminal Law (Sentencing Act) 1988 (SA) was not expressly referred to, it appears that the Judge exercised his discretion under this section to impose the one sentence of imprisonment of eight years and six months, with a non-parole period of five years.  The Judge backdated the defendant’s sentence of eight years and six months to commence on 5 September 2013.

   The Defendant’s Criminal Antecedents

7. The defendant was born in 1971.  His dishonesty offending commenced in 1994 when he was before the Magistrates Court for the offences of larceny and committing larceny after a previous conviction for a felony.  From that time until April 2010, his offending related to motor vehicle matters, including driving unregistered, uninsured and while disqualified.  He was also convicted of several drink driving offences, breach of bail and contravening the terms of an intervention order during this period.

8. The defendant’s dishonesty offending resumed in 2010.  Pursuant to this offending, he was charged with knowingly signing a false declaration and concealing or removing property after becoming bankrupt.  Upon his conviction on 24 August 2012, he was released on his recognisance to be of good behaviour for a period of six months.  As earlier discussed, it was the breach of this recognisance that was before the Judge. 

9. On 25 June 2013, the defendant was sentenced to 14 days’ imprisonment in respect of the offence of breach of bond, entered into on 28 November 2011.  At that time, he was also imprisoned for a period of six weeks cumulative on the 14 days in respect of two counts of driving while under disqualification and for a breach of bail.

10. Between 28 April and 29 December 2010, the defendant committed eight counts of deceiving another to benefit himself.  As earlier mentioned, on 5 September 2013, the Magistrate, having regard to the circumstance that the defendant had been in custody between 15 February and 5 September 2013, determined to convict the defendant but to release him on a two year good behaviour bond with an order to pay compensation of more than $17,000.00.  In the event that the defendant breached that bond he was liable to be sentenced in respect of the subject offending.

11. On 16 March 2012, the defendant committed the offence of aggravated assault against his spouse.  He was also charged with three counts of breach of bail and three counts of contravening a term of an intervention order.  On 25 November 2013, on the charge of aggravated assault, he was convicted and released on a two year good behaviour bond.  On the other charges he was convicted but discharged without penalty.  

    The Circumstance of the Offending – the 4 July 2014 Information

12. The 24 counts on the information of 4 July 2014 related to conduct occurring between about 8 June 2011 and 9 November 2012.  All but three of the counts occurred in 2011.  All of this offending related to a victim, John Clyde Bryant, and companies that he owned or controlled.  We have drawn on the summary provided by the Judge in his sentencing remarks in the following account of the conduct comprising the offending. 

13. The defendant met Mr Bryant in or about 2007, and in early 2011 Mr Bryant lent the defendant money.  Soon thereafter the defendant introduced Mr Bryant to a financial broker with a view to a refinancing of Mr Bryant’s home loan.  By June 2011, the defendant had created circumstances in which Mr Bryant had come to trust him and as a result he was given an access card that allowed him to access the business premises of Mr Bryant at any time.  Personal documents of Mr Bryant and his wife were kept at those premises, including details of Mr Bryant’s American Express cards and the cheque books for his business.  It was in these circumstances that the dishonesty offending the subject of this information commenced.

14. On or about 8 June 2011, the defendant, without the knowledge or approval of Mr Bryant, made an application for credit with Macquarie Leasing Pty Ltd.  The defendant well knew the application to be false.  A commercial hire purchase finance agreement was entered into by one of Mr Bryant’s companies.  The agreement falsely purported to be signed by Mr Bryant for his company and falsely purported to show that Mr Bryant had provided a personal guarantee.  The defendant forged, or caused to be forged, Mr Bryant’s signatures to the agreement and guarantee.  On 16 June 2011, by these dishonest means, $52,160.00 was paid into the defendant’s Westpac account. 

15. The defendant repeated these dishonest acts on three further occasions in June and July 2011.  This dishonestly led to payments into the defendant’s account on 29 June 2011 - $59,800.00, on 26 July 2011 - $50,000.00, and 28 July 2011 - $45,000.00.  As at the date of sentencing, Macquarie had not recovered these monies. 

16. On or about 16 September 2011, the defendant lodged with the Commonwealth Bank an application for credit to be advanced to one of Mr Bryant’s companies, knowing the application to be false.  This led to a hire purchase agreement between the Commonwealth Bank and the company.  The agreement falsely purported to be signed by Mr Bryant on behalf of the company and falsely purported to provide a personal guarantee of Mr Bryant.  The defendant forged, or caused to be forged, Mr Bryant’s signatures to the agreement and guarantee.  The Commonwealth Bank paid $78,366.00 to Solitaire Motors in payment for a Land Rover vehicle for the use and benefit of the defendant.

17. On or about 22 September 2011, the defendant through a similar arrangement, this time using Capital Finance, obtained another Land Rover for $64,500.00. 

18. Between about 4 November 2011 and 9 November 2012, the defendant engaged in a course of conduct involving the forgery of Mr Bryant’s signature on a cheque account of Mr Bryant’s business.  This occurred on four occasions involving amounts of $4,408.00, $12,500.00, $2,806.45 and $250,000.00.  It appears in at least three of those cases the cheques were not honoured.

19. During October, November and December 2011, the defendant fraudulently used Mr Bryant’s American Express card either to pay bills or make purchases.  This dishonest conduct was the subject of the 13 counts of deception.  The purchases included decking, gym equipment, airfares, and other payments related to a dinner at a cost of almost $2,000.00.  The unauthorised use of the American Express card involved payments to the benefit of the defendant of more than $32,000.00.

20. During the early months of 2012, Mr Bryant became aware that someone purporting to be him had telephoned an insurance company to report a collision concerning the Land Rover purchased from Solitaire Motors.

21. By June 2012, Mr Bryant was aware that the defendant had taken out a number of hire purchase and loan agreements in either his name, his wife’s name or the name of his business, that their signatures had been forged by the defendant and that his American Express card had been used by the defendant without his authority.  Mr Bryant did not immediately go to the police as when he approached the defendant he was repeatedly told that the defendant would repay the monies.  When these promises proved to be fake, Mr Bryant went to the police.

22. In his victim impact statement, Mr Bryant explained how the defendant had obtained his trust and as a result of that trust the relevant offending occurred.  The consequences of the defendant’s dishonesty damaged Mr Bryant’s business so severely that it was placed in voluntary administration.  This caused great personal and financial difficulty for Mr Bryant and his family.  Mr Bryant had built up the business over a period of 37 years. 

23. A further consequence was that Mr Bryant lost his credit rating which required him to operate on a cash basis.  Mr Bryant’s financial difficulties meant that he had to put the family home on the market and his marriage was almost destroyed.  The strain on the family has been significant.  Mrs Bryant’s health has deteriorated to the point where she takes daily medication. 

    The Circumstances of the Offending – the 7 April 2014 Information

24. The offending the subject of the counts on this information occurred on three occasions over a 14 day period between 29 November and 12 December 2012.  We have drawn on the summary provided by the Judge in his sentencing remarks in the following account of the conduct comprising the offending. 

25. On 29 November 2012, the defendant produced and used documents knowing them to be false, intending to deceive a partner of Gailee Solicitors, and by that means obtain dishonestly a benefit of about $30,000.00.  On 4 December 2012, the defendant produced and used documents knowing them to be false and as a consequence deceived an employee of Esanda Finance, thereby obtaining dishonestly a benefit of an amount of $41,082.40.  On 12 December 2012, the defendant produced and used documents knowing them to be false and as a consequence deceived an employee of Nationwide Capital Limited, thereby obtaining dishonestly a benefit of an amount of $57,609.43.  The defendant used the monies obtained from the first of the December counts to purchase a motor vehicle.

26. Apparently there has been some recovery of the monies the subject of the offences on the two informations.  Vehicles that the defendant purchased on finance have been recovered by those providing the finance.  The amount recovered is not known to the Court. 

    The Defendant’s Personal Antecedents

27. The Judge addressed the defendant’s personal antecedents.  He observed that, at the time of the sentence, the defendant was 43 years of age.  The defendant was born in Colombo, Sri Lanka.  He commenced his education in Kuala Lumpur.  His family came to Australia in 1986 and he completed his secondary education at a private school.  He studied double degrees in arts and architecture at the University of Adelaide.  While studying, he worked part time with his father, who is a mechanical engineer, in a wine rack manufacturing business.  In 2002, he assumed responsibility for running the business, as his father had become ill.  The business expanded dramatically and opened premises in other states of Australia, in New York, and in Denmark.  The business collapsed during the global financial crisis.

28. At that time the defendant’s relationship of seven years with his de facto partner also ceased.  He suffered depression and had turned to alcohol.

29. It was submitted to the Judge that the defendant was remorseful and contrite.  The Judge referred to the defendant’s conduct when he was remanded in prison.  The defendant had claimed that Mr Bryant, the victim of his offending, was using him.  The Judge expressed doubt about the defendant’s claim that Mr Bryant was one of the three most important people in his life.  The Judge accepted that the defendant was sorry and regretted what had happened, but was of the view that his sorrow and regret was more related to the consequences that his conduct had had upon the defendant rather than upon anyone else.

30. As to restitution, although the defendant made an offer to repay Mr Bryant and five organisations, the Judge was of the view that the offer was made with a motive of reducing his sentence.  The Judge said that he was in no position to judge whether the defendant would ever be in a position to repay the monies.  The Judge further stated that the defendant had done nothing to acknowledge that he was responsible to repay monies to those who had lost it as a consequence of his conduct, and that he had done nothing by way of entering into an arrangement, or seeking to enter into an arrangement, to make restitution to anyone.

    The Appeal

    Time in Custody

31. The defendant was arrested and taken into custody on 15 February 2013.  He has remained in custody since then.  In the ordinary course, a defendant would expect his sentence to be backdated to the date on which he first went into custody.  In the present proceeding there was a complication.  On 5 September 2013, the defendant was sentenced in the Magistrates Court following his pleas of guilty to eight counts of deception.  When sentencing the Magistrate made the following remarks:

    Mr Selvakulalingam, you have been in custody since 15 February of this year. I have read your letter. No doubt the time you have spent in custody has been a very sobering experience, as well it should be. I am satisfied from what I am told and from what prosecution tell me that it is appropriate to take into account that period of time as sufficient penalty, other than to say that I am also placing you on a good behaviour bond for a period of two years in the sum of $200.  The condition of the bond obviously is that you are to be of good behaviour over the next two years. If you are not, you will return to court to be sentenced for these matters again.

32. On the appeal, it was submitted that the Magistrate when dealing with the defendant on 5 September 2013 was in error in taking into account the time spent in custody between 15 February and 5 September 2013.  It was contended that the Magistrate had no power to act as she did and further, that there was an ambiguity as it was unclear to what extent she had had regard to that time in custody. 

33. We consider it is clear that the Magistrate considered the entire period from 15 February to 5 September 2013 spent in custody as being sufficient penalty for the offences of deception for which the defendant pleaded guilty.  This conclusion is reinforced by an earlier paragraph in the Magistrate’s sentencing remarks, when it was noted that if it had not been for the defendant’s supportive family making substantial restitution, the defendant would be staying in custody.

34. An unusual feature of the Magistrate’s approach on 5 September 2013 is that it was a condition of the bond that, if breached, the defendant was liable to be brought back to court and be sentenced.  It might be thought that the time in custody was a sufficient penalty.  The bond will end on 5 September 2015.  On any view, the defendant will be in custody throughout the period of the balance of the term of the bond.  In any event, we do not consider that the Magistrate acted beyond power. 

1. During submissions to the Judge, the defendant’s counsel suggested that it was unclear how much weight the Magistrate had put on the time the defendant had spent in custody when passing sentence.  The topic was addressed in the following terms:

   It’s not clear from those remarks whether she was effectively saying that she has taken that whole period and it has just satisfied a prison sentence or whether there would have been some credit left over, if you like, which may still yet be available to Mr Selvakulalingam in relation to the task that your Honour has to undertake today.

   As I say, it is not at all clear if the entire seven months is what or may equate to the penalty that would have been imposed. So, I can’t put it any higher than that other than to say there may be a little bit left over in credit for Mr Selvakulalingam after the commission of those offences.

2. On appeal it was submitted that without an unequivocal indication from the Magistrate that the entire time spent in custody would have been the sentence imposed, then the Judge was in error by ordering the sentence to commence on 5 September 2013.

3. In our view, there was no error in the approach taken by the Judge on this topic. The backdating of sentences is addressed by section 30 of the Sentencing Act which provides as follows:

   (1)Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.

   (2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—

   (a)     make an appropriate reduction in the term of the sentence; or

   (b)     direct that the sentence will be taken to have commenced—

   (i)     on the day on which the defendant was taken into custody; or

   (ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.

   The statutory provision invested the Judge with a discretion to fix a commencement date for the sentence.  The defendant had had the benefit of the time in custody between 15 February and 5 September 2013 when earlier sentenced by the Magistrate.  It is also well recognised that the Court may have regard to time spent in custody not referrable to the matter before the Court as a relevant personal antecedent.  No error has been demonstrated on the part of the Judge. 

   A Continuous Episode of Offending

4. On the appeal it was contended that the sentences imposed by the Judge should have been served concurrently.  It was submitted that, notwithstanding that the offending on the two informations related to different victims, total concurrency was appropriate.

5. In our view this submission is without substance.  The dishonesty offending was ongoing but involved different victims who were subjected to different acts of dishonesty.  The Judge gave effect to partial concurrency through his consideration of the principle of totality.  This was entirely appropriate. 

   Manifestly Excessive

6. On the appeal, it was contended that although, prima facie, the defendant’s dishonesty involved some $650,000.00, the actual monies obtained was more in the order of $350,000.00.  It was said that the starting sentence in respect of the counts on the first information was manifestly excessive.  It was suggested that the Judge had placed inappropriate weight on the victim impact statements and had failed to have proper regard to what was said to be the defendant’s remorse and prospects of rehabilitation.  A complaint was also made as to the adequacy of the reduction for the pleas of guilty.

7. It was also submitted that the sentence imposed in respect of the second information was manifestly excessive. 

8. Finally, it was contended that a non-parole period of five years was manifestly excessive and that the defendant’s expressions of remorse should have been accepted.  It was further contended that the pre-sentence report was such that the defendant’s prospects of rehabilitation should have been considered as significant. 

9. In regard to all these matters, permission to appeal has been sought.  In our view, for the reasons that follow, permission should be refused.

10. We refer to our earlier references to the defendant’s repeated offending.  It is clear that despite the courts giving the defendant many opportunities to demonstrate that he had changed his ways, he has failed to do so.  We have no confidence that the defendant has come to terms with his conduct or that his expressions of contrition are genuine.  His attempt to suggest to this Court that there is some ambiguity as to the Magistrate having previously given him credit for seven months spent in custody, when it is abundantly clear that credit was received at his request, suggests that he will present an opportunistic position if he perceives it to be to his benefit.  His claim that he will make restitution is unrealistic and in our view made for a self-serving purpose.  The hope he expresses to make restitution is not genuine.

11. The defendant’s dishonesty conduct was very grave indeed.  Its impact on Mr Bryant and his family has been devastating.  The defendant’s conduct was callous.  As the Judge observed, in February 2013, when the defendant had been remanded in prison, the defendant claimed in Court that Mr Bryant was “pointing the finger at you so that he could get away with all the debts he had ...  You claimed, and it was publicly reported, that John Bryant was using you when he was a father-figure to you.”  Even after he had been charged, the defendant was attempting to blame others.  In our view, the sentence of imprisonment of eight years and six months, with a non-parole period of five years was well within the sentencing discretion of the Judge.

    Conclusion

12. Insofar as permission to appeal has been sought, we would refuse permission.  The appeal is dismissed.