Regina v Grammenos

[1999] NSWCCA 145

CITATION:	Regina v Grammenos [1999] NSWCCA 145
FILE NUMBER(S):	CCA 60756/98
HEARING DATE(S):	7 June 1999
JUDGMENT DATE:	7 June 1999
PARTIES :	Regina v Maria Grammenos
JUDGMENT OF:	Grove J at 1; Carruthers AJ at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0395
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	R. Ellis (Crown) S. Norrish QC (Applicant)
SOLICITORS:	C.K. Smith (Crown) Voros & Associates (Applicant)
CATCHWORDS:	Criminal Law and procedure - Sentence - Exceptional circumstances - Psychiatrically affected offender refuses legal assistance - Crown and applicant invite attention to matters not ventilated in District Court and consequent intervention to reduce sentence
DECISION:	Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60756/98


GROVE J
CARRUTHERS AJ

7 June 1999

REGINA v MARIA GRAMMENOS


JUDGMENT

1 GROVE J : This is an application for leave to appeal against sentence imposed by Patten DCJ in the Sydney District Court. The applicant was sentenced in respect of a large number of counts of making a false instrument contrary to section 300(1) of the Crimes Act, an equivalent number of counts of using a false instrument contrary to section 300(2) and six counts of obtaining a valuable thing by deception.

2    The applicant is a young woman aged 22 years. The offences cover a span of time starting from when she was 16 years of age. There are some unusual features to this case which have provoked the Crown to invite the Court to admit evidence not called in the court below and to give effect to matters which would mitigate the sentence passed upon the applicant.

3    As commented in the helpful written submissions from the Deputy Senior Crown Prosecutor, this is a case which cannot in any sense stand as a precedent for other cases and I would affirm my agreement with that contention.

4    As I have said the applicant was a very young woman. After she was charged she appeared before several judges of the District Court. On each occasion she was strongly advised to obtain legal advice and assistance. She rejected that advice, ultimately appearing as I have indicated for sentence following pleas of guilty.

5    There were technical reasons for the presentation of an indictment on the final occasion and the learned sentencing judge treated the matter as if the applicant had pleaded guilty at an early opportunity. That was patently a correct approach.

6    There is no need in the present circumstances for me to relate any detailed description of the offences. The vast bulk of them consisted of participation in a scheme whereby a large banking corporation was prevailed upon to pass money to the applicant from various accounts upon her representations to them and the production of some documentation for example by way of birth certificate, and moneys were given to her from other people's accounts.

7    The applicant when aged 16 became aware for the first time that she was not in every sense the child of her parents. This appears to have had quite a devastating effect upon her and I accept the suggestions in the evidence and in the psychological survey that to a substantial effect her misconduct and indeed her criminal conduct was provoked by reaction to this information. It suffices merely to mention that what was discovered by the applicant was that as her mother (as she believed her to be) had been found to be infertile an arrangement had been entered whereby she was born to her father and acquaintance of her “mother”. Upon learning this information she apparently sought to identify and have some contact with her birth mother but this was denied to her. In a state of some confusion she had what appears to have been the misfortune of winning a large amount of money from a poker machine whilst on a holiday. This became a misfortune because in her current state it provoked what can be described as a gambling addiction. The proceeds of her many offences were disbursed in order to feed that addiction. I should note in passing that for some of the offences the applicant was assisted by a co-offender and she has given information concerning the identity of that person.

8    The applicant's parents perceived that there was something wrong with their daughter and arranged for psychiatric assistance to be made available to her but she refused to attend appointment which had been made for her. I am persuaded that her refusal to participate in such arrangements is probably itself an indication of the state in which she was.

9    The learned sentencing judge was unassisted by any of the information that has now been made available to this court. That, of course, was a direct consequence of the applicant's refusal to seek advice or assistance which she had been urged to obtain by his Honour and his predecessors. As I have said, this case cannot stand as a precedent in any real sense and it should particularly stand as no encouragement to any person facing sentence in the District Court to refuse legal aid with any anticipation that the jurisdiction of this Court will thereby be provoked in relation to sentence. In this case, as I have indicated, the Crown has very fairly said that intervention should take place but it is because of the combination of most unusual factors.

10    The one matter that did occur in the District Court which might have been of assistance to the applicant in mitigation of sentence was evidence called from Christine Karanasiou, who described herself to the then presiding judge as a best friend of the applicant. It should be pointed out that the evidence of that witness was taken before a judge before whom the applicant was arraigned and not before Patten DCJ. In the remarks on sentence of the latter no notation is made indicating as to whether his Honour was aware of this testimony. It was significant in the sense that Miss Karanasiou had said that to her observation the applicant had overcome what I have described as the gambling addiction. To the extent that she made that effort at self-help and rehabilitation it was a matter that was available to be taken into account in favour of the applicant.

11 On the basis of the material which, as I have said, was manifestly inadequate before the District Court his Honour came to the conclusion that upon the offences contrary to section 300 of the Crimes Act the applicant should be sentenced to total terms of five years penal servitude which he divided into components of minimum and additional term of two and three years respectively having found special circumstances justifying extension of the additional term beyond the proportion mentioned in section 5(2) of the Sentencing Act. Like his Honour I would find that there are such special circumstances and they should have that effect in the sentence which this Court should reimpose.

12    On the offences of obtaining a valuable thing by deception the applicant was sentenced to concurrent fixed terms of 12 months imprisonment. The applicant has been in custody for a little over six months. In written submissions senior counsel for the applicant invited the Court to consider whether the service of that period of custody was sufficient and whether this Court (intervening as invited both by the applicant and the Crown) should not make a further order of a non-custodial nature.

13    In my view the multiplicity of offences, their seriousness, the long term over which they were committed combine to make that approach entirely inappropriate. There are, as I have indicated, a number of matters which should be taken into account. The applicant's youth, even juvenile status, at the time of the commission of some of the offences should be taken into account. The absence of prior record is a significant matter. Nevertheless the offences, as I have indicated, were serious, were conscious and were committed by the applicant in order to pursue an activity from which her experience had taught her considerable gain without effort might be derived.

14 I have concluded that giving the applicant full benefit for all of the matters in mitigation including those which are set out in the affidavits filed and read today that it would be appropriate for this Court to intervene and in view of the sentences imposed upon the section 300 offences impose total terms concurrently of three years penal servitude divided into minimum and additional term components of 15 months and 21 months. The sentences for offences contrary to section 178BA will be subsumed within the minimum term component of those offences.

15 Accordingly I propose the following orders: That the application for leave to appeal against sentence be granted. That the appeal be allowed. That the sentences imposed upon the offences contrary to sections 300(1) and 300(2) of the Crimes Act be quashed and in lieu thereof the applicant be sentenced on each count, to be served concurrently, to a total term of three years penal servitude to comprise a minimum term of one year and three months commencing on 26 November 1998 and expiring on 25 February 2000 together with an additional term of 21 months commencing on 26 February 2000. It should be ordered that the applicant be released to parole on 25 February 2000. The sentence of fixed term of 12 months imprisonment to be served concurrently commencing on 26 November 1998 and expiring 25 November 1999 in respect of each of the offences contrary to section 178BA of the Crimes Act should be confirmed.

16    CARRUTHERS AJ: Yes. I agree.

17    GROVE J: The orders of the Court will be as I have proposed.


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