RM v The Queen

[2015] NSWDC 377

District Court

New South Wales

Medium Neutral Citation:

RM v R [2015] NSWDC 377

Hearing dates:

18 November 2015

Date of orders:

18 November 2015

Decision date:

18 November 2015

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Sentences passed by the Chief Magistrate on 13 July 2015 in respect to sequence number 1 to 5 and 7 to 9 set aside

 

Sentenced to a good behaviour bond for a period of 4 years

 

Compensation orders made by the Chief Magistrate confirmed

 Appeal against the sentences in respect of sequences 6 and 10 dismissed

Catchwords:

CRIMINAL LAW – Severity appeal – 10 counts of dishonestly gain financial advantage by deception –Total amount gained in respect of all 10 offences was $20,150 – Offending precipitated by severe personal upset including partner’s HIV positive diagnosis, the death of a cousin caused by pancreatic cancer and the suicide of a close friend within the same month – Diagnosed as suffering chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood at time of offending, resolved at time of sentence and appeal – Section 32, Mental Health (Forensic Procedures) Act 1990 not exercised – Appellant turned his life around with new employment and by performing charity work – Voluntary increase in compensation payments – Community Corrections advised Court of lack of appropriate community service work - Strong remorse and low risk of recidivism

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1990
Mental Health (Forensic Procedures) Act 1990

Cases Cited:

Confos v DPP [2004] NSWSC115 9

Category:

Principal judgment

Parties:

RM (Appellant)
Crown (Respondent)

Representation:

RM (In person) (Appellant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2015/43664

Publication restriction:

Appellant’s name anonymised.

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Crime

Date of Decision:

13 July 2015

Before:

Henson CM

File Number(s):

2015/43664

Judgment

1. HIS HONOUR: This is an appeal against the severity of sentences passed by the Chief Magistrate, Henson DCJ sitting in the Downing Centre Local Court on 13 July 2015.

2. The appellant pleaded guilty to 10 charges. Each was an offence contrary to s 192E(1)(e) of the Crimes Act 1900. Each of those crimes has a maximum penalty of 10 years imprisonment. When dealt with in the Local Court, the crime carries a maximum penalty of 2 years imprisonment and/or a fine of $11,000.

3. The 10 offences were extremely similar. The formal charge was that at Byron Bay, on the date or dates in question, the appellant did by deception by posting a false advertisement on dishonestly obtain a financial advantage. The date of the first offence alleged was 3 September 2014. The date of the last offence alleged was 5 November 2014. The total amount gained in respect of all 10 offences was $20,150.

4. The appellant was employed as a customer service representative with Stayz Pty Limited between 23 June 2014 until 12 September 2014. The appellant created a false advertisement for a rental property on the Stayz website. That false advertisement was created on 2 September 2014. It advertised a property for rent at 34 Cavvanbah Street, Byron Bay, the lessor of the premises being identified as Kurt Batly. That was an alias for the appellant. When rent was paid in advance for this non-existent property it was paid into a National Australia Bank account that was the appellant’s own account. After each deposit was made the proceeds were withdrawn from ATM machines.

5. There were eleven persons who were the victims of the appellant’s crimes. In respect of each but one offence a natural person made an application to rent the property and paid the rent in advance. In respect of the third offence there were two applicants, a brother and sister. One might postulate that in essence there were ten families who were affected by the appellant’s fraudulent dealings, ten families who booked a holiday at Byron Bay at a non-existent property.

6. The financial burden was accepted by Stayz Pty Limited and the appellant has been ordered by the Chief Magistrate to repay to Stayz Pty Limited the sum of $20,150 in total.

7. The appellant pleaded guilty in respect of eight of the offences. The Chief Magistrate sentenced the appellant to perform 150 hours of community service. Those sentences were all concurrent. In respect of two offences his Honour imposed a s 9 bond for 18 months.

8. Normally a person who had defrauded such a large sum of money and inconvenienced, to put it mildly, ten families would expect a full-time custodial sentence. The appellant himself acknowledges that fact.

9. The appellant’s life had been disrupted, but the verb “disrupted” could properly be seen to be an understatement. The appellant’s life partner is Daniel. In February 2014 Daniel was diagnosed with HIV. The appellant remained committed to his relationship with Daniel but there were obvious strains on the relationship with reduced physical contact and therefore a reduction in affection and some distancing of the couple.

10. Whilst the appellant was employed with Stayz he was bullied by a manager who was very rude and aggressive towards him and frequently used vulgar language.

11. In September 2014 the appellant felt physically unwell and had to consider the likelihood of his having himself contracted HIV. He avoided being tested because he wanted to avoid being provided with an unpalatable diagnosis. He started gambling heavily and lost a lot of money. He commenced drinking heavily, and met unsuitable acquaintances at the hotel which he frequented, and started using illicit drugs. His depression worsened in October 2014 and his alcohol consumption increased and his gambling also increased. It was because of his gambling addiction and increasing indebtedness that he committed the offences now in question. He committed them in the pious expectation that he could get money back to repay those who he had, in essence, defrauded.

12. As I have said earlier the last offence was alleged to have been committed on 5 November 2014. Although the offending stopped the appellant’s life was still turbulent. A cousin who had been diagnosed with pancreatic cancer died in November 2014. A close friend committed suicide in the same month.

13. However on 1 December 2014 the appellant commenced a new job with Entourage, an education company for entrepreneurs. In that employment his job was known as the Entrepreneur Development Manager. He held that position when he stood for sentence before the Chief Magistrate.

14. In the Local Court the appellant’s solicitor sought that the appellant be dealt with under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990. He asked that the charges be dismissed and that the appellant be discharged into the care of a consultant clinical psychologist, Mr Sam Borenstein.

15. Mr Borenstein apparently was a qualified expert witness. He interviewed the appellant on 1 May 2015, 8 May 2015 and 15 May 2015 before preparing a report bearing the last date. Mr Borenstein took a history which I have set out in summary form earlier in these reasons. The first part of Mr Bornstein’s opinion is this:

“Mr Mitic was suffering combined symptoms of depression and anxiety leading up to and during the offending period, coinciding with learning his partner of 18 months was diagnosed with HIV, in February 2014 being subjected to workplace bullying and harassment working with Stayz, in August 2014 developing symptoms of HIV which proved to be the case when Mr Mitic was formally diagnosed in December 2014.”

I should indicate that the evidence before me tells me that the formal diagnosis of HIV positivity was made by Associate Professor Boyd on 11 December 2014.

16. The formal diagnosis by Mr Borenstein was of a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood in response to the stressors identified by both Mr Borenstein and by me earlier in these reasons. He was of the view that there was a direct nexus between the diagnosed mental condition and the stressors and the offending conduct. However, throughout the report Mr Borenstein uses the past tense in describing both the appellant’s diagnosis and symptoms.

17. The appellant clearly was not a mentally ill person within the meaning of the Mental Health Act 2007. Theoretically the provisions of s 32 of the Mental Health (Forensic Procedures) Act 1990 were available to be used in the Local Court because the appellant had been suffering from a mental illness at the time of the commission of the alleged offences. However he was not so suffering at the time he stood for sentence.

18. The appellant’s life has been changed round by the appellant himself. He is no longer mentally ill. He is no longer depressed. He is no longer anxious. He has come to grips with the existential threats that had burdened him; with the non-acceptance by his family of his sexuality; with his HIV status; with his own reluctance to reveal his HIV status to his family and to others, and he is now contributing to society.

19. Section 32 requires the Court to “perform a balancing exercise; weighing up, on the one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender on the criminal justice system.” Such can be found in the judgment of Howie J in Confos v DPP [2004] NSWSC115 9 at [17]. At the time the offender stood for sentence he clearly was not a mentally disordered offender and the public interest required his crimes to be punished according to law and not dealt with under the Mental Health legislation. Furthermore as is well known to lawyers, although not to laymen, s 32 is available in the Local Court, that is, for minor offences, but it not available to judges of this Court or the Supreme Court when they exercise their sentencing powers. In other words the procedure is designed more for petty crime than serious crime. As the offender’s own solicitor pointed out in the Local Court the offender committed serious offences, offences which are prevalent in the community and for which there is a need for specific and general deterrence.

20. I agree with the learned Chief Magistrate that there was no reason to exercise the Court’s discretion to use the Mental Health legislation to deal with this appellant.

21. There has, however, been a significant change in circumstances since the appellant stood for sentence in the Local Court. In the last four weeks he has obtained a new role as a sales executive with a media company which deals with international clients and requires the appellant to travel throughout Australia and also overseas. The appellant works long hours in this job, including working on weekends. The job is more highly paid than that which he last held. That has enabled the appellant to pay more by instalments off the compensation that he is formally required to pay. He has voluntarily increased the amount of instalments which he is paying because of his increased earnings.

22. However he has been advised by Community Corrections that they would find it extremely difficult to find community service work which the appellant could do, bearing in mind his current work commitments and the report does not believe it appropriate that a man with the appellant’s background, personal abilities and qualifications should do mere menial work such as picking up rubbish. He could contribute much to the community but Community Corrections are not in a position to assist him or the community in that regard. The appellant has however himself embarked upon charitable work, working in ACON, so he is contributing voluntarily to the community.

23. Clearly the appellant acknowledges that but for the mitigating circumstances which caused him to commit these offences he would be serving a full-time custodial sentence. Clearly the Chief Magistrate also though so, as do I. However the Chief Magistrate chose to deal with the appellant more leniently but unfortunately that leniency has now become an obstacle.

24. I carefully weigh all of the factors involved in the current case and come to the view it is appropriate to set aside the community service order and impose lengthy bonds pursuant to s 9. I point out to the appellant that if he should come back before me for breach of s 9 bonds that I impose that he may well find that he will be facing a full-time custodial sentence. But I am confident, bearing in mind what the evidence tells me about the appellant’s remorse and the unlikelihood that he will reoffend, that that will not arise.

25. For those reasons I set aside the sentences passed by the Chief Magistrate on 13 July 2015 in respect to sequence number 1 to 5 and 7 to 9.

26. [RM] in respect of each of those offences pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1990 I order that you enter into a bond to be of good behaviour for a period of four years from today. Conditions applying during the term of the bond are as follows:

1. you are to appear before the Court if called upon to do so at any time;

2. you are to be of good behaviour;

3. you are to reside at [NFP]; or,

4. you are to advise the Registrar of this Court by prepaid registered post of any change of residential address during the term of the bond.

27. In respect of the same offences I confirm that compensation orders made by the Chief Magistrate. I dismiss the appeal against the sentences in respect of sequences 6 and 10.

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Decision last updated: 01 March 2016