Rofail v The State of Western Australia
[2019] WASCA 214
•19 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROFAIL -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 214
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 13 AUGUST 2019
DELIVERED : 13 AUGUST 2019
PUBLISHED : 19 FEBRUARY 2020
FILE NO/S: CACR 66 of 2019
BETWEEN: EMMANUEL RAFLA ADLY ROFAIL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 540 of 2018
Catchwords:
Criminal law and sentencing - Appeal against sentence - Appellant convicted of five fraud and related offences - Whether sentence of 18 months' immediate imprisonment manifestly excessive - Whether sentencing judge made errors of fact
Legislation:
Nil
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cross v The State of Western Australia [2018] WASCA 86
Rofail v The State of Western Australia [2019] WASCA 166
Wellstead v The State of Western Australia [2019] WASCA 130
REASONS OF THE COURT:
Introduction
The appellant was convicted, on his pleas of guilty, of two counts of fraud, one count of attempted fraud and three counts of forgery.[1] He was sentenced to a total effective sentence of 18 months' immediate imprisonment. The appellant was also ordered to pay compensation in the sum of $175,199.62.
[1] His application for leave to appeal against his conviction on one of the fraud counts was dismissed: Rofail v The State of Western Australia [2019] WASCA 166.
The appellant sought leave to appeal his sentence. At the hearing of the application for leave to appeal, the court made orders refusing leave to appeal on each ground and dismissing the appeal. What follows are our reasons for concluding that none of the grounds has any merit and for making those orders.
The offences
The appellant entered pleas of guilty to two counts of fraud, one count of attempted fraud and three counts of forgery.[2] The charges alleged that he:
(1)On or about 1 April 2015, with intent to defraud, by deceit or fraudulent means, gained a benefit, namely $9,000, for himself.
(2)Between 1 December 2014 and 6 January 2015, with intent to defraud, by deceit or fraudulent means, caused a detriment to Rafla Rofail, namely $195,299.62, and that Rafla Rofail was of or over the age of 60 years.
(3)Between 1 December 2014 and 6 January 2015, with intent to defraud, forged a record.
(4)Between 11 December 2014 and 24 December 2014, with intent to defraud, forged a record.
(5)On or about 9 April 2015, with intent to defraud, forged a record.
(6)On or about 9 June 2015, with intent to defraud, by deceit or fraudulent means, attempted to gain a benefit, namely $400,000, for himself.
[2] ts 15 - 16.
The facts of the offending
The facts of the offending were stated by the prosecutor and admitted by the appellant's counsel.[3] The judge incorporated the prosecutor's statement of the facts into her sentencing remarks.[4]
[3] ts 21.
[4] ts 46.
As to count 1, the appellant emailed the victim on 23 June 2014, requesting a short-term loan of $10,000, saying he would be able to repay the loan in three weeks, with interest. The victim drafted a loan agreement, which provided for repayment in four weeks. He emailed it to the appellant, who signed it and returned it. On 24 June 2014, the victim transferred $10,000 to the appellant.
When the money was due to be repaid, the appellant claimed that he had transferred the money to the victim when he had not. Over the following months, the appellant provided various excuses, via SMS and email, as to why he had not transferred the money.
On 22 February 2015, the appellant transferred the sum of $1,000 to the victim.
In early April 2015, the appellant contacted the victim and claimed that he had never borrowed the money from him. Further, he claimed that someone must have hacked into his phone and email, as he had not sent any of the communications about the loan.
The victim requested a statutory declaration from the appellant to that effect. In late April 2015, the appellant provided a signed statutory declaration containing the false claim that he had never borrowed money from the victim.[5]
[5] ts 16 - 17.
The primary victim of count 2 is the appellant's father, who was at the time 67 years old.
On 23 December 2014, the victim's home loan balance was approximately $23,300.[6]
[6] ts 17.
The appellant approached his parents, telling them that if he put their names as advisors to his business, the taxes from his business earnings would be used to pay off their outstanding mortgage. His parents agreed with the appellant's suggestion.
In December 2014, the appellant took his parents to a solicitor's firm, where their driver's licences and passports were photocopied.
The appellant prepared and submitted application forms to Prime Capital Securities (Prime), applying for a loan in the sum of $250,000. The offender forged both his parents' signatures as agreeing to be guarantor for the loan and agreeing to provide the house as security (count 3). The appellant also forged the signature of a solicitor as a witness to the signing by the parents of the various documents (count 4).
Prime then paid out the balance of the mortgage.[7]
[7] ts 18.
Prime did not pay any further funds, probably because of its discovery of the appellant's forging of the loan documents.[8]
[8] ts 18.
The appellant's parents became aware of the forging of their signatures in June 2015, when they were told that Prime had a mortgage over the property (see [24] below).[9]
[9] ts 18.
By then, Prime were threatening to take possession of the home. In order to avoid this, the appellant's sister obtained a loan and discharged the mortgage by providing Prime with the then outstanding loan balance, in the sum of $195,299.62.
The appellant's father then confronted the appellant, who agreed to repay the sum. From 30 December 2015 to March 2017, the appellant made three payments totalling $17,100. A further payment of $3,000 was made the day before sentencing.[10] The State sought a compensation order in the amount of the balance, namely $175,199.62.
[10] ts 19.
Count 3 was the appellant's forging of his parents' signatures on loan documents provided to Prime.
Count 4 arose from the appellant's forging of the signature of the lawyer as witness to signatures on the loan documents.
Count 5 was constituted by the appellant's forging of the signature of his parents on a Landgate form used by Prime to register the mortgage over his parents' property.[11]
[11] ts 20.
The victims of count 6 were the appellant's parents. The appellant sent an application and supporting documents for a loan to a finance broker. He forged the signatures of the victims in support of his application for a loan for $400,000 to a company controlled by him.
The finance broker spoke to the appellant's father, who advised that he knew nothing of the loan. In the course of this conversation, the appellant's father became aware of the offending the subject of counts 2 ‑ 5.[12]
[12] ts 20.
The appellant's personal circumstances
The appellant was 35 years old at the time of sentencing. He was born in Egypt and migrated with his family to Australia in 1988 when he was about 5 years old. The appellant is married with a 4‑year‑old son and a baby daughter.
The appellant has no previous convictions.
During his childhood, the appellant had a difficult relationship with his father who, at times, used corporal punishments. The judge accepted the opinion expressed in the psychological report that the appellant suffered trauma as a result of aspects of his childhood.[13]
[13] ts 52.
The appellant suffers from a rare inherited degenerative neurological condition known as Charcot‑Marie‑Tooth disease (CMT). That condition compromises the nervous system, significantly affecting movement and sensation. The condition has required the appellant to have a number of surgeries over the years. At times, the appellant is able to walk with a brace, at other times he requires a wheelchair.[14]
[14] ts 52.
The appellant's schooling was intermittent, due to his health condition. Although he missed substantial parts of his final years of school, he was able to graduate.
The appellant has had various financial problems in recent years, including a significant tax debt.[15]
[15] ts 53 - 54.
The judge referred to the opinion, expressed in the psychological report, that the appellant has suffered verbal abuse from members of his family. The judge put little weight on that opinion, observing that this may well have reflected anger, on the part of family members, for the appellant's offending behaviour.[16] The judge declined to give any mitigatory weight to any trauma that may have been caused to the appellant by the family's angry response to his offending behaviour.[17]
[16] ts 52.
[17] ts 55.
Sentencing remarks
The judge described the appellant's dishonesty in his dealings with the victim of count 1 as 'breathtaking'.[18] Her Honour described the appellant's lies to the victim of count 1 as embarrassing, culminating in the conduct the subject of count 1, namely the claim to have never borrowed the money from the victim at all, and the ludicrous story that the appellant's identity had been stolen.[19]
[18] ts 47.
[19] ts 47.
In relation to count 2, the judge found that the appellant took advantage of his parents' naivety in believing that the appellant's proposal would assist them to pay off their home loan more quickly.[20]
[20] ts 47 - 48.
The judge described the extent of the fees, interest and penalty rates, by which the loan ballooned from under $24,000 in December 2014 to more than $195,000 in June 2015, as 'disgraceful'.[21] The judge observed that she was 'not without some sympathy' for the appellant in having entered into a contract of loan on such terms.[22] However, her Honour said, the fact was that the appellant could not afford to borrow the money, reflected in the limited repayments he had made.[23]
[21] ts 48.
[22] ts 49.
[23] ts 49.
The judge referred to the victim impact statement from the appellant's father, explaining the effects of this fraud on his life. The appellant's offending has taken his father from having a modest mortgage of just over $23,000 to now living in a house that is not in his name which has a very substantial debt on it.[24] This has caused ongoing stress and has affected his ability to sleep.[25]
[24] ts 50.
[25] ts 51.
The judge identified the following mitigating factors:
(1)The appellant's plea of guilty, for which the judge applied a discount of 20% in relation to counts 1, 3 and 5, and 15% on counts 2, 4 and 6.[26]
(2)The judge accepted that the appellant was remorseful, although that remorse was also 'peppered through' with self‑justification.[27] The appellant had demonstrated his remorse by his repayments, including the repayments recently made just prior to sentencing. The judge observed that these repayments were very modest, still leaving a huge debt.[28]
(3)The appellant had not committed any prior offences and was not the sort of person who was genuinely going to commit offences. However, the judge observed that offences of this kind are often by persons of good character, which is part of what enables the commission of fraud.[29]
(4)The judge also referred to the appellant's medical history demonstrating a long‑standing degenerative incurable illness.[30] The judge accepted that the medical condition was likely to mean that a prison term would be more difficult for the appellant than for those who are able‑bodied.[31] The judge observed that there was no evidence before her to demonstrate that being imprisoned would have a substantially adverse impact on his condition.[32]
(5)The judge also took into account the fact the appellant's father meted out corporal punishments and was very strict on the appellant when he was a child and that this has left the appellant with psychological scars.[33]
(6)The judge also took account of the appellant's financial struggles at the time of the commission of the offences, but observed that this was only of modest mitigatory value.[34]
[26] ts 56.
[27] ts 56.
[28] ts 56.
[29] ts 56.
[30] ts 56.
[31] ts 57 - 58.
[32] ts 57 - 58.
[33] ts 58.
[34] ts 58 - 59.
The judge identified serious elements of the appellant's offending, which included:
(1)The appellant was prepared to engage in patent dishonesty, by telling quite 'ridiculous stories' to the victim of count 1.[35]
(2)The manner in which the appellant defrauded his parents took advantage of the trust they reposed in him. That reflected a person with an inflated sense of entitlement and an inflated ability to rationalise his own behaviour for his own advantage.[36]
(3)Had the attempt the subject of count 6 succeeded, the appellant would only have compounded the financial problems he faced, and caused further losses to his parents.[37]
(4)The appellant forged a public record, namely the Landgate form used to register the mortgage over his parents' home, and thereby undermined confidence in that public register.[38]
[35] ts 59.
[36] ts 59.
[37] ts 59.
[38] ts 59.
The judge expressed no doubt that the appellant's offending required a term of imprisonment.[39] Her Honour identified the 'live question' as whether the term ought to be suspended, as an immediate term was only to be imposed if it would be inappropriate to suspend the term of imprisonment.[40] In this respect, the judge referred to the appellant's severe and deteriorating medical condition. However, her Honour observed that illness was not to be seen as a licence to commit offences. The judge concluded that the serious elements of the appellant's offending, involving a breach of his parents' trust and ongoing dishonesty, made it inappropriate for the term of imprisonment to be suspended.[41]
[39] ts 60.
[40] ts 60.
[41] ts 60.
The judge observed that the terms she imposed were lower than would normally be the case, to reflect the mitigatory factors in the appellant's favour, especially his illness. Her Honour further observed that, for that reason, she would not accumulate the term on count 1, although it otherwise would have been appropriate to do so.[42]
[42] ts 60 - 61.
The judge imposed the following sentences:
(1)Count 2: 18 months' imprisonment. The remainder of the sentences were to be served concurrently with that sentence and with each other.
(2)Count 1: 8 months' imprisonment.
(3)Count 6: 12 months' imprisonment.
(4)Counts 3, 4 and 5: 6 months' imprisonment on each.
The judge made an order that the appellant pay compensation to his father in the sum of $175,199.62.[43]
[43] ts 61.
The judge ordered that the appellant be eligible for parole.
Appeal against sentence
The appellant advances four grounds of appeal against the sentences imposed on him. The grounds are in the following terms:
(1)The sentencing judge made an error of fact by not giving consideration to whether or not, upon the completion of a term of immediate imprisonment, by virtue of the degenerative nature of the appellant's condition, the appellant would be able to resume work and thus pay reparation.
(2)The sentence imposed was manifestly excessive as to the type of sentence, in that a suspended or partially suspended sentence was appropriate, having regard to the circumstances of the offending, the personal circumstances of the appellant, particularly his health, and to sentencing standards.
(3)The judge sentenced on the basis of incorrect facts relating to counts 3, 4 and 5.
(4)Additional evidence not before the sentencing judge relating to the appellant's health at the time of the sentencing indicates that imprisonment would be a greater burden upon the appellant due to his health, and there is a serious risk of imprisonment having a gravely adverse effect upon the appellant.
It is convenient to begin with grounds 1 and 3, which allege specific errors, before turning to ground 2, which alleges implied error. Finally, we will deal with ground 4, which relies on additional evidence not before the sentencing judge.
Ground 1
The complaint made by ground 1 is that the judge should have, but failed to, take into consideration that the likely degeneration of the appellant, given his medical condition, meant that upon completion of his term of imprisonment he was unlikely to be able to work, and thereby have the means to satisfy the compensation order. That complaint, even if made good, provides no basis to impugn the sentence imposed upon the appellant. Rather, it is a complaint directed to the compensation order. In so saying, we should not be taken as suggesting there is any merit in the complaint.
Ground 3
Although the terms of ground 3 are confined to counts 3, 4 and 5, the appellant's submissions in support of ground 3 also advance complaints concerning counts 1, 2 and 6. For completeness, we will explain why we consider that none of the complaints has any merit.
The appellant submits that the judge erred by not characterising count 1 as a civil matter and that no sentence should have been imposed in respect of it.[44] The appellant's contention is misconceived. It amounts to an attempt to deny his guilt of the offence. That would, if anything, concern an appeal against his conviction, not against his sentence. As already noted, the appellant's appeal against his conviction on count 1 has been dismissed.[45]
[44] Appellant's submissions [25] - [32].
[45] Rofail v The State of Western Australia.
The appellant's submissions concerning count 2 are lengthy, but need not be outlined.[46] In essence, the submissions amount to a denial of his responsibility for his conduct in defrauding his father, on the basis of an attempt to deflect the blame to Prime. Nothing in the appellant's submission provides any arguable basis for finding error in the judge's sentence for count 2.
[46] Appellant's submissions [34] - [56].
As to counts 3, 4 and 5, the appellant alleges that the judge mischaracterised the facts, and seriousness, of those counts because the forgeries '[led] to nowhere'[47] and '[n]o loan ever went ahead'.[48] This submission is misconceived. Following Prime's receipt of the forged documents, it paid out moneys to discharge the balance of the victim's existing mortgage.[49] Those facts were admitted by counsel for the appellant before the sentencing judge.[50] The judge did not err in so finding.
[47] Appellant's submissions [58].
[48] Appellant's submissions [61].
[49] ts 18.
[50] ts 21.
Finally, in relation to count 6, the appellant asserts that he never forged any forms and that the guilty plea was based on 'bad legal advice'.[51] Again, these assertions amount to a challenge to his conviction; they do not provide any basis to impugn the sentence.
[51] Appellant's submissions [64].
For these reasons, the appellant's complaints in ground 3 are misconceived and without merit.
Ground 2
By ground 2, the appellant complains that his sentence was manifestly excessive as to type. In other words, he contends that it was not open to impose a term of immediate imprisonment. Rather, his sentence of imprisonment should have been suspended, either wholly or partly.
His submissions place particular emphasis on his medical condition and that he did not personally receive the funds.[52]
[52] Appellant's submissions [20], [22], [24].
The following general principles concerning an appeal on the ground of manifest excess are well‑established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
The principles concerning whether imprisonment should be suspended or ordered to be served immediately are also well‑established. We apply the following principles stated in Cross v The State of Western Australia:[53]
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act 1995 (WA), that it is not appropriate to impose suspended imprisonment. In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.
In Fogg v The State of Western Australia, McLure P explained the approach to an appeal against the refusal to suspend a term of imprisonment on the ground of implied error. A court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate. Whether suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision maker. In borderline cases, different types of sentence may be reasonably open. In such cases, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust, and would reveal no implied error.
Thus, in the absence of express error, it is for the appellant to satisfy the court that the primary sentencing court's judgment, that suspension was not appropriate, was a conclusion that was not reasonably open. (footnotes omitted)
[53] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [33] ‑ [37].
There is no merit in the appellant's claim that his imprisonment should have been suspended. The appellant's offending had a number of serious elements: it involved engaging in dishonest behaviour over an extended period and he took advantage of his parents' trust in him, with devastating effects for them. Notwithstanding the mitigation provided by the appellant's medical condition, as the sentencing judge rightly observed, the serious elements of the appellant's offending weighed decisively against the suspension of his imprisonment.
The judge gave full weight to the mitigation provided by the appellant's illness in fixing the length of the terms of imprisonment, and in ordering that all of the terms of imprisonment be served concurrently.
In our view, it is not arguable that the judge erred in imposing an immediate term of imprisonment. To the contrary, in our view, immediate imprisonment was the only appropriate form of disposition. Ground 2 is, consequently, without merit.
Ground 4
Ground 4 relies on additional evidence that was not before the sentencing judge, in the form of the appellant's affidavit of 29 April 2019.
Relevantly, the appellant's affidavit annexes a report from a physiotherapist concerning the appellant's CMT. It explains the need for, and benefits of, regular exercise, and the consequences for the appellant of an absence of regular supervised exercise.
In our view, the additional evidence falls well short of providing a basis to interfere with the sentence imposed by the judge.
The principles relevant to the receipt of additional evidence in an appeal against sentence were recently outlined in Wellstead v The State of Western Australia.[54] We apply those principles. In short, additional evidence will justify the allowing of an appeal only if it establishes that (1) the judge made an error, or its absence means there was a miscarriage of justice; and (2) a different sentence should have been imposed.
[54] Wellstead v The State of Western Australia [2019] WASCA 130.
In this case, there was material before the judge that established the appellant's CMT. The judge was well aware and carefully weighed it in the process of balancing the competing considerations in arriving at an appropriate sentencing disposition.
The appellant points to the judge's observation that the evidence did not establish that imprisonment would have a serious adverse impact on his condition, submitting that the additional evidence shows that this is the case.[55] Error is not shown on appeal by additional evidence that was not before the primary court. There is no explanation for why such evidence could not have been put before the sentencing judge. In any case, its subject matter is of secondary significance in the sentencing exercise in this case. Were we to receive it and to resentence the appellant, we would not impose a lesser sentence. The additional evidence falls well short of establishing any miscarriage of justice, or that a different sentence should have been imposed.
[55] Appellant's submissions [66].
For these reasons, ground 4 is without merit.
Conclusion
For the above reasons, we refused leave to appeal on all grounds and dismissed the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Orderly to the Honourable Justice Beech19 FEBRUARY 2020
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