Romvald Gabor Rang v SA Police No. SCGRG 93/940 Judgment No. 4263 Number of Pages 8 Criminal Law and Procedure

[1993] SASC 4263

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law and procedure - sentencing - plea of guilty - five counts of false pretences and two counts of attempted false pretences - 35 year old man with previous convictions for offences involving dishonesty - well planned criminal enterprise to obtain money from banks - 21 other offences taken into consideration - one sentence imposed pursuant to s.18a of the Criminal Law(Sentencing) Act - sentence of imprisonment for four years with non-parole period of three years - appeal on grounds that sentence manifestly excessive, sentence in excess of that which may be imposed by the Magistrates Court and error in rejecting submission without giving the opportunity to the appellant to give evidence on oath - appeal dismissed - sentence not in excess of limit - no obligation to invite the appellant to give evidence - sentence within range of proper exercise of sentencing discretion.
Criminal Law (Sentencing) Act 1988ss.18a and 19; Canino v Venning (30.3.93, unreported, Judgment Number 3777; R v Maitland (1963) SASR 332 and Law v Deed
(1970) SASR 374 referred to. R v Perre (1986) 41 SASR 105, applied.

HRNG ADELAIDE, 19 July, 3 November 1993 #DATE 12:11:1993
Counsel for appellant:     Mr N Vadasz
Solicitors for appellant:    Nicholas Vadasz
Counsel for respondent:     Ms R D De Palma
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 MULLIGHAN J On 17th March 1993 the appellant pleaded guilty to five counts of false pretences and two counts of attempted false pretences. All of these offences were designated as minor indictable offences. He asked that 21 other similar offences be taken into account on the basis that he was an accessory to the committing of those offences. The offences which are the subject of the charges occurred during the period from 16th September 1992 until 19th September 1992. The offences which the appellant asked to be taken into consideration were committed during the period from 17th September 1992 until 3rd November 1992. 2. The learned Special Magistrate imposed one sentence pursuant to s.18a of the Criminal Law (Sentencing) Act 1988. The appellant was sentenced to imprisonment for four years and a non-parole period of three years was fixed. Both the sentence and the non-parole period are to commence on 23rd November 1992 when the appellant was taken into custody. 3. He appeals against this sentence and the grounds of the appeal are:-
    1. that the sentence was manifestly excessive;
    2. that the sentence exceeded the jurisdictional limit of
    the Magistrates' Court;
    3. that the learned Special Magistrate erred in rejecting
    part of the submissions made on behalf of the appellant. 4. The criminal conduct of the appellant was undoubtedly serious. The relevant circumstances of the offences and personal to the appellant are as follows. He is aged 35 years. He was born in Hungary and left that country in 1980. He spent some time in Italy and then migrated to Australia in March 1981 as a refugee and has since remained in this country but has not applied for Australian Citizenship. He was formerly married and has one child. It appears that he met a man by the name of Nagy in an hotel in Bondi in New South Wales. That hotel was frequented by persons of Hungarian extraction. Nagy put a proposal to the appellant that they should embark upon the criminal enterprise which in fact they committed. The scheme was that cheques which had been lost or stolen would be paid into bank accounts opened in a false name. These accounts would have both a cheque book and a transaction card which would enable cash to be drawn from automatic teller machines. It was proposed that both Nagy and the appellant would operate on these bank accounts in the short time available before the cheques were discovered to have been lost or stolen. It was a carefully planned scheme and the two men travelled to Adelaide and put it into operation commencing in September 1992. Two bank accounts were opened by depositing small amounts of cash. Nagy provided the cheques which were to be paid into these bank accounts. A false identification was produced which included an Immigration Department certificate of residential status, a visa and a coloured photograph of some other person. Cheques were then deposited in the accounts. They were cheques for $9,300, $9,780, $8,075 and $6,400. Four of the counts of false pretences related to the opening of those bank accounts and the depositing of those cheques. The fifth count relates to the appellant acquiring a television set of the value of $779 by drawing a cheque on one of the bank accounts and falsely pretending that it was a good and valid order for payment. The television set was subsequently recovered. The two counts of attempted false pretences involve the appellant attending at one of the branches of the bank with a car salesman. He handed the teller two cheques for $10,000 and $3,990 respectively to be deposited into the account with that branch and requested a bank cheque for $13,990 which he intended to pass to the car salesman, presumably for the purchase of a motor vehicle. The amount purportedly standing to the credit in that bank account in view of the cheques which had been deposited was $27,252. Bank staff made enquiries and the appellant quickly left the premises. 5. It appears that Nagy has not been apprehended and his present whereabouts are unknown. He used the transaction cards and obtained relatively small sums of money on the occasions which I referred to in all but two of the offences which the appellant asked to be taken into consideration. The other two offences involved transactions similar to those which are the subject of the charges involving cheques. In these two instances the cheques were for $9,200 and $8,800. 6. The appellant has a significant record of prior offending, including convictions for breaking, entering and stealing and possessing housebreaking implements in Queensland in 1982, for stealing two cheques and uttering a cheque in New South Wales in 1982 and for burglary, theft and other offences involving dishonesty in Victoria in 1987 and 1990. I mention that the learned Special Magistrate, in his remarks on sentencing, incorrectly stated that criminal acts of dishonesty in other States had commenced in New South Wales in 1981-1982. The appellant had been charged with attempted stealing in New South Wales in 1981 but did not appear before the Court. He did not acknowledge that he had committed an act of dishonesty in that year but this misunderstanding by the learned Special Magistrate of that aspect of his past record is a matter of no significance for present purposes. 7. Understandably the learned Special Magistrate took a serious view of the appellant's offending. In his remarks on sentencing he said:-
    "The offences are serious offences. These 28 offences
    occurred over a short period of time but during that period of
    time you appeared to be extremely active in that a number of
    attendances were made by you on numerous branches of banks in
    question and on one particular day you were in pursuit of your
    criminal activities attending a number of branches. It has been
    put to me by your counsel you were talked into this offending by
    a friend you met and that you embarked upon this joint offending
    as a result of being led into the offending. I was told you
    were in fact 'duped' by the co-offender and that your role in
    the commission of these offences was a lesser role than the
    co-offender. I do not accept that contention. You were part
    and parcel of serious criminal activities embarked upon by
    yourself and the co-offender. You were a very important and
    central participant and without your involvement and
    participation the offences could not have been committed in the
    manner they were committed. You are both equally criminally
    liable for the offences that were committed." 8. In my view all of those observations are fully justified by the known circumstances of the offences and the nature and extent of the appellant's participation. I accept that the learned Special Magistrate appears to misunderstand one aspect of the submissions of the appellant's counsel. It was told that it had not been suggested that the appellant was "duped" by the co-offender but it was submitted that the appellant played the lesser role. That is a matter of no significance. 9. The learned Special Magistrate went on to acknowledge that the appellant had co-operated with the police and had pleaded guilty. He accepted that the appellant did not obtain any benefit from the crimes except the television set which was recovered from him. He went on to say:-
    "Your record indicates that you have been criminally active
    ever since you migrated to Australia. It indicates that you
    embarked upon very similar criminal acts of dishonesty in other
    states, commencing in New South Wales in 1981-82. You
    transferred your criminal activities to Queensland where you
    were dealt with for a number of criminal offences for which
    various penalties were imposed, including imprisonment and you
    continued to offend in Victoria as late as November 1990. The
    activities embarked upon by you were of a sophisticated,
    calculated and deliberate nature. Whilst it may be said you
    succumbed to the proposition put to you by your co-offender, as
    I have already said, you played a very central part in the
commission of those offences." 10. In my view those conclusions were fully justified by the circumstances of the offences, the nature of the participation by the appellant and his past record. 11. It is convenient to deal with the first ground of appeal last. 12. The second ground of appeal raises for consideration the interpretation of ss.18a and 19(3) of the Criminal Law (Sentencing) Act and the inter-relation between them. S.18a provides that: "18a If a person is found guilty of a number of offences for which he or she was charged on the one complaint or information, the court may sentence the person to the one penalty for all those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences." 13. S.19(3) provides:- "19(3) A court of summary jurisdiction, in sentencing a defendant convicted of a minor indictable offence, does not have the power to impose a sentence of imprisonment, or a fine, that exceeds Division 5." 14. S.28a of the Acts Interpretation Act provides that a division 5 sentence is a term of imprisonment not exceeding 2 years. 15. The seven charges to which the appellant pleaded guilty were all included on the same information and consequently the learned Special Magistrate was entitled to impose the one sentence pursuant to s.18a. Mr. Vadasz argued that the jurisdictional limit was a total sentence of imprisonment for 2 years with respect to all of the offences. No authority was cited in support of that proposition although Mr. Vadasz did draw my attention to the decision of Perry J in Canino v. Venning (30.3.93, unreported, judg. S3777). There the appellant had appealed against a sentence of 5 years' imprisonment imposed following a plea of guilty to 127 counts of obtaining invalid pension payments contrary to the Social Security Act. In that case the appellant was charged with a summary offence and not a minor indictable offence and pursuant to s.5 of the Summary Procedure Act, a summary offence is an offence "for which a maximum penalty of, or including, imprisonment for two years or less is prescribed". Perry J said at pp.4-5:-
    "Clearly, that definition applies to a single offence. It
    seems to me that where there is a power in the Court to
    sentence for multiple offences alleged within a single
complaint, either pursuant to s.18A of the Sentencing Act, or in
    this case, which is a Commonwealth offence, pursuant to s.4K(4)
    of the Crimes Act, a Court of Summary Jurisdiction may impose
    one penalty in respect of all of the offences charged, not
    exceeding the sum of the maximum penalties which could be
    imposed if a separate penalty were imposed in respect of each
    offence." 16. Mr. Vadasz sought to distinguish that approach because he contended that it had been taken in the context of Commonwealth offences. He sought to rely on the next passage in the judgment of Perry J which is:-
    "It is true that in the case of a ceiling on the maximum
    sentence which may be imposed in a Court exercising summary
    jurisdiction, the Court should first look to the maximum
    sentence imposed by the relevant statute, and work to that.
    If a penalty is arrived at by that process beyond the
    jurisdictional maximum, the jurisdictional maximum will confine
    the penalty to be imposed. (See Maynard v. O'Brien (1991) 78
    NTR 16.)" 17. Perry J went on to conclude that the learned Special Magistrate, in fixing one sentence for all of the offences, was not constrained by reason of the definition of a summary offence in the Summary Procedure Act 1921 and said that, as the relevant maximum sentence for each offence was imprisonment for 1 year, technically the learned Special Magistrate could have approached the maximum as 127 years for the total offending. There is no reason to distinguish the observations of Perry J on the basis that he was dealing with Federal offences. 18. The meaning of s.18a is clear. The one sentence which may be imposed for all of the offences cannot exceed "the total of the maximum penalties that could be imposed in respect of each of the offences". It may be seen that the section makes it plain that a sentence may exceed the maximum sentence for one offence. The meaning of s.19(3) is also clear. The maximum penalty for one offence may not exceed 2 years. There is no warrant for interpreting that section so as to mean that a sentence imposed pursuant to s.18a for multiple offences may not exceed the maximum sentence for one offence permitted by s.19(3). 19. No doubt the learned Special Magistrate approached the sentencing task on the basis of determining what was the appropriate total sentence for all of the seven offences charged, having regard to all relevant principles of sentencing, including the totality principle. In imposing a sentence of imprisonment for 4 years, he was not exceeding any limit on the sentencing discretion of a learned Special Magistrate imposed by s.19(3). There is no substance in this ground. 20. The third ground of appeal relates to the assertion that the learned Special Magistrate had rejected the submission of the appellant's counsel to the effect that the appellant had played the lesser role in the joint criminal enterprise. Mr. Vadasz asserted that the appellant was not the instigator, organizer or the mastermind of the criminal enterprise. Furthermore, Nagy had the greater potential for escaping detection and apprehension as he was obtaining money from automatic teller machines and the appellant's role was limited to the filling in of deposit slips and the abuse of cheques if so minded. In my view there is no reason to suppose that the appellant played a lesser role than Nagy and the learned Special Magistrate was justified in the conclusion which he reached. Mr. Vadasz also argued that the learned Special Magistrate fell into error because he had rejected a submission of the appellant's counsel without saying that he was disposed not to accept it and did not give to the appellant the opportunity of giving evidence before reaching his conclusion as to the basis for sentencing. He sought to gain support for this contention by the observations of Bray CJ in Law v. Deed
(1970) SASR 374 and the approach which the Court should take where there is a dispute as to a matter of aggravation as discussed in R. v. Maitland (1963) SASR 332. It is unnecessary to discuss those cases in any detail. 21. Neither of them supports the contention made on behalf of the appellant. R. v. Maitland (supra) discusses the circumstances in which an offender may have to give or call evidence when he contests facts relevant to sentencing. In Law v. Deed (supra) Bray CJ considered the circumstances in which the court should afford to the offender the opportunity to give evidence before rejecting an explanation which is within his knowledge alone. 22. In the present case whether or not the appellant played a lesser role in the criminal enterprise than that of Nagy fell to be judged upon all of the circumstances of the offence which were placed before the learned Special Magistrate. The submission that the appellant played a lesser role than Nagy in the criminal enterprise was a submission as to the conclusion which the learned Special Magistrate should reach based upon the known facts. It was not a submission based upon facts within the appellant's own knowledge in the relevant sense. The situation may immediately be distinguished from that in Law v. Deed (supra). Even accepting that the appellant was not the instigator, organizer or mastermind of the criminal enterprise, and that he did not have the same potential for avoiding detection or apprehension does not mean that his role in the commission of the offences was less than that of the other man. 23. Mr. Vadasz also contended that the learned Special Magistrate should have accepted that the appellant played a lesser role than Nagy because that submission was not contested by the prosecution. In the present circumstances that is a matter of little significance. The prosecutor did not intimate that the police accepted that submission as the true basis for sentencing. In my view the approach to be taken in a case such as this is as discussed by King CJ in The Queen v. Perre (1986) 41 SASR 105 at pp 105-106:-
    "If the defendant wishes to dispute any of the primary facts
    deposed to therein, he must do so by sworn evidence either at
    the preliminary hearing or before the sentencing judge. Where a
    defendant, while not disputing the primary facts deposed to,
    wishes the sentencing judge to sentence about the basis of a
    certain interpretation of those facts or upon a version of the
    defendant's role in the matter which may be in conflict with
    inferences from the primary facts which are open to the judge,
    he must make a decision as to the course which he wishes to
    follow. The defendant may give evidence or call evidence in
    support of his interpretation or version, or he may put it
    before the judge by way of submissions by his counsel asking the
    judge to act upon that interpretation or version. The
    prosecution may or may not make submissions accepting or
    opposing the interpretation or version put forward. The
    decision as to the basis upon which sentence is to be imposed is
    not, however, a matter for the prosecution but for the judge. I
    reject completely the suggestion which surfaced faintly on this
    appeal and has been made to the Court of Criminal Appeal in
    other cases, that the judge is bound to act upon the
    interpretation or version put forward by the defence unless it
    is disputed by the prosecution. It is for the judge to decide
    what inferences he will draw from the primary facts and to
    decide the basis upon which he will impose sentence. Even in
    cases in which the prosecution joins with the defence in asking
    for sentence to be imposed upon an agreed basis which differs
    from the depositions or from inferences which the judge may be
    disposed to draw from the depositions, it is for the judge to
    decide whether he is prepared to act upon that agreed basis.
    There seems to be a misunderstanding abroad as to the respective
    roles of the judge and counsel in relation to the basis upon
    which sentence is imposed. It is for counsel to decide whether
    or not to call evidence. If counsel relies upon submissions

    from the bar table, it is not part of the ordinary role of the
    judge to indicate that he is not prepared to act upon those
    submissions so that counsel may decide whether to call evidence.
    A judge may do so, but he is not bound to do so. He may, and
    generally will, simply consider the depositions and the
    submissions and make his decision as to the basis of sentence.
    There will, of course, be exceptions. If counsel for the
    defence were to indicate that he refrains from calling evidence
    because he has reached agreement with the prosecution as to the
    basis upon which sentence should be imposed, the judge would be
    bound, generally speaking, to indicate that he is unwilling, if
    such be the case, to proceed upon the agreed basis, and to give
    counsel the opportunity of calling evidence. There may be other
    circumstances in which the defence can validly claim to have
    been misled. In general, however, neither the silence, or even
    concurrence, of counsel for the prosecution, nor the silence of
    the judge, will entitle counsel for the defence to assume that
    the judge will sentence upon the basis of his submissions." 24. There is no reason to adopt any different approach in the Magistrates Court. This ground of appeal must fail. 25. I return to the first ground of appeal. There is no justification for the contention that the sentence is manifestly excessive. The seriousness of the extensive criminal conduct of the appellant has been demonstrated. This was a carefully planned and executed criminal enterprise from which the appellant stood to gain considerably. He attempted to do so and but for the good sense of bank officers would have done so. Given the extent and seriousness of the crimes and the background of the appellant, the sentence was well within the proper range of the correct exercise of the sentencing discretion. 26. I dismiss the appeal.