Ron Frederick v R No. SCCRM 93/31 Judgment No. 4229 Number of Pages 9 Criminal Law and Procedure Sentencing

[1993] SASC 4229

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - sentencing - appeal against sentence - false pretences - obtaining $1,000 and valuable securities, namely cheques to the value of $39,000 by false pretence - serious offence - prior offences involving dishonesty - plea of guilty - planned course of deceptive conduct - substantial loss to victim - no prospect of restitution - sentence of 2 years, 8 months and 17 days - appellant fined $60,000 at an earlier time by Federal Court upon conviction of various offences under the Trade Practices Act 1974 (Cth) - order that in default of payment imprisonment for a term calculated at the rate of imprisonment for one day for each $25 of the fines unpaid - at time of sentence appellant in default of payment of fines and serving 'sentence' of imprisonment in default - sentence ordered cumulative upon period of imprisonment served in default of payment of fines - non-parole period not fixed due to uncertainty as to when sentence would commence - sentence not manifestly excessive and imposed upon correct factual basis - period of imprisonment in default of payment of fines correctly regarded as 'a sentence of imprisonment' and learned sentencing judge correct in making sentence cumulative upon the period to be served in default of payment of fines - appeal dismissed. Criminal Law (Sentencing) Actss.30 and 31; CrimesAct (Cth) s.15A(1); Trade Practices Act 1974s.79A; Ryan v The Queen (1982) 149 CLR 1; The Queen v Smith and Shoesmith (1983) 32 SASR 219; Mill v The Queen (1988) 166 CLR 59; R v Jones (1929) 1 KB 211; R v Harman (1959) 2 QB 134 and R v Kakura (1990) 20 NSWLR 638 referred to.

HRNG ADELAIDE, 24 September 1993 #DATE 10:11:1993
Appellant in person
Counsel for respondent:     Ms P M Kelly
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal dismissed.

JUDGE1 MULLIGHAN J This is an appeal against sentence. The appellant pleaded guilty in the District Court to a charge of false pretences. He was jointly charged with two other men named Coker and Walker. The particulars of that offence are that the three men, between 8th March 1990 and 29th May 1990 at Adelaide and other places, with intent to defraud, obtained from Zoran Dimkovski money to the value of $1,000 and valuable securities, namely cheques to the value of $39,000, by falsely pretending that they had orders to supply 50,000 Fuel Economisers to Toyota Motor Corporation. A nolle prosequi was entered with respect to Walker. Coker pleaded guilty and on 1st October 1992 was sentenced to imprisonment for 12 months with a non-parole period of 30 weeks. On 25th January 1993 the appellant was sentenced to imprisonment for 2 years and 8 months and 17 days. 2. The learned Sentencing Judge declined to fix a non-parole period. On 19th March 1990 the appellant had been convicted of various offences under the Trade Practices Act 1974 (Cth.) and was fined a total sum of $60,000. He was ordered to pay that amount on or before 20th March 1991. It was further ordered, by the Federal Court, that:-
    "In default imprisonment for a term calculated at the rate
    of one day's imprisonment for each $25 of the amount of the
    fines that are unpaid. The Court declares that the order for
    imprisonment in default of payment of the fines shall cease to
    have effect in respect of the fines imposed on Roddy Farrow by this
    order after the said Roddy Farrow has served an aggregate of 3 years
    imprisonment in respect of these fines." 3. Roddy Farrow is an alias of the appellant. He has not paid the fines and was taken into custody pursuant to this order on 25th April 1991. He has remained in custody ever since, serving out the imprisonment in default of payment of the fines at the rate specified in the Federal Court order. The learned Judge declined to fix a non-parole period as he could not be certain for how long the appellant would remain in prison pursuant to that order. He is entitled to be released immediately upon payment of the balance due. The learned Judge also ordered that the sentence which he imposed be served cumulatively upon the period of imprisonment being served pursuant to the order of the Federal Court. He took the view that the fixing of a non-parole period should be deferred until it is known with greater certainty the length of time that the appellant will remain in custody pursuant to the order of the Federal Court. 4. The only ground of appeal contained in the Notice is that the sentence imposed by the learned Judge in the District Court is manifestly excessive, but the appellant did send to the Registry a long letter in which he raises various matters which may be described as grounds of appeal. He was unrepresented at the hearing of the appeal. He said that he would prefer counsel to argue the appeal on his behalf but legal aid had been refused. He declined the opportunity to have time to try and secure legal representation and indicated that he wished the appeal to proceed and to present argument personally. 5. Before considering the various matters argued on this appeal it is necessary to mention briefly the circumstances of the false pretences. Initially the appellant and the other two men were jointly charged that between 7th March 1990 and 6th September 1990 they conspired with each other to cheat and defraud the public. After a preliminary hearing in the Magistrates Court, they were committed for trial. Before they were required to appear, the information charging false pretences was laid. The appellant and Coker initially pleaded not guilty to that charge but after agreement had been reached as to the basis of pleas of guilty, both of them changed their pleas. The learned Judge was informed of the evidence relevant to the charge of false pretences and, in his written reasons for the sentence which he imposed, he set out the evidence upon which he had relied. There is no complaint on this appeal that he had considered evidence or other material which was not properly before him. 6. The learned Judge set out the factual basis for sentencing as follows:-
    "It is quite plain that the commission of this offence
    resulted from a deliberate and planned course of conduct by the
    prisoner and Coker. In no sense was this offence a single foolish act
    committed on the spur of the moment. This was a premeditated and a
    prolonged course of conduct designed to relieve Mr Dimkovski of a very
    considerable sum of money by dishonest means. Long before either the
    prisoner or Coker had met Mr Dimkovski, the prisoner had conceived an
    idea that he thought had the potential to reduce considerably the
    amount of fuel consumed by internal combustion engines as used in many
    motor cars. Coker had worked for the prisoner, knew of the idea that
    the prisoner was seeking to develop, considered that it had real
    potential and had agreed to assist the prisoner in developing the idea
    to the stage of its being a commercial success. Prior to either man
    meeting Mr Dimkovski, they had done some work upon the engine of an
    old vehicle with a view to establishing that the prisoner's idea had
    merit and that an engine, modified in the way that he envisaged, would
    still work efficiently. The work that had been done was, however,
    crude. The prisoner and Coker were at the point at which a
    considerable amount of design and fabrication work was necessary in
    order to take the concept and its ultimate commercial development
    further. They sought to find a person who was the proprietor of an
    engineering workshop which had the capability to do the fabrication
    work required for the 'vapourizer' (an essential part of the unit as a
    whole). They also sought to acquire a large sum of money to pay some
    outstanding expenses and to place themselves in funds to do other
    aspects of the developmental work. They decided to kill these two
    birds with one stone by leading a manufacturing engineer into the
    belief that the unit had already been proved successful and that they
    had substantial orders for its supply to the Toyota Motor Corporation
    and others. They proposed to get the engineer to complete the
    development of the vapourizer and to obtain from him the cash that
    they sought by making it the 'price' that would be payable by him for
    the exclusive right to make the vapourizer for the unit commercially
    for a period of ten years. Mr Dimkovski became their victim. They
    inserted an advertisement in 'The Age' newspaper in Melbourne
    indicating that the manufacturing rights for the 'fuel saver' were
    available for the sum of $40,000.00. Mr Dimkovski answered the
    advertisement. It was Coker who, by arrangement between himself and
    the prisoner, led Mr Dimkovski on between their first meeting in early
    March 1990 and Mr Dimkovski's handing over on the 29th May, 1990 the
    balance, and the major part of, the $40,000.00 that was ultimately
    paid by him in total. Coker met Mr Dimkovski personally on not less
    than five occasions and spoke to him on the telephone on many
    occasions. At all times, Mr Dimkovski was led to believe that the
    prisoner and Coker had substantial orders in hand and that the
    production of the unit would be able to commence as soon as Mr
    Dimkovski paid up the whole of his $40,000.00 It is clear that the two
    men worked in concert to induce Mr Dimkovski to part with his money.
    Whilst, as I have said, Coker spoke to Mr Dimkovski on a number of
    occasions, the prisoner met Mr Dimkovski when it appeared necessary
    for a little more pressure to be applied in order to persuade Mr
    Dimkovski to part with his money. Mr Dimkovski lost all of the money
    that he ultimately handed over, and more besides. He spent money in
    his workshop in anticipation of the added work that he expected to
    undertake. His health, as well as his pocket, suffered as a result of
    the unscrupulous actions of the prisoner and Coker." 7. The disparity between the sentences imposed upon the appellant and Coker was explained by the learned Judge as being due to the difference in their respective past records. Both had been before the courts on many occasions, but Coker had no prior convictions, as an adult, for offences involving dishonesty. He is aged 32 years and had committed some such offences as a child. However, the appellant, who is aged 49 years, has prior convictions for offences involving dishonesty committed as an adult. In 1963 he was convicted of stealing and receiving and five counts of breaking, entering and stealing. In 1974 he was convicted of two counts of false pretences. In 1977 he was convicted of a further charge of false prtences. The fines imposed by the Federal Court in 1990 were with respect to 33 breaches of s.79(1) of the Trade Practices Act involving offences against the consumer protection provisions of the Act. The learned Judge noted that the appellant was before the Federal Court during the course of the deception of Mr Dimkovski which is the subject of the charge of false pretences. 8. The learned Judge also had regard to the personal circumstances of the appellant. He has experienced problems relating to over-indulgence in alcohol ever since his youth. His wife had been in serious ill health due to cancer and died shortly before he was sentenced. His offending attracted more attention in the media than the offending of many others. He pleaded guilty and the learned Judge accepted that he was to be given credit for the contrition evidenced by his plea and because a lengthy trial was avoided. However, the learned Judge did not consider that leniency was appropriate. He said:-
    "... it must also be said that the prisoner's past
    offending disentitles him to any claim on the Court for leniency. He
    has been prepared to re-offend notwithstanding the warnings of
    numerous earlier convictions. Indeed, he was prepared to re-offend at
    the very time that he was before the Federal Court in respect of the
    breaches of the Trade Practices Act. In these circumstances, the
    elements of punishment and deterrence must play the major part in the
    formulation of the sentence to be imposed. When everything is taken
    into account, there can be no alternative to the imposition of a
    substantial custodial sentence." and later
    "It is hard to conceive a more serious case of false
    pretences than that which the prisoner has admitted. The amount
    involved was considerable. The deception was planned in advance. The
    deception was maintained over an extended period of time. The offence
    was committed against a background of prior offending in matters of
    dishonesty." 9. He went on to say that, but for the plea of guilty, he would have imposed a sentence of 3 years, 5 months and 17 days having made allowance for time spent in custody, but the plea justified reduction in the sentence to that which was imposed. 10. I turn to the matters raised by the appellant on this appeal. 11. The appellant contended, in effect, that he is not guilty of the charge. He acknowledged that he pleaded guilty but he maintained that he had played no part in the deception of Mr Dimkovski in obtaining any money or cheques from him. He claimed that he was bankrupt and had followed legal advice that he was not to be involved in any business activities or arrangements. At all times he was an employee of Coker. Whilst he accepted that he had pleaded guilty, for which he blames his former solicitor, and that this appeal must proceed on that basis, he contended that the learned Judge erred in concluding that he was "the main offender". He pointed to passages of the transcript of evidence given at the committal, on a very selective basis, with a view to establishing that he had no involvement in the crime at all. It is unnecessary to mention the various contentions of the appellant. Not only do they have no basis in the evidence, but the evidence, which was not contested, demonstrates that they are plainly false. It is necessary to refer to only some of the evidence before the learned Judge. In his statement, Mr Paton, a graphic artist, relates his contact with Coker and the appellant. He was engaged by the appellant to prepare drawings of the Fuel Economiser in about July 1990. He had dealings with both the appellant and Coker but he said that Frederick did all the talking and went on to say:-
    "Frederick told me they had a couple of Japanese down and they
    wanted to see how the fuel economiser worked. He said they were going
    to invest a lot of money in it. Frederick was often talking about how
    much money they were going to make with these things, the amounts he
    spoke of were always the size of telephone numbers." 12. Later in his statement he says that the appellant was "definitely the driving force behind them (he and Coker)". 13. Mr Rosenzweig is a chartered engineer. He was engaged by Coker to prepare a report as to the Fuel Economiser. In his statement he says that he was introduced to the appellant by Coker, that the appellant was definitely involved with the Fuel Economiser and that, in his view, the appellant was the driving force out of he and Coker. Mr Dimkovski, in his statement, relates an incident when the appellant contacted him by telephone at a time before Mr Dimkovski had paid the balance of the money by cheque, namely $30,000. He had already paid $10,000. About half an hour earlier Mr Dimkovski had spoken to Coker on the telephone and told him that he had made arrangements to borrow $30,000 to pay to him. Coker told him to make sure he obtained a bank cheque. The appellant said that he worked with Coker, he was the investor, that he knew Mr Dimkovski was trying to get the money but he had a lot of orders and people were relying upon him. He went on to say:-
    "I've got about 50,000 units waiting to be made. Andy (Coker)
     needs that $30,000. If he does not get it, I'm going to
     terminate the contract, and you'll lose your $10,000 deposit." 14. When Mr Dimkovski told him that he had arranged the loan, the appellant told him to get it as soon as he could, that he was not going to wait and that he would rather give it to someone else. Apparently, it is on the basis of this evidence that the learned Judge said that the appellant "met Mr Dimkovski when it appeared necessary for a little more pressure to be applied in order to persuade Mr Dimkovski to part with his money". He did not meet with him in person. He spoke to him on the telephone, but that is a matter of no consequence. 15. Counsel for both the appellant and Coker made submissions before the learned Judge on the same occasion, including as to the respective roles played by the two men in the deception of, and obtaining the money and cheques from, Mr Dimkovski. Coker's counsel submitted, in the presence of the appellant and his counsel, that the appellant had the more prominent role. Far from contesting that submission, the appellant's counsel referred to negotiations with the Crown and to the agreed basis of the plea by the appellant. That basis was that the appellant had "a somewhat greater role than Coker". The appellant's counsel told the learned Judge that the appellant accepted that he had the more prominent role. There is no basis for the contention on appeal that the learned Judge erred in treating the appellant as a principal offender. The appellant admitted that he was, and the evidence clearly established that to be the case. The learned Judge does not appear to have regarded the appellant as having played a more prominent role than Coker as he expressed the reason for the disparity in the sentences as being due to their respective past records. In my view, the learned Judge was justified in imposing a greater sentence upon the appellant for the reasons which he expressed. Also, he would have been justified in imposing the greater sentence on the basis of the appellant's concession that he played a more prominent role than Coker. 16. The appellant complains that the learned Judge said that he had numerous meetings with Mr Dimkovski. No such statement was made by the learned Judge. In his written argument the appellant says:-
    "I had no meetings at all with this person and in fact
    did not know him except to pass a phone message on to Coker when this
    person rang Coker at his office. The reason I was in this office was
    that I was on a commission basis working for Coker selling (another
    product). ... I was not the only person in this office and others
also took calls from this person." 17. This assertion is clearly misleading for the reasons which I have mentioned. The appellant was involved in the crime and admitted that he played the prominent role which was confirmed by evidence. The next complaint of the appellant is that Coker had not said that he had orders to supply 50,000 Fuel Economisers. He pointed to passages in Mr Dimkovski's evidence at the preliminary hearing in order to try to establish that Coker may not have made this statement. This is a matter of no consequence. The appellant pleaded guilty on the basis of that representation having been made as may be seen from the particulars of the charge. 18. The only other ground of appeal with respect to the sentence which may be discerned from the submissions of the appellant is that the sentence is manifestly excessive and that the learned Judge erred in not suspending the sentence. The learned Judge was fully justified in how he regarded the seriousness of the crime. An innocent man has been deprived of a very large sum of money and there is no prospect that any of it will be recovered by him. Given the circumstances of the offence and the past record of the appellant, the sentence imposed was fully justified and well within the acceptable scope of sentencing discretion. The appellant referred to Ryan v The Queen (1982) 149 CLR 1, The Queen v Smith and Shoesmith (1983) 32 SASR 219 and Mill v The Queen (1988) 166 CLR 59 in support of this contention that the sentence is manifestly excessive. None of these cases afford any support for that contention. They discuss sentencing principles that have no bearing upon any issue raised by this appeal. This ground of appeal must fail. 19. The appellant also contended that the learned Judge erred in making the sentence cumulative upon the period of imprisonment which the appellant is serving pursuant to the order of the Federal Court. His counsel submitted to the learned Judge that such a course was impermissible and the learned Judge gave reasons for his conclusion to the contrary. He took the view that such an order was authorized by s.31 of the Criminal Law (Sentencing) Act 1988. Before discussing that section, it is necessary to mention s.30(1) which provides that where a sentence of imprisonment is imposed and is not suspended, 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. S.30(6)(c) provides that where the Court fails to so specify, the sentence will in a case such as the present where the offender is in custody for some other offence, commence on the day on which the sentence is imposed unless it is to be served cumulatively upon some other sentence. S.31 provides:-

    "31.(1) Subject to subsection (2), the court by which a
    sentence of imprisonment is imposed may direct that the sentence be
    cumulative upon any other sentence, or sentences, of imprisonment then
    being served, or to be served, by the defendant.
     (2) (Not applicable)
     (3) A direction may be given under subsection (1) -
     (a) irrespective of the number of cumulative sentences that the
    defendant is already serving or will, in consequence of the direction,
    be liable to serve; and
     (b) whether or not the offence for which the defendant has been
sentenced is a felony." 20. The learned Judge correctly defined the question to be assessed as whether the appellant was serving a "sentence of imprisonment" within the meaning of that expression in s.31(1) at the time when he came to be sentenced in the District Court. He answered that question in the affirmative. He noted that "sentence of imprisonment" is not defined in the Act. "Sentence" is defined in s.3 but in a way that does not specifically refer to imprisonment although a sentence of imprisonment is obviously a "sentence". The learned Judge went on to consider the meaning of "sentence" elsewhere. He pointed out that in the Criminal Appeal Act 1907 (Imp.) it is defined as meaning "any order of the court made on conviction" and referred to R v Jones
(1929) 1 K.B. 211 and R v Harman (1959) 2 Q.B. 134. Also, he observed that there is a similar definition in the Criminal Appeal Act 1912 (N.S.W.) which is discussed in R v Kakura (1990) 20 NSWLR 638. He referred to the use of the word in s.352 of the Criminal Law Consolidation Act in the context of leave to appeal against "the sentence passed on ... conviction". Also he referred to one of the definitions in the shorter Oxford and English dictionary, namely:
    "(a) An authoritative decision; a judgment pronounced
    by a tribunal ...
     (b) The judgment or decision of a court in any civil or criminal
    cause ...
     (c) The judicial determination of the punishment to be inflicted on
    a convicted criminal. Hence, the punishment to which a criminal is
    sentenced." 21. He went on to say:-
    "It would seem, particularly from paragraph (c), that the general
    use of the word in the English language is similar to the defined use
    of the word in the statutes to which reference has previously been
    made. The sentence of the court in a criminal case may thus be said
    to be the totality of the orders made by the Court as a consequence of
    the conviction of the accused. It would seem to me to follow that the
expression 'sentence of imprisonment' in section 31 of the Criminal
    Law (Sentencing) Act may be equated with the expression 'order of
    imprisonment'. The Federal Court did make an order for the
    imprisonment of the prisoner, notwithstanding that such order would
    only be enforced in the circumstance that the prisoner did not pay the
    whole of the fines that were imposed (by the same order of the Court).
    It follows, in my opinion, that the prisoner is presently serving a
sentence of imprisonment within the meaning of section 31 of the
    Criminal Law (Sentencing) Act." 22. In my view there is no error in this line of reasoning and it is confirmed, in my view, by reference to the relevant Federal legislation. The order of imprisonment of the Federal Court imposed in the event of non-payment of the fines was made pursuant to s.15A(1) and (1A) (formerly numbered s.18A) of the Crimes Act 1914 (Cth.) and s.79A of the Trade Practices Act. Those provisions are as follows:-
    "15A(1) The laws of a State or Territory with respect to
    the enforcement and recovery of fines ordered to be paid by offenders,
    including laws making provision for or in relation to: (a) the
    awarding of imprisonment, or, in the case of a participating State or
    a participating Territory, the passing or making, by a court or by any
    parole officer of that State or Territory, of any other sentence or
    order (including a sentence or order known as a community service
    order, a work order or a sentence of weekend detention, or a similar
    sentence or order), in default of the payment of fines;
     (b) the allowance of time, or further time, for payment of fines;
     (c) the payment of fines by instalments; or
     (d) the giving of security for the payment of fines;
     shall, so far as those laws are applicable and are not inconsistent
    with the laws of the Commonwealth, apply and be applied to persons who
    are convicted in that State or Territory of federal offences.
     (1A) Where there is a law of a State or Territory with respect to
    the enforcement or recovery of fines ordered to be paid by offenders
    (including a law making provision for or in relation to a matter
    mentioned in paragraph (1)(a), (b), (c) or (d)) that applies in
    relation to fines ordered to be paid by offenders convicted by courts
    of summary jurisdiction: (a) subsection (1) operates to require that
    law to apply and be applied to persons who are convicted of federal
    offences by the Federal Court of Australia in the same manner as that
    law would apply and be applied if that Court were a court of summary
    jurisdiction; and (b) that subsection does not operate in relation to
    any law of that State or Territory that applies in relation to fines
    ordered to be paid by offenders convicted by superior courts."
     79A.(1) Where a person on whom a fine has been imposed for an
    offence against section 65Q, 65R, 79 or 155 or subsection 65F(9) or
    87A(5) defaults in payment of the fine, a Court may: (a) exercise any
    power that the Court has apart from this section with respect to the
    enforcement and recovery of fines imposed by the Court; or (b) (not
    applicable).
     (2) ) (3) (4) (not applicable)
     (5) The term of a sentence of imprisonment imposed by an order under
    a law of a State or Territory applied by section 18A of the Crimes Act
    1914 in respect of a fine shall be calculated at the rate of one day's
    imprisonment for each $25 of the amount of the fine that is from time
    to time unpaid.
     (6) (not applicable).
     (7) Subject to subsection (8), where: (a) a person would, but for
    this subsection, be required by virtue of an order or orders under
    subsection (1) in respect of 3 or more fines to serve periods of
    imprisonment in respect of those fines exceeding in the aggregate 3
    years; and (b) those fines were imposed (whether or not in the same
    proceedings) for offences constituted by contraventions that occurred
    within a period of 2 years, being contraventions that appear to the
    Court to have been of the same nature or a substantially similar
    nature; the Court shall, by order, declare that the order or orders
    shall cease to have effect in respect of those fines after the person
    has served an aggregate of 3 years' imprisonment in respect of those
    fines.
     (8) (not applicable).
     (9) (not applicable).
     (10) Paragraphs 18A(1)(b), (c) and (d) of the Crimes Act 1914 do not
    apply with respect to fines referred to in subsection (1).
     (11) This section applies only in relation to fines imposed for
offences committed after the commencement of this section." 23. It may be seen that an order imposing imprisonment in default of payment of a fine is regarded as "a sentence of imprisonment": s.79A(5). There is no reason to give that expression in s.31(1) of the Criminal Law (Sentencing) Act a different meaning. The learned Judge answered the question correctly and, having done so, it was appropriate that he order that the sentence imposed by him be served cumulatively upon the sentence of imprisonment being served in default of payment of the fines. 24. The learned Judge acted in the interests of the appellant in declining to fix a non-parole period. When the date upon which that sentence ends is known, it will be timely to fix a non-parole period with respect to the sentence imposed by the learned Judge. 25. I would dismiss the appeal.

JUDGE2 BOLLEN J I agree that the appeal should be dismissed. I agree with the reasons of Mullighan J.

JUDGE3 DUGGAN J I agree that this appeal should be dismissed for the reasons given by Mullighan J.