Samani v The Queen
[2017] ACTCA 23
•18 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Samani v The Queen |
Citation: | [2017] ACTCA 23 |
Hearing Date: | 10 May 2017 |
DecisionDate: | 18 May 2017 |
Before: | Elkaim, Mossop and Jagot JJ |
Decision: | See paragraph [59] |
Catchwords: | APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal against sentence – fraudulent conduct – obtaining financial advantage by deception – producing false or misleading documents – administration of justice offences – whether the sentences imposed at first instance were manifestly excessive – whether the sentencing judge could be satisfied that no penalty other than actual imprisonment was appropriate – whether an Intensive Corrections Order should have been considered. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 10, 11, 12 and 77 Crimes (Sentencing Procedure) Act 1999 (NSW) s 5 |
Cases Cited: | EF v R [2015] NSWCCA 36 Markarian v R [2005] HCA 25; 228 CLR 357 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 |
Parties: | Daryoush Zargari Samani (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr K Archer (Appellant) Ms M Jones (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) Office of Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 32 of 2016 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 9 August 2016 Case Title: R v Samani Citation: [2016] ACTSC 257 |
THE COURT:
On 9 August 2016, Burns J sentenced the appellant for six offences arising from his involvement in a ‘fake’ motor vehicle accident. A separate sentence of imprisonment was imposed in respect of each offence, leading to an aggregate sentence of two years and four months, commencing on 9 August 2016 and expiring on 8 December 2018. The sentence was suspended from 8 February 2017, from which point a Good Behaviour Order took effect for a period of two years.
The amended Notice of Appeal, filed on 12 September 2016, makes two complaints:
(a)The sentence imposed was manifestly excessive.
(b)His Honour failed to consider an Intensive Corrections Order (ICO). Consequently, he could not have been satisfied that no other penalty other than imprisonment was appropriate.
Whether the sentence was manifestly excessive
The principles applied in determining whether or not a sentence is manifestly excessive are often repeated. They involve a reaction to the sentence against the factual background of the offences. The starting point is, therefore, the facts behind the offences.
On 5 May 2014, with the cooperation of his brother-in-law and nephew, the appellant staged a motor vehicle accident in the Australian Capital Territory. The appellant was a passenger in a Toyota driven by his nephew. It collided with a Ford vehicle, driven by the appellant’s brother-in-law. The accident may be described as a ‘rear-ender’.
The accident had been planned for some months. Its initial purpose was to enable the appellant to submit a third-party insurance claim designed to produce funds to enable him to obtain treatment for a pre-existing knee condition.
Following the accident, a claim was made on the third party insurer, the NRMA. A claim was also made by the appellant’s nephew, in respect of injuries that he had not suffered.
The NRMA approved an estimated payout figure of $85,560 and made actual payments of $838.50.
In respect of the nephew’s claim, the NRMA estimated a payout figure of $63,000. Only $74.50 was paid out.
In order for the claim to be processed, it was necessary for the appellant to submit a Motor Accident Medical Report. This report was submitted on 27 May 2014. It required an endorsement that the information it contained was true and accurate. This was not the case. The offender dishonestly completed the form; failing to disclose that he had a pre-existing injury to his knee.
The above facts formed the basis for the dishonesty charges. A final charge of obstructing or hindering an investigation by a law enforcement agency arose from the appellant initially denying any involvement in a staged accident. This denial continued until 18 September 2015, when the appellant made full admissions to police.
There was no dispute that the appellant was the organiser of the staged accident. Further, there was no dispute that his family members initially became involved only to help him recover treatment expenses for his knee injury.
His Honour had regard to the Pre-Sentence Report, noting the appellant’s expressions of remorse, personal circumstances and good prospects for rehabilitation. His Honour also accepted that the appellant’s pleas of guilty had a significant utilitarian value. To that end, the sentences were discounted by differing amounts, but generally in the order of 20 per cent.
The appellant had no criminal record.
His Honour observed that the offences involved a large degree of planning. They also involved the use of family members, who originally had no criminal intent, and the object of fraudulently depriving the insurer of funds. His Honour concluded, at paragraph [17], that: “[o]bjectively the offences before this Court are serious offences”.
In Zdravokovic v The Queen [2016] ACTCA 53, the ACT Court of Appeal, at paragraphs [51] and [52], made the following remarks about identifying manifestly excessive sentences:
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
In R v AB [2017] NSWCCA 88, the New South Wales Court of Criminal Appeal, at paragraphs [57] and [58], described the principles in this way:
The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].
In cases such as the present where there is only one ground of appeal, manifest inadequacy, it is not necessary to identify specific error. As was pointed out in Dinsdale supra(at [6]) manifest inadequacy is a conclusion not dependent upon attribution of identified specific error and frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive: see also R v Harris [2015] NSWCCA 81 at [46]. Nevertheless, as was pointed out in Harris, identification of specific error may help explain why the sentence is inadequate.
A “plainly unjust” sentence is usually apparent on first reading. That is not the case here. The appellant, notwithstanding his clean record, engaged in conduct which was dishonest, premeditated, involved the recruitment of otherwise law-abiding citizens and, most importantly, was an attempt to dishonestly obtain funds from an insurer.
In personal injury cases, it is often observed that there is a large financial disparity between the resources of a plaintiff making a claim and those of an insurer defending that claim. That is not a valid consideration here.
The NRMA was administering the third-party scheme in operation in the ACT. The scheme, through the collection of premiums from all ACT motor vehicle owners, is designed to provide for the needs of persons injured in motor accidents in the ACT. Fraud on the scheme will ultimately lead to an unfair increase in premiums, as well as the decrease of resources available for the needs of the genuinely injured.
The highest sentence imposed by Burns J was of 22 months (reduced from 28 months). This is against a background of a maximum penalty of 10 years imprisonment, a fine of $140,000, or both.
In Markarianv The Queen [2005] HCA 25; 228 CLR 357, the High Court noted at paragraph [31]:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
Applying a ‘yardstick’ approach, the sentence of 22 months reflects a just and reasonable approach on his Honour’s part. The same can be said if one looks at the aggregate sentence. Even if one accepted that all of the sentences imposed should have run concurrently, the total of two years and four months does not sit uncomfortably with the maximum sentence for even one of the offences of dishonestly obtaining a financial advantage.
The first appeal ground, depending on manifest excess, must fail.
Consideration of an Intensive Corrections Order
Section 10(2) of the Crimes (Sentencing) Act 2005 (ACT) provides that:
The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
ICOs became a sentencing option with effect from 2 March 2016. An ICO is available when the court would have otherwise imposed a sentence of full time imprisonment of four years or less. An ICO was, therefore, an option when the appellant was sentenced on 9 August 2016.
The possibility of an ICO is not mentioned in the reasons for sentence.
The appellant’s counsel did not ask for consideration of an ICO. This raises two issues:
(a)Whether this Court should consider this matter at all;
(b)Whether the absence of stated consideration of an ICO necessarily means that not all available sentencing options were considered; and
(c)Whether there is an obligation on the part of a sentencing judge to consider an ICO regardless of whether or not it had been raised as an option on the part of the offender.
The above three issues will be dealt with together.
The appellant submits that, because the asserted failure to consider the ICO amounts to an error of law, this Court should entertain the argument.
The Court firstly observes that, in Zhuang v Director of Public Prosecutions (DPP) (NSW) [2016] NSWCCA 27 at paragraph [39], the New South Wales Court of Criminal Appeal noted that:
There is a practical expectation that an offender’s legal representative will make submissions to the sentencing Judge at first instance by reference to the particular factors which are sought to be taken into account on sentence.
The motivation necessary to re-examine a sentence where a matter was not, but should have been, argued in the court below was discussed in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81]:
The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].
The argument being put here, somewhat ironically, is that counsel should not be criticised for failing to mention an ICO to His Honour in the sentencing hearing, but his Honour should be criticised for not dealing with an ICO.
His Honour said this, commencing at paragraph [31]:
A sentence of imprisonment is a sentence of last resort such that it is not to be imposed if some lesser sentence would be adequate to address the requirements of sentencing. In the present matter, I gave close consideration to whether a fully suspended sentence of imprisonment with a substantial community service order would be appropriate, but I have determined that it is not. A fully suspended sentence of imprisonment involves significant leniency compared to a sentence that must be served in whole or in part by way of a full‑time term of imprisonment. The deterrent effect of a wholly suspended sentence is likewise significantly less than a sentence that involves full‑time imprisonment.
In my opinion, the importance of general deterrence in sentencing for offences of this type calls for a sentence that involves at least some period of full‑time imprisonment. The present offences should be seen as effectively a single course of conduct. Many of the offences have common elements so that a substantial degree of concurrency is called for. I must also apply the principle of totality, which will also result in significant concurrency with respect to the sentences which I will impose.
Two points arise from the above passages. Firstly, his Honour has plainly considered the exhortations of s 10(2). Secondly, his Honour has rejected the possibility of the appellant not serving “at least some period of full time imprisonment”.
Consequently, even assuming His Honour did not consider an ICO (an assumption which is not necessarily made), had he considered it as an option, it would have been rejected.
This conclusion is reinforced by his Honour stating:
I gave close consideration to whether a fully suspended sentence of imprisonment with a substantial community service order would be appropriate, but I have determined that it is not.
In this case, consideration of an ICO would have, in practical terms, led to the same result.
What is important here is that his Honour has given full effect to s 10(2) and reached a conclusion that there was no appropriate alternative to full time imprisonment. The passages quoted above emphasise his Honour’s reasons for this conclusion. He referred to both personal and general deterrence, the severity of the offence and the need to consider the overall circumstances of the offence. He stated, from paragraph [26]:
Offences involving insurance fraud, or attempted insurance fraud, are not victimless crimes. Where such offences succeed, the whole community pays through increased premiums. Such offences also make it more difficult for deserving cases to access benefits in a timely manner, because insurers become wary of fraudulent claims.
Even where such offences do not succeed there is an increased cost to the insurer occasioned by the need to process and scrutinise claims. In addition, such offences are relatively easy to commit but difficult to detect. All of these circumstances speak of the need for general deterrence in sentencing for this type of offending.
It cannot be said, taking into account the finding that the sentence imposed was not manifestly excessive, that any conclusion that an ICO should have been considered would have led this Court to resentence the appellant or otherwise allow the appeal.
The appellant submitted that his Honour was obliged to consider the imposition of an ICO because it was an available option and an alternative to full time imprisonment. This obligation arose, said the appellant, notwithstanding that it had not been suggested as an option.
The appellant referred to the decision of the New South Wales Court of Appeal in R v Zamagias [2002] NSWCCA 17 (Zamagias). This decision was made before the introduction of the ICO regime in New South Wales. Nevertheless, the appellant submitted that the general principle applied, in particular as set out in paragraphs [25], [26], [28] and [30]. Paragraph [30] is particularly important because it states:
But it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed…In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner.
We do not accept the appellant’s contention.
For one thing, the absence of any reference to an ICO in the reasons for sentence does not necessarily mean that it was not considered, especially in the light of the above conclusions relating to his Honour’s compliance with s 10(2).
In the often quoted South Australian authority of Napper v Samuels (1972) 4 SASR 63, Bray CJ sitting in the Full Court said this:
Again, I cannot think that a sentencing tribunal is bound to name all the courses that it might have taken and its reasons for not taking any of them, except the one actually adopted, under pain of being held to have overlooked some or all of the others.
In Rudolf v The Queen [2016] NSWCCA 313 the sentencing Judge in the court below did not specifically state that he had considered an ICO even though a submission had been made that it was an option. Johnson J, in the New South Wales Court of Criminal Appeal, said at paragraph [48]:
The fact that a sentencing Judge does not refer to s.5, and to the steps involved in considering measures short of full-time imprisonment, does not of itself give rise to sentencing error: R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 at 450 [33]; Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 166 [74].
For another, the closest that any authority comes to suggesting the obligation advanced by the appellant is EF v R [2015] NSWCCA 36 (EF). In that case, Schmidt J, in the New South Wales Court of Criminal Appeal, said at paragraph [42]:
Error in this sentencing exercise was demonstrated by the failure to consider an ICO, which was, in this case, plainly unjust and contrary to the requirements imposed by s 5 of the Crimes (Sentencing Procedure) Act.
This appeal, however, should not be resolved on the basis of EF for a number of reasons. This case is not a suitable vehicle to determine the application of EF to the ACT legislation.
The first point to be made about EF is that it was not relied upon by the appellant in this case. This may have been because it was recognised that EF is restricted to its own facts. This is evident from the above quoted passage and the words “in this case”. The appellant refrained from making any submission about EF despite the case being characterised as distinguishable by the respondent, and an invitation to do so during oral submissions. As a result, there has been no effective contradictor to the respondent’s argument that EF is distinguishable.
The second point is that the court in EF found the result in the court below to be plainly unjust. That cannot be said here, especially when it is considered, as noted above, that the suspended sentence option specifically considered by his Honour is a not very different result to that which would have attended the imposition of an ICO.
Returning to Zamagias, this is stated in paragraph [25]:
The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate. It should be noted that at this stage in the process the only consideration is whether a sentence of imprisonment should be imposed and not whether that sentence should be suspended.
Applying this reasoning to the ACT legislation, the appropriateness of an ICO would only be considered when reaching the s 10(3) stage. This is enough to reject the appellant’s submission that it is s 10(2) that imposes the obligation to consider an ICO.
The fact that the obligation might arise at the s 10(3) stage does not assist the appellant here where, as in EF, the appellant did not raise the issue of an ICO if the trial judge was satisfied that no sentence other than imprisonment was appropriate and, as not in EF, the sentence imposed is not plainly unjust.
Another potentially relevant matter is that the judge must be informed that the offender consents to the possibility of an ICO before an ICO may be imposed. Section 77 of the Crimes (Sentencing) Act 2005 (ACT) provides that a court “must not make an intensive correction order” unless the court is satisfied that the offender “has given informed consent to serving the sentence by intensive correction”. It remains unclear on the appellant’s case how a court can be obliged to assess suitability for an ICO until it has been informed that the offender has consented to being dealt with in this way.
Further, the NSW Act does not contain a provision equivalent to s 11(3) of the ACT legislation. It only contains the equivalent to s 11(2) of the ACT legislation (if the sentence of imprisonment is for not more than two years). It is only s 11(3) which is relevant to this case (if the sentence of imprisonment is for more than two years but not more than four years).
Moreover, in the ACT legislation, the heading to pt 3.2 is “Sentences of Imprisonment”. Thereafter, imprisonment, ICOs and suspended sentences are grouped together. Sections 11(1) and 12(1) make it clear that ICOs and suspended sentences are both sentences of imprisonment. Notably, there is nothing in s 11 that suggests any statutory imposition of the obligation suggested by the appellant.
Another difficulty is that EF was decided before Rudolf but not referred to in the latter case. The two decisions are arguably inconsistent with each other.
Ultimately, as noted, the appellant did not rely on EF, did not argue against the respondent’s contention that EF was distinguishable, did not respond to an invitation during oral argument to address EF, and did not provide any submissions about any of the issues which might assist in assessing the relevance of EF, if any, to the position under the ACT legislation. For these reasons, it is sufficient to dispose of this ground on the basis that the sentence imposed was not unjust and, in such a case, we are unable to discern any cogent basis in the scheme of the ACT legislation upon which to conclude that a sentencing judge must expressly refer to the possibility of an ICO where the sentence of imprisonment is more than two years but less than four years, despite no such suggestion having been made on behalf of the offender.
The result is that the appellant’s second complaint must also fail.
Final orders
The Court makes the following orders:
(a)The appeal is dismissed.
(b)The appellant is to serve the remaining unserved portion of his sentence.
(c)The sentence of imprisonment to now be served by the offender is as follows:
(i)In respect of the offence of dishonestly obtaining a financial advantage (CC 2015/9793), from 14 April 2017 to 13 September 2017.
(ii)In respect of the offence of attempting to dishonestly obtain a financial advantage (CC 2015/9764), from 14 April 2017 to 13 February 2019.
(iii)In respect of the offence of being knowingly concerned in another dishonestly obtaining a financial advantage (CC 2016/3226), from 14 December 2018 to 13 April 2019.
(iv)In respect of the offence of being knowingly concerned in another’s attempt to dishonestly obtain a financial advantage (CC 2016/3225), from 14 October 2017 to 13 August 2019.
(v)In respect of the offence of knowingly producing a false or misleading document to another in compliance or purported compliance with a territory law (CC 2016/3224), from 14 October 2017 to 13 February 2018.
(vi)In respect of obstructing or hindering an investigation by a law enforcement officer (CC 2016/3223), the Good Behaviour Order of three months is to commence on 14 April 2017.
(d)The new sentence is therefore from 14 April 2017 to 13 August 2019, a period of two years and four months. That sentence is to be suspended after six months, namely on 13 October 2017.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Elkaim, Mossop and Jagot JJ. Associate: Date: 18 May 2017 |
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