New South Wales Court of Criminal Appeal CITATION : Regina v Douihi [2000] NSWCCA 521 FILE NUMBER(S) : CCA 60429/00 HEARING DATE(S) : 6 December 2000 JUDGMENT DATE : 6 December 2000 PARTIES : Regina v Pierre Douihi (aka Tabor) JUDGMENT OF : Hidden J at 31; Howie J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0817; 96/21/0406 LOWER COURT JUDICIAL Ford ADCJ OFFICER : COUNSEL : In person (Appellant) R.A. Hulme (Crown) SOLICITORS : - S.E. O'Connor (Crown) CATCHWORDS : Sentence - allowance for pre-sentence custody LEGISLATION CITED : Crimes Act 1900 - ss 300(1), 178BA Crimes (Sentencing Procedure) Act 1999 - s 32 DECISION : Leave to appeal granted; appeal allowed; sentence for offence of obtaining a financial benefit by deception should be quashed and in lieu thereof the applicant is sentenced to 3 years 4 months imprisonment with a non parole period of 18 months to date from 18 July 1999 and to expire on 17 January 2001 the date upon which the applicant is eligible to be released to parole. IN THE COURT OF CRIMINAL APPEAL 60429/00 HIDDEN J HOWIE J WEDNESDAY 6 DECEMBER 2000 REGINA v PIERRE DOUIHI (AKA TABOR) JUDGMENT 1 HIDDEN J: I will ask Justice Howie to deliver the first judgment. 2 HOWIE J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the District Court by Acting Judge Ford. 3 The applicant is unrepresented on the hearing of the appeal. He complains that the sentences imposed were too severe, and in particular the sentencing judge failed to take into account the total period of pre-sentence custody served by the applicant. 4 On 14 June 2000 the applicant pleaded guilty to an indictment containing four counts. The first two counts were each for an offence of stealing a cheque. The offences were alleged to have been committed in between dates in July and August 1995. The third and fourth counts on the indictment related to the two cheques which were the subject of the stealing charges and were each an offence of using a false instrument contrary to s 300(1) of the Crimes Act. The third count alleged an offence committed on 10 August 1995 and the fourth count the date of the offence was 15 August 1995. 5 In respect of the first two counts on the indictment the maximum penalty was 5 years imprisonment. In respect of the third and fourth counts the maximum penalty prescribed was 10 years imprisonment. 6 As well as pleading guilty to these four offences, the applicant also asked his Honour to take into account six matters set out on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999. Those matters related to three further charges of stealing cheques between July and August 1995 and three charges of using false instruments in relation to those cheques. 7 On 29 June 2000 the applicant pleaded guilty before his Honour to an indictment which contained one count of obtaining a benefit by deception. This is an offence contrary to s 178BA of the Crimes Act which carry a maximum penalty of 5 years. The offence was alleged to have occurred between 10 October 1994 and 1 June 1995. In sentencing the applicant for that offence his Honour was asked to take into account a matter set out on a Form 1. This was a charge of obtaining by deception and was alleged to have occurred between 8 March 1995 and 16 January 1996. 8 In respect of the offence on this indictment and taking into account the matter on the Form 1 his Honour sentenced the applicant to a total sentence of 3 years 6 months to commence from 18 July 1999 and fixed a non parole period of 18 months to commence from the same date and to expire on 17 January 2001. In respect of each of the counts on the first indictment and taking into account the matters on the Form 1, his Honour sentenced the applicant to 6 months imprisonment. All of these sentences were to be served concurrently with one another and concurrently with the sentence for the offence on the second indictment. 9 This meant that the applicant was to serve a total sentence of 3 years 6 months with a non parole period of 18 months to date from 18 July 1999. The date upon which the applicant would be eligible to be released to parole is 17 January 2001. 10 The offence on the second indictment was in fact committed before the offences on the first indictment. It was committed during a period in which the applicant was residing at a motel from late 1994 to the middle of June 1995. The applicant learnt that the proprietor of the motel, Mr Heap, was negotiating for the purchase of a resort complex in Nelson Bay and was seeking funds to finance this project. The applicant led Mr Heap to believe that he was a man of considerable personal fortune both in Australia and in the United states of America. He said that he owned a share in a bank in the United States and he pretended that he was a diplomat from that country. As a result of the things that he said and did the applicant led Mr Heap to understand that the applicant was capable of obtaining the finance required by Mr Heap and would be willing to enter into a partnership in relation to the resort project. Mr Heap accepted the truth of what the applicant told him and accordingly commenced negotiations to mortgage his property to the applicant. 11 While he was engaged in this deceptive conduct, the applicant resided at the motel and ran up a bill for accommodation and related expenses totaling $19,274.40. It was understood that this account would be satisfied when the dealings between Mr Heap and the applicant were settled. There was a similar arrangement made in respect of a sum of $13,000 the applicant borrowed from Mr Heap. 12 Of course when the negotiations broke down, the applicant moved out of the motel without paying his bills or repaying the loan. The financial benefit and the money he thus obtained by his deception of Mr Heap gave rise to the charge in the second indictment and the related matter on the Form 1. 13 The matters contained in the first indictment involved two cheque books stolen from a filing cabinet in the office of an acquaintance of the applicant. The applicant had been a frequent visitor to the premises where that business was conducted. Five of the stolen cheques were banked into accounts by persons known to the applicant and at his request. The proceeds of the cheques were then paid over to the applicant by the account holders. As a result of these crimes, the applicant obtained $19,000. 14 The applicant was born on 18 May 1951. He has a record for offences of dishonesty commencing in 1976 when he was fined for false pretences. There are no other matters recorded against the applicant until 30 March 1990 when he was placed on a 5 year good behaviour bond in the District Court in respect of 2 charges of false pretences. On 30 November 1992 the applicant was again before the District Court and he was sentenced to a minimum term of 12 months with an additional term of 3 months in respect of two offences of dishonesty. On the same occasion he was placed on a four year good behaviour bond for two offences of obtaining by deception. That bond was current when the applicant committed the offences for which he was sentenced by Acting Judge Ford. 15 There was in evidence before the sentencing judge a report from a psychologist which related to the mental health of the applicant's mother and the effect upon her if a sentence of imprisonment were imposed on the applicant. There was also a statement prepared by the applicant's sister setting out shortly some subjective material relating to the applicant and his background. The statement pointed out the effect that the applicant's imprisonment would have upon his two children and his mother. 16 There was also oral evidence from the applicant's ex wife that the applicant was a good father and had maintained contact with the children of this marriage. She gave evidence as to the impact of the imprisonment of the applicant upon the children and in particular that she was unable to maintain them in private schooling. The effect of the imprisonment of the applicant on his children and his mother has been relied upon by the applicant in his letters to this court and have been raised by him today orally. 17 The applicant's pre-sentence custody in respect of the offences for which he was sentenced seems to be as follows. In relation to the matters involving Mr Heap the applicant was arrested on 13 March 1996. He remained in custody until 7 August 1996 when he was released on bail. In relation to the matters involving the cheques he was arrested on 20 June 1996 and was also released to bail on those matters on 7 August 1996. The applicant breached his bail when he failed to appear at court on 9 March 1997 to stand trial for the matters on the first indictment. A bench warrant was issued for his arrest. The applicant apparently travelled overseas and was rearrested soon after his return to this country. He was taken back into custody on 12 January 2000 and was bail refused until sentenced by Acting Judge Ford on 29 June 2000. 18 The sentencing remarks by his Honour were brief in the extreme and contain little more than the facts in relation to the offences for which the applicant was before the court and a finding of special circumstances for the purposes of fixing the non-parole period. His Honour credited the applicant with 21 weeks pre-sentence custody for the period from 13 March to 7 August; that is the period after arrest and before release to bail. He also gave the applicant credit for a period of 45 weeks in respect of the period the applicant was in custody after his rearrest until the date of sentence. 19 As a result of these allowances his Honour indicated that the sentences imposed by him should commence on 18 July 1999 and invited the parties to tell him if they disagreed with these calculations. His Honour intended to commence the sentence from a date before the applicant was rearrested and at a time when the applicant was not in fact in custody. 20 During the course of his Honour's remarks on sentence counsel appearing for the applicant reminded his Honour that the applicant had been in custody for a period from what was said to be 17 January 1996 prior to his arrest on the matters before the court. This period of custody was referable to charges which the prosecution had determined were not to proceed further. His Honour was informed that the matters to which that period of custody related were connected with the offences involving the cheques for which the applicant was being sentenced. This might not have been strictly correct on the information provided to us today, but it does not matter for the purposes of dealing with this application. It was submitted by counsel appearing for the applicant therefore, that the applicant should receive credit for that period although it was not specifically referable to the matters which were before his Honour. Counsel for the applicant suggested to his Honour that instead of the 21 weeks calculated by his Honour, the applicant should receive "something like 26 weeks". 21 The sentencing judge then made the following statement: "I will simply indicate that I take into account in sentencing your client for the major offence, that is the offence of obtaining financial advantage, I took that into account when imposing a sentence of one year and six months. It could very easily have been somewhat higher." 22 At the conclusion of the sentencing remarks the following exchange occurred between his Honour and counsel for the applicant: His Honour: Is there anything further? No-one quarrels with the commencing date that I indicated, 18 July. Hobart: Well subject to those matters that I put to your Honour, no there's no quarrelling that that reflects the period of time in custody, that he's actually spent on these matters, but of course - but your Honour has indicated that you've taken into account the additional time he spent in custody reflecting the minimum term. His Honour: That's right. So I suppose I am bound to indicate the dates involved. 23 His Honour then indicated that the-non parole period commenced on 18 July 1999 and the period of eighteen months would expire on 17 January 2001. 24 The applicant complains that the sentence was too severe in relation to the offences committed by him and in particular that the non-parole period ought to have been calculated to expire, on the applicant's reckoning, on 17 October last. The applicant, in the letters to the court, has stressed the effect of the sentence upon his sons and their education and also has indicated that he has health problems which make his sentence more difficult to serve. Before us today he asks this court to give reconsideration to the parole period specified by his Honour, as the applicant at times teaches overseas and would be constrained in fulfilling that obligation by a parole order. 25 The prisoner was entitled to have the whole of the period he had served in custody on the matters for which he was sentenced and on his Honour's view of the facts the related matters in respect of which the prosecution determined not to proceed further. The relevant period appears to be from 18 January 1996 to 13 March 1996. However, the Crown contends in its written submissions, that on his Honour's calculations the sentences should have commenced on 16 August 1999 not 18 July 1999 as was specified by his Honour. Therefore, according to the Crown, the applicant received the benefit of a one month reduction which he otherwise did not deserve. 26 But in any event his Honour stated that he had taken into account the additional period served by the applicant in determining the length of the non-parole period which he imposed. This Court should take his Honour at his word, particularly in light of the very lenient non-parole period specified. Having regard to the total criminality before his Honour contained in the two indictments and in the matters on the two Form 1s, and the fact that the applicant had a history of dishonesty matters for which he had previously been sentenced to prison and also the fact that he was on a good behaviour bond for similar offences at the time he committed these offences before his Honour, I am of the view that the non-parole period verged on the inadequate. I would not reduce the non-parole period further either by decreasing the term of backdating it to commence at an earlier date than that specified by his Honour. 27 However the period of pre-sentence custody the applicant had served should not only have been reflected in the non-parole period, but should also have reduced the total sentence. His Honour intended it to have this effect and it would have done so had his Honour imposed a minimum term and an additional term as he initially but erroneously intended to do. However when his Honour actually came to impose the sentence, he applied the Crimes (Sentencing Procedure) Act as he was required to do and specified a total sentence with a non-parole period. By taking the period of pre-trial custody into account only in determining the minimum period the applicant was to serve before eligibility for release to parole, his Honour erred. 28 A reduction in the head sentence is never theoretical. In this case it may have real significance in the period which the applicant ultimately serves in custody. In light of his history of offending there is a distinct possibility that the prisoner will be required to serve the balance of his parole at some time. In any event it will reduce to some small measure the period during which he is restricted by a parole order. 29 The applicant should have leave to appeal. The sentence should be quashed to the extent that the overall sentence is reduced by 2 months. Apart from the error that I have indicated, in my view the sentences that were imposed by his Honour were lenient and I would not be otherwise prepared to reduce them. 30 I propose that leave to appeal be granted, the appeal should be allowed in respect of the sentence for offence in second indictment. The sentence for the offence of obtaining a financial benefit by deception should be quashed and in lieu the applicant should be sentenced to 3 years 4 months imprisonment with a non parole period of 18 months to date from 18 July 1999. The non parole period is to expire on 17 January 2001 the date upon which the applicant is eligible to be released to parole. 31 HIDDEN J: I agree. The orders of the court will be those imposed by Howie J. 32 Mr Douihi, you understand then that the total sentence has been reduced by two months but your non-parole period remains unchanged. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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