Regina v Ali [2000] NSWCCA 385

New South Wales Court of Criminal Appeal

CITATION : Regina v Ali [2000] NSWCCA 385 FILE NUMBER(S) : CCA 60099/00 HEARING DATE(S) : 4/8/00 JUDGMENT DATE : 4 August 2000

PARTIES : The Crown Rafida Ali (Appl) JUDGMENT OF : Newman J at 1; Sperling J at 12

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0580 97/11/0794 LOWER COURT JUDICIAL Tupman DCJ OFFICER :

COUNSEL : R D Ellis (Crown) Appl in person SOLICITORS : S E O'Connor (Crown) Appl in person

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1995 DECISION : Appeal allowed

IN THE COURT OF

CRIMINAL APPEAL

60099/00 NEWMAN J SPERLING J

FRIDAY, 4 AUGUST 2000

REGINA v Rafida ALI

JUDGMENT

1 NEWMAN J: This is an application for leave to appeal against the imposition of a community service order made by Tupman DCJ at Liverpool on 3 February this year. 2 The applicant was before her Honour on a number of counts involving the passing of valueless cheques. She had, in fact, previously been indicted on seven charges, six of which the jury had not found against her. 3 The seventh charge on that particular indictment involved the passage of a cheque in the sum of $3877.80 which had not been met on presentation. Before her Honour she was subject to a further indictment of four counts involving the passage of valueless cheques and several matters to be taken into account. 4 The one matter which was constant in relation to every cheque which had been unsuccessfully presented - that they had been drawn by a person with whom the applicant had a business association, one Lavinia Lui. As I understand the matter, and her Honour's remarks on sentence, Lavinia Lui had, in fact, decamped and it was, perhaps, and I underscore the word "perhaps", as a result of Lavinia Lui's actions that there were no funds available to meet the cheques, the cheques being drawn for airline tickets being purchased from wholesale ticketers by the applicant's business which was that of a travel agent. She was a travel agent who did not have ticketing authority and hence her need to conduct a business to buy tickets from a wholesale ticketer. 5 In the event, her Honour in relation to the seventh count on the first of the indictments, imposed a recognizance on the applicant pursuant to s 558 of the Crimes Act and no challenge is made to that imposition. 6 The challenge made is to a community service order which, as I read her Honour's reasons, was for 300 hours in relation to the four counts and matters to be taken into account on the second indictment. That is on the seventh count in the first indictment she was on a recognizance pursuant to s 558 of the Crimes Act and on the second indictment she had a community service order of 300 hours imposed upon her. 7 Before her Honour medical evidence was tendered from a Dr Santamaria which indicated that the applicant was suffering from an emotional illness, as he put it, in terms of depression and, also a diabetic illness. Evidence presented before this Court today indicates that both these conditions are of a more severe nature than that which was indicated, perhaps, to her Honour by Dr Santamaria's certificate. Why I used the word "perhaps" when dealing with the nature of the offences is that the jury was not prepared to convict in relation to those offences where a similar flavour existed and that is why I used the word "perhaps" because it may be that in the absence of her admissions, made pursuant to a plea of guilty, that the Crown would not have succeeded. That is not a matter on which, I believe, her Honour placed sufficient weight in determining sentence. 8 In the light of the applicant's medical condition and the nature of her plea of guilty, I am of the view that her Honour did, in fact, err in relation to what I described as the second indictment and that has had this unfortunate effect, in the light of her medical condition as now revealed to the Court. 9 I am of the view that rather than reduce the hours in relation to the community service order the court should impose a bond pursuant to s 9 and s 95 of the Crimes (Sentencing Procedure) Act, 1995 which would have run concurrently with the bond already imposed. 10 I propose the following orders: