Regina v Ramirez [1999] NSWCCA 52

New South Wales Court of Criminal Appeal CITATION : Regina v Ramirez [1999] NSWCCA 52 FILE NUMBER(S) : CCA 60579/97 HEARING DATE(S) : 8 March; 1999 JUDGMENT DATE : 8 March 1999

PARTIES : REGINA v Aidelyn RAMIREZ JUDGMENT OF : Simpson J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Johnston DCJ

COUNSEL : P Segal for the Appellant W G Dawe, QC for the Crown SOLICITORS : Barber & Massey for the Appellant. S E O'Connor for the Crown CATCHWORDS : Severity of Sentence - Fraudulent misappropriation and obtain property by deception. ACTS CITED : s178A & 178BA of Crimes Act DECISION : Leave to appeal refused.

- 7 - IN THE COURT OF CRIMINAL APPEAL 60579/97 SIMPSON J SMART AJ

Monday, 8 March, 1999

REGINA v Aidelyn RAMIREZ

JUDGMENT 1 SMART AJ: Aidelyn Ramirez seeks leave to appeal against the severity of concurrent sentences comprising a minimum term of two years and six months penal servitude and an additional term of eighteen months imposed for two offences of fraudulent misappropriation and two of obtain property by deception, taking into account a large number of further offences. 2 The facts and circumstances are set out in the remarks on sentence of Johnson DCJ. I will touch upon them briefly. 3 The first count involved the applicant, in November 1995, collecting $28,732 upon terms which required her to use those moneys, as she had promised, towards the purchase of an orchard at Glenorie or for the purpose of maintenance of machinery at the orchard. Instead, she fraudulently misappropriated the money. 4 The second count involved the applicant, on 27 November 1995, in the deception that certain title deeds would be retained by the applicant as indemnity for a loan in the sum of $455,000 to be used for the purchase of an orchard or an interest in an orchard at Glenorie. She dishonestly obtained title deeds to 52 Brixton Road, Berala and a financial advantage of about $117,095. 5 The third count involved the applicant, in October 1995, having collected $23,464 upon terms which required her to use those moneys for the purchase and maintenance of machinery associated with an orchard at Glenorie, fraudulently misappropriating that sum. 6 The fourth count involved the applicant, by a deception, namely purporting to have purchased a Toyota Tarago van, dishonestly obtaining for herself sums of money and valuable things totalling $50,504.91. 7 The applicant initially became a friend of the victim while they were undertaking a course. The friendship developed and the applicant gained the trust and confidence of the victim. The applicant held herself out as a woman of financial substance, showing the victim a "doctored" bank passbook with a substantial balance to the applicant's credit. 8 Gradually the applicant took over the management of substantial portions of the victim's financial affairs. The applicant rewarded herself as mentioned. The victim faces litigation to save her home. At the least, she will suffer a financial loss estimated to be in the order of $250,000. This was a bad and serious case of fraud meriting condign punishment. 9 The judge was asked to and took into account a further 19 offences, namely one of obtaining jewellery and a watch by deception, nine of making a false instrument and nine of using a false instrument. One example of these counts will suffice. The applicant lived next door to an 81-year-old pensioner. She ingratiated herself with him by visiting him and doing his shopping. She obtained $8,524.20 by her fraudulent conduct in relation to his cheques by using moneys withdrawn from his bank account for her own purposes and using his cheques to pay her personal debts. The judge also took into account some further offences, namely, two counts of making a false instrument; two counts of using a false instrument; two counts of fraudulently falsifying applications for credit; two counts of obtaining money by false statements and two counts of obtaining money by deception. It is unnecessary to refer to the facts of each of these offences. 10 This precis of the offences to which the applicant pleaded gulty and those which she asked to be taken into account, reveals grave dishonesty and criminality over the period 1993 to 1995. A number of innocent and unsuspecting people have sustained financial losses of consequence as a result of her dishonesty. 11 Regrettably, the applicant had a record. On 25 July 1990 she was convicted of six offences of dishonesty. She was placed on recognizance to be of good behaviour and ordered to serve 200 hours community service. In May 1992 she was convicted of three offences of dishonesty and placed on a further recognizance to be of good behaviour. On 26 October 1993 she was convicted of three counts of making false statements to obtain money. She received a minimum term of 9 months and an additional term of 2 years on one count and concurrent fixed term sentences of 9 months on the remaining two counts. Viney DCJ commenced adversely on her conduct and attitude. The lenient sentences were largely explained by the desirability of her caring for her five children. 12 Ironically, some of the offences which she asked to be taken into account in the current proceedings were committed whilst she was on parole and on bail waiting for the conclusion of the sentence proceedings before Viney DCJ. 13 The applicant was born on 26 November 1952. She has five children aged 21, 20, 19, 17 and 14. The youngest child is no longer in Australia. 14 The sentencing judge paid particular attention to the applicant's subjective circumstances. He noted the many difficulties which she had experienced in her life and dealt with them sympathetically. He also noted that she had supported the children. The judge gave careful consideration to her gambling addiction and the steps she had taken in an effort to deal with it. At the date of the hearing she had received some counselling and needed more and extended support. 15 The applicant contends, and this is not contested, that there is no provision in Mulawa for specialist counselling for those with a gambling addiction. She has caused arrangements to be made for such counselling upon her release. 16 In counsel's written and oral submissions, emphasis was placed on the lack of specialist gambling addiction counselling at Mulawa and support in this area. It was submitted that this would impede her recovery and that if she had to wait until she were released on parole, the counselling would be stale. I am unable to accept the submission that the Judge's sentence was based upon her receiving such counselling. The prison authorities cannot be expected to have this type of counselling available as a matter of course. It must also be remembered that while the applicant is in prison, she will find it difficult to obtain money dishonestly to feed her gambling habit and engage in significant gambling. There will be an enforced embargo. Her previous stay of nine months in gaol did not prevent her from returning to fraudulent conduct and gambling. 17 The sentencing judge considered the applicant's subjective circumstances with care and sympathy but he felt constrained by the high criminality evinced by her conduct. The Judge found special circumstances and there was no contest that he was right to do so. While it would be better for the applicant if specialist gambling counselling were available, this is not a sufficient reason to reduce the minimum term, having regard to the objective criminality. The course taken by the judge was well within the sound exercise of his sentencing discretion. 18 I agree with the sentences imposed. In my opinion they were correct. I would propose that the application for leave to appeal should be refused. 19 SIMPSON J: I agree. The orders of the court will accordingly be as proposed by Smart J.