New South Wales Court of Criminal Appeal CITATION : R v Fraser [2000] NSWCCA 97 FILE NUMBER(S) : CCA 60096/99 HEARING DATE(S) : 24/03/00 JUDGMENT DATE : 24 March 2000 PARTIES : Regina v Gregory Fraser JUDGMENT OF : Abadee J; James J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0209 LOWER COURT JUDICIAL Mahoney DCJ OFFICER : COUNSEL : L Flannery - Applicant LMB Lamprati - Crown SOLICITORS : TA Murphy - Applicant SE O'Connor - Crown DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60096/99 ABADEE J JAMES J Friday 24 March 2000 REGINA v GREGORY JAMES FRASER JUDGMENT 1 ABADEE J: The Court is in a position to give its decision immediately. I will ask James J to give the first judgment. 2 JAMES J: Gregory James Fraser has applied for leave to appeal against sentences imposed on him in the District Court on 2 March 1999 by his Honour Judge Nield, after he had pleaded guilty to twenty two charges of obtaining property by deception, being offences under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years; one charge of stealing, an offence under s 117 of the Crimes Act, for which the maximum penalty is penal servitude for five years; and two charges of making a false instrument and then using the false instrument, being offences under s 300 of the Crimes Act, for which the maximum penalty is penal servitude for ten years. 3 The offences of obtaining property by deception had been committed by the applicant during two separate periods. The offences charged in counts 1 to 10 and counts 12 to 15 of the indictment had been committed between 23 August 1996 and 19 November 1996. The offences charged in counts 16 to 18 and 21 to 25 of the indictment had been committed between 26 August 1997 and 26 November 1997. The charge of stealing was the eleventh count in the indictment and the charges under s 300 of the Crimes Act were the nineteenth and twentieth counts in the indictment. 4 On each of the charges in counts 1 to 10 of the indictment Judge Nield imposed a fixed term of imprisonment for two years, to date from 2 March 1999, which was the date of sentencing, the sentences is to be served concurrently. On the charge of stealing Judge Nield imposed a sentence of penal servitude for a fixed term of two years, also to date from 2 March 1999. On each of the charges in counts 12 to 18 and 21 to 25 of the indictment Judge Nield imposed a sentence of imprisonment for three years, consisting of a minimum term of one year to date from 2 March 2001 and an additional term of two years, the sentences to be served concurrently. On each of the charges in counts 19 to 20 of the indictment Judge Nield imposed a sentence of penal servitude for three years, consisting of a minimum term of one year to date from 2 March 2001 and an additional term of two years, the sentences to be served concurrently. Accordingly, the total effective overall sentence was imprisonment or penal servitude for fixed terms or minimum terms totalling three years and additional terms of two years. 5 The facts of all the offences of obtaining property by deception were extremely simple. The applicant obtained goods or services, usually goods, by proffering a valueless cheque, that is a cheque drawn by him on an account with insufficient funds to meet the cheque. In most of the cases the cheque was drawn on the account of a business. The applicant did not attempt to conceal his true identity from the merchant, that is the provider of the goods or services. Where the cheque was drawn on the account of the business, the applicant represented himself to be a director of the business and produced his own driver's licence. 6 The total value of the goods and services obtained by the applicant was $107,078. Goods to the value of $12,252 were recovered, so that the ultimate net loss to the merchants was $94,826. 7 The facts of the offence of stealing were that the applicant and a co-offender stole 1640 pairs of shoes, to the value of $73,800 wholesale. All but thirty three pairs of the shoes were recovered. The retail value of the shoes not recovered was $3267. For this offence the co-offender was sentenced to penal servitude for two years with a minimum term of nine months. 8 The facts of the offences under s 300 of the Crimes Act were that the applicant made a false Advance Bank cheque and used that false cheque to obtain goods to the value of $4172. 9 In his remarks on sentence Judge Nield referred to the relevant subjective circumstances of the applicant. The applicant was born in 1963. His Honour commented that the applicant's offences were not the offences of a juvenile or a young adult but of a man in his thirties. His Honour found that by the time of the sentencing the applicant's relationship with his fiance had had a stabilising effect on him. His Honour accepted that the applicant had been addicted to gambling but had succeeded in getting his gambling under control. In this connection, his Honour commented that "perhaps therefore specific deterrence is not as important as it might otherwise have been". The applicant had no previous criminal history for offences of dishonesty. After initially declining to be interviewed by police, the applicant had later consented to being interviewed and when interviewed had admitted having committed all of the offences. The applicant had pleaded guilty. The applicant was remorseful. His Honour found that "the applicant had already set upon his own rehabilitation". He had sought counselling for his gambling addiction and it was unlikely that he would re-offend. 10 An important matter was that the applicant had given assistance in the prosecution of another offender. His Honour said that, apart from that assistance, he would have sentenced the applicant to an overall total sentence of seven years. However, because of that assistance he would reduce the overall total sentence to five years. His Honour found that there were special circumstances, consisting of the applicant's good prospects of rehabilitation, and set additional terms which exceeded one-third of the overall total sentence. 11 The only submission which has really been made on behalf of the applicant on the hearing of this application has been that the sentences imposed were manifestly excessive and, in particular, that the starting point of seven years, being the total overall sentence the sentencing judge would have imposed, had it not been for the assistance provided by the applicant, was manifestly too high. 12 It was pointed out, inter alia, that the applicant had not been in a position of trust, that the method of operating he had adopted was not elaborate, that these offences were the applicant's first offences of dishonesty, that the applicant had committed the offences because of his gambling addiction and not out of greed, that the applicant had pleaded guilty and shown remorse and that the applicant had commenced his own rehabilitation. 13 Counsel for the applicant referred the Court to a number of previous decisions of the Court including R v Doherty (unreported CCA 5 November 1991); R v O'Keefe (unreported CCA 11 June 1992); R v De Silva (unreported CCA 14 December 1993); R v Cardwell & Butcher (unreported CCA 6 July 1994); R v Santos (unreported CCA 28 June 1995); R v Vickers & Fearon (unreported CCA 17 October 1996); R v Cofini (unreported 4 March 1997); R v Jarjoura (unreported CCA 9 April 1997); R v Crowl (unreported CCA 10 July 1997); R v West (unreported CCA 11 November 1997; R v Francipane (unreported CCA 23 December 1998); R v Ramirez (unreported CCA 8 March 1999). Counsel also referred to statistics of sentences for offences under s178BA. 14 In my opinion, having regard to the objective facts of the offences and the subjective circumstances of the applicant and having regard to the previous sentencing decisions we were referred to and even after allowing for the offences of stealing and forgery, the submission by counsel for the applicant that the starting point of seven years was manifestly excessive has been made out and accordingly leave to appeal should be granted and the appeal should be allowed. 15 It is accordingly necessary for the Court to re-sentence. 16 Additional evidentiary material was placed before the Court to be used in the event of the Court re-sentencing. This further material shows that the applicant, who is in custody for the first time, has had an onerous time in prison, that he has worked while in custody and that he has enrolled in and completed a number of courses. 17 In my opinion, an appropriate starting point for the overall total sentence would be five years. I would allow a discount of thirty per cent for assistance, being approximately the same percentage discount for assistance as the sentencing judge adopted, producing an overall total sentence of three and a half years. I would find special circumstances, as the sentencing judge did, dividing the total period of three and a half years into total fixed terms or minimum terms of penal servitude or imprisonment of two years three months and additional terms of one year three months. ABADEE J: I agree. 18 JAMES J: It seems to me that this result can conveniently be achieved simply by making the following orders. Leave to appeal granted, appeal against sentence allowed, sentences imposed on 2 March 1999 quashed, on each of the charges there be imposed a sentence of imprisonment or penal servitude of three and a half years consisting of a minimum term of penal servitude or imprisonment of two years three months commencing 2 March 1999 and expiring on 1 June 2001 and an additional term of penal servitude or imprisonment of one year three months. The earliest date on which the applicant will be eligible for release on parole would be 2 June 2001. All the sentences to be served concurrently. Where the Court is sentencing for as many as twenty-five offences and the total effective sentence is to be only three and a half years, I do not consider that the Court is required by the decision of the High Court in Pearce v The Queen to impose a series of separate sentences for each of the twenty-five offences, with separate commencing dates. 19 FLANNERY: Would your Honours be prepared to suppress the appellant's name because of that element of assistance? 20 ABADEE J: It is out in the public arena now, is it not? 21 JAMES J: I think one of the factors his Honour took into account was that the fact that he had assisted would be known. His Honour said that, did he not, in his remarks on sentence? It was something he gave credit for. ABADEE J: Page 14. 22 JAMES J: Anyone who might have been touched by it knows about it. I rather gathered that that was a factor that his Honour took into account in quantifying the discount for assistance. 23 ABADEE J: Very well. I agree with the orders proposed by James J and the reasons of his Honour. The orders of the Court are therefore as proposed by James J. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.