Regina v Lelei [2001] NSWCCA 229

New South Wales Court of Criminal Appeal

CITATION : Regina v Lelei [2001] NSWCCA 229 FILE NUMBER(S) : CCA 60601/00 HEARING DATE(S) : 7 May 2001 JUDGMENT DATE : 25 June 2001

REGINA PARTIES : v Kitiona LELEI JUDGMENT OF : Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0235 LOWER COURT JUDICIAL Stewart J OFFICER :

COUNSEL : W Robinson QC (Crown) J S Andrews (Applicant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Applicant) CATCHWORDS : Criminal Law - Sentence not manifestly excessive - parity argument - appropriate adjustment to sentence based on special circumstances - circumstances individual to the offender - LEGISLATION CITED : Crimes Act 1900 Lowe v The Queen (1984) 154 CLR 606 Ilbay (NSWCCA unreported 21 June 2000) CASES CITED: Regina v Tisalandis (1982) 2 NSWLR 430 Regina v Foster (NSWCCA unreported 28 May 2001) Regina v Boo Too (NSWCCA unreported 16 July 1992) Dinsdale v The Queen (2000) 175 ALR 351 DECISION : Appeal granted; Appeal upheld and the sentence imposed in the District Court quashed

IN THE COURT OF CRIMINAL APPEAL 60601/00 CARRUTHERS AJ BADGERY-PARKER AJ

MONDAY 25 JUNE 2001 REGINA v Kitiona LELEI

JUDGMENT 1 CARRUTHERS AJ: I agree with Badgery-Parker AJ. 2 BADGERY-PARKER AJ: On 16 June 2000 in the District Court, Kitiona Lelei adhered to of pleas of guilty entered in the Local Court on 11 April 2000 to five counts of receiving. The charges were laid under s 189 of the Crimes Act , which relates to receiving, in circumstances where the stealing was "a minor indictable offence", that is , an offence for which the prescribed maximum penalty is less than five years imprisonment. Under s 189 each charge carried a maximum penalty of imprisonment for three years. 3 On each charge his Honour Judge Stewart imposed a sentence of sixteen months imprisonment with a non-parole period of twelve months. The sentences were to date from 16 June 2000 and to be served concurrently. On 6 September 2000 an application was lodged for leave to appeal against the sentence, together with an application for an extension of time. The Crown did not oppose an extension of time. 4 At the conclusion of the hearing of the application on Monday 7 May, this Court granted an extension of time and leave to appeal, upheld the appeal, and quashed the sentences imposed in the District Court. In lieu thereof, the applicant was sentenced to five concurrent terms of imprisonment for sixteen months, commencing 16 June 2000 and to expire on 15 October 2001, with a non-parole period to expire on 23 March 2001. The Court formally ordered that he be released to parole on 23 March. That date having passed, the effect was that he is no longer on bail and subject to the conditions thereof, but at liberty on parole until 15 October 2001. 5 This judgment states reasons for that decision. 6 The sole ground of appeal stated in the notice of application for leave to appeal was that the sentence was manifestly excessive; but at the hearing, that ground, though not abandoned, was not strongly pressed. We are of the opinion that the sentence was well within the range. 7 Additionally counsel for the applicant relied on a parity argument, submitting that there was inappropriate disparity between the applicant's sentence and those imposed on a number of co-offenders; it was also argued that the sentencing judge erred in failing to find special circumstances and to make an appropriate adjustment of the relationship between the non-parole period and the parole period. The orders made by the court reflect the rejection of the former submissions and acceptance of the latter. 8 The transactions out of which the charges against the applicant arose involved a large number of offenders who were dealt with at different times and in some instances by different courts. Eight offenders, including the applicant, were sentenced on various dates by Judge Stewart. Of those eight, four appealed their sentences and their appeals were heard by this Court (differently constituted) on 4 December 2000. A ninth offender was initially dealt with in the Local Court, and appealed to the District Court where he was sentenced by Judge O'Reilly. 9 Briefly the facts are these : Sonia Prasad was employed in the workers' compensation division of AMP General Insurance Limited as a claims officer. She fraudulently initiated payments on claims made against the company. Her computer was used to generate or verify ninety-nine fraudulent cheques. Those cheques were forwarded to twelve receivers of whom the applicant was one. 10 The applicant received five cheques with a total value of $48910. He negotiated them through accounts in his name at two different banks. He banked them and subsequently withdrew the proceeds, part of which he used to pay for an overseas trip; the balance was dissipated in gambling. He claimed (falsely, as the judge found and as was indeed obvious) that he received each of the cheques through an unknown source. He was not a client of AMP; nor did he provide his services to that company; yet he made no inquiry about the cheques. He was sentenced on the basis that he had pleaded guilty at an early stage. At the time of sentencing he had not repaid any money. The judge, in my view rightly, attached little weight to his offer to repay the total sum at the rate of $200 per month. 11 The judge noted a number of subjective factors. In his written submissions in support of this application, counsel summarised them thus- "The applicant was described as having ' a couple of unrelated minor offences on his criminal records'. His Honour indicated that he did not intend to take those matters into account on sentence. The applicant was born in West Samoa in 1966, migrating to Australia in 1996 from New Zealand. He had been working for the preceding three and a half years as a sheet metal worker and was well regarded by his employer. He wasted the money he took by gambling. The probation officer described him as naive and gullible and as a person who was 'being overwhelmed by the pace of life in Sydney'. He had the support of his girlfriend, who was expecting their first child in September 2000, as well as the support of his family. The pre-sentence report spoke of him as acknowledging 'in retrospect the foolishness of his actions' and that all inquiries pointed to "an out of character set of circumstances".