R v Royal [2003] NSWCCA 260

New South Wales Court of Criminal Appeal

CITATION : R v Royal [2003] NSWCCA 260 HEARING DATE(S) : Tuesday 9 September 2003 JUDGMENT DATE : 9 September 2003

JUDGMENT OF : Hidden J at 1; Greg James J at 16; Bergin J at 19 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : CRIMINAL LAW - Application for leave to appeal against sentence - 7 charges of obtaining a benefit by deception - other charges on a Form 1 - whether sentence excessive LEGISLATION CITED : Crimes Act Criminal Appeal Act PARTIES : Regina (respondent) Michelle Royal (applicant) FILE NUMBER(S) : CCA 60193/03 COUNSEL : R McCrudden (applicant) Elizabeth Wilkins (respondent) SOLICITORS : P McGhee (applicant) S E O'Connor (respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0368 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER :

- 5 - IN THE COURT OF CRIMINAL APPEAL 60193/03

HIDDEN J GREG JAMES J BERGIN J

Tuesday 9 September 2003 Regina v Michelle Royal Judgment 1 HIDDEN J: The applicant, Michelle Marie Royal, pleaded guilty in the District Court to seven counts of obtaining a benefit by deception, an offence under s178BA of the Crimes Act, carrying a maximum penalty of five years imprisonment. She also asked the sentencing judge to take into account, in sentencing on the first of those charges, six further charges on a Form 1, they being two charges of obtaining a valuable thing by deception, also an offence under s178BA, two charges of goods in custody and two charges of possessing prohibited drugs. On each of the charges in the indictment his Honour passed concurrent terms of imprisonment of three years and three months with a non-parole period of two years and one month. His Honour did so after allowing a discount of some twenty per cent for the applicant's pleas of guilty. She seeks leave to appeal against those sentences. 2 It is unnecessary to recite the facts in any detail. It is sufficient to set out his Honour's brief summary of them in his remarks on sentence. In short the prisoner together with two co-offenders, Louis Sukkar and John Choy, embarked upon a sophisticated system of criminal activity in order to defraud banks of large amounts of money. Stolen cheques were deposited into banking accounts which were created in fictitious names. The scheme, on the facts presented to me, was set up by Louis Sukkar and John Choy. The role the prisoner had in the scheme was to present herself at various banking organisations and to set up banking accounts using false identification both for herself and for the companies which were nominated as the account holders. In a period of time from 2 September 1999 until approximately 24 September 1999 the sum of $348,000 was fraudulently withdrawn from the banks. The sum of $285,190.72 has not been recovered. …. The prisoner in a record of interview indicated that she was to receive ten per cent of the proceeds of the crimes. The prisoner indicated that she in fact received some $25,000 of which she spent $5,000. 3 It seems that the men Louis Sukkar and John Choy have not been brought to justice in respect of this fraudulent activity. 4 His Honour found that at the relevant time the applicant was in love with Louis Sukkar and very much under his influence, and that it was that influence which led to her involvement in these offences. His Honour saw the relationship as an explanation for her offences, although of course not an excuse for them. 5 Of the charges on the Form 1, four are related to the same episode of criminality and it is unnecessary to go to the detail of those. The other two charges of possessing prohibited drugs are unrelated and are really of little or no significance for present purposes. 6 The applicant was twenty-four years old at the relevant time and is now twenty-eight. She has no prior convictions. She was brought up in Albury and appears to have had the benefit of a good upbringing and supportive parents, who continue to be concerned about her wellbeing and remain supportive of her. 7 She had the benefit of a good education to tertiary level. She obtained a position as a teacher at a Catholic school in Bankstown where she was very highly thought of. There was evidence to that effect from the Assistant Principal of that school and evidence generally about her background and prospects from her father. 8 She does appear to have engaged in the use of illicit drugs, as the matters on the Form 1 demonstrate, but that does not appear to have been a major problem in her life and certainly it does not appear to have had any immediate bearing upon the offences for which she stood for sentence. During a period of pre-sentence custody she had taken advantage of rehabilitative assistance within the prison system. 9 It was in the light of all this material that his Honour found special circumstances warranting a departure from the usual proportion between sentence and non-parole period. 10 Mr McCrudden of counsel, who has argued the applicant's case ably and succinctly in written and oral submissions, has challenged his Honour's approach to sentence in two respects. Firstly, he argued that the effective sentence is manifestly excessive given the level of the applicant's culpability. 11 True it is that his Honour had regard to the influence upon the applicant of the man, Sukkar, and at one stage spoke of her criminality as being at the lower end of the scale. However, it appears to me that his Honour's reference to the applicant's culpability being at the lower end was primarily by comparison to the involvement of the other two men. A little later in his remarks his Honour had this to say: This prisoner in a calculated way over a period of time played an integral part in a sophisticated scheme to defraud the banking system of large sums of money. 12 While her role was subsidiary to the two men, it was nonetheless a significant one. It does not appear to me that the sentence which his Honour passed was manifestly excessive in all the circumstances. Particularly is that so when one has in mind that in practical terms that sentence was intended to embrace the whole of her criminality represented by the seven charges on the indictment and the matters on the Form 1. 13 Mr McCrudden also challenged the non-parole period set by his Honour, submitting that the effective period of parole eligibility of fourteen months is inadequate and that the non-parole period itself was more than was called for in the light of the applicant's role in the offences. I am unpersuaded also by this submission. 14 Insofar as the extended period of parole eligibility was intended to foster the applicant's rehabilitation, it appears to me that it is adequate to do so, particularly in the light of the good family support the applicant enjoys and her favourable prospects of rehabilitation. In any event, it appears to me that any lesser non-parole period would not be a fair reflection of the applicant's criminality. 15 It must be said that this is an unusual case and a sad case. It is distressing indeed to see a young woman such as this applicant with a good background and considerable promise facing a significant prison term. That said, however, I can find no error in his Honour's approach to the matter which would warrant this Court's intervention. I would grant leave to appeal but would dismiss the appeal. 16 GREG JAMES J: Section 6(3) of the Criminal Appeal Act provides that it is only in the case of the Court finding some other sentence is warranted in law and should have been passed that the Court has power to interfere with a sentence passed in the exercise of the discretion by a trial judge. 17 I agree with what has been said by the presiding judge as to the absence of error such as would warrant this Court's interference in this case. I associate myself specifically with the remarks he has made about the tragic nature of the case and the unfortunate circumstances of the applicant. 18 As a matter of law, however, applying s6(3) it is not open to this Court to take any other course. It is to be hoped, however, bearing in mind that the applicant has only a short further period in custody still to serve, that she will realise that her prospects of obtaining release at the expiration of that period depend upon her ability to persuade those who will supervise her release while she is on parole that from now on she will make of her life what she can for the benefit of herself and the community. I add these remarks so that she will know that the Courts expect of her that she will not come before them again. 19 BERGIN J: I agree with the orders proposed by the presiding judge and the reasons given by him. 20 HIDDEN J: The orders of the Court will be those which I have proposed. **********