New South Wales Court of Criminal Appeal CITATION: Regina v Tabar [2005] NSWCCA 165 HEARING DATE(S): 22 April 2005 JUDGMENT DATE: 22 April 2005 JUDGMENT OF: Grove J at 1; Howie J at 30; Latham J at 31 DECISION: APPEAL DISMISSED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - OBTAINING MONEY BY DECEPTION - CONTINUED FALSE CLAIMS OF EXPECTATION OF ARRIVAL OF OVERSEAS FUNDS - SENTENCE - NO PARTICULAR POINT OF PRINCIPLE LEGISLATION CITED: Crimes Act 1900 PARTIES: Regina v Pierre Tabar FILE NUMBER(S): CCA 2004/1700 V. Lydiard (Crown) COUNSEL: P. Hamill SC (Applicant) S. Kavanagh (DPP) SOLICITORS: Grahame W. Howe & Co (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0953 LOWER COURT JUDICIAL OFFICER: Hock DCJ IN THE COURT OF CRIMINAL APPEAL 2004/1700 GROVE J HOWIE J LATHAM J 22 April 2005 REGINA v PIERRE TABAR Judgment 1 GROVE J: There are before the Court a notice of appeal and a notice of application for leave to appeal in relation to convictions and sentences before Hock DCJ at Sydney District Court on 26 June 2003. Notice of abandonment of appeal against conviction was filed on 9 March 2005. 2 Following pleas of guilty, the appellant was sentenced on two counts of obtaining money by deception contrary to s 178BA(1) of the Crimes Act 1900 and two counts of passing valueless cheques contrary to s 178B of that Act. On each of the latter counts the appellant was sentenced to imprisonment for a fixed term of two months, to be served between 12 April 2002 and 11 June 2002, and on one of the counts of obtaining money by deception, to imprisonment for a fixed term of one year, to be served between 12 April 2002 and 11 April 2003. 3 On the outstanding count of obtaining money by deception, he was sentenced to imprisonment for three years and eight months, commencing on 12 April 2003 and expiring on 11 December 2006 with a non-parole period of two years and six months which expires on 11 October 2005. The last mentioned is the earliest date of eligibility for parole. 4 I should briefly sketch the facts particularly relating to the offence for which the sentence is still current. On 14 June 2001 the appellant encountered a woman (Mrs Laudie Karam). They had grown up in the same village in Lebanon and had not seen each other since they were teenagers. The appellant's date of birth is 18 May 1951. 5 Following this encounter, a relationship developed between them. In the course of this the appellant told Mrs Karam that he was a wealthy doctor and was expecting some millions of dollars to arrive from the United States in the near future. In some fashion the appellant had obtained the name and telephone number of a Mr Kennedy, an employee of the Reserve Bank, and at various times he purported to telephone him, and Mrs Karam heard his end of the conversation which concerned the asserted progress of the transfer of large funds to Australia. Although Mr Kennedy received telephone calls he is unacquainted with the appellant and was conducting no business on his behalf. 6 Pending the claimed anticipated arrival of these funds, the appellant persuaded Mrs Karam to lend him amounts of money, the nett amount of which, unrepaid, was said to be $28,000. Mrs Karam had acquired some of the money, which she passed to the appellant, by borrowing it herself from friends and acquaintances. Amongst other things, the appellant at one point produced a document purporting to be a cheque drawn on an American bank in the sum of $US50 million. 7 Although the appellant pleaded guilty to the appropriate count, there was a dispute of fact tried by her Honour as to whether the relevant amount was $28,000 as claimed by Mrs Karam or $9,000 as claimed by the appellant. Both of them gave evidence before her Honour. Her Honour made significant credit findings against the appellant which were clearly open to her. She found that the correct amount was $28,000. 8 The other count of obtaining money by deception related to representations of a similar sort made to Mr Nasr, the proprietor of a service station, who was persuaded to "loan" the appellant $5,000 pending the arrival of the overseas funds. He also obtained petrol to the value of $19.00 for which he did not pay. 9 Mr Nasr was also persuaded to introduce the appellant to a tyre service, which, after the introduction by Mr Nasr, supplied the appellant with tyres and a car radio, for which they accepted payment in a cheque for the sum of $535. The cheque was dishonoured. 10 The other count related to the giving of a cheque for $292.60 to a toy shop at Liverpool, in exchange for computer games. It is of interest to note that the appellant (who had told both Mrs Karam and Mr Nasr that he was a doctor) has asserted that he had a doctorate from George Washington University in the United States. The material which he has forwarded to the Court does not claim that he is a medical practitioner, but when he went to the toy shop at Liverpool, the Crown facts disclose that he was wearing a stethoscope around his neck. 11 The appellant has a criminal history which shows that he has been dealt with for offences of dishonesty in 1976, 1990, 1992 and 2000. The sentences imposed by Hock DCJ were not the first full time custodial sentences received by the appellant. Her Honour held that his history did not entitle him to leniency and that finding is not open to challenge. 12 The applicant presents four grounds of appeal against sentence. It is convenient to deal with grounds 1 and 2 together: (1) The total effective sentence is manifestly excessive. (2) The individual sentences imposed in respect of each count are manifestly excessive. 13 Counsel for the appellant has pointed out that the maximum penalty for the passing of a valueless cheque is imprisonment for one year. As I have indicated, on each count the appellant was sentenced to two months imprisonment. This could not possibly be categorised as excessive. 14 The maximum penalty for each of the offences of obtaining money by deception is five years imprisonment. 15 Counsel points to the circumstance that offences charged under this section frequently involve much larger amounts of money and offenders who are in positions of trust. That may be so, but there is a wide variety of circumstances in which seriousness of offence can escalate. In the present case, the appellant took advantage of Mrs Karam who, it is plain, succumbed to the charms of a man whom she identified as a childhood friend. 16 It is true that a similar consideration does not apply to the deception practised upon Mr Nasr, but this is reflected in the much lesser sentence imposed in respect of the offence concerning him. 17 It is submitted that none of the offences involved a complex or sophisticated scheme. What was involved was a persistent continuation of false representations. To add colour to his claims, the obtaining and the use of the telephone number of Mr Kennedy is a matter which portrays both planning and cunning. 18 Complaint is made that the offence concerning Mr Nasr "basically involved a confidence trick". No doubt that is so, but the implication that this is a matter of little moment is something that I entirely reject. 19 It is further complained that the sentences were totally accumulated in respect of those matters. Whilst that is true, there is a counterbalancing advantage received by the appellant in that the sentences for passing the valueless cheques and the sentence in respect of the deception of Mr Nasr were ordered to be served entirely concurrently. 20 It is not without significance that the appellant's parole was current when he offended. 21 I am unpersuaded that her Honour's discretion has miscarried. 22 Ground 3 asserts that the learned sentencing judge erred in sentencing the appellant on the basis that he has no employment history in Australia. In the course of submissions made to the sentencing judge, it was remarked that there was no evidence in respect of some matters, subjective to the appellant, which were being advanced. Leave was given to recall the appellant and he gave evidence of working for two corporations and conducting a restaurant between approximately 1971 and 1979. 23 In her remarks on sentence the judge said: "I find I am able to place little weight on anything (the appellant) said. He does live with his mother and is apparently a divorced man, the father of two boys aged 17 and 15. He is apparently multilingual, but he does not have any employment record in Australia." 24 The evidence which the appellant gave concerning his activities between 1971 and 1979 was not challenged. It is, however, literally true that there was before her Honour no record of any employment here in Australia. A reading of the material makes it easy to understand why her Honour was sceptical about anything the appellant said. 25 Counsel described the events concerning Mr Nasr as a confidence trick. It would not be inaccurate to describe the appellant as a confidence trickster. The very nature of committing offences of deception is that a person is able to obtain, in this case money for himself, by persuasive lies. 26 There is no indication that the observation by her Honour added any weight to her assessment and I would not regard this matter as provocative of intervention by this Court on sentence. 27 The fourth ground complains that the trial judge erred in her approach to the appellant's pleas of guilty. These were entered on the day of trial but it is said that it occurred after the prosecution discontinued proceedings in respect of four other offences. Those four offences consisted of another offence of obtaining money by deception and three further counts of passing valueless cheques. 28 Her Honour granted a discount of 10 percent, which is described in a submission by counsel as "not a generous one". That may be an available description, I would neither endorse nor reject it, however I am persuaded that it is within the range of the exercise of her Honour's discretion. 29 In my opinion, the overall sentences and their structure were also well within the range of the sound exercise of discretion, and I would grant leave to appeal, but dismiss the appeal 30 HOWIE J: I agree 31 LATHAM J: I also agree. 32 GROVE J: The order of the Court will therefore be as I have proposed. ********** 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.