New South Wales Court of Criminal Appeal CITATION: Bick v Regina (Commonwealth) [2006] NSWCCA 408 HEARING DATE(S): 13 December 2006 JUDGMENT OF: Hodgson JA at 1; Howie J at 3; Price J at 4 EX TEMPORE JUDGMENT DATE: 12/13/2006 DECISION: Leave to appeal is granted. Appeal dismissed. CATCHWORDS: Criminal Law - Criminal Appeal - Commonwealth Offences - Social Security Fraud - Whether sentencing Judge erred in determining non - parole period - Whether ratio of non - parole period to aggregate head sentence excessive - Departure from usual range. Crimes Act 1914 (Cth) s 29 D LEGISLATION CITED: Crimes Act 1914 (Cth)s 19 A B (1) Criminal Code 1995 (Cth) s135.1 (5) Criminal Appeal Act 1912 s 6 (3) Bernier v The Queen (1998) 102 A Crim R 44 at 49 R v Behar (Court of Criminal Appeal, 14 October 1998, unreported) R v Carr (2002) 135 A Crim R 171 R v Drazkiewicz (Court of Criminal Appeal,23 November 1993, unreported) R v Ida Ronen, Nitzan Ronen, Izhar Ronen [2006] NSWCCA 123 CASES CITED: R v John Viana [2001] NSWCCA 171 R v Mears (1991) 53 A Crim R 141 R v Meloh [2001] NSWCCA 211 R v Price [2004] NSWCCA 186 R v Purdon (Court of Criminal Appeal, 27 March 1997 unreported) R v Sweet (2001) 125 A Crim R 341 Stitt v The Queen (1998) 102 A Crim R 428 PARTIES: Shahab Aghajani Bick v Regina (Commonwealth) FILE NUMBER(S): CCA 2006/1315 COUNSEL: W. Abrahams - Crown J Manuell - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0113 LOWER COURT JUDICIAL OFFICER: Ainslie - Wallace DCJ LOWER COURT DATE OF DECISION: 4 November 2005 IN THE COURT OF CRIMINAL APPEAL CCA 2006/1315 Hodgson JA Howie J Price J 13/12/06 Shahab Aghanjani BICK v Regina (Commonwealth) Judgment 1 HODGSON JA: I agree. In my opinion it would have been preferable for the sentencing Judge to specify reasons for departing from the usual range of non-parole periods for Commonwealth offences. However, in the circumstances referred to by Price J, the absence of specific reasons in this case is not indicative of error justifying an appeal by the applicant being granted. 2 HODGSON JA: The orders of the Court are leave to appeal is granted. Appeal dismissed. 3 HOWIE J: For the reasons given by the other two members of this Court, I agree with the orders. 4 PRICE J: This is an application for leave to appeal by Shahab Aghajani Bick (conveniently referred to as the applicant) against sentences imposed by her Honour Judge Ainslie – Wallace on 4 November 2005 for 14 offences in breach of the criminal law of the Commonwealth. 5 On 9 February 2005 the applicant pleaded guilty in the Local Court to the following offences: (a) 11 counts contrary to s 29 D of the Crimes Act 1914 (Cth); (b) 3 counts contrary to s 135 .1 (5) of the Criminal Code 1995 (Cth). 6 There are two categories of offence of which the applicant is charged as during the course of his criminal conduct s 29 D of the Crimes Act was repealed. The section, however, continues to apply to offences committed before 24 May 2001. 7 The maximum penalty for the offence of defrauding the Commonwealth against the now repealed s 29D of the Crimes Act was imprisonment for 10 years and / or a pecuniary penalty of $100,000. The pecuniary penalty increased to $110,000 for offences after 6 April 1995. The maximum penalty for the offences of dishonesty causing a loss against s 135 .1 (5) of the Criminal Code is imprisonment for 5 years or a pecuniary penalty of $33,000 or both. 8 The maximum penalty of 5 years imprisonment for the offences against the Criminal Code was applied by her Honour to the offences contrary to the Crimes Act. It is unnecessary for present purposes to consider whether her Honour properly addressed this issue. This Court in R v Ida Ronen, Nitzan Ronen, Izhar Ronen [2006] NSW CCA 123 articulated the approach to be taken on sentence when an offence is repealed and a different offence with a reduced penalty is enacted. 9 The approach taken, it suffices to state, by her Honour was favourable to the applicant. 10 Her Honour, it appears, sentenced the applicant as follows: (i) Counts 1 to 5 contrary to section 29 D of the Crimes Act and count 1 contrary to s 135 .1 (5) of the Criminal Code (payments in the name Henry Sakhofaghajan) to imprisonment for two years to date from 11 May 2004 and to expire on 10 May 2006; (ii) Counts 6 to 8 contrary to section 29 D of the Crimes Act and Count 2 contrary to s 135 .1 (5) Criminal Code (payments in the name Hevosty Shahaboof Aghajani Bick then Jeff Brown) to imprisonment for two years to date from 11 May 2005 and to expire on 10 May 2007; (iii) Counts 9 to 11 contrary to section 29 D of the Crimes Act and count 3 contrary to s 135.1 (5) Criminal Code (payments in the name Tohbistianbigor Ohbrnandez then Tony Manguerra) to imprisonment for 3 years to date from 11 November 2005 and to expire 10 November 2008. 11 Her Honour imposed an aggregate effective head sentence of 4 years and 6 months to date from 11 May 2004 with a single non – parole period of 3 years and 6 months from that date and to expire on 10 November 2007. A single non – parole period was set in accordance with s 19 A B (1) of the Crimes Act. 12 The sole ground of appeal is the applicant's contention that the non – parole period imposed on him is excessive. The ratio of the non – parole period to the aggregate head sentence is 77.78% (round figures). 13 It is submitted that her Honour erred in setting the non – parole period at such a percentage of the head sentence. The applicant referred to authorities which indicate that the norm for non – parole periods is in the range of about 60 to 66 percent of the head sentence; (see for example: Bernier (1998) 102 A Crim R 44 at 49 and Behar (unreported, Court of Criminal Appeal, NSW, No 60363 of 1998, 14 October 1998). 14 The determination of the appropriate non – parole period for offences in breach of the criminal law of the Commonwealth involves the exercise of judicial discretion. As was observed by Meagher JA with whom Wood CJ at CL and Studdert J agreed in R v John Viana [2001] NSW CCA 171 [at 3]: "The principles of law applicable in this area have been laid down by this court in Bernier v R (1998) 102 A Crim R 44. There is in fact no statute which requires the non – parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 per cent. That is not to say that higher percentages cannot stand". 15 Factors identified as material to the determination of the appropriate ratio for a non – parole period include the length of the head sentence and its position in the permissible range: ( see Bernier (at 49) and Sweet 125 A Crim R 341 [at 346]), the seriousness of the offence and the prospects of rehabilitation (see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSW CCA 211 at [10] and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz, unreported, Court of Criminal Appeal, NSW 23 November 1993). 16 The need for general deterrence for social security fraud has been emphasised over the years by judgments of this Court (see for example Regina v Mears (1991) 53 A Crim R 141, Regina v Purdon, 27 March 1997 unreported.) 17 The applicant between August 1992 and May 2004 fraudulently obtained financial benefits from the Commonwealth in the sum of $309,351. Five false names were used, false documents were produced, bank accounts were opened and changes of address were given to the Department of Social Security . The offences were discovered only when a computer selection exercise was carried out by Centrelink. At the time of his arrest, the applicant was receiving Commonwealth benefits to which he was not entitled in three false names. 18 Her Honour described the offences of "considerable objective gravity" and was satisfied "this was a relatively sophisticated series of crimes". Her Honour found the offences were committed "because the offender was greedy". 19 Whilst her Honour did not make a specific finding of the applicant's prospects of rehabilitation, her Honour noted that the maker of the pre-sentence report "was not overly optimistic about his prospects for rehabilitation." 20 Due weight was given to the applicant's plea of guilty and subjective circumstances. Her Honour regarded the applicant's preparedness to sell properties as being co-operation or an expression of willingness to repay the monies dishonestly obtained. 21 No reasons were provided by her Honour, an experienced sentencing Judge, for determining the high proportion that the non – parole period bears to the aggregate head sentence. The failure however of an experienced sentencing Judge to mention such a matter is not conclusive of a failure to have regard to it: see R v Carr (2002) 135 A Crim R 171 at [34], R v Price [2004] NSW CCA 186 at [29]. 22 The applicants criminality was, in my view, of a high degree involving over eleven years of planned dishonesty. His fraudulent activity escaped detection over many years and a large sum of Commonwealth money to which he was not entitled was obtained. The aggregate effective head sentence after allowing for the plea of guilty and the subjective circumstances of the applicant was not at the upper level of the appropriate range. 23 The non – parole period of 3 years and 6 months appropriately reflects the seriousness of the applicant's criminality and meets the need for general deterrence. 24 I am not persuaded in the present case, notwithstanding the high percentage, that the non-parole period is such as ought to attract the intervention of this Court. 25 The Court, in my view, should not form as required by section 6 (3) of the Criminal Appeal Act 1912 an opinion that "some other sentence……..is warranted in law and should have been passed." 26 For these reasons, I would grant leave to appeal but would dismiss the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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