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Court of Criminal Appeal 7 June 1999

Regina v Grammenos

[1999] NSWCCA 145

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE SENTENCE EXCEPTIONAL CIRCUMSTANCES

Citation: Regina v Grammenos [1999] NSWCCA 145
Court: Court of Criminal Appeal, New South Wales
Date: 7 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The applicant was a 22-year-old woman sentenced in the Sydney District Court for a large number of offences involving false instruments and obtaining valuable things by deception. The offences spanned several years, beginning when she was 16, and involved a scheme in which she deceived a bank into releasing funds from other customers' accounts. The proceeds were spent feeding what the Court accepted was a gambling addiction.

The applicant's psychological history was significant. At age 16 she discovered that she had been conceived through an arrangement involving her father and an acquaintance of her mother, and her birth mother subsequently refused contact. This discovery appears to have triggered considerable emotional distress, which the Court accepted as a substantial contributing factor to her offending.

Despite being repeatedly urged by multiple District Court judges to obtain legal representation, the applicant refused to do so and appeared for sentence unrepresented. As a consequence, the sentencing judge at first instance had no access to the psychiatric and psychological material that later came before the Court of Criminal Appeal.

  • Whether the sentence of five years penal servitude imposed in the District Court was excessive in light of mitigating material that was not before the sentencing judge.
  • Whether the Court of Criminal Appeal should admit fresh evidence of psychiatric and psychological matters that had not been ventilated below, where that absence was a direct result of the applicant's refusal to seek legal assistance.
  • Whether the time already served in custody (approximately six months) was sufficient, making a non-custodial order appropriate on resentencing.

Decision

Grove J, with whom Carruthers AJ agreed, granted leave to appeal and allowed the appeal. The Court admitted fresh affidavit evidence about the applicant's psychological background and personal circumstances, noting that the sentencing judge had been left with manifestly inadequate material through no fault of his own. Both the Crown and the applicant's senior counsel invited the Court to intervene, which was described as reflecting the Crown's fair recognition of the unusual combination of circumstances.

The Court was at pains to emphasise that the case was not a precedent and should not be read as any encouragement for an offender to refuse legal representation in anticipation that the Court of Criminal Appeal will later reduce a sentence. Grove J stated clearly that intervention was warranted only because of a combination of highly unusual factors, including the applicant's youth, absence of prior criminal record, the psychiatric context of the offending, and the unavailability of mitigating material below.

On the question of whether time served was sufficient to justify a fully non-custodial outcome, the Court rejected that submission. The multiplicity and seriousness of the offences, committed consciously over an extended period, made a non-custodial disposition inappropriate. However, giving the applicant full credit for all available mitigating factors, the Court reduced the total sentence on the section 300 offences from five years to three years penal servitude.

The Court found special circumstances justifying an extended additional term beyond the standard statutory proportion, as Patten DCJ had also done below. The structure of the resentence reflected that finding, with the minimum term set at 15 months and the additional term at 21 months.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentences on offences contrary to sections 300(1) and 300(2) of the Crimes Act quashed and replaced with concurrent total terms of three years penal servitude, comprising a minimum term of 15 months commencing 26 November 1998 and expiring 25 February 2000, and an additional term of 21 months commencing 26 February 2000.
  • Applicant to be released to parole on 25 February 2000.
  • Fixed terms of 12 months imprisonment on each section 178BA offence confirmed, to be served concurrently commencing 26 November 1998.

Key Takeaways

  • A significant body of mitigating material that was not before the sentencing court, through the direct result of an unrepresented offender's own refusal to seek legal advice, can nonetheless ground appellate intervention where the Crown joins in inviting that outcome.
  • The Court of Criminal Appeal explicitly stated that this decision stands as no precedent and should not encourage any offender to refuse legal assistance in expectation of a more favourable outcome on appeal.
  • Where an offender's psychological state and personal history substantially contributed to the offending, those matters carry meaningful weight in mitigation, even on a serious and prolonged course of fraudulent conduct.
  • A non-custodial outcome remained inappropriate despite the availability of strong mitigating factors, where the offences were numerous, serious, and committed over an extended period.
  • Special circumstances justifying an additional term beyond the standard statutory proportion can exist alongside findings that reduce the overall sentence length; the structural division of minimum and additional terms remains available on resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 300(1) (making a false instrument), s 300(2) (using a false instrument), s 178BA (obtaining a valuable thing by deception)
- Sentencing Act (NSW), s 5(2) (standard proportion of additional term to minimum term)

Cases cited: None cited in the judgment.