Citation: Regina v Williams [1999] NSWCCA 244
Court: New South Wales Court of Criminal Appeal
Date: 30 June 1999
Judge(s): Sully J; Bell J
Background
The appellant was a 70-year-old man who had pleaded guilty to eleven offences of obtaining money by deception, contrary to s 178BA of the Crimes Act 1900. The offences were committed between late 1995 and mid-1997 and targeted three elderly women, from whom the appellant obtained a combined total of approximately $46,835. All of the money was spent on gambling or personal pursuits, and none was recoverable.
In the Newcastle District Court, Judge Job QC sentenced the appellant to four years' imprisonment on each count (comprising a minimum term of three years and an additional term of one year), with all sentences to run concurrently. The appellant, who was unrepresented and assisted in preparing his submissions by a fellow inmate, sought leave to appeal those sentences in the Court of Criminal Appeal.
The appellant's stated purpose was to have the sentences replaced with a recognisance to be of good behaviour, relying primarily on his remorse and his deteriorating physical health.
Legal Issues
- Whether the sentencing judge made appellable error in imposing the concurrent four-year sentences.
- Whether the appellant's remorse and physical condition warranted a reduction in, or substitution of, the sentences imposed.
Decision
The Court confirmed the applicable standard for sentence appeals: the appellant must demonstrate appellable error by the sentencing judge. It is insufficient to show that a different judge might have taken a more lenient view, and it is not relevant whether the appellate judges themselves would have imposed a different sentence had they been the primary sentencing judges.
Sully J reviewed the remarks on sentence in detail and found no error in the approach taken by Judge Job. The sentencing judge had properly characterised the offences as "nasty" and had regard to the significant and permanent financial harm suffered by elderly victims, at least two of whom were in their eighties.
On the question of remorse, the Court accepted that the appellant was sorry "in a sense and up to a point," but noted this provided no comfort to the victims who had permanently lost substantial sums. On his physical condition, Sully J expressed sympathy but noted no basis to conclude the appellant was not receiving proper and humane treatment in custody. No ground for interference with the sentences was established.
Orders Made
- Leave to appeal granted.
- Appeal against sentences dismissed.
- Recommendation on page 10 of the remarks on sentence confirmed.
Key Takeaways
- A sentence appeal in the Court of Criminal Appeal requires the appellant to demonstrate appellable error by the sentencing judge; it is not enough to show that a different judge might have imposed a lesser sentence.
- Remorse, while capable of being considered as a mitigating factor, does not automatically reduce or substitute a sentence, particularly where victims have suffered serious and permanent harm.
- Physical ill-health in custody does not of itself constitute a ground to reduce or vary a sentence unless there is reason to believe the offender is not receiving proper care.
- Where an offender targets multiple elderly and vulnerable victims over an extended period, and the proceeds are entirely dissipated, courts are unlikely to treat the absence of restitution as a mitigating consideration.
- Concurrent sentences of four years for eleven dishonesty offences involving a total loss exceeding $46,000 to vulnerable victims were upheld as within the proper exercise of the sentencing discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA (obtaining money by deception; maximum penalty five years' imprisonment)
- Justices Act (NSW), s 51A (procedure for dealing with summary matters and taking additional matters into account at sentencing)