Citation: Ramirez v R [1999] NSWCCA 406
Court: New South Wales Court of Criminal Appeal
Date: 8 December 1999
Judge(s): James J; Sperling J
Background
The applicant had pleaded guilty in the District Court to fourteen counts spanning dishonesty offences: eight counts of using a false instrument, three counts of making a false instrument, and three counts of making a false statement with intent to obtain a financial advantage. The offences involved passing valueless cheques to retailers and providing false information in credit applications, committed over a period between 1993 and 1997.
Judge Viney sentenced the applicant to fixed terms of three months (for each using a false instrument count) and six months (for each making a false instrument and false statement count), all commencing February 2000. That start date was chosen to align with the expiry of a prior minimum term imposed by Judge Johnston in October 1997, which itself arose from convictions on four further fraud-related charges and took into account twenty-nine additional matters.
The applicant sought leave to appeal against those sentences in the Court of Criminal Appeal, raising several grounds challenging the sentencing judge's reasoning and the weight given to various factors.
Legal Issues
- Whether the sentencing judge took into account an irrelevant consideration or made a finding not reasonably open to him in characterising the applicant as having "conned innocent people out of huge amounts of money"
- Whether the sentencing judge failed to give adequate weight to the Crown's concession that the current offences would likely have been dealt with on a Form 1 or Form 2 alongside the earlier Johnston sentences, such that separate additional sentences amounted to a form of double jeopardy
- Whether the sentencing judge erred in declining to treat the applicant's alleged gambling addiction as a mitigating factor
- Whether the sentences imposed were manifestly excessive given the relatively minor nature of the individual offences
Decision
On the first ground, James J found no error. The remark about "huge amounts of money" was best understood as a reference to the amounts involved in the earlier Johnston proceedings, made in context of the judge explaining why he could not accept the applicant's account as truthful. The modest sentences actually imposed were inconsistent with the suggestion that the judge had overstated the gravity of the current offending.
On the second ground, the court found no error in Judge Viney's approach. Although the Crown had conceded the offences would likely have been bundled into the earlier Johnston sentencing if the paperwork had been available, Judge Viney concluded that additional criminality warranted something extra. Imposing separate, modest sentences for fourteen further offences was not shown to be erroneous, and the court endorsed the reasoning that the Johnston sentence would itself have been higher had those matters been included.
On the gambling addiction ground, the court rejected the submission on two bases. First, Judge Viney was entitled to disbelieve the claimed addiction, particularly given the applicant's history of offering different excuses at different sentencing hearings and her failure to give evidence herself. Second, the applicant's own expert, Dr Lewin, did not accept that a gambling problem accurately explained her conduct, finding instead a lifelong pattern of dependency and failure to learn from experience. The court also noted that even a genuine gambling addiction would have attracted little mitigation in these circumstances.
On manifest excess, the court found the sentences were plainly modest and could not be characterised as excessive. Although they would encroach by six months on the additional terms of the Johnston sentences, the applicant would still be eligible for parole during the final twelve months of that sentence.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's characterisation of an offender must be read in context: a passing remark does not constitute an irrelevant consideration if the sentence imposed is otherwise consistent with a correct assessment of the offending.
- Where multiple sentencing episodes involve overlapping subject matter, a court is not obliged to treat later offences as subsumed within an earlier sentence simply because they could have been dealt with together had paperwork been available.
- An unverified claim of a psychological condition advanced only through expert history-taking, and contradicted by the expert's own conclusions, provides a weak basis for mitigation of penalty.
- No error was established merely because consecutive or concurrent sentences partially encroach on the additional terms of a prior sentence, provided the overall structure remains proportionate.
- A history of advancing different excuses across separate sentencing proceedings is a matter properly taken into account by a sentencing court when assessing an offender's credibility and the weight to be given to claimed mitigating circumstances.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata provided.