Citation: Regina v Ramirez [1999] NSWCCA 52
Court: Court of Criminal Appeal, New South Wales
Date: 8 March 1999
Judge(s): Simpson J; Smart AJ
Background
The appellant had pleaded guilty to two counts of fraudulent misappropriation and two counts of obtaining property by deception, with a further 29 offences taken into account at sentencing. The offences involved a sustained pattern of dishonest conduct between 1993 and 1995, during which the appellant exploited the trust of victims to misappropriate funds intended for property and machinery purchases, obtained title deeds and a financial advantage through deception, and fraudulently extracted money from an elderly pensioner neighbour. The total financial loss to victims was estimated at around $250,000.
The District Court sentenced the appellant to concurrent sentences of a minimum term of two years and six months penal servitude plus an additional term of 18 months. The sentencing judge found special circumstances, applied sympathy to the appellant's personal difficulties, and gave careful consideration to her gambling addiction.
The appellant sought leave to appeal against the severity of those sentences, arguing principally that the absence of specialist gambling addiction counselling at Mulawa Correctional Centre justified a reduction in the minimum term.
Legal Issues
- Whether the absence of specialist gambling addiction counselling at Mulawa provided sufficient grounds to reduce the minimum term of imprisonment
- Whether the sentencing judge's exercise of discretion was within an acceptable range, given the objective seriousness of the offending and the appellant's prior criminal history
- Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including her gambling addiction and her role as a parent
Decision
The Court of Criminal Appeal rejected the argument that the lack of specialist gambling counselling at Mulawa warranted a reduction in the minimum term. Smart AJ noted that prison authorities cannot be expected to provide this type of counselling as a matter of course. The court also observed that imprisonment itself would impose an enforced restriction on the appellant's ability to obtain money dishonestly and fund her gambling habit.
The court was not persuaded that the sentencing judge had proceeded on the assumption that such counselling would be available in custody. The appellant's argument that counselling arranged for after release would become "stale" by that time was rejected without elaboration, as the court found the submission did not provide a sufficient basis to interfere with the sentence.
The sentencing judge had approached the subjective circumstances with care and sympathy, but was properly constrained by the high degree of objective criminality. The appellant had a prior record of dishonesty offences dating from 1990, had received progressively escalating sentences, and had committed some of the current offences while on parole and on bail. The Court of Criminal Appeal agreed that the sentences imposed were correct and well within the proper exercise of the sentencing discretion.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that the absence of specialist treatment programs in a particular correctional facility does not, of itself, constitute a sufficient basis to reduce a minimum term of imprisonment.
- Where objective criminality is high, sympathy for an offender's personal circumstances, including addiction and parenting responsibilities, will not necessarily produce a reduction in the minimum custodial term.
- A history of prior dishonesty convictions, combined with offending committed while on parole and on bail, will weigh heavily against leniency at sentencing and on any subsequent appeal.
- In dismissing the appeal, the court emphasised that imprisonment carries its own practical restraint on an offender's capacity to fund and engage in addictive behaviour, a factor relevant to the weight given to addiction as a mitigating circumstance.
- Upholding the original sentence, the Court of Criminal Appeal reaffirmed that appellate intervention in sentencing discretion is not warranted unless the sentence is outside the range reasonably open to the sentencing judge.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 178A (fraudulent misappropriation)
- Crimes Act (NSW), s 178BA (obtain property by deception)
Cases: No cases were cited in the judgment text provided.