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Court of Criminal Appeal 10 October 2000

Regina v Sinanovic

[2000] NSWCCA 386

Fraud & dishonesty
CRIMINAL LAW OBTAINING MONEY BY DECEPTION LEAVE TO APPEAL AGAINST CONVICTION UNMERITORIOUS APPEAL

Citation: Regina v Sinanovic [2000] NSWCCA 386
Court: New South Wales Court of Criminal Appeal
Date: 10 October 2000
Judge(s): Fitzgerald JA, Newman J, Greg James J

Background

The applicant was convicted in the District Court on two counts of dishonestly obtaining money by deception under s 178BA of the Crimes Act 1900. The prosecution case was that the applicant falsely represented to a complainant that he could supply Greek drachma at a highly favourable exchange rate (approximately 210 drachma per Australian dollar, compared to the prevailing market rate of around 162) and that the funds would be returned within three to four days. Relying on these representations, the complainant handed over $10,000 on 18 August 1993 and a further $53,200 the following day.

Between then and October 1993, the applicant returned only a small amount of drachma (equivalent to roughly $700 in Australian currency). He also gave the complainant some Peruvian currency, which could not be converted in Australia, and which the complainant returned. Karpin DCJ, who presided over a judge-alone trial, convicted the applicant on both counts.

The applicant was sentenced to cumulative terms of imprisonment and had served those sentences by the time the appeal was heard. He was, however, in custody for other matters. He did not appeal within the prescribed time and sought extensions of time, with the appeal ultimately coming before the Court of Criminal Appeal on 8 September 2000, more than four years after the conviction.

  • Whether an extension of time to appeal against conviction should be granted, given the delay in lodging the application.
  • Whether any of the numerous grounds of appeal raised by the applicant (including alleged denial of natural justice, abuse of process, prejudice, bias, malicious prosecution, conspiracy and corruption, and absence of evidence) had any substance.
  • Whether leave to appeal against sentence should be granted, including whether there was an error in the sentence as recorded on the warrant.

Decision

The Court dismissed both the application for leave to appeal against conviction and the application for leave to appeal against sentence. All three judges concluded that every ground raised was entirely untenable.

The applicant was unrepresented and appeared with the assistance of his wife, who was granted leave to represent him for part of the proceedings. The Court noted the significant burden placed on it by the manner in which the appeal was conducted: voluminous written submissions arrived by facsimile on the eve of and morning of the hearing, the grounds of appeal were sweeping and generalised, and repeated attempts were required to extract any particularised basis for the complaints. Newman J observed that the applicant had raised "a myriad of unarguable propositions."

On the sentence appeal, the applicant contended that a warrant attached to the indictment recorded a minimum term of thirteen months rather than the fourteen months he actually served. The Court found this was a plain transcription error. The warrant itself specified dates (29 January 1996 to 28 March 1997) that clearly corresponded to a fourteen-month term, consistent with the sentencing judge's remarks on sentence.

Greg James J noted the potential applicability of s 18(3) of the Criminal Appeal Act 1912, which allows the Court to order that time spent in custody does not count toward sentence where an appeal is frivolous or unarguable. Because that provision was not raised during the hearing, the Court did not act on it, but Greg James J flagged that in an appropriate future case, the Court may need to consider whether such an order should be made.

Orders Made

  • Application for leave to appeal against conviction dismissed.
  • Application for leave to appeal against sentence dismissed.

Key Takeaways

  • In dismissing both applications, the Court of Criminal Appeal confirmed that broadly framed, unparticularised grounds of appeal will not survive scrutiny if no arguable substance can be identified behind the generalised assertions.
  • A transcription error in a warrant does not establish a sentencing error where the specified dates on the face of the warrant are unambiguous and consistent with the sentencing judge's remarks.
  • Where an appeal is conducted in a way that places a disproportionate burden on the Court (through late submissions, voluminous material, and sweeping unparticularised grounds), the Court will record its observations about that burden.
  • Section 18(3) of the Criminal Appeal Act 1912 provides a mechanism to order that time in custody does not count toward sentence in cases of frivolous or unarguable appeals, though the Court declined to invoke it here because the point was not raised at the hearing.
  • Unrepresented applicants may be permitted to receive assistance from a lay person (such as a spouse) during appeal proceedings, but that leave remains subject to withdrawal at the Court's discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Criminal Appeal Act 1912 (NSW), ss 10, 18(3)
- Criminal Procedure Act 1986 (NSW), s 32(1)

Cases:
- R v Lawrence (1981) NSWLR 122
- The Queen v Costache (CCA, unreported, 13 November 1990)