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Court of Criminal Appeal 20 December 2001

R.V. AL-ZAABI

[2001] NSWCCA 538

Fraud & dishonesty
CRIMINAL LAW SENTENCING CROWN APPEAL DELAY IN SERVING NOTICE OF APPEAL RESPONDENT AVOIDED SERVICE

Citation: R v Al-Zaabi [2001] NSWCCA 538
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2001
Judge(s): Beazley JA, Hulme J, Barr J (Barr J delivering the principal judgment, with whom Beazley JA and Hulme J agreed)

Background

The respondent, a man in his mid-twenties, pleaded guilty in the District Court to six offences committed in 1997 and 1998. The offences involved the fraudulent diversion of funds through EFTPOS machines at telecommunications businesses, totalling approximately $70,000 in unauthorised transfers, as well as related money laundering transactions using those proceeds to purchase a motor vehicle, car wheels, and electrical equipment.

The sentencing judge in the District Court imposed concurrent sentences of two years six months' imprisonment on the primary fraud counts, but fixed a non-parole period of only sixteen weeks and one day. Upon release to parole, the respondent failed to engage with the required gambling rehabilitation programme and eventually had his parole revoked after withdrawing from supervision by the Probation and Parole Service.

The Crown appealed the sentences as inadequate. A significant procedural complication arose because the respondent had evaded service of the notice of appeal, causing substantial delay before the matter came before the Court of Criminal Appeal.

  • Whether the delay in serving the notice of appeal, caused by the respondent evading service, should lead the Court to decline to interfere with the original sentence.
  • Whether the non-parole period of sixteen weeks and one day was manifestly inadequate relative to the head sentence of two years six months.
  • What weight should be given to the respondent's compulsive gambling, his personal circumstances, and his post-sentence conduct when resentencing.
  • How to structure the revised sentence to account for time already served, including periods on parole and in custody following parole revocation.

Decision

The Court found that the extremely short non-parole period was manifestly inadequate when measured against the head sentence. Under the applicable legislative framework, the minimum non-parole period is ordinarily three-quarters of the head sentence unless special circumstances justify a departure. The sentencing judge had identified the respondent's need for rehabilitation as a special circumstance, but the Court concluded the resulting non-parole period was disproportionately short.

On the question of delay, the Court did not accept that the respondent's deliberate evasion of service should act as a bar to intervention. The Court was unwilling to allow a person who had actively avoided service to benefit from the resulting delay in circumstances where the original sentence was plainly inadequate.

The Court took into account the respondent's compulsive gambling, the assistance this provided in explaining (though not excusing) the offending, and the genuine need for supervised rehabilitation. However, the post-sentence evidence also undermined confidence in the respondent's commitment to reform: he had failed to keep appointments with a gambling counsellor and had withdrawn from Probation and Parole supervision entirely, leading to the revocation of his parole.

Notwithstanding those concerns, the Court accepted that the prospect of a further period of custody might encourage a more realistic engagement with rehabilitation. The revised sentence was structured with an equal split between non-parole and parole periods, with parole conditioned on participation in the Salvation Army's William Booth Institute gambling rehabilitation programme.

Orders Made

  • The appeal was allowed.
  • The sentences imposed on the first, third and fourth counts were quashed.
  • In their place, on each such count, the respondent was sentenced to imprisonment for two years six months, commencing 21 February 2001 and expiring 20 August 2003.
  • A non-parole period of one year three months was fixed on each sentence, expiring 20 May 2002, on which date the respondent was directed to be released on parole.
  • Parole conditions required the respondent to report within 48 hours of release to the officer in charge of the Salvation Army's gambling rehabilitation programme at the William Booth Institute, to apply forthwith for admission, to enter the programme as soon as a vacancy arose, and to use best endeavours to complete it.
  • The Court noted that a non-parole period below the statutory three-quarters threshold was justified by the respondent's rehabilitation needs.

Key Takeaways

  • A respondent who deliberately evades service of a Crown appeal notice cannot rely on the resulting delay as a reason for the Court of Criminal Appeal to decline to interfere with an inadequate sentence.
  • The Court of Criminal Appeal confirmed that a non-parole period of only sixteen weeks and one day, against a head sentence of two years six months, was manifestly inadequate even where a sentencing judge had identified special circumstances warranting a shorter minimum term.
  • Where a respondent's post-sentence conduct contradicts their expressed commitment to rehabilitation, that conduct is a relevant consideration on resentencing, though it need not preclude the Court from structuring a sentence that continues to provide for supervised rehabilitation.
  • Compulsive gambling may constitute a mitigating factor capable of explaining an offender's conduct, but it does not of itself justify a non-parole period so short as to be disproportionate to the seriousness of the offending.
  • In calculating revised sentences, the Court took a practical approach to back-dating the commencement date to account for time already served, including the initial period of custody and time spent on parole before revocation.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Eastway, Court of Criminal Appeal, 19 May 1992 (unreported)
- R v Cartwright (1989) 17 NSWLR 243
- R v Clavert, Court of Criminal Appeal, 18 February 1983 (unreported)
- R v O'Neill, Court of Criminal Appeal, 24 July 1996 (unreported)
- R v Brillo, Court of Criminal Appeal, 14 May 1997 (unreported)
- R v Molesworth [1999] NSWCCA 43
- R v Fischer [2001] NSWCCA 143
- Bugmy v The Queen (1990) 169 CLR 525
- Malvaso v The Queen (1989) 168 CLR 227