Citation: Regina v Bojan [2003] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 28 February 2003
Judge(s): O'Keefe J; Bell J
Background
The applicant, a 50-year-old highly educated engineer, was convicted by a jury in the District Court on four counts of obtaining money by deception. Between 1 April and 23 April 2001, he falsely represented to a victim in the building trade that he could secure a glazing and gyprock contract in exchange for payment, ultimately obtaining $5,200. No such contract existed, and no repayment was made.
At the time of the offences, the applicant was on parole following convictions in 1997 for nine counts of fraudulent misappropriation, with 129 further offences taken into account. That earlier criminal conduct had involved a total of over $1.6 million. His parole was revoked in June 2001, though for a separate set of dishonesty offences committed in December 2000 and January 2001, not for the offences the subject of this appeal.
Kinchington DCJ sentenced the applicant to three years imprisonment with a two-year non-parole period on each count, to be served concurrently and backdated to the date of conviction (25 January 2002). The applicant abandoned his conviction appeal and sought leave to appeal on the ground that the sentences were manifestly excessive.
Legal Issues
- Whether the sentences were manifestly excessive given the objective seriousness of the offences, assessed primarily by reference to the dollar amounts involved.
- Whether the sentencing judge erred by failing to backdate the sentences further, or to allow partial concurrence with the balance of the earlier additional term, so as to avoid an appearance of double punishment for the parole breach.
- Whether the sentencing structure was inconsistent with the requirements of s 47 of the Crimes (Sentencing Procedure) Act 1999 in a manner that amounted to an improper accumulation of sentences.
Decision
On the question of objective seriousness, the Court rejected the argument that the modest dollar amounts meant the offences warranted only a light sentence. The sentencing judge had correctly treated the amount as only one factor. He identified the offences as part of a deliberate criminal scheme, carried out by an intelligent and educated man with an established history of dishonest offending, and committed while on parole. The judge also appropriately emphasised both specific and general deterrence, noting that deceptions designed to unjustly enrich offenders at the expense of trust in commercial dealings warranted custodial sentences of real severity.
On the backdating and double punishment argument, the Court found the factual premise underlying the applicant's argument was simply wrong. His parole was revoked because of the December 2000 to January 2001 offences, not because of the offences charged in the present appeal. Accordingly, his continued detention after the revocation was not caused by the present charges, and the backdating to the conviction date was not open to challenge on the basis that it gave the appearance of double punishment.
The Court clarified the scope of the principle drawn from Regina v Kaiva, noting that the observation in that case was directed to appearances rather than legal error. The concern about the appearance of double punishment did not arise on the facts of the present case, given the distinct sequence of events leading to the parole revocation.
On the s 47 ground, the Court found nothing in the sentencing remarks to suggest the judge had intended to accumulate the current sentences onto the previous full terms. The applicant's counsel could not point to any passage in the judgment supporting that proposition. This ground also failed.
Orders Made
- Leave to appeal refused.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the dollar amount obtained is only one factor in assessing the seriousness of a deception offence. A criminal scheme devised and executed by an educated, experienced offender against a background of prior dishonesty may properly be treated as serious even where the sum involved is relatively small.
- The principle that failing to backdate a sentence may give the "appearance of double punishment" (drawn from Regina v Kaiva) is narrow in its application. It depends on the specific sequence of events, and will not arise where the parole revocation was caused by separate conduct unconnected to the offences under sentence.
- A factual premise underlying a ground of appeal must be correct for that ground to succeed. Here, the applicant's double punishment argument depended on the incorrect assumption that his parole had been revoked due to the present charges.
- Committing further dishonesty offences while on parole for serious fraud is a significant aggravating factor that sentencing courts can and should weigh heavily, alongside considerations of specific and general deterrence.
- No error under s 47 of the Crimes (Sentencing Procedure) Act 1999 will be established by bare assertion. The Court required the applicant to identify specific passages in the sentencing remarks demonstrating improper accumulation, and in the absence of such passages the ground failed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 178A, 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47(1)(a), 47(2), 47(3)
Cases:
- Regina v Deeble (NSWCCA, 19 September 1991, unreported)
- Regina v Kaiva (NSWCCA, 9 November 1998, unreported)
- Regina v Jones (NSWCCA, 30 June 1994, unreported)
- Regina v Loh [2000] NSWCCA 23 (unreported)