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Court of Criminal Appeal 29 March 2005

Regina v George KATZ

[2005] NSWCCA 128

Fraud & dishonestyTheft & property
SENTENCING NOT SHOWN MENTAL ILLNESS DID SO NO NECESSARY EXTENT OF VARIATION VARIATION OPEN TO THE JUDGE NO ERROR SHOWN. ND

Citation: Regina v George KATZ [2005] NSWCCA 128
Court: New South Wales Court of Criminal Appeal
Date: 29 March 2005
Judges: Giles JA; Hoeben J; Johnson J

Background

The applicant pleaded guilty in December 2003 to four offences arising from a series of fraudulent transactions in August 1999. The offences involved using stolen bank cheques to obtain clothing and electrical goods worth tens of thousands of dollars, as well as stealing a television and video recorder from residential apartments. The crimes were committed over roughly a week using false identities and computer-altered cheques.

Following committal, the matter had a protracted history before the District Court. The applicant failed to appear in April 2002, then surrendered himself to police in September 2003 and was observed to be mentally unwell at that time. He ultimately entered his guilty pleas on 4 December 2003.

Delaney DCJ sentenced the applicant to an effective total of five years imprisonment with a non-parole period of two years and nine months, partially accumulating the sentences across the four offences. The applicant sought leave to appeal against sentence on three grounds.

  • Whether the 15 percent discount allowed for the pleas of guilty was inadequate, given the applicant's history of mental illness may have impeded earlier pleas
  • Whether the sentencing judge erred by making only a token variation to the statutory non-parole period ratio (reducing it from 75 percent to 70 percent) after finding special circumstances
  • Whether it was an error to partially accumulate the sentences across offences that formed part of the same course of conduct

Decision

On the first ground, the Court of Criminal Appeal found no error. The applicant's counsel acknowledged that the argument about mental illness impeding earlier pleas had not been squarely put to the sentencing judge. The psychiatric evidence showed admissions to hospital in 2003, but nothing in the material demonstrated that mental illness had prevented the applicant from entering pleas at the time of committal or in the period immediately following. The Court held the applicant had not provided the sentencing judge with a proper basis to reach that conclusion.

On the second ground, the Court rejected the submission that a finding of special circumstances carries any minimum required reduction in the ratio between sentence and non-parole period. Giles JA confirmed there is no prescribed extent to which the ratio must be varied once special circumstances are found, and a modest variation is not necessarily erroneous. The reduction from 75 percent to 70 percent was open to the sentencing judge on the particular facts.

On the third ground, the Court accepted that there was an argument the offences arose from a similar modus operandi over a short timeframe. However, it noted that the stealing offence was qualitatively different from the cheque fraud offences, and that the applicant had already seen his first use of a stolen cheque go wrong but nonetheless proceeded with further offences. The Court treated the ultimate question as one of totality, asking whether the overall sentence was proportionate to the overall criminality. The judge regarded the overall criminality as high and the degree of accumulation was slight. That approach was held to be entirely open.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in allowing a 15 percent guilty plea discount where the applicant failed to provide the sentencing judge with a proper evidential basis linking mental illness to the lateness of the pleas.
  • A finding of special circumstances does not require any particular minimum variation to the statutory ratio between the head sentence and the non-parole period; the extent of variation remains a matter of judicial discretion.
  • In dismissing the accumulation ground, the Court of Criminal Appeal confirmed that the central question when sentences are accumulated is whether the total sentence reflects overall criminality, not whether individual offences can be characterised as part of a continuous course of conduct.
  • Where an offending sequence contains qualitatively distinct offences, and where the offender had an opportunity to desist but continued, some accumulation is capable of being appropriate even within a short timeframe.
  • Appellate courts will not disturb a sentence simply because a different approach was open; the grounds each required demonstration of error, and none of the three grounds succeeded here.

Legislation and Cases Referenced

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383 (approach to discounts for pleas of guilty)
- R v Carter [2001] NSWCCA 245 (accumulation and course of conduct)
- R v Dib [2003] NSWCCA 117
- R v Sutton [2004] NSWCCA 225