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Court of Criminal Appeal 22 April 2005

Regina v Tabar

[2005] NSWCCA 165

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE OBTAINING MONEY BY DECEPTION SENTENCE NO PARTICULAR POINT OF PRINCIPLE

Citation: Regina v Tabar [2005] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 22 April 2005
Judge(s): Grove J, Howie J, Latham J

Background

The appellant pleaded guilty in the Sydney District Court to two counts of obtaining money by deception and two counts of passing valueless cheques, contrary to the Crimes Act 1900. The offending involved a persistent scheme in which the appellant falsely represented to acquaintances that he was a wealthy doctor awaiting the transfer of millions of dollars from the United States. He reinforced this fiction by staging telephone conversations with a real Reserve Bank employee who had no knowledge of him, and by producing a document purporting to be a cheque for USD 50 million drawn on an American bank.

The primary victim was a woman the appellant had known from childhood in Lebanon, from whom he obtained a net unrepaid amount of $28,000, some of which she had borrowed from friends. A second victim, a service station proprietor, was deceived into lending $5,000 under the same false pretences. The dishonoured cheques related to tyres, a car radio, and computer games obtained from separate businesses.

The District Court sentenced the appellant to a principal term of three years and eight months imprisonment with a non-parole period of two years and six months, together with shorter concurrent and fixed terms for the remaining counts. The appeal against conviction was abandoned before the hearing; only the sentence remained in dispute.

  • Whether the total effective sentence was manifestly excessive
  • Whether the individual sentences on each count were manifestly excessive
  • Whether the sentencing judge erred by proceeding on the basis that the appellant had no employment history in Australia
  • Whether the sentencing judge erred in allowing only a 10 percent discount for the guilty pleas

Decision

On the question of manifest excess, Grove J rejected the submission that the offences were insufficiently serious to attract the sentences imposed. The maximum penalty for obtaining money by deception under the Crimes Act 1900 was five years imprisonment. While the amounts involved were smaller than in some comparable cases, the Court found that the appellant had exploited a personal relationship, engaged in sustained deception over time, and demonstrated both planning and cunning by obtaining and using the Reserve Bank employee's contact details to lend apparent credibility to his claims.

The complaint about total accumulation of sentences was addressed by noting that the sentences for the valueless cheques and the Nasr deception were ordered to be served entirely concurrently, providing a counterbalancing benefit. The Court also noted that the appellant was on parole at the time of the offending, a significant aggravating circumstance. The appellant's prior criminal history, which included dishonesty offences recorded in 1976, 1990, 1992, and 2000, meant that no leniency was warranted, and the Court found no error in that conclusion.

On the employment history ground, the Court accepted that the sentencing judge's observation was literally accurate in that no formal employment record in Australia was before her. Given the significant credit findings made against the appellant following contested evidence about the amounts obtained, the Court found no indication that this observation had added material weight to the sentence.

Regarding the 10 percent guilty plea discount, the Court acknowledged that it might be described as not generous, given that the pleas were entered on the day of trial following the Crown's discontinuance of four additional charges. Nonetheless, the discount fell within the proper exercise of the sentencing judge's discretion, and no error was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sustained and personally targeted deception, even where the amounts involved are relatively modest, can warrant significant custodial sentences within the available statutory maximum.
  • A guilty plea entered on the day of trial, after the Crown discontinued related charges, does not automatically attract a generous discount; a 10 percent reduction was held to fall within the proper range of sentencing discretion.
  • Where a sentencing judge makes strong adverse credit findings against an offender based on contested evidence at a disputed facts hearing, those findings inform the weight given to other aspects of the offender's testimony at sentence.
  • The use of a real third party's identity to fabricate the appearance of legitimate financial dealings was characterised by the Court as evidence of planning and cunning, relevant to the objective seriousness of the offending.
  • Being on parole at the time of the offending was identified as a significant aggravating factor, reinforcing the conclusion that no reduction for leniency was available given the appellant's prior record of dishonesty offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA(1) (obtaining money by deception)
- Crimes Act 1900 (NSW), s 178B (passing valueless cheques)

Cases cited: None cited in the judgment text.