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10
Court of Criminal Appeal 24 August 2006

Assi v Regina

[2006] NSWCCA 257

Fraud & dishonesty
CRIMINAL LAW SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: Assi v Regina [2006] NSWCCA 257
Court: New South Wales Court of Criminal Appeal
Date: 24 August 2006
Judge(s): Tobias JA, Howie J, Rothman J

Background

The appellant was a former solicitor whose practising certificate had been cancelled in 1999 following dishonesty offences. Despite being subject to a Supreme Court order prohibiting him from holding himself out as a solicitor, he continued to approach members of the public as one and obtained money from them through a series of fraudulent schemes. His victims included a man he had previously represented as a solicitor, who paid him over $11,000 in stamp duty that was never remitted, and an accountant who paid him $10,000 in legal fees for work that was never performed.

The appellant pleaded guilty in the District Court in November 2004 to four counts of fraud-related offences under the Crimes Act 1900, comprising two counts of fraudulent misappropriation and two counts of obtaining money by deception. Seven additional matters were listed on a Form 1 document (a procedure by which related offences are taken into account at sentencing without separate conviction). Critically, several of the offences were committed while the appellant was on bail or on parole for earlier similar offences.

Latham DCJ sentenced the appellant in February 2005 to an effective total term of seven and a half years, with a minimum non-parole period intended to be four and a half years. The appellant, who appeared without legal representation in the Court of Criminal Appeal, sought leave to challenge the sentences on multiple grounds, including manifest excess and an arithmetical discrepancy in the non-parole period as calculated.

  • Whether an arithmetical discrepancy between the stated non-parole period and the dates calculated from the individual sentences constituted a sentencing error requiring correction.
  • Whether the sentence on count 1 (relating to the misappropriation of $7,250) was manifestly excessive.
  • Whether the sentence on count 2 (relating to the $10,000 deception) was manifestly excessive.
  • Whether the sentencing judge gave insufficient weight to the clustering of three of the four offences within a five-month period.
  • What relevance, if any, a pathological gambling addiction had to the overall sentences imposed.

Decision

The Court identified a genuine arithmetical discrepancy in the sentencing structure. The sentencing judge had stated an intention to impose a non-parole period of four and a half years, but the individual sentence dates, when calculated cumulatively, produced a non-parole period of four years and nine months. This discrepancy was a proper basis for the Court to intervene in a limited way.

On the ground of manifest excess, the Court declined to interfere with the substantive length of any individual sentence. Howie J, with whom Tobias JA and Rothman J agreed, found that the overall criminality before the sentencing judge was serious. The offences were committed by a former solicitor who exploited positions of trust while already on bail or parole for prior similar offending, and who was operating in breach of a Supreme Court order. The Court was not persuaded that the total sentence was disproportionate to that criminality.

The Court also addressed the relevance of the appellant's pathological gambling addiction. While the condition was acknowledged as a mitigating factor going to moral culpability, it did not displace the need for sentences that reflected the objective gravity of sustained, premeditated fraud against vulnerable victims. The addiction did not reduce the sentences to the point where the grounds of manifest excess could be made out.

The Court granted leave to appeal and allowed the appeal only to the extent necessary to correct the non-parole period discrepancy on count 4, reducing that component from nine months to six months so that the overall non-parole period aligned with the sentencing judge's stated intention. A subsequent order was also required to adjust the commencement date of separate contempt sentences imposed in the Supreme Court in March 2005, which had been structured to begin upon expiry of the District Court non-parole period.

Orders Made

  • Leave to appeal was granted and the appeal was allowed, but only to address the discrepancy between the stated non-parole period and the calculated expiry date.
  • The non-parole period for count 4 was quashed and replaced with a non-parole period of 6 months, expiring 16 August 2009, being the date upon which the appellant became eligible for release to parole.
  • The contempt sentences imposed in the Supreme Court on 4 March 2005 were each ordered to commence on 17 August 2009.
  • The non-parole period of those contempt sentences (3 months) was ordered to expire on 16 November 2009, being the date of release to parole.
  • The total term of each contempt sentence was ordered to expire on 16 August 2010.

Key Takeaways

  • An arithmetical discrepancy between a sentencing judge's stated intention as to the overall non-parole period and the dates produced by individual cumulative sentences is a correctable error, even where the substantive sentences themselves are not disturbed.
  • Offending committed while on bail or parole for similar offences is a significant aggravating feature; the Court of Criminal Appeal confirmed that such circumstances support substantial cumulative sentences without those sentences being manifestly excessive.
  • A pathological gambling addiction may be recognised as reducing an offender's moral culpability, but it does not automatically produce a finding of manifest excess where the objective gravity of sustained, trust-based fraud is high.
  • Where a correction to a non-parole period affects the commencement of separate sentences imposed in another court, the Court of Criminal Appeal may adjust those downstream sentences under the Crimes (Sentencing Procedure) Act to eliminate gaps in the sentencing structure.
  • Former solicitors who exploit client trust relationships after losing their practising certificates, and while subject to court orders prohibiting them from practising, face the compounding effect of both the breach of trust and the breach of judicial orders at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178A (fraudulent misappropriation, maximum 7 years) and 178BA (obtaining money by deception, maximum 5 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases:
- R v Molesworth [1999] NSWCCA 43