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11
Court of Criminal Appeal 17 April 2009

Ghamraoui v R

[2009] NSWCCA 111

Assault & violenceFraud & dishonesty
CRIMINAL LAW AND PROCEDURE SENTENCE MULTIPLE OFFENCES FINDING OF SPECIAL CIRCUMSTANCES CUMULATED SENTENCE RESULTING IN NON MARKEDLY LENIENT IMPOSITION

Citation: Ghamraoui v R [2009] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 17 April 2009
Judge(s): Grove J, Howie J, Buddin J

Background

The applicant, a mortgage broker, was sentenced in the District Court on two separate indictments. The first indictment covered seven counts of fraud arising from two residential property transactions in which the applicant submitted false documents, fabricated identities, and obtained mortgage funds through sham conveyances, causing net losses to mortgage insurers totalling approximately $364,000. A further six offences were taken into account on a Form 1.

The second indictment charged robbery. On the evening of 27 July 2006, the applicant followed a motorist for roughly eight kilometres, forced the vehicle to stop, and demanded money, taking $30 from the victim's wallet. The robbery occurred while the applicant was on bail for the fraud offences. Three further driving offences were brought forward under a certificate procedure.

Knox DCJ in the District Court imposed fixed terms for the fraud counts (concurrent, with the longest being three years and six months), a sentence with a non-parole period of two years and six months for the robbery (to commence after the fraud sentences expired), and concurrent fixed terms for the driving offences. The overall effect was a head sentence of six years and nine months with a minimum custody period of five years and six months, representing approximately 81 per cent of the total sentence, compared with the statutory ratio of 75 per cent under s 44 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred in applying his finding of special circumstances, resulting in a non-parole period that was proportionately greater than the statutory formula would produce.
  • Whether this Court should formulate general principles for determining overall non-parole periods where multiple offences result in cumulated sentences.

Decision

The Court dismissed the application for leave to appeal. The applicant argued that although the sentencing judge found special circumstances justifying an adjustment to the statutory ratio, the resulting non-parole period was in fact proportionately larger than the standard ratio, not smaller. This appeared to contradict the purpose of finding special circumstances, which ordinarily works in an offender's favour by reducing the proportion of the sentence that must be served before parole eligibility.

Grove J declined to formulate general principles about overall non-parole periods in cumulated sentence cases, finding the present application was not a suitable vehicle for that exercise. Even assuming error by the sentencing judge, the Court found that no lesser minimum period of custody was warranted. The overall sentences were characterised as markedly lenient, and any further reduction would have produced a result verging on inadequate to reflect the applicant's criminality and the need for both general and specific deterrence.

Howie J noted that where a judge structures cumulated sentences so that the resulting ratio of minimum custody to total term exceeds the statutory ratio, the judge should expressly acknowledge that this is the intended outcome. It does not require reasons, but the intention should be stated so that the Court of Criminal Appeal is not left to infer it. Howie J also observed that the sentence for the robbery was itself very lenient, particularly given it was made partly concurrent with the fraud sentences despite being a separate serious offence committed on bail.

Buddin J agreed with both Grove J and Howie J, specifically endorsing the observation that judges should acknowledge when a cumulated sentence structure is intended to produce a ratio greater than the statutory default.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal declined to establish a general guideline or approved approach for calculating overall non-parole periods across cumulated sentences, finding the case unsuitable for that purpose.
  • Where cumulated sentences result in a ratio of minimum custody to total term that exceeds the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999, the sentencing court should at least acknowledge that this is the intended result, even without giving reasons for it.
  • A finding of special circumstances does not itself constitute reversible error where the overall sentence is so favourable to the offender that no further reduction is warranted.
  • Even if error is established, the Court of Criminal Appeal will not intervene where the sentence is already markedly lenient and reduction would produce an outcome inadequate to reflect the offender's criminality and the need for deterrence.
  • The Court also noted, without elaborating, that the sentencing remarks in this case were overly prolix, signalling a preference for concise sentencing judgments.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Hung Lo v R [2005] 159 A Crim R 71
- NRW v R [2008] NSWCCA 318
- Perry v R [2006] 166 A Crim R 385