Citation: GOLUBOVIC, Jonny v R [2010] NSWCCA 39
Court: New South Wales Court of Criminal Appeal
Date: 4 March 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J
Background
The applicant pleaded guilty in the District Court to six counts of obtaining property by deception under s 178BA(1) of the Crimes Act 1900, with a further 34 offences taken into account on Form 1s. The offending spanned roughly March 2007 to March 2008 and involved fraudulently obtained plasma televisions, hair products, air travel tickets, and vehicle finance, with a total value exceeding $250,000.
The applicant was arrested on 16 October 2008 and remained in custody from that date. He entered his guilty pleas at the Central Local Court on 9 July 2009, and Berman DCJ sentenced him in the District Court on 28 August 2009 to an aggregate term of three years imprisonment, with a non-parole period of 18 months.
The applicant sought leave to appeal in the Court of Criminal Appeal, appearing unrepresented. The urgency of the matter was noted, given his non-parole period was due to expire on 15 April 2010.
Legal Issues
- Whether the sentencing judge erred by not imposing entirely concurrent sentences across all offences
- Whether the sentencing judge erred by allowing only a combined 40 per cent discount for the early guilty plea and assistance to authorities
- Whether the sentencing procedure was conducted erroneously because it relied on agreed facts that were inadequately presented to the court
- Whether the sentence was manifestly excessive
Decision
Harrison J (with McClellan CJ at CL and Howie J agreeing) found each ground of appeal to be without merit.
On the question of concurrency, the Court found no error in the sentencing judge's approach to structuring the sentences with some cumulation. The aggregate non-parole period of 18 months was a proper exercise of the sentencing discretion given the volume, variety, and duration of the offending.
On the discount for plea and assistance, the Court found that the 40 per cent combined discount was not shown to be erroneous. The sentencing judge had taken both factors into account, and no appealable error in the apportionment was identified.
On the agreed facts ground, Harrison J found that while the sentencing judge had criticised the prosecution's presentation of the material as disorganised and unnecessarily burdensome on the court, his Honour had nonetheless been able to master the facts and proceed appropriately. No procedural error arose from the way the agreed facts were presented. The appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate non-parole period of 18 months was appropriate for an offender who committed more than 40 deception offences over approximately one year, with a total value exceeding $250,000.
- A combined discount of 40 per cent for early guilty plea and assistance to authorities was not disturbed, with no appellable error identified in how the sentencing judge apportioned those two considerations.
- Where a sentencing judge is critical of the way agreed facts are presented by the prosecution but nonetheless finds the factual basis sufficient to proceed, no error in the sentencing procedure is established.
- Sentencing judges are not required to impose entirely concurrent sentences across multiple offences simply because they arise from a broadly related course of conduct; the structure of sentences remains a matter of discretion.
- No error arises solely because prosecution material was compiled by separate police investigative teams and presented without consolidation, provided the sentencing judge is ultimately able to identify and apply the relevant facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA(1) (obtaining property by deception)
Cases cited:
- Della-Vedova v R [2009] NSWCCA 107
- MAJW v R [2009] NSWCCA 255
- R v XX [2009] NSWCCA 115
- S v R [2008] NSWCCA 186
- SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249