Alam v The Queen [2015] VSCA 48

2 The applicant was sentenced on 13 November 2014 to be imprisoned for 12 months on charge 1 and for two (2) years on charge 2, producing a total effective sentence of two (2) years' imprisonment. The judge also imposed a pecuniary penalty of $87,167.74. It was ordered that the applicant be released after serving ten months' imprisonment, upon him giving security by a recognisance[3] in the sum of $2,000 to comply with conditions, first, that he be of good behaviour for a period of five years, and, secondly, that he pay the pecuniary penalty order in full by 30 June 2015.

3 Leave to appeal against sentence was sought on the following ground:

The sentence imposed on the charge of Falsely representing to be a Commonwealth Official, the Total Effective Sentence and the period of imprisonment to be served before release on a Recognisance Release Order were manifestly excessive.

4 For the reasons that follow we would grant the application for leave to appeal, allow the appeal and resentence the applicant in the manner we will later set out.

5 Each offence to which the applicant pleaded guilty related to his involvement in a fraudulent scheme in which the victims were duped into making applications for visas to the 'Department of Immigration and Citizenship'. The victims believed that they were making genuine applications, but, in fact, they were tricked into paying money to fraudsters for visas that would not be forthcoming.

6 At interview, the applicant told police that he was introduced to the scheme by a man named Saifal Islam, who was based in Singapore. Islam had provided him with the details of a number of Bangladeshi individuals who wished to make visa applications. The applicant created a series of false documents that purported to demonstrate the lodgement and progress of the visa applications.

7 Charge 1 related to the creation of five false documents, created between 12 February 2011 and 14 June 2012. The bogus documents included a false receipt for visa applications and letters relating to the progress of other visa applications, each of which were headed 'Australian Government Department of Immigration and Citizenship'. As payment for his involvement in the fraudulent scheme, between 20 February 2011 and 17 November 2011 the sum of $87,167.74 was remitted to the applicant via Western Union transfers from Singapore. In turn, the applicant transferred $51,974 to family members and associates in Bangladesh.

8 Charge 2 related to seven phone calls made by the applicant between 22 July 2011 and 23 July 2011 in which the applicant purported to be from the Department of Immigration and Citizenship and falsely advised various victims as to the progress of their supposed visa applications, reading from a prepared script that had been emailed to him by Islam.

9 The scheme was uncovered when four Bangladeshi construction workers made enquiries as to the progress of their visa applications with the Australian Department of Immigration and Citizenship in Singapore.

10 Police executed a search warrant at the applicant's home on 24 May 2013. Three records of interview were later conducted on 24 May 2013, 18 July 2013 and 12 August 2013. The applicant was charged on 21 May, 2014.

11 In support of the contention that the sentence was manifestly excessive, counsel for the applicant submitted that the sentence of two years' imprisonment on charge 2 represents forty per cent of the maximum available sentence, yet the applicant had pleaded guilty at an early stage, in circumstances where the sentencing judge accepted that the plea had utilitarian benefit and that the applicant had demonstrated contrition. Further, counsel pointed out that the persons who had received the telephone calls the subject of charge 2 had not made statements, so that the applicant's admissions and co-operation with police should have been seen as particularly significant. The applicant had already repaid $42,000, and had taken steps to refund all of the $87,167.74 improperly obtained. He had agreed to a pecuniary penalty order for the whole sum.

12 The applicant, counsel submitted, had no prior convictions, was otherwise of good character and had a solid work history. It had been accepted by the sentencing judge that the applicant was unlikely to re-offend and thus that specific deterrence was minimally important. Moreover, there had been a delay of three and a half years since the start of the offending on charge 2 and sentence, during which the applicant had not re-offended, had been in employment and had cared for his family.[4] The judge accepted that imprisonment would be more burdensome on the applicant because of concern for his family in Bangladesh, his concern for the medical condition of his two year old son[5] and his concern about the prospects of deportation.[6]

13 In the written case, counsel for the respondent submitted that the applicant's offending was very serious. It deprived people who could least afford it of significant sums and exploited their trust. The applicant had been an 'active and willing participant' in the fraudulent scheme, and his fraudulent activity was of an 'elaborate and enduring' nature. As the judge found, the applicant's moral culpability was high, emphasising the need for general deterrence. Further, while the judge found some contrition, she had also noted that it had taken the applicant three records of interview to be fully frank with investigating police.

14 It was submitted that, whilst the applicant was to be sentenced for two charges, both charges were 'rolled up' charges,[7] involving multiple false documents and multiple false representations. Charge 1 related to five false Commonwealth documents; and charge 2 related to seven false representations as a Commonwealth public official. The sentence on charge 2, representing forty per cent of the available statutory maximum, had to be seen in that light. Furthermore, the sentence had to be viewed against the context that the applicant's conduct on charge 1 was not limited to the creation of five false documents, but was part of an ongoing enterprise during which the Applicant created an unknown (but large) number of other false documents. In these circumstances, the sentence could not properly be described as manifestly excessive.

15 The applicant was born in Bangladesh on 2 December 1985, and is aged 29 years. He married in Bangladesh in February 2008, and his wife joined him in Australia in February 2010. They have a three year old son, born 21 March 2012. The child was born with a hand deformity which will require corrective surgery.

16 Having completed secondary education, and commenced tertiary studies, in Bangladesh, the applicant came to Australia on a student visa in February 2007. He completed a Bachelor's degree in accounting in February 2011. During his time in Australia he has been in steady employment as a barman, cashier and storeman, including during the period he was studying. Whether he will be permitted to remain in this country, or will be deported, is unknown. The available material shows that the applicant is a man of previous good character, in a steady relationship with his wife (and child), who has, as we have mentioned, achieved tertiary qualifications in this country whilst being steadily employed. He is, as the judge found, unlikely to reoffend.

17 Moreover, the applicant co-operated with police - albeit three interviews were required for the full picture to emerge - and provided them with information about other offenders and the fraudulent scheme. His cooperation extended to providing investigators with necessary passwords for email accounts, so that they might obtain ready access to incriminating material on the applicant's computer. The applicant's plea of guilty was entered at the very earliest opportunity (committal mention), had palpable utilitarian benefit and was accompanied by remorse. Despite severe financial difficulties, he had made substantial reparation in contemplation of a pecuniary penalty order being made, and did not make any attempt to contest the making of a pecuniary penalty order.[8] These features went significantly in mitigation.

18 On one level the applicant's offending was serious, since innocents were duped into handing over substantial sums in the belief that they were dealing with Australian officials. Nonetheless - even paying due regard to the context in which the offending occurred - charge 1 involved but five false documents; and charge 2, seven telephone calls.

19 In light of these matters, we have concluded that the sentence on each charge, and thus the total effective sentence, is manifestly excessive. As has been said many times, manifest excess is a conclusion which does not admit of much in the way of sustained argument. Intuitively synthesising for ourselves the various features relevant to sentence - including the circumstances of the offences and of the applicant, and the aggravating and mitigating factors - we are of the view that the sentence imposed in the County Court is beyond the range of those open in the proper exercise of the sentencing discretion.

20 Counsel had sought a community correction order ('CCO') from the sentencing judge. It is probable that the approach taken by the sentencing judge in this case would have been different had she had the benefit of the guidance later provided by this Court in Boulton,[9] which makes plain that sentencing courts need to rethink the conventional wisdom about whether prison is really the only option. Boulton emphasised the grave disadvantages of imprisonment, and the unique advantages of a CCO, in permitting significant punishment to be imposed whilst at the same time advancing an offender's rehabilitation in a way that imprisonment cannot.

21 Taking into account the dictates of general deterrence and the other factors bearing on sentence, and having regard to the totality of the applicant's offending, in our opinion the proper exercise of the sentencing discretion dictated the imposition of a significantly shorter period of imprisonment actually to be served, coupled with a substantial period of supervision while undertaking community work.

22 For these reasons, the application for leave to appeal against sentence will be granted and the appeal allowed. The sentences imposed in the County Court on 13 November 2014 will be set aside. In lieu, we will impose the following sentences. On charge 1, making a false Commonwealth document, the appellant is convicted and sentenced to be imprisoned for 12 months, to be released after serving four months' imprisonment upon him giving security by a recognisance[10] in the sum of $2,000 upon condition that he be of good behaviour for a period of three years. On charge 2, falsely representing to be a Commonwealth official, the appellant is

convicted and sentenced to a community correction order[11] of three years' duration, with a condition[12] that he perform 300 hours' community work[13] over three years. It is declared that the period of 131 days be reckoned as the period of imprisonment already served pursuant to the sentence on charge 1. The pecuniary penalty order,[14] and any other ancillary orders, made by the County Court are otherwise confirmed.

[1] Criminal Code (Cth), s 144.1(5). The maximum penalty is imprisonment for 10 years. By virtue of s 4B of the Crimes Act 1914 (Cth) a pecuniary penalty of $66,000 is also available.

[2] Criminal Code (Cth), s 148.1(3). The maximum penalty is imprisonment for 5 years. By virtue of s 4B of the Crimes Act 1914 (Cth) a pecuniary penalty of $33,000 is also available.

[3] Crimes Act 1914 (Cth), s 19AC(1).

[4] R v Merrett, Pigott and Ferrari [2007] VSCA 1; (2007) 14 VR 392.

[5] Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589.

[6] Guden v The Queen (2010) 28 VR 288.

[7] As to the approach to be adopted by courts sentencing for 'rolled up' charges, see R v Jones [2004] VSCA 68, [12]-[13] (Charles JA); R v Beary [2004] VSCA 229; (2004) 11 VR 151, [11]-[14] (Callaway JA); Wong v The Queen [2013] VSCA 52, [25] (Priest JA); DPP v Jones (a pseudonym) [2013] VSCA 330, [78]-[80] (Redlich and Priest JJA).

[8] See Proceeds of Crime Act 2002 (Cth), s 320(a).

[9] Boulton v The Queen [2014] VSCA 342.

[10] Crimes Act 1914 (Cth), s 19AC(1).

[11] A community correction order under Part 3A of the Sentencing Act 1991 is available for a federal offence by virtue of s 20AB(1) of the Crimes Act 1914 (Cth) and reg 6 of the Crimes Regulations 1990 (Cth), with, perhaps, one qualification that is unimportant in the present case. For a state offence, s 7(1)(e) of the Sentencing Act 1991 permits a community correction order to be imposed with or without conviction, whereas s 20AB(1) of the Crimes Act 1914 (Cth) contemplates that an order in the nature of a community correction order may only be made 'in respect of a person convicted' of a federal offence.

[12] Apart from the terms that are included in every community correction order by virtue of s 48 of the Sentencing Act 1991.

[13] Sentencing Act 1991, s 48C.

[14] See Crimes Act 1914 (Cth), s 20AB(4).