Allouch v The Queen [2018] VSCA 244

1 On 15 February 2018, the applicant pleaded guilty in the County Court at Melbourne, to nine charges relating to a series of fraudulent credit card transactions. The charges included obtaining property by deception, attempting to obtain property by deception and possessing identification information to facilitate the commission of an indictable offence.

2 On 8 May 2018, the judge imposed an aggregate sentence of one year, with a non-parole period of six months. The applicant now seeks leave to appeal against sentence, pursuant to s 278 of the Criminal Procedure Act 2009.

3 The charges against the applicant, and the sentence imposed, are summarised in the following table:

Possess identification information to commit an indictable offence (Crimes Act 1958 s 192C)

Possess identification information to commit an indictable offence (Crimes Act 1958 s 192C)

Obtain property by deception (Crimes Act 1958 s 81) - course of conduct offence

Attempt to obtain property by deception (Crimes Act 1958 s 321M) - course of conduct offence

Obtain property by deception (Crimes Act 1958 s 81)

Attempt to obtain property by deception (Crimes Act 1958 s 321M)

Attempt to obtain property by deception (Crimes Act 1958 s 321M) - course of conduct offence

Obtain property by deception (Crimes Act 1958 s 81) - course of conduct offence

Attempt to obtain property by deception (Crimes Act 1958 s 321M) - course of conduct offence

S 464ZF forensic sample order made

But for the guilty plea a sentence of 18 months' imprisonment with a non-parole period of 12 months would have been imposed.

4 Prior to the hearing of this application, there were four grounds of appeal:

Ground 1

The learned sentencing judge denied the Applicant procedural fairness by failing to indicate that he was considering not imposing a CCO and failing to give the Applicant's counsel an opportunity to make further submissions on that issue.

Ground 2

The learned sentencing Judge erred in finding that the cases to which he had been referred established a sentencing range relevant to the Applicant's case.

Ground 3

The learned sentencing Judge erred in taking into account in sentencing the Applicant's failure to appear on 8 March 2018 and his failure to make contact with the court after failing to appear, given the uncertainty surrounding those matters, the production of a medical certificate, the re-bailing of the Applicant by police and the indication by the Prosecutor that there may be no prosecution arising from the failure to appear.

Ground 4

The sentence imposed was manifestly excessive in the light of:

(a) the stage at which the Applicant pleaded guilty;

(b) the fact that the Prosecution 'did not object to' a CCO;

(c) the Prosecutor's submission that a CCO was an appropriate disposition;

(d) the Applicant's low-level role in the offending;

(e) the sum of money obtained;

(f) the assessment of the Applicant as suitable for a CCO;

(g) the fact that the Applicant had served 42 days pre-sentence detention;

(h) the longer than usual period which elapsed between charging and the plea during which the Applicant had been of good behaviour; and

(i) the Applicant's lack of prior convictions for dishonesty.

5 During the course of oral submissions in the hearing before this Court, it emerged for the first time that, contrary to what the applicant's legal advisors had believed, at the time of the plea, the applicant may not have been an Australian citizen. Leave to file supplementary submissions regarding that issue was granted, it being understood that what was contemplated was an additional ground of appeal, based upon either 'fresh' or new evidence.

6 The Court has now been informed that the applicant is, indeed, a permanent resident rather than an Australian citizen. That means that, relevantly, he is a 'non-citizen' of this country pursuant to the Migration Act 1958 (Cth), with significant ramifications so far as the effects of the sentence imposed below are concerned.

7 As a result of that fact, by notice dated 20 September 2018, the applicant sought leave to add two further grounds of appeal against sentence. These were in the following terms:

Ground 5

The applicant's status as a permanent resident constituted fresh evidence and requires that the sentencing discretion be reopened and this factor to be taken into account in mitigation of sentence.

Ground 6

In order to avoid a miscarriage of justice, the sentencing discretion should be re-exercised in light of new evidence that demonstrates the true significance of facts in existence at the time of the sentence, including the applicant's personal and family life in Australia.

8 Between May and November 2016, the applicant fraudulently withdrew (or attempted to withdraw) cash from a number of automatic teller machines, and made purchases (or attempted to make purchases) from various retailers.

9 The 'clone cards' contained bank and pin details duplicated from a number of complainants' bank cards. The data was obtained from modified EFTPOS machines that had been installed into taxis. When a passenger paid their fare using a bank card, the modified machine recorded the details, which would then be used to create a clone card. The clone cards would then be used by the applicant, and others, to withdraw funds or purchase goods. Courts have previously described criminal operations of this kind as 'ghost terminalling'.

10 The applicant successfully withdrew a total of $6,770 in cash, and purchased a $100 gift card. He unsuccessfully attempted to withdraw a further $17,112 and unsuccessfully attempted to purchase gift cards valued at $1,240.

11 On 28 October 2016, the applicant was arrested on matters unrelated to those the subject of this appeal. He was found to be in possession of two credit cards, neither of which bore his name. Police investigations took some time, but eventually revealed that the cards had been legitimately issued by banks, but that the identification documents that had been provided for their issue were false. Police also ascertained that those cards had been encrypted with the details of other bank cards, which were connected to accounts that had been the subject of fraudulent withdrawals by unidentified persons.

12 The applicant was arrested on these charges on 22 February 2017. He made no relevant admissions to police save that he was the person who appeared in CCTV footage obtained during the investigation.

13 In relation to the applicant's personal circumstances, the judge noted that at the time of sentencing, he was 45 years of age. He had two children with his wife, then aged five and four, as well as five older children from a previous marriage.

14 In 2011, the applicant had suffered a stab wound to the back of his neck during an aggravated burglary at his home. This injury gave rise to ongoing back and kidney problems.

15 The judge also noted that the applicant had suffered from anxiety and depression since 2012. He had temporarily separated from his second wife, and had commenced using methamphetamine. He reported that, in 2014, he had begun using that drug twice daily. In 2015, he attempted suicide. Around that time, he also developed a gambling problem.

16 His Honour observed that, between April and August 2017, the applicant had received intermittent treatment for his mental health and addiction issues, largely as a result of his participation in court-ordered programs such as the Court Integrated Services Program. A report from his case manager suggested that he had failed to attend a number of drug and alcohol assessment appointments, and that his engagement was, at times, 'court driven'. The judge interpreted that comment to mean that the applicant had attended counselling sessions because he believed that it might reflect well upon him at some time in the future, presumably in connection with court proceedings.

17 In September 2017, the applicant commenced drug and alcohol counselling through Odyssey House. Despite having been scheduled to participate in 12 to 15 sessions, he was removed from the program in December 2017 by reason of non-attendance.

18 The judge considered the applicant's criminal record, noting that he had no prior convictions of any kind for dishonesty offences, though he did have several convictions for assault related offending. In addition, he had a large number of convictions for driving offences, principally for unlicensed driving, driving unregistered vehicles and failing to wear a seatbelt.

19 His Honour noted that between 2003 and 2015, the applicant had been convicted of failing to answer bail on 'no less than 13 occasions'.[1]

20 In May 2013, the applicant was sentenced to a 12 month Community Correction Order ('CCO'). In August 2014, he was convicted of breaching that order, and a further 15 month CCO was imposed. In October 2015, he was convicted of breaching the further CCO and was sentenced to one months' imprisonment.

21 The judge considered the mitigating factors that had been brought to his attention by counsel for the applicant. His Honour accepted that the applicant's involvement in the broader operation had been minimal. He had been provided with the clone cards that he had used by a co-accused, and had not been involved in their production. It was accepted that the applicant had little or no knowledge of any of the technical aspects of the operation. It was accepted by his Honour that his role was one of a 'foot soldier'.[2]

22 It was submitted on behalf of the applicant, on the plea, that he had not obtained any significant personal advantage from the offending. That submission was rejected as being inconsistent with the applicant's explanation that the offending had occurred in the context of his suffering from substance abuse issues, and a gambling addiction. Accordingly, his Honour found that the offending was more likely motivated by the prospect of financial gain.

23 The applicant's plea of guilty, some six months after his arrest, was taken into account. His Honour considered that although not an early plea, it did have utilitarian value in that it obviated the need for a trial.

24 The judge characterised the applicant's culpability for the offending as 'high'.[3] In relation to his prospects for rehabilitation, his Honour noted the applicant's history of failing to appear (including on one occasion less than two months prior to the date of sentence), and concluded that those prospects were 'guarded at best'.[4]

25 The judge ultimately imposed the 12 month aggregate sentence that he did, notwithstanding that he had received a report from Corrections Victoria which concluded that the applicant was a suitable candidate for a CCO.

26 His Honour listed four reasons for doing so, namely:

(a) the applicant's lack of genuine attempt to tackle his alcohol and drug problems, which were directly connected to his offending conduct, and evidenced by his failure to attend counselling;

(b) his failure to answer bail on a number of occasions, including on 8 March 2017, casting doubt on his prospects for rehabilitation;

(c) his prior convictions for contravening two CCOs, both of which were cancelled for non-compliance and further offending; and

(d) that, based on an analysis of current sentencing practice, dispositions for similar offending generally involved significant periods of imprisonment.

27 As previously indicated, the applicant contended by way of ground 1 that he was denied procedural fairness because the judge had not indicated that he was considering imposing a custodial sentence. That failure, so he contended, deprived his counsel of the opportunity to make further submissions on that issue.

28 It was submitted that the obligation on the part of the judge to give such an indication was borne out of the Corrections Victoria report recommending a CCO. The imposition of a CCO was supported by the prosecution on the plea, as counsel did not oppose a non-custodial sentence. This failure to accord procedural fairness was said to have given rise to a substantial miscarriage of justice.

29 In response to that submission, the respondent referred to the following statement by the trial judge when he ordered that the applicant be assessed for a CCO:

Perhaps I can cut you short and say this, that I would be prepared to have him assessed today and presumably that can be done in the next few hours. I'll get my associate to contact the relevant people, but I don't think that that should be taken as anything hint at all that I'm going down that path. I would want to read these decisions that have been referred to me and just - I'll know that there's obviously differences, there are differences in every case. But I'd like to read the decisions before coming to any firm conclusion that that is the appropriate way to go.[5]

30 Accordingly, the respondent submitted that there was no denial of procedural fairness to the applicant because his counsel had effectively been put on notice that he may not be released on a CCO.

31 The second proposed ground concerned the judge's finding that the cases to which he had been referred had established a sentencing range relevant to the applicant's case. It was submitted that there were too few cases to establish any such range, and that those relied on were disparate from the applicant's offending and circumstances. Plainly, it was said, four cases do not constitute 'current sentencing practice'.

32 In relation to ground 2, the respondent pointed to the objective gravity of the offending. It occurred over a period of six months, and involved over seven individual complainants. Moreover, his Honour made clear in his reasons that he appreciated the differences in seriousness between the cases referred to and the present case.

33 It was submitted by the applicant in support of ground 3 that the judge had erred in failing to take into account the true facts underlying the applicant's failure to appear on 8 March 2017. The applicant had obtained a doctor's certificate on that date, and erroneously believed that he was not required, in those circumstances, to attend Court.

34 Proposed ground 4 is a manifest excess ground. Under the rubric of that ground, the applicant relied upon his plea of guilty, his low-level role in the offending, his having served 42 days pre-sentence detention, and his lack of prior convictions for dishonesty.

35 Had the matter rested there, we would almost certainly have refused leave to appeal. Proposed ground 1 is devoid of merit, as the judge made it perfectly clear that he had not come to a concluded view that a custodial sentence would not be imposed. Equally, there is no merit in proposed ground 2. The judge dealt appropriately with the limited number of cases to which reference had been made in the course of the plea. There may perhaps be some force in proposed ground 3, as the explanation for the applicant's failure to attend Court on the day in question seems to have been accepted by the police, and should not, we think, have formed part of any conclusion arrived at as regards prospects of rehabilitation. Nonetheless, there was ample justification for his Honour's finding in that regard.

36 Finally, proposed ground 4 is without substance. The sentence of 12 months' imprisonment, with a non-parole period of six months, was clearly within range.

37 This brings us to proposed grounds 5 and 6. Leave to add these grounds was not opposed, and was accordingly, granted.

38 The belated discovery that the applicant is not, as apparently had been thought, an Australian citizen is a matter of real significance. As previously indicated, he is, in truth, the holder of a permanent residency visa only, and is therefore at law a 'non-citizen' of this country.

39 The prospect that an offender is liable to deportation following sentence is, of course, a relevant sentencing factor.[6] As the respondent properly conceded, the relevance of an offender's immigration status, as regards the possibility of deportation, is twofold:

(a) it may be relevant to the hardship that will be felt by an offender, uncertain as to whether at the end of his sentence, he (and perhaps his family as well), will be required to uproot themselves, and return to his country of origin; and

(b) it is additionally punitive because it destroys the opportunity to settle permanently in this country.

40 Of course, a court should only reduce a sentence based upon the prospect of deportation where there is sufficient evidence of both the risk, and the impact of that risk, under s 501(3A) of the Migration Act 1958 (Cth) ('the Act'). That section, in combination with other sub-sections,[7] relevantly provides that a 'non-citizen' is liable to deportation where he or she is convicted of an offence and sentenced to a term of imprisonment of at least one year. A person is similarly liable to deportation if they have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.[8]

41 On 11 December 2014, amendments to the Act came into force which made visa cancellation mandatory for an offender sentenced to imprisonment of one year or more, unless the Minister is later satisfied, by the applicant, that there is a reason to revoke the cancellation decision. In other words, the effect of the amendment is to require a permanent residency visa to be cancelled, , and to impose upon the 'non-citizen' whose visa has been cancelled, the obligation to dissuade the Minister from deporting him or her. The net effect may be to cause the offender to be put into migration detention pending the lengthy period that it is likely to take before a final resolution of the matter has been achieved. In some cases, that may be months, if not, years.

42 The question to be considered under proposed grounds 5 and 6 is whether the applicant's newly discovered status as a 'non-citizen' can be taken into account by this Court in determining whether the appeal against sentence should be allowed.

43 Of course, the fact that the applicant was merely a permanent resident and not an Australian citizen at the time of the plea, is not a fact that has arisen after sentence was imposed.

44 There are some limited, circumstances in which this Court can receive additional evidence on an appeal against sentence. The principles that govern the reception of such evidence were set out by this Court in R v Nguyen.[9] Upon the admission of the additional evidence, it if is received, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive. The question is whether, on all of the material now before the Court, any different sentence should be substituted if a miscarriage of justice is to be avoided.

45 It is difficult to see how the applicant's status as a non-citizen can legitimately fall within the limitations imposed upon the reception of 'fresh evidence'. In accordance with Lawless v The Queen,[10] fresh evidence is that 'of which the accused was unaware at the time of his trial and ... which he could not have discovered with reasonable diligence'.

46 On the evidence before this Court, the applicant seems to have been uncertain of his own migration status at the time of the plea. He told his legal representatives that his Lebanese passport had been stolen in 2014, along with all of his identification documents, but said that although he was unsure of his immigration status, he believed that he was a 'permanent citizen'. Self-evidently, he was wrong about that. At the same time, it is difficult to see how it can be said that he could not, with reasonable diligence, have discovered the true position.

47 However, even where additional evidence does not qualify as fresh evidence, courts have traditionally permitted additional evidence to be led where the interests of justice have so dictated. The decision to receive such evidence remains a discretionary one. The Court will examine the circumstances of, and an explanation for, the non-production of that evidence, and will strive to ensure that justice is done.

48 In the present case, it is clear that the failure to inform the sentencing judge of the applicant's immigration status was not a deliberate decision, knowingly taken. It appears to have been the result of ignorance on the part of the applicant's legal representatives as to the potential importance of such evidence. Undoubtedly, it was highly relevant, so far as the plea was concerned.[11]

49 It was conceded by the respondent that the sentencing judge had proceeded on an imperfect appreciation of the true facts as to the applicant's immigration status. It was further conceded that this additional evidence was admissible and should now be taken into account. Indeed, it was acknowledged that the evidence involved a highly relevant sentencing consideration. In a written supplementary submission, it was said on behalf of the respondent:

It is difficult to imagine that the sentencing judge in this case would not have mitigated the sentence [had he known of the applicant's true immigration status] so as to avoid the triggering statutory provisions in respect of deportation.

50 Bearing in mind the concession made on the plea that a CCO alone (without any custodial sentence), may have been within range (a concession that seems to us to have been extraordinarily generous), it can nevertheless be seen that a sentence of less than 12 months' imprisonment would almost certainly have been imposed, had the judge been made aware of the true facts.

51 We were told that the applicant has been informed that he will be granted parole on 23 October 2018, based on the six month non-parole period fixed below. We consider that justice will best be served if the 12 month sentence and six month non-parole period are now set aside on the basis of the additional evidence currently before this Court. In lieu thereof, there should be a straight sentence that will expire at about the same time as the date of his projected release. In effect, that means a sentence of seven months' imprisonment, with appropriate orders for pre-sentence detention to be taken into account.

52 It should not be assumed that we consider a sentence of seven months' imprisonment as necessarily appropriate for this offending. As we have indicated, had it not been for the additional evidence regarding the applicant's immigration status, we would have refused leave to appeal.

53 For the avoidance of doubt, our intention is that the applicant should have completed the sentence we now impose at about the same time as his non-parole period under the existing sentence would have expired.

[1] DPP v Allouch [2018] VCC 645 [18] ('Reasons'). His Honour repeated that the applicant had 13 prior convictions for failing to answer bail at [27]. At the hearing before this Court, it was revealed to be unclear how many times the applicant had in fact been convicted of that offence.

[6] See Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, Konamala v The Queen [2016] VSCA 48 and Da Costa Junior v The Queen [2016] VSCA 49; (2016) 307 FLR 153.

[7] See Migration Act 1958 (Cth) ss 501(6)(a), 501(7)(c), 501CA.

[9] [2006] VSCA 184 [36]-[37].

[10] [1979] HCA 49; (1979) 142 CLR 659, 675.

[11] Khoury v The Queen [2011] NSWCCA 118; (2011) 209 A Crim R 509 (Simpson J). See also Betts v The Queen (2016) 258 CLR 420 [10], where the High Court made it clear that a Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.