DPP v Truong [2004] VSCA 172

5. After the prosecutor had opened the facts of the case, the sentencing judge proceeded to hear a plea for leniency on behalf of the present respondent. On 6 May 2004 his Honour convicted the respondent on each of the 22 counts and sentenced him to be imprisoned for three months on each. He directed that the sentences on counts 2, 3 and 4 be served cumulatively on the sentence on count 1 and that the sentences on all other counts be served concurrently with the sentence on count 1. Accordingly the total effective sentence was 12 months' imprisonment. He directed that six months of that sentence be suspended for three years. He ordered that the prisoner pay compensation in the sum of $109,326 to the Commonwealth Bank of Australia.

8. The Director of Public Prosecutions by notice served on 3 June 2004 has appealed pursuant to s.567A of the Crimes Act 1958 against the sentence on the ground that it is manifestly inadequate. By way of Particulars the notice contends that, in fixing the individual terms of imprisonment, in making the orders with respect to cumulation and concurrency and in ordering that six months of the total effective sentence of 12 months be suspended for three years, his Honour failed adequately to reflect the gravity of the offences generally and in the particular case; failed to take into account or sufficiently into account the aspects of general deterrence and specific deterrence (both of which were mentioned by his Honour as needed); gave too much weight to factors going to mitigation; and gave insufficient weight to the respondent's relevant prior criminal history and the breach of trust involved in the present offending.

11. Before the ground of appeal can be considered it is necessary to summarise the facts of the offending and also desirable to indicate the course of his Honour's sentencing remarks. During the period of offending the respondent was employed, or at least engaged, as an Ezy Banking Consultant with the Ezy Banking Call Centre of the Commonwealth Bank of Australia. He commenced that employment on 17 April 2000. His duties included being a telephone operator and answering enquiries from Ezy Bank customers. To assist him to perform these duties, the bank provided him with access to its main computer, which included access to accounts and personal information held at the bank. Using that information, the respondent dishonestly obtained a total of $113,326 by four different methods, variations on a theme, summarised in his Honour's sentencing remarks. All methods involved accessing the bank account of a customer or customers and making withdrawals from the account or transfers out of it to other accounts from which he then made withdrawals. In the great majority of counts there were multiple withdrawals or transfers, the highest number seeming to be 35 and the total to be about 150. At least one of the methods was readily detectable and was adopted during the latter stages of the respondent's offending, at a time when, the judge said, he had either become reckless or desperate or both. The bank reimbursed all the victims the moneys they had lost through the actions of the respondent.

14. The respondent was arrested on 19 November 2001 at the Commonwealth Bank building. During a search of him, the duplicate card of the male victim of count 22 was found together with $4,000 cash. (It is for that reason that the compensation ordered to be paid was $4,000 less than the total dishonestly obtained.) A recorded interview of the respondent was conducted the same day. The respondent admitted that he was desperate for money for gambling, said that all of it went to a TAB and that he had a gambling problem. He made partial admissions of the offences put to him, not being able to recall all of the details. Not all allegations were put to him as the extent of the offending was not known at the time of the interview. A search of the respondent's residence revealed a number of receipts for items such as furniture, sound systems, a large screen television and alcohol. There were also receipts for a cash deposit of $15,000 on the respondent's house and $8,000 deposit on his BMW vehicle. The dates of those receipts were between February and August 2001. He said in the interview that he must have spent those moneys and then said that it was his wife who had done so.

17. After stating the methods employed by the respondent, his Honour pointed out that his offending involved a great many individual acts of dishonesty. He said that it did not follow by any means from the bank's reimbursing each of the customers affected that the episode was painless for them. They would first have experienced the shock of discovering their accounts had been debited and would then have had an anxious wait while the bank verified the claim, and some must have been considerably inconvenienced by not having access to their funds for a period. There was also, his Honour said, a considerable breach of trust involved, which was an aggravating circumstance. His Honour noted that the respondent had pleaded guilty and admitted his wrongdoing from the outset, though not to its full extent. He was nevertheless entitled to and would receive an actual reduction in sentence, his plea of guilty having saved the cost of the trial and further inconvenience to witnesses and having produced certainty of outcome, which was very much in the public interest.

20. His Honour noted that the respondent had admitted prior convictions. Those on 18 November 1999 were on seven charges of obtaining property by deception. The offences had been committed by the respondent as an employee of the Royal Automobile Club of Victoria. He had accessed the Club's data base and stolen approximately $2,500 from members. He breached the community-based order imposed on that occasion, presumably by committing the offences resulting in his next court appearance, which was in October 2000. As regards them, he had as an employee of the City Link operator accessed the credit card details of a customer or customers and, using that information, had purchased tickets to the tennis to the value of $2,749, which he attempted to scalp. He was in the early stages of the community-based order imposed for that offending when he committed the subject offences. That, his Honour pointed out, correctly, was another aggravating circumstance. There was some subsequent offending, his Honour said, which, though not aggravating the present offences, was relevant in other respects. At the Magistrates' Court at Preston on 3 June 2002 he had been convicted of two counts of burglary and two related counts of theft. He had entered premises of two universities and stolen a purse in one case and a handbag in the other. He had been sentenced to two months' imprisonment wholly suspended for 12 months and also sentenced to be released on a community-based order for 12 months with counselling for gambling.

23. His Honour turned to the facts personal to the offender. He noted his age of 31 years. He was married but had no children. He had been born in Vietnam and fled as a refugee with his family in about 1980. After nearly nine years in a refugee camp in Hong Kong he had migrated to Australia in 1989 at about the age of 17. He had obtained his VCE and gone to the university, graduating in science and mathematics. Though unable to obtain work in his chosen field, he obviously had no difficulty in obtaining employment. Clearly, his Honour said, he was bright and willing to work.

26. Gambling had been his undoing and had led to all his offending. He had first sought gambling counselling on the eve of his first court appearance. Extensive counselling, however, did not prevent him from re-offending. His Honour noted that the respondent's gambling counsellor said that his gambling had ceased in March 2002. This was difficult to verify though the fact that he was not known to have offended since then was a positive sign. Although his Honour accepted that an addiction to gambling was the principal explanation for the subject offending, his Honour said it was likely that the respondent spent some of the money on comfortable living. In other words, he was prepared to steal not only to fund his gambling habit but also to support his lifestyle. Referring to a submission that the respondent's sentence should be moderated because of mental illness, his Honour said the material before him simply did not support that conclusion for reasons he gave during the plea.

29. His Honour stated that the offences were serious, that the amount stolen was substantial, that there was a significant breach of trust, that there had been no restitution and that the applicant had relevant prior convictions. His gambling could be given limited weight as a mitigating circumstance in view of the fact that he had had "a wake-up call" in 1999 and again in 2000. The courts were usually prepared, his Honour said, to give some leeway when a gambler first offended, but, if the offender did not take the opportunity given, it was difficult to justify much consideration on the basis that the offences were gambling-related. It was a great pity that the matter had taken so long to come to court. An extensive investigation was necessary to discover the full extent of the respondent's offending and this unfortunately took a considerable time. His Honour said that his experience was that offences of dishonesty involving credit cards (as these did) were rife at the present time. At the end of the day the cost is borne by consumers. Confidence in the system is undermined. Clearly there is a need for general deterrence. Although there were positive signs of rehabilitation, the risk of further offending could not be ruled out, so there was a need for special deterrence as well.

32. The respondent's counsel had conceded that the only appropriate sentence was one of imprisonment, but had urged that it be served in home detention. His Honour was not persuaded that home detention was appropriate having regard to the gravity of the offending and the need for deterrence. In the course of pronouncing the sentence already stated, his Honour said that he had concluded that the total effective sentence should be one of 12 months' imprisonment, six months of which would be suspended. Rather than attempt a "artificial exercise in accumulation", he would simply order that the sentences on counts 2, 3 and 4 be served cumulatively on that on count 1. His Honour said that in his opinion there was real utility in making an order for partial suspension. "My purpose is to ensure that in the next three years you will have a powerful incentive to refrain from gambling," because, as the respondent well knew, if he gambled again, the likelihood was that he would commit further crimes and, if he did that, his Honour would direct that he serve the balance of the sentence. The respondent was intelligent enough to appreciate the need for undergoing counselling without an order for that.

35. On appeal it was submitted for the appellant that the following aspects of the case, singly or together, established that the individual sentences and the total effective sentence were manifestly inadequate namely:

* As conceded by counsel for the respondent below, the offences were in a "serious category" and "premeditated" and were committed in breach of trust.

* The offences (or, rather, all but two of them) were committed while the respondent was on a community-based order for offences of dishonesty and the first of them was committed about three weeks after he had been brought up for a breach of the earlier community-based order. Shortly after apprehension for the present offences, he committed two burglaries with associated thefts.

* The respondent had prior convictions for dishonesty from two previous court appearances and had on each occasion been released on a community-based order, which he breached by similar offending. The earlier offences appeared to have involved breach of trust and misuse of computer access.

* Aside from the plea, there was little by way of mitigation. Apart from remorse demonstrated by the plea (and, it may be added, the interview) remorse was virtually non-existent because of the subsequent offending. Delay, it was submitted, did not appear to have been taken into account.

* If the respondent's gambling addiction was taken into account, it was submitted that his Honour was in error in according any weight to it in the circumstances of this case. It was accepted that the cases[1] did not exclude a gambling addiction as a mitigating factor but did say that it was rarely mitigating. It might possibly mitigate if it was a severe condition and the offending was "one off".

43. It was secondly submitted for the appellant that his Honour had taken an unusual course in constructing the sentence. "Rather than attempt a quite artificial exercise in accumulation" his Honour, in disregard of the approach enjoined as ordinarily preferable in Director of Public Prosecutions v. Grabovac[2], had ordered the total cumulation of the sentences on counts 2, 3 and 4 on count 1 and otherwise the sentences on the other counts were to be served concurrently. It was submitted that cumulation should have been directed on the sentence on the most serious count, which, it was suggested, was count 21, which involved $19,600. As a result of the course adopted by his Honour, a less serious offence "... took on an undeserved primacy, whilst the most serious offence ... was, or appeared to be, diminished".[3] Moreover, it was submitted, there should have been considerably more cumulation, especially in the case of the more serious offences. Again, the submission continued, the individual sentences for the more serious offences should have been higher. By way of example, it was submitted that a longer period of imprisonment than three months should have been imposed on counts 14, 21 and 22, where the cash obtained was $8,000, $19,600 and $8,000 respectively, whilst the sentence on count 7, where the amount obtained was $786, might have been imprisonment for one month only. Finally, it was submitted that the order for partial suspension was manifestly inadequate. That was supported by the absence of any explanation for partial suspension. It was submitted that his Honour should have had reservations about the respondent's ability to avoid breaching the suspension and it was pointed out that an order for partial suspension did not carry with it counselling, though it was suggested from the Bench that, as his Honour intended, suspension might be a real sword of Damocles. Counsel did say that he could not rule out that there might have been some suspension if there had been a substantially higher sentence (not exceeding three years' imprisonment), though he submitted that, if this Court came to re-sentence, it should not adopt a disposition by way of suspension.

46. It is convenient to mention immediately that senior counsel for the respondent began his oral submissions by stating that the second submission for the appellant smacked of an allegation of specific error, which was not a ground of appeal. In any event, it was submitted, in order to succeed the appellant must demonstrate that the sentence was manifestly inadequate. Whilst I accept the latter submission, I consider that it was open to the appellant to make the second submission by way of explaining the manifest inadequacy for which he had contended in his first submission.

49. The written submissions for the respondent began by summarising usefully the submissions below of the prosecution and respondent on penalty, the respondent's case below, the judge's findings and remarks, the ground of appeal and its particulars and the principles applicable to a Crown appeal. The following submissions were then made. It was said that it may be acknowledged that the total effective sentence, and order for partial suspension, were lenient. But the orders were also replete with wisdom. Plainly the sentencing judge had had regard to all relevant sentencing considerations and had not taken into account any irrelevant considerations. He had balanced the nature of the offences (including their seriousness) against the respondent's personal circumstances. There were relevant considerations pointing in different directions and vying for paramountcy. Thus, for example, the sentencing judge had had to balance general and specific deterrence against the prospects of rehabilitation. (It was pointed out in oral submissions that there had been no further offending between 18 March 2002 and the date of sentence and that, according to the psychologist Patrick Newton, the respondent's gambling was under control from March 2002.[4]) His Honour had been entitled to regard the respondent's "pathological" gambling addiction as mitigatory[5] and could not be said to have given it undue weight.

52. In the end the sentencing judge, it was submitted, seemed to form the view - orally it was said that there was no mystery - that the respondent's prospects of rehabilitation weighed heavily in the balance. Thus, he adopted a "carrot and stick" approach to encourage reformation. By suspending half of the term of imprisonment for three years the judge imposed an effective period of "probation" (with a further six months actual imprisonment months' being the almost inevitable result of recidivism by reason of s.31(5A) of the Sentencing Act 1991). It was added orally that it must work to the community's benefit if the sentence turns the respondent away from gambling. The discretion of sentencing judges should not be unduly circumscribed. They are entrusted with a substantial discretion. The fact that members of an appellate court would have exercised the sentencing discretion differently is not to the point. The judge's purpose was to foster rehabilitation. On one view, the resulting sentences were lenient, but they were open.

55. In any event, it was submitted, even were an increase thought by this Court to be warranted, the principle of double jeopardy would moderate any resulting sentence to such an extent that in the exercise of its residual discretion the Court should decline to interfere. Orally, it was added that a small increase in the sentence would be "tinkering".

58. In oral submissions counsel stated that the respondent accepted the principle in Grabovac whereby a sentencer should strive to award proper sentences on each count and arrive at a proper total effective sentence by proper cumulation directions. However, that, it was said, was the theory. A sentencer looks at the overall criminality and sets out to achieve a total effective sentence appropriate to it. That was what the sentencing judge had done here. Counsel invited the court to look at the total effective sentence and the order for suspension. It was said that, because the respondent had pleaded guilty, the requirements of Grabovac were not so acute as they would be where one had to allow for the possibility of a successful appeal against conviction. But this overlooks Pearce v. The Queen[6]. There, when the offender had pleaded guilty to the offences in question, McHugh, Hayne and Callinan, JJ. upheld the principle in Grabovac (though not by name) and stated that to have regard only to the total effective sentence was likely to mask error.

61. The principles applicable to Crown appeals are well known. It is sufficient for present purposes to state the following. A substantial discretion is confided to sentencing judges. It is not readily to be interfered with on a Crown appeal. However, an occasion for doing so may arise where a sentence reveals such manifest inadequacy as to constitute error in principle, where it is necessary to maintain adequate standards of punishment or where a sentence is so disproportionate to the seriousness of the crime as to shock the public conscience.[7] It is not enough that members of the appellate court would have exercised the sentencing discretion differently or consider the sentence inadequate. The sentence must be manifestly inadequate. That a sentence is manifestly inadequate is a conclusion that frequently does not admit of much amplification.

64. In my opinion, essentially for the reasons which follow, the sentences on at least counts 3, 4, 8, 14, 17, 21 and 22, the directions for cumulation and the order for suspension of all but six months of the aggregate term of imprisonment were manifestly inadequate. (If, accepting the respondent's invitation, the court confined attention to the total effective sentence and the order for suspension, my opinion of them would be the same.) The distinguishing feature of the individual sentences I have listed as being manifestly inadequate is either the amount of cash obtained (in the case of counts 3, 14, 21 and 22, in each of which the figure is not less than $8,000) or the number of dishonest transactions subsumed in the count (as in the case of counts 4 (28 transactions), 8 (35), 17 (15) and 21 (14)). In my opinion, the sentences, directions and order identified in no way adequately recognise the seriousness of the respondent's offending, particularly in light of his antecedent criminal history, nor do they give anything like adequate effect to the purposes of general and specific deterrence (emphasised by his Honour) and the protection of the community which the offending called for. As to seriousness, which his Honour recognised more than once, he identified most, if not all, of its aspects: the respondent obtained a substantial amount of cash by very many premeditated acts of dishonesty committed over a lengthy period in breach of trust at a time when he was (except in the case of two counts) serving a community-based order and which commenced only some three weeks after he had been brought up for breach of an earlier community-based order. Further, offences perpetrated by misuse of credit cards or key cards are rife, though this may not be so of the initiation of the conduct internally, as it were, by abuse of access by computer. The subsequent convictions for offences of dishonesty substantially diminished the remorse shown in the record of interview and by the pleas of guilty. The prior convictions for offences carried out very similarly showed that the respondent manifested in the commission of the instant offences a continuing attitude of disobedience of the law and indicated that a more severe penalty was warranted than would otherwise have been the case.[8]

67. In coming to the views just expressed I have had regard to three considerations that might be said to justify the sentence below, one or perhaps two of which were relied on by his Honour and by counsel for the respondent on the appeal. The first consideration was the respondent's prospects of rehabilitation. His Honour's attempt to achieve the laudable object of the respondent's reformation by a partly suspended sentence could only be justified if, amongst other things, there were a sufficient basis for it. In my opinion, there was not. Although his Honour stated that there were positive signs of rehabilitation, he continued by saying that the risk of further offending could not be ruled out, so there was a need for special deterrence. His Honour's considerable caution was justified by the failure, as he had earlier noted, of the gambling counselling given to the respondent from November 1999 to prevent his re-offending before March 2002. Moreover, his Honour did not accept wholeheartedly that the respondent had ceased gambling in March 2002. Additionally, the failure of the respondent to accept the opportunities offered by his release twice previously on community-based orders pointed against leniency. Thus, whilst some allowance had to be made for rehabilitation, achieved and prospective, it could not properly have had great significance in the sentencer's instinctive synthesis in light of the considerations mentioned in the immediately preceding paragraph. The respondent submitted that it was because the judge saw positive signs of rehabilitation that he decided upon, and was justified in deciding upon, a partly suspended sentence. Whilst total or partial suspension is a highly discretionary matter, turning as it does on "desirability" in the circumstances, and whilst I say nothing as to partial suspension if the aggregate period of imprisonment had been three years or close thereto, suspension where the aggregate is only 12 months necessarily means in this case that the part to be actually served in prison is manifestly inadequate.

70. The second consideration was the respondent's gambling addiction. In my view, it is clear from what his Honour said that he took the addiction into account, but gave it little weight. In my respectful opinion, his Honour was correct in that approach. Further, as Vincent, J.A. pointed out during argument, a gambling addiction loses any mitigating effect to the extent that the proceeds of the offending are used for non-gambling purposes, as they were in part here. During argument reference was made to the non-contemporaneous report of Mr. Newton. In his sentencing remarks his Honour referred only to the contemporaneous reports of Mr. Laidlaw and in the course of argument on the plea his Honour indicated a distinct preference for the contemporaneous reports. There is no finding by his Honour that the gambling addiction was "pathological" and, so far as re-sentencing is concerned, Mr. McArdle's submission that such a statement comes better from a psychiatrist than a psychologist is, in my view, well made. His Honour during argument rejected a submission that general deterrence should be moderated because the respondent was suffering from a psychiatric illness in the form of depression which was causative of the offending. I did not understand that submission to be made on appeal, but in any event I consider his Honour's rejection of it entirely justified. So far as the sentence in fact passed is concerned, the respondent's gambling addiction, even taken with his prospects of rehabilitation, does not, in my view, support it in all the circumstances of the case.

73. The third consideration was delay in arraignment. His Honour said it was a pity that the matter had taken so long to come to court. He accepted that there was no blame to be attached to the prosecuting authorities because (as explained to him on the plea) there were several customers of the bank living out of Victoria who had to be interviewed. Moreover, the delay worked to some extent in the respondent's favour as he was able to point to a period of some two years immediately preceding the plea in which he had not offended. Nevertheless, the respondent had had the charges hanging over his head for a long time and some, but not decisive, weight was to be given to that.

76. It falls, then, to this Court to re-exercise the sentencing discretion. In doing so for myself I have had regard to the various considerations I have discussed, other than those I have excluded. I have borne in mind the principle of totality and what is called the double jeopardy principle. I have treated the offence the subject of count 21 as the most serious and the sentence for it as the one on which cumulation is to be effected. The next most serious offences are those the subject of counts 3, 4, 8, 14, 17 and 22 and cumulation of some of the sentence imposed for each of them is certainly appropriate. The other sentences of which I would cumulate part are on counts for offences involving the next greatest amounts of money.

79. I would allow the appeal, quash the sentence passed below except for the order for compensation and sentence the respondent to be imprisoned for the

On each of counts 1, 2, 5, 6, 9, 11, 12, 13, 15, 16, 18 and 19 3 months

I would cumulate one month of the sentence imposed on each of counts 5, 6 and 13 and two months of the sentence imposed on each of counts 3, 4, 8, 14, 17 and 22 upon each other and upon the sentence imposed on count 21, so that the total effective sentence is imprisonment for 24 months. Adopting the mechanism used by his Honour, I would order that 12 months of the total effective sentence be suspended for three years from 6 May 2004.

88. Whilst the sentence may not be regarded as greatly increased in absolute terms, both the total effective sentence and the unsuspended period are doubled. That cannot be called "tinkering". I would stress that, were it not for the constraining effect of the "double jeopardy principle", I would have imposed a heavier sentence.

93. I also agree that this appeal should be allowed and the respondent re-sentenced as proposed by Batt, J.A. I do so for the reasons advanced by him in his judgment.

98. For the reasons given by Batt, J.A., I agree that this appeal should be allowed. I also agree with the orders proposed by his Honour upon re-sentencing.

[1] R. v. Atalla [2002] VSCA 141; (2002) 132 A.Crim.R. 531 at 534 [13]; Director of Public Prosecutions v. Raddino [2002] VSCA 66; (2002) 128 A.Crim.R. 437 at 443-4 [26], [27]; R. v. Petrovic (unreported, Court of Appeal, 22 October 1998) at p.8; and R. v. Dawsan (unreported, Court of Criminal Appeal, 27 May 1997) at p.6.

[2] [1998] 1 V.R. 664.

[3] R. v. M.D.B. [2003] VSCA 181, [14].

[4] Reliance was placed on passages on pp.5 and 6 of Mr. Newton's report as justifying a favourable view about rehabilitation. The passages dealt with gambling-related issues, stated Mr. Newton's diagnosis that the respondent had a pathological gambling disorder that was by then in sustained full remission and gave his prognosis.

[5] Director of Public Prosecutions v. Raddino at [26]-[27].

[6] (1998) 194 C.L.R. 610 at 623-624, [43] - [50].

[7] Compare R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[8] Veen v. The Queen [No.2] [1988] HCA 14; (1988) 164 C.L.R. 465 at 477-8.