DPP v Truong [2004] VSCA 172

DPP v Truong [2004] VSCA 172 - VSCA 2004 case summary — Zoe

[20]

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.

[27]

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]

[28]

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.

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Judgment (45 paragraphs)

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