Eagles v The Queen [2012] VSCA 102

1 On 16 August 2010, the appellant pleaded guilty to 59 counts of dishonesty, arising from various fraudulent acts between 2003 and 2005.

Court of Appeal (Vic)|2012-05-23|Before: Mr P, Neave JA, Harper JA

DPP v Eagles (Unreported, County Court of Victoria, Judge Parsons, 8 April 2011)

CRIMINAL LAW - Sentencing - 59 dishonesty counts - Total effective sentence of seven years and ten months' imprisonment imposed - Sentencing judge imposed mechanistic individual sentences and orders for cumulation - Failure to differentiate appropriately between different types of offences - Delay of almost six years between offending and sentencing - Totality principle infringed - Appeal allowed and appellant resentenced to total effective sentence of five years and ten months' imprisonment, with non-parole period of three years and six months

1 On 16 August 2010, the appellant pleaded guilty to 59 counts of dishonesty, arising from various fraudulent acts between 2003 and 2005.

2 Following plea hearings on 14 and 16 December 2010, 10 and 25 March 2011, and 8 April 2011, the appellant was sentenced on 8 April 2011 as follows:

Obtain financial advantage by deception (s 82 Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Make false document (s 83A(1) Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Obtain financial advantage by deception (s 82 Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Use false document (s 83A(2) Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Obtain financial advantage by deception (s 82 Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Obtain financial advantage by deception (s 82 Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

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

Obtain property by deception (s 81 Crimes Act 1958)

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

Obtain property by deception (s 81 Crimes Act 1958)

Obtain financial advantage by deception (s 82 Crimes Act 1958)

3 On 19 August 2011, Redlich JA granted the appellant partial leave to appeal against sentence on the following grounds:

(a) The sentencing judge gave insufficient weight to the principle of totality (ground 6).

(b) The sentences imposed on the individual counts, the orders for cumulation, and the total effective sentence and the non-parole period, are manifestly excessive, and/or infringe against the principle of totality (ground 8).

4 His Honour refused leave in relation to the proposed grounds of appeal which alleged specific error.

5 The appellant has specialist computer knowledge. He was self-employed as the sole director of Eagles Multicorp Pty Ltd, a company which specialised in IT consulting, property development and transport. He used that specialist knowledge in committing these offences.

Count 1 - Obtaining financial advantage by deception

6 On 12 December 2003, the appellant applied for an investment home loan from the Commonwealth Bank ('CBA'), to purchase property in Thornbury.

7 The appellant stated in the loan application that he had an ANZ Bank account with a balance of $62,753 (as at 22 October 2003), and provided a supporting bank statement to the CBA, which included a deposit on 21 October 2003 for $60,500.

8 The CBA authorised the loan for $342,400, and the appellant bought the property.

9 The appellant made a total of ten repayments to CBA, seven of which were dishonoured. He made no further repayments.

10 The appellant had altered the ANZ Bank statement in the following respects:

(a) The year shown was 2003, whereas the activity in the account actually related to transactions in 2002;

(b) The deposit shown as $60,500 was actually for $500; and

Counts 2 - 12, 14 - 27, 29 - 33 & 35 - 58 - Obtaining or attempting to obtain property by deception

11 On 19 October 2004, the appellant bought a manual magnetic stripe card reader/writer and software. The main function of the device is to read data from and encode magnetic stripe cards. Data can be read from either a data file, or from another card, and then re-encoded onto a magnetic stripe.

12 During 2004, the appellant accumulated electronic data from numerous credit cards belonging to other people, at various financial institutions, and stored this data on his computer.

13 The appellant had legitimately acquired 12 active bank or credit cards, which contained his name on the front and signature on the reverse. But the appellant periodically re-encoded items of other peoples' data from his computer onto his own credit cards. This allowed him to use his own credit cards to purchase items, but caused the incurred debt to be charged against the legitimate account holder, without their knowledge.

14 Between December 2004 and July 2005, the appellant employed this technique and made a total of 79 transactions valued at $149,205, by causing access and debits to 20 bank account holders. In this way, he was able to purchase electrical and other household goods, alcohol, clothes and jewellery.

15 The appellant also attempted to make a further 7 purchases, to the total value of $33,380 (counts 46, 47 and 55).

16 On 31 March 2005, the appellant went to the St George Bank, Chadstone, to open an account. He identified himself as Peter Anderson, and produced a Victorian driver's licence and birth certificate in that name. Neither of those documents was ever issued in Victoria.

17 Nonetheless, the St George Bank relied upon them and opened an account in the name of Peter Anderson.

Count 28 - Obtaining financial advantage by deception

18 On 19 February 2004, the appellant as sole director of Eagles Multicorp submitted another application to the CBA for an investment home loan, in the sum of $1,296,000. He intended to purchase four vacant blocks in Northcote.

19 The appellant stated in the application that he had been given a gift of $280,000 to support the purchase, and again provided supporting documentation which was subsequently revealed to be false.

20 The appellant also provided four false appraisals of potential rent for the properties.

21 The CBA authorised the loan for $1,296,000, and the appellant purchased the four properties. The appellant made a total of 16 payments on the loan, 13 of which were dishonoured.

Count 59 - Obtaining financial advantage by deception

22 Between 8 and 27 June 2005, the appellant hired a car from Europcars, using the false Victorian driver's licence in the name of Peter Anderson, and with a credit card that did not belong to him. The financial advantage obtained was $1,312.

23 Delay and rehabilitation are very relevant sentencing considerations in this case. It is therefore necessary to consider what happened after the offending.

24 During June 2005, the appellant was interviewed by police, after customs authorities had found numerous items, including laptops, computer equipment, a magnetic stripe card reader/writer, a card skimmer, and drivers' licences in his name and Peter Anderson's name. He was not charged at that stage.

25 During a search of his house in June 2005, drug paraphernalia was located, and he was charged with possessing and trafficking amphetamines. He spent 56 days in custody on these drug offences, before bail was granted. In December 2007, he was sentenced in respect of those offences; he received a wholly suspended sentence of two years and six months' imprisonment.

26 In relation to the current offences, the appellant was further interviewed in October 2005 and February 2006. Once again, he essentially gave 'no comment' interviews.

27 It took the police a considerable period of time to gather the evidence necessary to prepare the case against the appellant, given the number and nature of the offences.

28 The appellant was subsequently charged in September 2008. He was committed for trial in May 2009, by way of a hand-up brief. At that stage, the appellant was facing about 150 charges. After extensive negotiations, which led to a substantial reduction in the number of charges, he pleaded guilty to the current 59 charges in August 2010, shortly before the trial was due to commence.

29 Between 2005 and the time of sentencing, he had also been dealt with for two amphetamine possession charges; in both cases they had been disposed of by way of fines.

30 Except for the 56 days spent in custody in respect of the trafficking charges, the appellant had been in the community between June 2005 and the start of the plea hearing.

31 The plea hearing commenced on 14 December 2010. The prosecution submitted that there should be a head sentence in the range of five to seven years, and a non-parole period of three to five years. Defence counsel submitted that the prosecution figures were too high in themselves; further, they should be radically reduced because of the considerable delay which had occurred between the offending (from 2003 until early 2005) and the sentencing. Defence counsel accepted that the head sentence would have to be more than three years, so that a suspended sentence was not a viable option. But, he argued that there should be a relatively short non-parole period, in the vicinity of 25% of the head sentence, to reflect both the five and a half year delay and the rehabilitation which the appellant had demonstrated in the meantime.

32 Although the prosecutor accepted that there had been some improvements in the appellant's conduct since these offences were uncovered, the appellant nevertheless had a significant prior history for dishonesty. And he had been convicted of some drug offences in the meantime. The current offences were significant, occurred over a substantial period of time, and required planning, skill and sophistication. There was still a need for general and specific deterrence.

33 At the end of the first day of the plea hearing, the sentencing judge indicated that he expected to be able to sentence the appellant a couple of days later, on 16 December.

34 When counsel returned on the second day, his Honour said that a couple of matters had come up, during the course of preparing the sentence, in respect of which he required further submissions. First, his Honour wished to hear from the parties in relation to remorse, as he said he could not find any evidence of it. He noted a number of times that the appellant had not made any payment by way of compensation or reparation. His Honour said he wanted to understand the appellant's financial position, given that he appeared to have had access to some funds during the intervening years. He asked counsel to address him on the question of how those matters affected the question of remorse. Secondly, the sentencing judge wanted to obtain further information about the intervening drug convictions, as they bore upon the issue of rehabilitation.

35 When the plea hearing resumed on 10 March 2011, defence counsel made further submissions in relation to those two matters. Defence counsel explained that the appellant's financial position had been insufficient to enable him to pay any restitution. Since the offending, he had boarded with his sister, and worked casually driving his brothers' trucks, but had no assets or ability to pay restitution. The sentencing judge refused to accept that the appellant had been unable to repay the victims of his fraud, repeatedly saying that the appellant simply 'chooses not to'. His Honour said that paying back money to those you have defrauded 'is a pretty useful indicator of remorse', but the appellant had not done that.

36 The issue of remorse had not loomed large in the appellant's plea, and apart from saying that his client was sorry for what he had done, defence counsel had not sought to lead evidence of remorse. Yet, the transcript shows that the sentencing judge was clearly annoyed by what he perceived (apparently with no real evidence to support his perception) to be a wilful refusal to make restitution. He brought the topic up again on several later occasions.

37 On this occasion, the sentencing judge also said that he would be assisted by the prosecutor providing a more detailed submission in relation to sentencing for the individual counts. He asked the prosecutor to provide written submissions in that regard. His Honour adjourned the plea for further hearing on 25 March, assuming that the written submissions would have been received by that date.

38 No such written submissions had been provided by that time, but the new prosecutor who appeared on 25 March said that she would do so. At the hearing that day, the sentencing judge continued to express concern about the issues of remorse (in the context of a failure to repay victims) and rehabilitation. He adjourned the plea hearing until 8 April.

39 On 4 April, the prosecution filed and served a 9 page document which addressed the sentencing range. It discussed in some detail the relative seriousness of the different types of offences; drew a distinction between rolled-up and single counts, and between attempt and actual offences; and addressed issues of cumulation and totality. This supplemented the earlier prosecution opening document, dated 9 December 2010, which included details of the names, dates and amounts involved in each of the offences.

40 The defence provided a 3 page document in response. It focussed principally on delay and rehabilitation, and the reasons why the appellant had been unable to pay restitution. It did not really take issue with the prosecution submissions as to how the offences should be grouped and cumulated; instead it argued that the prosecution ranges were excessive, and totality was a critical matter in sentencing the appellant.

41 When the plea hearing resumed on 8 April 2011, the sentencing judge marked the two written submissions as exhibits. He did not ask any questions in relation to them. He simply proceeded to sentence the appellant.

42 In his sentencing remarks, the sentencing judge noted the following matters:

(a) The appellant had pleaded guilty, albeit at a fairly late stage;

(b) The appellant had a long criminal history, including dishonesty offences and drug and driving offences;

(c) The appellant had a lengthy history of illegal drug abuse, which had played a significant role in his past offending. There appeared to be a considerable risk that the appellant was still using drugs, which resulted in the judge being 'somewhat guarded' about his prospects of rehabilitation;

(d) There was a clear need for both general and specific deterrence; and

(e) There had been a significant delay between offending and sentencing. The appellant was entitled to 'a sentencing discount with respect to feelings of apprehension and anxiety' from facing a prison sentence for such a long period. But, given his drug convictions in that five and a half year period, the judge was not persuaded that the appellant had taken advantage of that time to rehabilitate himself.

43 As far as remorse was concerned, his Honour noted that defence counsel had said that the appellant was sorry for what he had done, but made no express finding in relation to remorse.

44 His Honour referred to the prosecutor's written submissions as to range, which he said he had found 'most helpful', and then proceeded to read out the 59 individual sentences.

45 He directed that count 28 be the head sentence. He made a brief reference to the principle of totality, before simply ordering that there be one and a half years' cumulation for count 1, and two months' cumulation for each of 17 other counts.

46 The sentencing judge gave no explanation as to why he had imposed any particular sentence, or any particular order for cumulation. Given the brevity of his summary of the 59 offences (which took only 9 paragraphs at the start of the sentencing remarks), it is, for the most part, not possible to ascertain why he took the view that certain offences were deserving of a particular sentence or order for cumulation.

47 His Honour did not explain why he had decided to impose a total effective sentence which substantially exceeded the prosecutor's suggested range, in circumstances where both prosecution and defence had been keen to remind him of the principles of totality.

48 Of course, the sentencing judge was not obliged to accept counsel's submissions as to the appropriate sentencing range, or the manner of achieving it.[2] But it is unfortunate that, having asked for and received considerable assistance from the prosecutor as to how to treat the individual offences, his Honour's actual sentencing does not demonstrate that he in fact paid much, if any, regard to it.

49 The selection of count 28 as the base sentence was unobjectionable. That offence involved the obtaining by deception from the CBA of what was, by far, the largest amount, namely $1,296,000.

50 That the sentencing judge treated count 1 as the second most serious offence is also unsurprising; it involved the obtaining by deception from the CBA of $342,000.

51 For each of the two counts of making (count 13) or using (count 34) false documents, he imposed a three month sentence, and made no order for cumulation.

52 Apart from count 44 (which involved obtaining property worth almost $37,000), all other offences involved amounts of less than $14,000 each. In respect of those remaining offences, his Honour imposed the following periods of imprisonment:

(a) Less than two months for each offence involving less than $600;

(b) six months for each offence between $600 and $2,250 (except count 6[3]);

(d) 18 months for each offence between $4,500 and $13,800.

53 As far as orders for cumulation were concerned, except for count 1 (in respect of which his Honour ordered cumulation of 18 months of the 30 month sentence), whenever his Honour imposed an individual sentence of more than 12 months, he simply ordered that two months of that sentence be cumulated.

54 In this case, the sentencing judge apparently gave no different consideration to the two rolled up counts (counts 16 and 19), both of which involved 5 offences, than he gave to single count offences.

55 He also treated the three counts of attempting to obtain property by deception (counts 46, 47 and 55) the same as counts of actually obtaining a similar amount by deception.

56 His orders for cumulation also failed to take into account the fact that some of the relevant offences occurred on the same day, and/or in respect of the same victim.

57 In the circumstances, it is hard to reject the appellant's contention that the sentencing judge sentenced by way of 'a mechanistic sentencing exercise'. We infer that his Honour did not give consideration to the differences in the culpability of the appellant for each event or series of events, either in arriving at an individual sentence, or making orders for cumulation. The total effective sentence which he imposed was simply the mathematical conclusion arrived at by imposing sentences and making orders for cumulation without distinction between counts, whether as to their individual seriousness or their relationship to each other.

58 That mathematical exercise resulted in a total effective sentence of seven years and ten months, which would have been a severe sentence even without having regard to delay. Whether or not a total sentence is just and appropriate will generally be a matter of impression. The appellant had a long history of offending and the judge was not sanguine about his prospects of rehabilitation. However, some weight had to be given to the delay of almost six years between the last of the offences and the imposition of the sentence. It is true that that delay is in part explicable on the basis that, given the extent of the appellant's criminal activity, the prosecuting authorities had to do much preparatory work before being ready for trial. Nevertheless, the appellant had been living and working in the community during that period, and since being charged with possession and trafficking in June 2005, had had the prospect of a conviction hanging over him. Taking these and all the other relevant considerations into account, we have concluded that the total effective sentence infringed the principle of totality.

59 We acknowledge that sentencing for multiple offences is not an easy task, and that a sentencing judge has a wide discretion in terms of how to structure individual sentences and cumulation orders. And, as Callaway JA commented in R v Belhaj, 'overworked trial judges cannot be expected to fine-tune every sentence. Care is one thing but pedantry is another.' [5]

60 Nevertheless, the totality principle requires that:

when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.[6]

61 If the total sentence is too severe, a more appropriate sentence can be constructed either by altering the orders for cumulation and concurrency, or by lowering the sentences for individual counts. In Mill, the High Court approved either approach, but expressed preference for the former; that accords with the approach of this court in DPP v Grabovac.[7]

62 The primary way in which the sentencing judge failed to have adequate regard to totality was in his orders for cumulation. That was compounded by the fact that many of the individual sentences which he imposed were substantial sentences in the circumstances.

63 With the exception of the three attempt counts, which clearly require reduction, we would propose to construct a more appropriate sentence by altering the order for cumulation.

64 For count 28, the base sentence, his Honour imposed what was (by reference to sentencing statistics and other cases) a heavy sentence, namely 42 months' imprisonment.

65 For what the sentencing judge treated as the second most serious offence (count 1), his Honour imposed what was also a heavy sentence, namely 30 months' imprisonment. He ordered that 18 months of that sentence be cumulated on the base sentence.

66 Each of counts 1 and 28 involved obtaining a substantial loan from the CBA, using false supporting documents. Count 1 related to a December 2003 home loan application in the appellant's own name; count 28 to a February 2004 investment loan application in his company's name. Some cumulation was clearly warranted, having regard to the fact that these were serious, separate offences, albeit involving the same victim. But, in our opinion, cumulation of 18 months was not warranted for count 1, particularly not on such a heavy base sentence. We would cumulate 13 months of the sentence for count 1.

67 There were 3 counts of attempting to obtain property by deception (counts 46, 47 and 55). His Honour imposed a sentence of 12 months for count 55 (property worth $2,945), and 18 months for each of counts 46 ($9,800) and 47 ($7,345).

68 In respect of each of them, the sentencing judge imposed the same sentence that he would have imposed for actually obtaining property of the relevant value. In doing so, he clearly failed to have regard to the fact that the maximum sentence for an attempt is one half of the maximum for actually obtaining property by deception (five years for an attempt; ten years for actually obtaining).

69 In the circumstances, we would set aside the individual sentences and resentence to six months for count 55, and nine months for each of counts 46 and 47.

70 The sentencing judge also ordered that, in respect of each of those 3 sentences, there should be cumulation of two months. He did so because the individual sentences he imposed were in the range for which he automatically cumulated two months.

71 The reduced sentences which we would impose are each below the 12 month threshold, beyond which his Honour ordered cumulation. Consistently with that approach, there should be no cumulation for any of these three counts.

72 Count 16 involved the obtaining of various goods, to a total value of $8,093, between 2 and 8 January 2005, charged to the accounts of a number of different victims, including M Hansen.

73 Count 19 involved the obtaining of various goods, to a total value of $12,399, between 4 January and 30 May 2005, all charged to the account of M Hansen.

74 Given the amounts involved, in respect of each of those counts, a sentence of 18 months' imprisonment with two months' cumulation was ordered.

75 Given that counts 16 and 19 were rolled-up counts, involving multiple offences, they should not have been treated the same as the single offence counts, without good reason; no such reason was provided in the sentencing remarks. Ideally, his Honour should have imposed higher sentences in respect of the rolled-up counts. In re-sentencing, we propose to leave the cumulation for count 16 at two months (but will reduce the amount of cumulation for some single count offences to one month, namely counts 25, 26, 35, 54 and 58). We would slightly reduce the cumulation for count 19 to one and a half months, to reflect the fact that although it is a rolledup count, all the offences involved the same account holder.

Excessive cumulation on some counts of obtaining property by deception

76 The mechanical ordering of two months' cumulation for every sentence over 12 months failed to take into account that a number of offences involved conduct on or about the same date.

77 Counts 6 and 7 both involved obtaining jewellery on 28 December 2004, at two different jewellery stores in the Northland Shopping Centre, by charging the goods to the account of A Loleng.[8] Count 6 involved jewellery worth $2,099; count 7, jewellery worth $4,432. Given that the sentencing judge otherwise set $2,250 as the threshold for a sentence of 12 months, it is not clear why he imposed a 12 month sentence for count 6.

78 Counts 5 and 8 also involved charging goods to the account of A Loleng, on 28 December 2004, albeit at different stores in the Northland Shopping Centre. But because the amounts involved in counts 5 and 8 were less than $2,250, no cumulation was ordered. A Lelong's account was also used a couple of days earlier, when the appellant charged alcohol worth $853 to the account, at a shop in Thornbury.

79 It is clear that all four of counts 5 to 8 inclusive formed part of the same criminal enterprise, in which the appellant went around the Northland Shopping Centre on the same day, charging goods totalling approximately $7,500 to A Lelong's account. Given the total amount involved in relation to A Loleng, there should be some cumulation in relation to this offending. Given that the amount involved in count 6 was below the monetary threshold at which his Honour otherwise ordered cumulation, we would not order any cumulation in respect of that sentence. Instead, we would order cumulation of one month of the sentence for count 7, to reflect the total offending involving the A Loleng account.

80 Count 23 involved obtaining computer and camera goods to the value of $3,802, on 17 February 2005, at a store in Coburg. Count 24 involved obtaining computer goods to the value of $8,163, on 25 February 2005, at a store in Preston. In each case, the goods were charged to the account of W Cody. Because each of those offences exceeded the sentencing judge's $2,250 threshold, he ordered two months' cumulation in respect of each. Given the value of the property, and the fact that the offending occurred on different dates, some cumulation was warranted. We would order cumulation of one month of the sentences for each of counts 23 and 24.

81 Count 18 involved obtaining clothes to the value of $3,998, on 4 January 2005, charged to the account of M Hansen. As mentioned earlier, M Hansen's account was involved with a number of other counts (counts 7 and 11-21 inclusive). At least 7 of those counts involved property obtained on 4 January and charged to M Hansen, on what was clearly part of a single 'shopping spree'. We have already ordered cumulation in relation to two of those counts (16 and 19), and do not think it appropriate to order further cumulation for count 18, simply because it involved an amount which exceeded the judge's arbitrary cumulation threshold.

82 Count 44 involved obtaining van refrigeration worth $36,960, on 15 April 2005. Count 45 involved obtaining home theatre equipment to the value of $7,199, on 16 April 2005. In both cases, the property was obtained by charging it to the account of W Drewe. Given the total amount and different dates involved in relation to W Drewe's account, some cumulation was clearly warranted. Count 44 involved the third largest amount obtained by the appellant; for that, we would order cumulation of three months of the 24 month sentence imposed for it. But, we would order that there be only two weeks' cumulation on count 45.

Obtain financial advantage by deception (s 82 Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Make false document (s 83A(1) Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Obtain financial advantage by deception (s 82 Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Use false document (s 83A(2) Crimes Act 1958)

Obtain property by deception (s 81 Crimes Act 1958)

Obtain financial advantage by deception (s 82 Crimes Act 1958)

At a glance

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Judgment (242 paragraphs)

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Cases Cited (1)