Hafner v The Queen [2012] VSCA 190

2 After a plea, the appellant was sentenced to be imprisoned for a term of 5 years on the count of conspiracy to cheat and defraud, for a term of 7 years on the count of trafficking in a commercial quantity of amphetamine, for a term of 3 years on the count of trafficking in MDMA, for a term of 2 years on the charge of conspiracy to damage an Australian travel document and for a term of 2 years on the charge of conspiracy to make a false foreign passport. With a measure of cumulation, a total effective sentence of 9 years and 6 months was produced. A minimum term of 8 years and 6 months was fixed.

3 The facts constituting the conspiracy to defraud were that the appellant entered into an agreement with Biljana Jorgiovski, his de facto wife, Craig Wheeler, Saleh Khoder and Peter Hosri to obtain and use stolen credit card details to purchase goods. Khoder, Wheeler and Hosri gained access to these details through their employment and supplied them to the appellant. The appellant, in turn, used the credit card numbers to purchase goods and services, amounting to a total value of $15,769. In addition, the appellant unsuccessfully attempted to obtain a further $12,272 worth of goods. Over the same period, Jorgiovski was supplied with credit card numbers by the appellant, which she used to pay for goods and services.

4 The offence of trafficking in amphetamine involved 600 grams of the drug. The appellant was involved in arranging the purchase and on sale of the drug with the co-offenders John Sammut, Wheeler and Khoder and he was also alleged to have prepared amphetamine for use and sale. The sentencing judge described the appellant as 'the hub' in the commission of the trafficking offences.

5 The offence of trafficking in MDMA was constituted by the supply by the appellant to Sammut of 265 pills.

6 As to the passport offences, between 12 September 2008 and 26 September 2008, the appellant entered into an agreement with Hai Ngoc Hoang to supply a third person, Kwok Tran, with a false passport. Tran had paid a deposit of $1,300 to Hoang, which was paid to the appellant. The passport of Wai Lam Ng, which had been stolen from his car, was intended to be used for the purpose of fulfilling this agreement.

7 The appellant subsequently entered into a further agreement with Craig Wheeler that he would provide two passports which Wheeler would alter.

9 The appellant's parents separated when he was five years' old and he was raised by his mother and grandparents until his mother remarried. The appellant left school after year 9 and completed 18 months of an apprenticeship, which he was forced to cease due to illness.

10 The appellant commenced work with his father when he was 16 years' old for some 18 months until he fell out with his father. For several years from the age of 17 years, the appellant worked on building sites until he sustained a back injury, for which he received workers compensation payments for several years. Thereafter, for about ten years, the appellant was paid the dole and took odd jobs intermittently for cash.

11 When the appellant was 22 years' old, he married. There were two daughters born of the marriage. When the appellant was 27 years' old, his wife gave birth to another daughter who died soon after birth. The appellant told a psychologist that because of this, he lapsed into regular use of heroin and amphetamine.

12 The appellant had some 35 prior convictions from ten court appearances, including convictions for drug offences, offences of dishonesty and street offences.

13 The appellant sought leave to appeal on the following grounds:

1. The sentencing judge erred in failing to properly apply the principle of parity.
2. The sentencing judge erred when imposing the new non-parole period.
3. The individual sentences, the total effective sentence and the new non-parole period are manifestly excessive.
4. The sentencing discretion miscarried in that the learned sentencing judge proceeded to sentence the appellant on the basis that as part of the conspiracy to cheat and defraud, the appellant had obtained goods and services to the value of $84,000, in circumstances where the parties had agreed that the plea to this count would be on the basis that the appellant obtained goods and services to the value of $15,769 and had unsuccessfully attempted to obtain goods and services to the value of $12,732.

14 Leave to appeal was granted on grounds 1, 2 and 4. Leave to appeal on ground 3 was refused. The appellant has elected to renew his application of leave to appeal on ground 3 before this Court.

15 Counsel for the appellant submitted that the sentencing judge's sentences on the passport offences breached the principle of parity. The appellant was sentenced to two years' imprisonment on each of the passport charges. The co-accused, Wheeler, was sentenced to four months' imprisonment on each charge, while the co-accused Hoang, who had no prior convictions, was fined $2,500 in the Magistrates' Court.

16 There were important differences between the offenders. The appellant played a leading role in the offences and had a significant criminal history. The lower sentence imposed upon Hoang also reflected the fact that he was sentenced in the Magistrates' Court.

17 While it is obviously desirable that persons who are parties to the commission of the same offence should receive the same sentence, matters such as age, background, previous criminal history, character and the role played in the commission of the offence have to be taken into account. Some disparity between sentences imposed upon co-offenders is not in itself a ground for intervention by an appellate court. The difference between the sentences must be manifestly excessive. The Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the part of the accused on whom the heavier sentence is imposed or on the ground the disparity gives the appearance that justice has not been done.

18 In the present case I consider that the different circumstances attending the roles of the offenders and their records of previous convictions places the disparity in their sentences within limits open to a reasonable sentencing judge.

19 As to the second ground, on 20 October 2011 the appellant was sentenced in respect of the offences the subject matter of this appeal. Her Honour said that a year of the sentence that she imposed was to be served cumulatively on a sentence imposed by Judge Tinney and that there was to be a new non-parole period of eight years and six months. On 11 November 2010 Judge Tinney had sentenced the appellant to a total effective sentence of three years' imprisonment with a non-parole period of two years' imprisonment for possession of heroin and amphetamine and trafficking in amphetamine.

20 It appears that her Honour meant to say that one year of the total effective sentence she imposed should be served concurrently with the sentence imposed by Judge Tinney. Subsequently, her Honour was informed that because the indictment covered Commonwealth offences, it was necessary to specify the date from which the sentences for the passport offences would run. Accordingly, on 3 November 2011, her Honour reduced the total effective sentence imposed on the state offences to nine years and six months' imprisonment and declared that both the Commonwealth sentences would commence on 28 March 2017. Her Honour re-stated the non-parole period as eight years and six months' imprisonment and indicated that it would commence on 11 November 2010, the date of the sentence imposed by Judge Tinney.

21 Counsel for the appellant submitted that the sentencing judge erred in failing to consider whether she should reduce the non-parole period as well as the total effective sentence.

22 I think it is likely that her Honour failed to consider whether it was appropriate to alter the new non-parole period when she altered the head sentence. The gap between the head and minimum sentences was already thin. The alteration attenuated the gap.

23 I turn to ground 4. The Crown conceded that the source of the amount of $84,000 was a mystery, but submitted that the error did not affect the gravity of the offending. In my opinion, despite her Honour's misstatement of the amount the subject matter of the conspiracy the sentence itself was appropriate.

24 As to ground 3, the appellant played a leading role in the commission of serious offences. The trafficking in drugs was a substantial business. The police detected 79 transactions and intercepted 14,627 telephone calls from eight telephone lines used by the appellant over a period of 14 weeks. The appellant had an extensive criminal history. I note that in 2002 the appellant was imprisoned for a term of seven years on a charge of conspiracy to possess heroin with intent to supply. The conspiracy to cheat an defraud involved a well organised scheme preying on the innocent in order to support the appellant's way of life.

25 Accordingly, making due allowance for the plea of guilty and the fact that the appellant's drug addiction played a part in the drug offences, I would not depart from the individual sentences and the total effective sentence imposed in the County Court for I regard those sentences as appropriate to the circumstances of the offences and the appellant. I would, however, reduce the non-parole period to seven years and six months.

2. The sentences imposed on charges 1 and 2 in indictment number XO3334733B are to commence on 28 March 2016. Otherwise the sentences passed in the Court below on presentment number XO3334733A and indictment number XO3334733B are confirmed.

3. Pursuant to the provisions of s 6AAA of the Sentencing Act 1991, it is declared that but for the plea of guilty, the appellant would have been sentenced to a total effective sentence of 12 years and six months' imprisonment with a minimum term of nine years and six months.

4. The forfeiture orders made in the Court below are confirmed.