Matamata v The Queen [2021] VSCA 253

PRACTICE AND PROCEDURE - Application for leave to appeal against sentence on two grounds - Refused by single judge - Election to renew application - Whether abuse of process to seek to replace first ground with new ground and to substitute new particulars in support of second ground - No abuse of process - Leave to amend application for leave to appeal granted - Criminal Procedure Act 2009 s 315(2).

1 On 23 May 2019, the applicant pleaded guilty to the charges set out in the table below. On 24 September 2020, he was sentenced by a County Court judge to a total effective sentence of 12 months' imprisonment and a 2 year community correction order ('CCO'), as particularised in that table:[1]

Theft [Crimes Act 1958 s 74]

Obtaining financial advantage by deception [Crimes Act s 82]

Total effective sentence: 12 months' imprisonment

Section 6AAA statement: 2 years and 6 months' imprisonment with a non-parole period of 1 year and 8 months

Other orders: 2 year community correction order with conditions requiring supervision and treatment; compensation order in the sum of $130,211.51[2]

2 Initially, the applicant sought leave to appeal against his sentence on the following grounds:[3]

[1] The sentencing discretion miscarried because of a failure by the sentencing judge to afford the applicant procedural fairness.

[2] Manifestly excessive sentence imposed.

3 On 26 April 2021, a judge of appeal refused the application for leave to appeal. The applicant then elected to renew his application pursuant to s 315(2) of the C_riminal Procedure Act 2009_ ('CPA'). The renewed application was listed for hearing before us on 27 July 2021.

4 On 7 July 2021, the applicant was released from custody after serving 9 months and 13 days of the term of imprisonment of 12 months. That is because he was granted 78 'emergency management days' by Corrections Victoria under current COVID-19 protocols. Upon his release, the applicant returned to live with his family, obtained full-time employment with Elite Roads Pty Ltd and commenced serving the 2 year CCO.

5 On 26 July 2021, the day prior to the scheduled hearing of the renewed application for leave to appeal, following the briefing of new counsel, the applicant sought leave to replace ground 1 with a new ground and to change the basis upon which ground 2 contended that the sentence was manifestly excessive. The proposed reformulated grounds were in the following terms:

[1] The learned sentencing judge erred in not having regard to the fact that a sentence of 12 months' imprisonment could result in the Applicant losing the opportunity of settling permanently in Australia and was therefore a serious 'punishing consequence' of the offending.

[2] The total effective sentence of 12 months' imprisonment is manifestly excessive having regard to, in particular, the Applicant's prospects of deportation and his thereby diminished prospects of rehabilitation.

6 The applicant filed a proposed amended written case in support of the new grounds. The hearing of the application for leave to appeal was adjourned to enable the Crown to consider the proposed amended written case and to file its own proposed amended written case.

7 At the adjourned hearing, the Crown opposed the application for leave to reformulate the grounds of appeal on the basis that the application constituted an abuse of process. After hearing submissions from the parties on whether leave should be granted, the Court granted leave and stated that its reasons for doing so would be included in its substantive judgment. Those reasons are set out at [49]-[57] below.

8 For the reasons that follow, the application for leave to appeal will be granted and the appeal allowed. The applicant will be resentenced as set out at [97] below.

9 The applicant commenced working at Fulton Hogan Industries Pty Ltd ('Fulton Hogan') in 2011. At the time of the offending, he was a leading hand and had unrestricted access to Fulton Hogan's fuel cards.

10 In September 2017, the applicant stole a fuel card from Fulton Hogan (charge 1: theft). He arranged with Ky Nguyen, the owner of a courier business, for Mr Nguyen and his employees to use the fuel card to purchase fuel and for Mr Nguyen to pay the applicant 50 per cent of the value of the fuel purchased. With the applicant's authorisation, Mr Nguyen and his employees used the fuel card to purchase a total of $25,708.83 worth of fuel between September 2017 and January 2018. At the plea hearing, the applicant agreed that he received cash payments of between 50 and 90 per cent of the total value of the petrol purchased (charge 8: obtaining financial advantage by deception).

11 The same course of offending was adopted by the applicant with Mr Nguyen in relation to a further six fuel cards that the applicant stole from Fulton Hogan. The offending in respect of all seven fuel cards may be summarised as follows:

12 As can be seen from the above table, $130,207.51 worth of fuel was purchased using the seven stolen cards over the period of 17 months between September 2017 and January 2019. The applicant received cash payments from Mr Nguyen totalling between $65,103.75 and $117,186.75 (that is, between 50 and 90 per cent of $130,207.51).

13 The offending was detected by Fulton Hogan in November 2018. The company conducted an internal investigation and referred the matter to police on 21 December 2018.

14 The applicant was arrested and interviewed by police on 29 January 2019. He stated as follows:

(a) He never told Mr Nguyen that the fuel cards were stolen.

(b) The fuel cards were unsecured and he would 'just grab them off the shelf' from Fulton Hogan's office.

(c) When a card got cancelled, although he thought about stopping stealing new cards, he would grab another card.

(d) He would use the cash received from Mr Nguyen to pay bills, buy lunch and deposit cash in his bank account.

(e) He did not really care what Mr Nguyen did with the fuel cards.

(f) He knew how the fuel cards were supposed to be used.

(j) He was going to do his best to repay the money.

15 During the interview, the applicant expressed concern that he might be deported to New Zealand because he was not an Australian citizen.

16 The applicant was between 32 and 34 years of age at the time of the offending. He was 35 at the time of sentencing.

17 The applicant was born in Hastings, New Zealand. He is the fourth eldest child of 10 siblings aged between 16 and 38, one of whom died in 1995 at the age of 8. His parents were born in Samoa and worked in orchards and factories.

18 The applicant's childhood was marred by abuse and control by his father, who would regularly physically abuse him and his siblings. When the applicant was 11 years of age, his father was imprisoned for two years for child abuse. The applicant and his siblings were put into foster care in a different city for those two years, with his mother allowed fortnightly visits. When the applicant's father returned home, the abuse continued.

19 From the age of 8, the applicant was made to work for his father, both before and after school, in the orchards, picking whatever fruit or vegetables were in season at the time. His father would keep whatever money he earned and this continued up until the age of 23.

20 The applicant completed high school in New Zealand. He struggled at school due to the abuse to which he was exposed at home and because he was too tired to focus, having worked before and after school. He took remedial reading classes because his father would not let the family speak English at home.

21 In 2008, at the age of 23, the applicant moved to Australia with his partner, Ashleigh Pineaha, to get away from his father. The applicant remains a New Zealand citizen and holds a permanent residency visa in Australia.

22 The applicant and Ms Pineaha have been in a relationship for 13 years and have four children together. Their children are aged between 3 and 11 and were all born in Australia. The applicant is described by his partner as a dedicated father who assists with tasks such as bedtime reading, washing and getting ready for the next day. The applicant's offending placed the family in a very difficult position because he is the sole provider. However, Ms Pineaha remains supportive of him.

23 The applicant supported four of his younger siblings to move to Australia, by helping them find employment and providing a place to stay until they were able to afford to live on their own. Those four siblings now live in Melbourne. He enjoys a good relationship with them. His parents remain in New Zealand and he has provided financial support to his family on a regular basis in the past. His father is currently serving a sentence of 11 years' imprisonment for human trafficking and slavery offences.

24 The applicant worked in factories when he first arrived in Melbourne. Between 2011 and 2018, he worked for Fulton Hogan, first as a labourer and driver, before qualifying to become a leading hand. In this role, he worked seven days a week and earned between $110,000 and $120,000 per year. Once the offending was detected, the applicant ceased employment with that company.

25 From June 2019 until May 2020, the applicant worked for Winslow Constructors as an excavator operator. In May 2020, he was appointed a team leaded at United Civil Works. Both employers were aware of the applicant's offending.

26 The applicant was introduced to gambling from the age of 19 and continued gambling throughout his adult life. He spent most of the money he obtained through the current offending on poker machines, on bills and supporting his family in New Zealand. He continued to gamble after he was charged and on bail for the current offending, and only stopped doing so in March 2020 due to the COVID-19 pandemic. Since June 2020, he has sought counselling from Dadirri Melton Counselling Services and Gamblers Help.

27 The applicant has no criminal history. He does not drink alcohol and has never abused drugs.

Principles relating to risk of deportation as a sentencing consideration

28 Under the Migration Act 1958 (Cth), the Minister for Immigration must cancel a person's visa if the person has been sentenced to a term of imprisonment of 12 months or more.[4] However, the Minister may revoke the cancellation if satisfied that there is a reason to do so and the person may seek merits review of a decision not to revoke the cancellation.[5]

29 In Guden v The Queen, this Court recognised that the prospect of deportation is a factor which may increase the impact which a sentence of imprisonment will have upon an offender, both during the currency of the incarceration and upon his or her release.[6] The Court stated as follows:

27 [T]he fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the NSW Court of Criminal Appeal in Kwon that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious 'punishing consequence' of the offending.

...

29 [I]n the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.[7]

30 In Akot v The Queen, this Court elaborated upon the principles discussed in Guden as follows:

The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity for the offender to settle permanently in this country.

...

In accordance with principle, a sentencing judge is entitled to take into account these matters in the two ways identified above. Deportation in these circumstances may be taken to give rise to a significant detriment and may be relevant to the sentencing discretion. The potential for deportation (which may in any event be avoided by executive action) is relevant but the extent to which it moderates a sentence in a given case is very difficult to calibrate. No fixed rule can be formulated. It will be a matter for the sentencing judge as to the weight that this factor is to be given.

However, neither the cancellation of the visa nor any consequent deportation constitutes punishment for the offending and it would be a mistake to treat them as such. They serve a different purpose and are undertaken at the command of the executive. The grave consequences of deportation for the individual cannot replace or stand as a proxy for the imposition of an appropriate sentence by a court following a guilty plea or a finding of guilt. The sentence must still reflect the nature and gravity of the offending.[8]

31 This Court has recognised that the impact of deportation may vary depending upon whether the offender has established ties to the Australian community. In Konamala v The Queen, the Court stated the following:

Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner's personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.[9]

32 In his written submissions for the plea hearing, defence counsel quoted para 27 of Guden, which is set out at [29] above. He submitted that, as the applicant was not an Australian citizen, he was at risk of deportation if he was sentenced to a term of imprisonment of 12 months or more. He contended that the prospect of deportation was relevant to the Court's assessment of both the burden of imprisonment upon the applicant and his prospects of rehabilitation. It was said that the applicant's prospects of rehabilitation would be reduced if he was deported to New Zealand because he would not have the protective factors he currently has in place in Australia.

33 The applicant's written submissions stated that deportation would have a particularly significant impact on him because:

(a) He had significant support in Australia, namely, his partner, children and siblings.

(b) He had sought to establish a new life and put behind him his past traumas of abuse and control by his father.

(c) He had established, ongoing employment in Australia and had no employment history in New Zealand.

34 At the plea hearing, the following exchange took place between the judge and defence counsel:

[DEFENCE COUNSEL]: The burden of imprisonment is one which no doubt being a person from New Zealand not holding a visa, if [the applicant] under the Migration Act receives a term of imprisonment of more than 12 months, Your Honour, there are those mandatory deportation ‑ ‑ ‑

HIS HONOUR: I understand the position I act on. As I understand the Minister takes the view that if you ... get a gaol sentence of 12 months ... the primary view of the Minister, I think, unless he's done over on appeal essentially is deportation.

[DEFENCE COUNSEL]: That's correct, Your Honour. That's certainly something that'll weigh heavily on [the applicant] and his family. It's not submitted that it amounts to exceptional hardship in that regard, but it's hardship nonetheless that Your Honour can ‑ ‑ ‑

HIS HONOUR: It's certainly going to be hardship to him and his family if he's deported.

[DEFENCE COUNSEL]: Most definitely, Your Honour. In fact it comes up in his record of interview as one of the things that concerns him right from the outset.

HIS HONOUR: But of course I can't - I can take that hardship into account in the sense of, as you've put the case law, the serving of a sentence is harsher when he knows there's a grave risk that he may be deported. But I can't take it into account on force, taking the view that, 'oh, no, no, I'll only sentence him to a sentence of a maximum of 12 months so he misses that' - those matters. I must as Dalgleish says, sentence him upon the circumstances of this case.

[DEFENCE COUNSEL]: That's conceded, Your Honour, yes.[10]

35 The prosecutor accepted that deportation was a relevant consideration in the present case. However, he submitted that, in terms of the appropriate sentence to be imposed on each charge, deportation was not an overriding sentencing consideration.

36 The applicant tendered a letter of apology to Fulton Hogan and relied upon character references from his partner, father-in-law and then current employer. He also tendered a letter from Dadirri Melton Counselling Services, which confirmed that he had been receiving counselling for his gambling behaviour, anger and depression from 5 June 2020.

37 The judge described the applicant's offending as serious for the following reasons:

1. The quantum is significant. [T]he total of each of these individual seven crimes amounts to $130,000;
2. The offending went over a 17 month period, leading to the submission that it was not isolated;
3. The offending involved considerable premeditation and a degree of planning;
4. The moral culpability in regard to the accused in those circumstances is high;
5. There is a total of 14 charges, seven of which, the deception charges, are rolled up. Each of the charges are inherently serious, because the Parliament has prescribed a maximum penalty [of] 10 years.[11]

38 The judge remarked that the applicant's criminality was aggravated by the fact that it involved breaching his employer's trust by persistently taking advantage of its lax process of financial control over its fuel cards.[12] He stated that the applicant benefitted financially from his offending, by financing his gambling habit and paying various household bills. For this reason, he said that general deterrence was a particularly important sentencing consideration.[13]

39 The judge accepted that the applicant was remorseful and that his guilty plea was early.

40 The judge stated that the applicant was subjected to a very difficult upbringing, but had an excellent work record and was an excellent father.[14] He observed that the applicant's good character must be tempered as a sentencing consideration because, without it, he would not have had the freedom to abuse his employer's trust.[15]

41 The judge stated that he was uncertain as to whether the applicant had the capacity to effect rehabilitation without assistance in relation to his gambling addiction.[16] He remarked that the applicant had made a very serious mistake and placed his family in jeopardy. He further remarked that, given the applicant's background, he was sure that the applicant would 'want to ensure that [he effected] rehabilitation and that [he] never again [placed his] family in such jeopardy'.[17]

42 The judge accepted that a sentence of imprisonment would cause family hardship because the applicant was the sole provider for his partner and their four children.[18]

43 With respect to the applicant's risk of deportation, the judge stated as follows:

35 The final factor that was relied upon by [defence counsel] was the issue as to the risk of [the applicant's] deportation. These are administrative matters of which this Court has no role. We understand, however, the proposition is that any person sentenced to a period of imprisonment of twelve months is subject to deportation. It seems, if I might say so, without any criticism of the Judge involved, if one reads the case of Burgess, that was very much to the fore in the sentence provided.

36 I accept the propositions put by [defence] counsel as to the principles in Guden ... as to the burden such risk will have upon [the applicant] in gaol and of course, I take into account the risks to [the applicant] as to the loss of opportunity to continue to work and raise [the applicant's] family in this country.[19]

44 As we have already stated, a day prior to the scheduled hearing of the renewed application for leave to appeal, the applicant sought leave to reformulate the grounds of appeal upon which a judge of appeal refused leave to appeal.

45 The Crown opposed the application to reformulate the grounds on the basis that it constituted an abuse of process. The Crown submitted that, in circumstances where the applicant was previously refused leave to appeal by a single judge of appeal who delivered written reasons for that refusal, the applicant had to identify a significant matter which the single judge had misunderstood or overlooked.[20] It contended that, by seeking leave to amend his proposed grounds of appeal, the applicant sought to avoid the need to demonstrate such error by the single judge. The Crown also contended that the proposed grounds lacked merit.

46 In oral submissions, senior counsel for the Crown conceded that there would be no prejudice to the Crown if the applicant were granted leave to amend his application for leave to appeal. She also conceded that an applicant's election to renew his or her application for leave to appeal involved a rehearing of the application and that this Court had power to grant leave to amend an applicant's grounds of appeal on an election application.

47 However, senior counsel for the Crown submitted that, in the present case, the applicant did not seek to amend an existing ground, but to abandon both grounds and file a completely new application for leave to appeal. She contended that this constituted an abuse of process in circumstances where there was no fresh evidence, change in circumstances or error in the reasons for sentence that had only now been discovered.

48 In oral submissions, counsel for the applicant contended that there would be no abuse of process if the applicant were granted leave to amend his grounds of appeal. This was said to be because, if leave were refused, the applicant potentially faced very serious consequences whereas, if leave were granted, no prejudice would flow to the Crown. Counsel also contended that, if the applicant were shut out on a procedural point from this Court hearing a matter in which he stood to be deported, it would lead to an erosion of public confidence in the administration of justice.

49 As we have already stated, after hearing the parties' submissions, we granted leave to the applicant to amend his application for leave to appeal to substitute the grounds set out at [5] above. We formed the view that the application for amendment did not constitute an abuse of process and that it was appropriate to grant leave in all the circumstances.

50 It will be recalled that the provision pursuant to which the matter came before us is s 315(2) of the CPA. That section relevantly provides that, if the Court of Appeal constituted by a single judge of appeal refuses an application for leave to appeal 'in relation to any ground of appeal, the applicant is entitled to have the application determined by the Court of Appeal constituted by 2 or more Judges of Appeal'. When an applicant invokes s 315(2), the subject matter of the proceeding before the Court of Appeal constituted by two or more judges of appeal ('reconstituted Court') is not an appeal from the single judge's refusal of leave to appeal. Rather, it is the application for leave to appeal itself, which the reconstituted Court is required to rehear.

51 As the reconstituted Court rehears the application for leave to appeal, the grounds that are relevant to the rehearing are those set out in the application, unless the applicant elects to renew the application in respect of some grounds but not others. It follows that the grounds in the application for leave to appeal delineate the subject matter of the proceeding before the reconstituted Court. However, the single judge of appeal who determines the application for leave to appeal at first instance has power to grant leave to the applicant to amend the grounds of appeal where it is appropriate to do so. That power is also vested in the reconstituted Court upon a rehearing of the application for leave to appeal.

52 The nature of the right conferred by s 315(2) of the CPA upon an applicant - that is, to renew the existing application for leave to appeal, rather than to make a new application for leave to appeal - may well inform the discretion whether leave to amend should be granted by the reconstituted Court. However, it is not necessary for us to address that issue in the present case. Nor do we need to resolve whether the amendments sought must be such as to be capable of being characterised as reformulations of the grounds of the existing application for leave to appeal, rather than being of such a nature that they give rise, in substance, to an entirely new application for leave to appeal. Further, it is not necessary for us to consider whether it would be an abuse of process for an applicant to seek to invoke the reconstituted Court's amendment power to substitute new grounds of appeal which have no relationship to the existing grounds and thus, in substance, seek to substitute a new application for leave to appeal for the existing application.[21] That is because the amendments sought in the present case can be characterised as reformulations of the grounds of the existing application for leave to appeal and are not of such a nature as to constitute an attempt to substitute a new application for leave to appeal.

53 The effect of the amendments sought by the applicant in the present case is to replace a specific error based upon natural justice with one based upon the prospect of his deportation as the subject matter of ground 1, and add that prospect as a particular of ground 2 (manifest excess). It is true that the subject matter of the reformulated ground 1 has no relationship to the initial ground 1. However, the proposed amendments will not significantly alter the overall character of the existing application for leave to appeal. That is so for two reasons. First, amended ground 2 continues to be a manifest excess ground. Secondly, the issue of deportation, which is common to both amended grounds, formed part of the applicant's written case in respect of the initial grounds. Senior counsel for the Crown acknowledged that 'the [amended] grounds are in many ways linked'.[22]

54 For the above reasons, we were not satisfied that the application for leave to amend the grounds of appeal in the present case constituted an abuse of process.

55 The Court's power to grant leave to an applicant to amend his or her grounds of appeal is discretionary and must be exercised having regard to all the circumstances of the case. Those circumstances include whether the reformulated grounds appear to have sufficient merit to warrant the granting of leave, any prejudice to the applicant if leave is not granted and any prejudice to the Crown if leave is granted.

56 In the present case, we formed the view that it was appropriate to grant leave to the applicant to amend the grounds of appeal for the following reasons:

(a) The proposed reformulated grounds appeared to have sufficient merit to warrant the granting of leave.

(b) Refusal of leave would have significantly prejudiced the applicant. That is because such a refusal would have deprived the applicant of the opportunity to advance arguments which would strengthen the prospect of persuading this Court that the judge erred in not imposing a sentence that did not expose the applicant to the risk of deportation.

(c) The Crown conceded that the granting of leave would not cause it any prejudice.

57 As we have already stated, a renewal of an application for leave to appeal under s 315(2) of the CPA involves a rehearing of the application by the reconstituted Court. Accordingly, the fact that the reformulated grounds of appeal in the present case would not involve any examination of whether the refusal of leave to appeal by the single judge of appeal involved any error is not - as was submitted by the Crown - a basis for refusing leave to amend.

58 We now turn to the reformulated grounds of appeal.

59 The applicant acknowledged that the judge appropriately took into account that the risk of his deportation was likely to increase the burden of imprisonment for him, relative to someone who faces no such risk (the first limb in Guden). However, he submitted that the judge erred by failing to have regard to the risk that a sentence of imprisonment may result in him losing the opportunity of settling permanently in Australia (the second limb in Guden).

60 The applicant contended that, contrary to the principles in Guden and despite the Crown's concession that deportation was a relevant sentencing consideration, it was apparent from the judge's comments on the plea that he did not believe that he could lawfully take the likelihood of deportation into account as a serious 'punishing consequence'. The applicant argued that the effect of the exchange between the judge and defence counsel set out at [34] above was that:

(a) The judge firstly accepted that deportation would cause objective hardship to the applicant and his family.

(b) The judge then 'glossed' Guden to the effect that he could take the first limb of Guden into account but could not take the second limb into account.

(c) The reason the first limb was a permissible consideration, but the second was not, was that the applicant must be sentenced according to the principles of individualised justice enumerated by the High Court in Director of Public Prosecutions v Dalgliesh.[23]

61 In oral submissions, counsel for the applicant conceded that there would have been no error in the judge's comments on the plea if the judge was merely acknowledging that he had to take account of all the circumstances but could not simply fix a sentence based upon the prospect of deportation. However, counsel did not concede that the sentence imposed by the judge reflected such an approach.

62 Counsel for the applicant accepted that the judge referred to the applicant's traumatic childhood in New Zealand, his migration to Australia with his partner, his four children and four siblings living in Victoria, his strong history of employment in Australia and his need for rehabilitation. However, he submitted that the judge deemed these factors irrelevant for fear of not doing individualised justice. He contended that the judge was in error because nothing in Dalgliesh required the second limb in Guden to be disregarded. Rather, in oral submissions, counsel for the applicant argued that Dalgliesh required the judge to take into account all relevant matters, including the second limb in Guden. Counsel submitted that, if the applicant had been given the benefit of the second limb, it would have been open to the judge to impose a sentence of 10 months or lower.[24]

63 The applicant contended that, contrary to the judge's sentencing remarks at para 35,[25] there was no discernible error in Director of Public Prosecutions v Burgess,[26] where the offender - who had New Zealand citizenship and who had pleaded guilty to two charges of obtaining financial advantage by deception - was sentenced to a total effective sentence of 6 months' imprisonment and a CCO of 2 years.

64 The applicant argued that, as a result of the specific error disclosed by ground 1, the sentencing discretion miscarried and should be re-exercised by this Court.

65 In oral submissions, counsel for the applicant submitted that the second limb of Guden was harmonious with the principle in Akot that neither the cancellation of a visa nor any consequent deportation constitutes punishment for the offending.[27] That was said to be because the second limb of Guden concerns the prospects of the offender losing the opportunity of settling permanently in Australia as a result of independent executive action.

66 In response to questions from the Bench, counsel for the applicant agreed that the substance of ground 1 was that, because a sentence of less than 12 months was open to the judge and would have avoided deportation, such a sentence should have been imposed having regard to both limbs of Guden. Accordingly, it was said that the judge erred by not imposing a lesser sentence upon the applicant and therefore this Court should re-sentence him.

67 The Crown submitted that the judge did not err in his application of the principles set out in Guden. It contended that it was clear from the sentencing remarks and the structure of the sentence he imposed that he took both limbs of Guden into account. It argued that it is not appropriate for a sentencing judge to impose a sentence that seeks to avoid the operation of the Migration Act.

68 The Crown emphasised that defence counsel conceded that the principles in Guden needed to be applied consistently with Dalgliesh.[28] It was said that the judge did not deem the applicant's personal circumstances irrelevant to the consideration of the impact of deportation.

69 The Crown contended that the applicant's plea submissions regarding the significance of his immigration status and prospect of deportation were limited to the increased burden of imprisonment upon him and his family, but did not extend to him submitting that the burden amounted to exceptional hardship to him or his family. It argued that the applicant did not produce any evidence in support of this submission, any evidence from the Department of Home Affairs nor any evidence regarding the impact of deportation should that occur.

70 According to the Crown, the applicant has maintained a connection to New Zealand, having lived there until the age of 23 years and continuing to support family members living there.

71 The summary at [32]-[34] above of defence counsel's submissions on the plea and his exchanges with the judge indicates that defence counsel relied upon both limbs of Guden. The evidence and submissions that supported the second limb were as follows:

(a) The applicant has lived in Australia with his partner since 2008.

(b) The applicant moved from New Zealand to get away from his father and the trauma of his abusive childhood.

(c) The applicant's four children aged between 3 and 11 were all born in Australia.

(d) The applicant assisted four siblings to move to Melbourne from New Zealand and he enjoys a good relationship with them.

(e) The applicant has significant support in Australia from his partner, his children, his siblings and his partner's family.

(f) The applicant and his family would experience hardship if he was deported.

(g) The applicant has an established history of employment in Australia and retained the support of his then current employer at the time of sentence. He has no history of employment in New Zealand, other than working for his father who withheld his wages.

(h) The applicant does not have in New Zealand the protective factors he has in place in Australia. Accordingly, his prospects of rehabilitation would be diminished if he was deported.

72 Although the evidence upon which defence counsel relied was largely presented in the form of submissions from the bar table and the tendering of documents, neither the prosecutor nor the judge informed defence counsel that the matters upon which he relied required formal proof. In our opinion, the evidence on the plea was sufficient to engage the second limb of Guden.

73 We accept that, as submitted by the Crown, the applicant lived in New Zealand for the first 23 years of his life and he has maintained his connection with his family there by providing them with financial support. However, his ongoing connection with New Zealand was tenuous compared to the substantial connection he and his immediate family have with Australia. The applicant's relationship with his partner and four children in Australia - where he is the sole financial provider - realistically cannot be compared with his connection with his parents in New Zealand, one of whom abused him as a child and is currently imprisoned for serious offending.

74 In our opinion, nothing that the judge said on the plea or in his sentencing remarks is inconsistent with the above analysis or indicates that he misunderstood or misapplied the principles relating to the manner in which the prospect of deportation can be taken into account in the exercise of the sentencing discretion.

75 We reject the applicant's contention that the judge's reference to Dalgliesh on the plea indicates that the judge erroneously considered that Dalgliesh prevented him from giving full effect to both of the limbs of Guden. In our opinion, read in context, the judge's reference to Dalgliesh merely sought to convey two unexceptional propositions. The first proposition is that the task of the sentencing court is to impose a sentence that is appropriate to the circumstances of the offending and the offender in the particular case. The second proposition is that it is inappropriate for a sentencing court to manipulate a sentence in order to avoid an offender being deported. The judge did not in any way suggest that, although both limbs of Guden were engaged in the present case, Dalgliesh prevented him from giving effect to the second limb by imposing a custodial sentence which was within range if that custodial sentence was less than the 12 month threshold which attracts the deportation provisions of the Migration Act.

76 In any event, in order to succeed on ground 1, the applicant must establish an appellable error by reference to the judge's sentencing remarks. Statements made by the judge on the plea on their own do not establish appellable error. However, such statements may assist in establishing appellable error in sentencing remarks insofar as they clarify the meaning of particular observations in the sentencing remarks.[29] In the present case, nothing the judge said on the plea assists the applicant in establishing an error in the sentencing remarks.

77 In para 35 of his sentencing remarks, the judge referred to the risk of deportation as 'administrative matters of which this court has no role'. The context in which this statement was made indicates that the judge sought to convey two basic propositions. The first proposition is that whether the Minister for Immigration decides to exercise his or her powers in a particular way is a matter for the executive government. The second proposition is that a sentencing court should not impose an inappropriately low term of imprisonment in order to foreclose the possibility of deportation.

78 Dalgliesh makes it clear that the sentencing discretion must be exercised having regard to all the sentencing considerations that are relevant to each particular case. Where the offender faces the risk of deportation, that risk is only one of a multitude of sentencing considerations that must be taken into account as part of the intuitive synthesis. The weight to be accorded to it will depend upon all the circumstances of the case. Contrary to the applicant's submissions, there is no hard and fast principle that, where a sentencing judge has a choice between a sentence which exposes an offender to the risk of deportation and a sentence which does not, the sentencing discretion will necessarily miscarry if the latter sentence is not imposed.

79 Paragraph 36 of the judge's sentencing remarks expressly states that the judge took into account both limbs of Guden. For the reasons set out above, there is no basis for us to conclude that he did not do so or that he erred in the manner in which he did so.

81 The applicant submitted that the sentence imposed was manifestly excessive, having regard to the absence of any prior convictions, his good prospects of rehabilitation and the risk of deportation. He contended that his prospects of rehabilitation would be frustrated by deportation because he had no supports, programs, courses, family or employment in New Zealand. He argued that, in accordance with the second limb in Guden, deportation would constitute a serious 'punishing consequence' after his release from prison. He also argued that there was some cruelty in sending him back to the country where he experienced a traumatic childhood.

82 The applicant emphasised that rehabilitation was a prescribed sentencing purpose under s 5(1)(c) of the Sentencing Act 1991. According to the applicant, the judge was concerned to craft a sentencing disposition that would maximise the applicant's prospects of rehabilitation and it appeared that the judge contemplated that the applicant would have the opportunity to rehabilitate himself and complete his CCO in Australia.[30] He submitted that it could not be in accordance with sentencing principles to impose a sentence that, on one hand, aims to rehabilitate and, on the other, deprives the offender of that opportunity.

83 The applicant contended that, having accepted that he stood to be deported, it was not reasonably open to the judge to impose the sentence of 12 months' imprisonment in view of the negative impact that it would have on his prospects of rehabilitation and the serious 'punishing consequence' deportation would effect after his release from prison.

84 In oral submissions, counsel for the applicant argued that, in relation to comparable cases, a sentence of 12 months' imprisonment for dishonesty offences in a quantum of under $200,000 was at the higher end of the range. Accordingly, counsel submitted that, in the present case, a sentence of less than 12 months would not be manifestly inadequate and that, in the context of the effect of deportation on the applicant's rehabilitation, the sentence of 12 months' imprisonment was manifestly excessive.

85 The Crown submitted that the sentence imposed in the present case fell within the available range, having regard to the seriousness of the applicant's offending and the prominence of general deterrence, specific deterrence, denunciation and just punishment as sentencing purposes. It contended that the judge correctly characterised the applicant's offending as serious, in the light of the following factors:

(a) The value of the fuel that had been purchased with the stolen fuel cards was significant.

(b) The applicant had initiated contact with the person to whom he gave the fuel cards, Mr Nguyen, and had formulated the agreement between them.

(c) The applicant obtained a substantial benefit from the use of the fuel cards, having been paid between $65,103.75 and $117,186.75 by Mr Nguyen.

(d) The applicant's offending was protracted, having continued over a 17 month period.

(e) The applicant's offending was also persistent. Undeterred by the cancellation of fuel cards within the offending period, the applicant stole additional fuel cards and provided them to Mr Nguyen.

(h) Each of the 14 charges was inherently serious with a prescribed maximum penalty of 10 years' imprisonment.

(i) The applicant's offending involved the ongoing breach of his employer's trust.

86 The Crown argued that the judge's sentencing remarks reveal that he took into account each of the mitigating factors upon which the applicant relied, and gave each of those factors proper weight. It submitted that, due to the nature of the offending, some of the mitigating factors upon which the applicant relied must be given less weight than the sentencing purpose of general deterrence. This was said to be because it is common for offenders of this kind of offending to have no prior criminal history, good character references and good prospects of rehabilitation.

87 In oral submissions, senior counsel for the Crown contended that the judge gave the applicant's prospects of rehabilitation of his gambling issues more favourable weight than he was entitled to for three reasons. First, although the applicant had voluntarily engaged with counselling, he had only completed two counselling sessions in the week prior to the plea hearing. Secondly, the applicant had continued to gamble up until March 2020 and had only desisted due to the restrictions that had been imposed upon gambling venues in response to the COVID-19 pandemic. Thirdly, the protective factors relied upon by the applicant had been in place since 2008 when he arrived in Australia.

88 In oral submissions, senior counsel for the Crown argued that there was no evidence on the plea regarding the impact that deportation would have upon the applicant's rehabilitation. Accordingly, she submitted that there was no evidence that his rehabilitation could not occur in New Zealand.

89 Senior counsel for the Crown submitted that the sentence of 12 months' imprisonment was at the bottom of the range. However, she conceded that it would be 'hard to say that [a sentence of 11 months' imprisonment] would not [have been] within range'.[31]

90 The question whether a sentence is manifestly excessive is not confined to an examination of the length of a sentence. It also involves consideration of whether the wrong type of sentence has been imposed.[32] In the case of a combination sentence involving a custodial component and a CCO, the overall sentence may be manifestly excessive due to the relative prominence given to the two components. That may be so, for example, where the composition of the sentence is such as to undermine an important sentencing purpose in circumstances where a different composition was capable of giving effect to that purpose without adversely affecting any other sentencing purpose. Of course, the overall sentence must remain within the available range.

91 The above example is apposite in the very unusual circumstances of the present case. The applicant's rehabilitation featured prominently on the plea and, in his sentencing remarks, the judge emphasised the need for the applicant to 'effect rehabilitation'.[33] The evidence on the plea was to the effect that the applicant's rehabilitation would be promoted if he remained in Australia, where he had family support and other significant protective factors, and would be jeopardised if he were deported to New Zealand, where protective factors were absent. The Crown effectively conceded before us that it was open to the judge to sentence the applicant to 11 months' imprisonment with a CCO of 2 years. Such a sentence would have avoided deportation and would have promoted the applicant's rehabilitation, without adversely affecting any other sentencing purpose. Yet, the judge sentenced the applicant to 12 months' imprisonment with a CCO of 2 years, thus exposing him to deportation and the avoidable risk of negating what was acknowledged to be a prominent sentencing purpose, namely, the applicant's rehabilitation.

92 In circumstances where the sentence imposed by the judge not only failed to give sufficient weight to a key sentencing purpose - the applicant's rehabilitation - but created a significant risk of fundamentally undermining that purpose, it can be inferred that the sentencing discretion miscarried. In the language of the authorities governing the manifest excess ground, something must have gone plainly wrong in the exercise of the sentencing discretion.[34] That is particularly so in the light of the fact that a slightly lower custodial sentence combined with a 2 year CCO, with its punitive as well as rehabilitative aspects,[35] would have resulted in an overall sentence which was within range and would have promoted all applicable sentencing purposes.

94 In resentencing the applicant, we have borne in mind that he was sentenced not simply to a term of imprisonment of 12 months but to that term combined with a CCO of 2 years which contained conditions requiring supervision and treatment.

95 We have also taken into account the applicant's current circumstances. As we have already stated, he has completed his custodial sentence, is living with his family, working full-time with Elite Roads Pty Ltd and undertaking the requirements of the CCO. For the purpose of resentencing, we have had regard to the contents of an affidavit sworn by the applicant's partner, Ms Pineaha, on 26 July 2021 concerning the applicant's current family circumstances and the hardship that his deportation to New Zealand would cause to him and his family.

96 As found by the judge, the applicant's offending was serious, particularly having regard to the duration of the offending and the amount stolen from Fulton Hogan. However, the applicant was able to call in aid significant mitigating factors, including his guilty plea, lack of prior convictions, family support, prospects of rehabilitation, remorse and the two limbs of Guden.

97 In all the circumstances, we consider that the CCO imposed by the judge was entirely appropriate and should be affirmed. However, for the reasons we have already discussed, the custodial component of the sentence was manifestly excessive and should be set aside. In lieu of the custodial sentence, the applicant will be resentenced as follows:

Obtaining financial advantage by deception ('OFAD')

Total effective sentence: 10 months' imprisonment

98 In a numerical sense, the above sentence does not differ materially from the sentence imposed by the judge. However, the difference is of fundamental significance in that it will facilitate, rather than undermine, the very important sentencing purpose of the applicant's rehabilitation.

99 Pursuant to s 6AAA of the Sentencing Act a declaration will be made that, but for the applicant's pleas of guilty, we would have sentenced him to a total effective sentence of 2 years and 6 months' imprisonment with a non-parole period of 1 year and 8 months.

100 At the hearing before us, it was common ground that the compensation order made by the judge misstated the quantum of loss suffered by Fulton Hogan as a result of the applicant's offending. The correct amount is $130,207.51, rather than $130,211.51. The compensation order will be amended to refer to the correct amount.

[1] DPP v Matamata [2020] VCC 1538 ('Sentencing remarks').

[2] As discussed at [100] below, the compensation order specified an incorrect amount. The correct amount is $130,207.51.

[3] In these reasons, all references to grounds of appeal are to proposed grounds of appeal.

[4] Migration Act s 501(3A), (6)(a), (7)(c).

[5] Migration Act ss 500(1)(ba), 501CA.

[6] [2010] VSCA 196; (2010) 28 VR 288, 294 [25] ('Guden').

[7] Guden [2010] VSCA 196; (2010) 28 VR 288, 295 [27], [29] (citations omitted).

[8] [2020] VSCA 55, [34], [38]-[39] (citations omitted) ('Akot').

[9] [2016] VSCA 48, [34].

[10] Transcript of Proceedings (2 September 2020) 32.6-33.5.

[17] Sentencing remarks [49]. During the plea hearing, the judge agreed that the applicant's prospects of rehabilitation were good: Transcript of Proceedings (2 September 2020) 28.10-28.12.

[20] The Crown relied upon Booysen v The Queen [2014] VSCA 150, [9]; Ayol v The Queen [2014] VSCA 151, [14] ('Ayol'); Mifsud v The Queen [2014] VSCA 160, [16]; Booth v The Queen [2015] VSCA 51, [121]-[123].

[21] A well-established category of abuse of process is where the court's processes are invoked for an illegitimate or collateral purpose. See Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 537, 547; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286; PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612, 613 [3]; [2009] HCA 6; Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd [2014] VSCA 351; (2014) 45 VR 585, 597 [54]-[56].

[22] Transcript of Proceedings (20 August 2021) 47.10.

[23] [2017] HCA 41; (2017) 262 CLR 428 ('Dalgliesh').

[24] Counsel for the applicant relied upon Allouch v The Queen (2018) 276 A Crim R 1, 10 [49]-[50]; [2018] VSCA 244.

[25] See [43] above.

[26] [2019] VCC 1742.

[27] See [30] above.

[28] See [34] above.

[29] Guseli v The Queen (2019) 277 A Crim R 156, 174-5 [100]-[101]; [2019] VSCA 29.

[30] The applicant relied upon the judge's sentencing remarks that the applicant would want to ensure that he effected rehabilitation and never again placed his family in jeopardy. See [41] above.

[31] Transcript of Proceedings (20 August 2021) 44.22-44.23.

[32] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325 [6]; DPP (Cth) v Zarb [2014] VSCA 347; (2014) 46 VR 832, 844 [36], 849 [61].

[33] See [41] above.

[34] Ayol [2014] VSCA 151, [30], citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; Nicholls v The Queen [2016] VSCA 300, [31]; Till v The Queen [2018] VSCA 122, [46]; Osman v The Queen [2021] VSCA 176, [97].

[35] See Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 311 [2], 330-2 [85]-[98].