• Attempted obtaining financial advantage by deception

• Attempted obtaining financial advantage by deception

• Attempted obtaining financial advantage by deception

• Possession of identification information[4]

• Knowingly dealing with proceeds of crime and intending to conceal that it was proceeds of crime[6]

• Deal with property suspected proceeds of crime[9]

• Total effective sentence 7 years and 6 months;
• Non parole-period 6 years.

1. We have determined to refuse the application for leave to appeal against sentence on proposed ground 1 and grant leave to appeal on proposed ground 3 but dismiss the appeal. Our reasons are set out below.

1. This indictment alleged 12 charges spanning a period from November 2017 to December 2020. The victims of the applicant's dishonesty were various banking institutions, Telstra Corporation ('Telstra') and disparate other credit providers. The applicant's preferred modus operandi was to make - or cause to be made - applications for loans supported by false documents often generated by an associate, Mr Mallouk. On occasion, the applicant would use stolen identity documents altered as circumstances dictated. Large sums of money were forwarded to accounts controlled by the applicant. For example:

(a) charge 1 (rolled-up count) involved the ANZ Bank forwarding in total $118,000 to the applicant over an 18-month period;

(b) charge 2 involved the Westpac Bank forwarding in total approximately $250,000 in loans to false identity accounts controlled by the applicant - all loans supported by false documents generated at the behest of the applicant; and

(c) charge 6 (rolled-up charge) involved similar fraud perpetrated upon Citigroup Bank ('Citi') over 3 months and netting the applicant's fake identity account of $75,000.

1. The applicant turned his attention to Telstra (charge 7). Over the course of 18 months, he set up eight false contracts with Telstra using false identification documents, false supporting materials and ultimately entered into fraudulently detailed contracts with Telstra. Telstra forwarded to the applicant goods and services to the value of more than $540,000. The applicant acquired 206 phones by pretending that he was an employee of a dental group linked to Bupa and that he was authorised to place orders on their behalf.
2. For the last six months of the applicant's activities directed at Telstra, he was in gaol. He continued to oversee this fraudulent activity through directing his criminal associates over the recorded ARUNTA prison telephone system.
3. Charge 11 involves using false documents to support a home loan application for $607,500 in his wife's name. Luckily, fraud was suspected and the application was rejected. Charge 12 involves similar use of a false document designed to achieve the same end (ie a home loan for $607,500). Again, fraud was suspected and the application was rejected.

1. The charges under this indictment concern similar dishonest conduct. Again banks were targeted and the applicant successfully secured about $30,000 from ANZ bank in March 2019 (charges 1 and 2), and shortly after that came an unsuccessful attempt to secure a $50,000 personal loan from the same institution (charge 3). JB HiFi was also targeted and supplied two mobile phones to the value of about $5,000, using an unknowing real person's Telstra account (charge 4). Later in 2019, police searched the applicant's house and located false bank cards relevant to this telephone purchase, and personal identification information from the Experience Apartments guest list. The sentencing judge concluded that the applicant possessed this information for the purposes of creating false identities.

1. On 18 March 2020, the applicant was intercepted by police driving a white Mercedes-Benz vehicle in Broadmeadows. Amongst other things, police found an envelope containing six Telstra SIM cards which had been ordered in a false name (charge 1), a falsified Medicare card and false proof of age cards (charges 2 and 3) and in a bag under the car seat, cash totalling $28,350 (summary offence 1). Police also found a genuine but stolen passport (summary charge 3).

1. This indictment contains just one rolled-up charge relating to the purchase of four Apple iPhones using a credit card fraudulently obtained by the applicant on 18 October 2019. Each iPhone was valued at $3,798 - a total of $15,192 in goods were fraudulently purchased.
2. The above paragraphs capture only a snapshot of the applicant's criminal activities. On his plea and at this application, both parties relied on four very comprehensive Summaries of prosecution opening.

1. The applicant admitted scores of prior convictions, mostly to do with dishonestly obtaining property or money, incurred on a regular basis since 2005. They were described by the judge as follows:

I now turn to your criminal record which is extensive and involves offending in precisely the same way over a period of time. You first appeared before the Magistrates' Court in 2005 when you received a partially suspended sentence on charges of theft, obtaining a financial advantage by deception and attempting to commit an indictable offence. In February 2008 you appeared before the Broadmeadows Magistrates' Court for five charges of obtaining a financial advantage by deception, for which you received a 10-month suspended sentence.

On 22 June 2010 you appeared before the Broadmeadows Magistrates' Court on charges of obtaining property by deception and attempting to obtain property by deception. You appeared before the Melbourne Magistrates' Court on 6 August 2010 on multiple charges of obtaining a financial advantage by deception, obtaining property by deception, dealing with property being the proceeds of crime, attempting to obtain a financial advantage by deception and going equipped to steal. Again, you received a suspended sentence.

On 29 December 2010 you were imprisoned for 30 days for shop stealing. On 6 May 2011 you received 15 months' imprisonment with a non-parole period of seven months on multiple charges of obtaining property by deception, dealing with the proceeds of crime, attempting to commit an indictable offence, obtaining a financial advantage by deception, and you were ordered to pay multiple sums of compensation.

You appealed this decision in May 2011. An amount of time that you also received from the Magistrates' Court in May for breaching a suspended sentence was set aside and you received an aggregate term of 10 months. On 22 June 2011 you were further gaoled on charges of obtaining property by deception, obtaining a financial advantage by deception, receiving a total effective sentence of five months. Again you appealed this sentence, which was allowed, and ultimately a lesser aggregate sentence was imposed.

On 3 November 2011 you appeared before the Dandenong Magistrates' Court where you received 20 months' imprisonment on further charges of obtaining property by deception, attempting to obtain property by deception and so forth. On 22 February 2013 you appeared before the Broadmeadows Magistrates' Court on further charges of obtaining property by deception for which you were placed on a Community Corrections Order.

In February 2016 you were imprisoned for one month for two charges of obtaining property by deception. On 1 August 2018 you appeared before the Frankston Magistrates' Court again on charges of obtaining property by deception, attempting to obtain property by deception and making a false document to the prejudice of another, for which you were placed on a Community Corrections Order.

Finally, on 13 February 2020 you received three months' imprisonment on charges of obtaining a financial advantage by deception and obtaining property by deception and negligently dealing with the proceeds of crime. You last appeared before court on 28 February 2020 on charges of obtaining property by deception and using a false document to the prejudice of another, for which you were placed on a Community Corrections Order.

Some of that previous offending involved large amounts of money. I was informed by your counsel that one of the activities in which you engaged netted you an amount of $102,746. That was offending that occurred in 2011 as a result of purchases made by you with false documentation. Again, in 2011 there was separate offending involving the fraudulent purchase of electrical equipment worth $44,000. In 2011 also you obtained a financial advantage and property worth $21,159, again using the fraudulent methods I have outlined.[11]

1. The prosecution opened the plea in accordance with the four summaries of prosecution opening. Counsel for the applicant emphasised the following in his written outline prepared for the plea:

(a) he accepted the prosecution summaries as agreed facts;

(b) the applicant had been remanded in custody for 106 weeks as at the date of the plea (15 August 2023);

(c) a sentence of imprisonment is the only available option. Whilst a sentence of imprisonment with a non-parole period would be open given the lengthy remand period, it would also be open to sentence the applicant to a combined sentence of imprisonment (12 months or less - ignoring the time he spent on remand) and a community correction order ('CCO') tailored to deal with the applicant's drug and gambling addictions;

(d) the applicant was a victim of sexual abuse at the age of 8, witnessed his younger brother's death in a household accident when he was aged 10, and witnessed traumatic violence as a child in Lebanon;

(e) the applicant migrated to Australia aged 20 in 1993 and had a short-lived arranged marriage that year;

(f) he worked for eight or nine years at Chef Home Appliances as a factory worker and foreman, until he was made redundant in 2001;

(g) in 1996 he married again in another arranged marriage, which lasted around five years. There are two children from that marriage;

(h) from 2002-03 he commenced gambling and cannabis use. In August 2003, he was involved in a serious car accident. From 2004-05 he commenced criminal offending. His methylamphetamine use commenced when he was aged 29 or 30;

(i) in 2006, he married for a third time. He has three children with Blerina Mustum, a co-accused in some of the more minor offences;

(j) he was diagnosed in 2010 with osteoarthritis, gastroesophageal reflux, hypertension, cardiac arrythmia and major depression;

(k) in 2018, he was diagnosed with bipolar affective disorder, and in 2019 he was diagnosed by a clinical psychologist with a mood disorder, anxiety and obsessive-compulsive disorder;

(l) throughout the offending period, he has suffered from cannabis use disorder, stimulant use disorder (methylamphetamine), alcohol use disorder, major depressive disorder and gambling disorder;

(m) he has pleaded guilty;

(n) the offending was not entirely unsophisticated, but it was far from complex. Ultimate detection was certain;

(o) his offending was motivated by a gambling addiction and fuelled by drug addiction (cannabis and methylamphetamine);

(p) Verdins limbs 1, 2, 3 and 5 are engaged;[12]

(q) the applicant has a mild intellectual disability, which is of limited relevance however supports the proposition that the offending was relatively unsophisticated;[13]

(r) totality is relevant. The present period of imprisonment is the longest yet served by the applicant; and

(s) the burden of imprisonment will increase because of family hardship caused by his absence.

1. The plea hearing featured several lively exchanges between the bench and bar table. The applicant's counsel tendered reports from a psychologist (Mr Jeffrey Cummins), neuropsychologist (Professor Simon Crowe) and a gambling counsellor from Latrobe Community Health Services (Ms Jacinta Crealy). Various letters of support were also tendered. Counsel for the applicant conceded that his client was 'going to do a substantial amount of gaol'.
2. The judge correctly noted that whilst a gambling disorder may explain the offending, it was not available to the applicant as a mitigating factor.[14] Counsel took her Honour through the applicant's background and a small table of assertedly comparable sentencing cases. At the judge's request, he addressed prior convictions and accepted that by 2010-11 the applicant's fraudulent activities had escalated, using dishonestly obtained credit card purchases whilst impersonating the card owners. By 2011, the applicant was dealt with for frauds amounting to over $100,000.
3. Her Honour observed in discussion with counsel that the applicant had been given plenty of chances over the years, 'and he's just kept going' with 'entrenched recalcitrant behaviour'. Counsel conceded that his client had been given a number of chances by the courts but had just basically ignored them. The judge said his activities were widespread and persistent, and 'basically he's a menace and it's very hard for me to sentence him in any other way unfortunately'.
4. Her Honour indicated that 'general deterrence and protection of the community [were] the overwhelming features' relevant to sentence.
5. The following exchange - pertinent to proposed ground 3 - then took place. We shall reproduce it in full:

[DEFENCE COUNSEL]: ... The first proposition is that the cases broadly demonstrate that sentences between, as I say, three, four, five years, head sentence; non-parole period two, three, four years, more often in the two-to-three-year cluster ‑ ‑ ‑

HER HONOUR: Yes.

[DEFENCE COUNSEL]: ‑ ‑ ‑ are broadly what people are getting for similar sorts of offences with significant priors. Now, comparative sentences are just one matter, Your Honour, obviously that's trite to say but if that's right and that's broadly the range he might be looking at, he's done two years in custody now on remand during COVID, he can get another year before he does a CCO and what a sentence of, a combination sentence would mean is that there's a guarantee that he gets some help.

HER HONOUR: No because I don't trust him on a CCO. He's been given two opportunities on CCOs. It's a question of you know, it's not just a question of reform. Reform is always what is sought, [Defence Counsel], and courts have been bending over backwards trying to reform your client without avail and unfortunately he's hit the brick wall and the problem is the offending has escalated. He's on a CCO when he's doing this. You know the fact that he sat in gaol for two years and done a few courses, given the entrenched history going right back over pretty much more than 20 years. Courts have tried everything with your client.

Now it's you know, he's hit the brick wall as far as I'm concerned. I would not, I can make it perfectly clear, a CCO is absolutely not on the cards for this man.

[DEFENCE COUNSEL]: Yes, Your Honour. I'm hearing, I hear what Your Honour says.

HER HONOUR: And the other thing ... he's been on a CCO before and just kept going. Unfortunately what happens a lot and I haven't read the psych material, it came in a bit late but my own personal experience of entrenched fraudsters is there's always a dream that there's a way out of it. You know they'll hit a sticky spot but they'll come up with something because they always can and my concern would be that if I was to accede to your request, well he's got it again, he's got away with it again. Often for fraudsters the reality has to hit and the reality here I'm thinking and I am talking numbers here, I'm [thinking][15] five with a three with your client, that's it.

As I said his history is one of non-stop offending, of courts, I mean really interesting that he gets 20 months with a 10 month minimum and courts are still giving him CCOs after that. They're trying, tyring, trying, trying and nothing is penetrating. That's the problem, [Defence Counsel].

1. Counsel for the applicant doubled down and continued to press for a lower sentence. He immediately directed his submissions to a neuropsychological report from Professor Crowe. We shall reproduce in full this passage which is relevant to proposed ground 1.

[DEFENCE COUNSEL]: Your Honour will see in the Dr [Crowe] report that, and particularly at [page] 8 of that report my client has been diagnosed, effectively he's assessed because Mr Cummins suspects the presence of an acquired brain injury.

HER HONOUR: Yes.

[DEFENCE COUNSEL]: And so he sends him off to Mr [Crowe]. Mr [Crowe] performs the testing and concludes that Mr Mustum has a full scale IQ of 65 which places him in the ‑ ‑ ‑

HER HONOUR: Yes it's, I don't care. I know I should say that but that is just ridiculous. That is just ridiculous I'm sorry.

[DEFENCE COUNSEL]: Well it informs in my submission one of the points I sought to make in the ‑ ‑ ‑

HER HONOUR: No that's five points below the cut-off for intellectual disability.

[DEFENCE COUNSEL]: Yes.

HER HONOUR: I just don't buy it sorry ... This is recruiting people to make false documents, filling out forms that fool the banks although [I] must say it doesn't seem terribly hard to fool the banks half the time.

[DEFENCE COUNSEL]: Well that was the point I'm, will touch on that in a moment.

HER HONOUR: No, 65, what he's eligible for a, what a disability support pension on the basis of intellectual disability? I just don't, I do not accept that.

[DEFENCE COUNSEL]: There's a caveat in the report, Your Honour will read there's a caveat in the conclusions that ‑ ‑ ‑

HER HONOUR: Yes well he's ‑ ‑ ‑

[DEFENCE COUNSEL]: That although the results indicate he falls into the borderline to mildly intellectually disabled category there's ‑ ‑ ‑

HER HONOUR: Yes, did he do the TOMMs on him?

[DEFENCE COUNSEL]: Yes.

HER HONOUR: Test of Malingering?

[DEFENCE COUNSEL]: Yes and there was some indication of that.

HER HONOUR: Yes, yes, very ‑ ‑ ‑

[DEFENCE COUNSEL]: But it was equally the case that language function and educational levels also could have resulted in ‑ ‑ ‑

HER HONOUR: Do you know I'm always incredibly interested in the psych material as you know, it's always my concern to try and determine what's lying behind someone's offending you know, what's gone on, those sorts of things. I do not buy that neuropsych report and I may be criticised for it but I simply do not. The disparity between the type of offending he's engaged in and it may be said oh it led directly back to him and all those sorts of things, it requires a level of intellectual capacity that I do not accept that a person with the IQ of 65 could manage.

[DEFENCE COUNSEL]: And, Your Honour, that's, it just, there's a disconnect there and I accept that and that's why we didn't lead with that.

[DEFENCE COUNSEL]: No, really what I'd seek to say is that you can look at this offending and think it's incredibly complex because it's false identities and it's applications for credit, things that, and the use of doctored pay slips and things like that.

HER HONOUR: Yes, yes.

[DEFENCE COUNSEL]: That's overstating really how complicated it is. It's, from Mr Mustum's perspective he's effectively a wind-up soldier being given things and he's seeking an out, he wants, he wants the IDs that can let him do it, he wants the doctored pay slips that can let him do it but once he's got these things it's a learned behaviour ...

1. Her Honour did not find this submission attractive:

HER HONOUR: ... I'm not saying that it's particularly sophisticated but it requires an intellectual capacity and a level of functioning that I do not accept would attach to a person with an IQ of 65.

[DEFENCE COUNSEL]: It's probably semantics, Your Honour. Yes. It's probably semantics Your Honour, but I do resist the allegation he's recruiting people. What I would submit is that he's using connections he has through his period of ‑ ‑ ‑

HER HONOUR: Well he might, but he understands that Mr Mallouk, who's a person of no prior convictions and he understands that he's a computer whizz person and he goes to Mr Mallouk and he says 'I need this, I need this, I need this and this. When can you get it to me?'.

[DEFENCE COUNSEL]: Yes, that's what he's done, clearly.

HER HONOUR: People with IQs of 65 don't do that.

1. On the issue of objective gravity, her Honour explained that she was troubled by the persistence of offending and the escalation in seriousness when compared to his earlier offending. This, the judge said, troubled her more than the bald objective gravity of the individual fraudulent transactions.
2. In response, counsel explained his client's relative lack of education and sophistication and compared it to more sophisticated corporate offenders usually in positions of trust.
3. We pause this narrative to observe that where, as in this case, a judge is troubled by a particular submission, or had a particular view of matters adverse to an accused's interests, it is very much in the interests of procedural fairness that the judge articulate those matters.[16]
4. After the prosecutor's response, the judge thanked all parties, her Honour said this:

HER HONOUR: Thank you very much. Yes, both counsel - all counsel, extremely helpful, as I would expect from the amount of experience at the Bar table. Was very fortunate to have you all. Thank you. I'm going to take - starting a trial this afternoon. Make it two weeks. I don't want to keep everybody in suspense, but I, as I said, Mr Mallouk is looking at a CCO at this stage of the game. I know everyone gets uncomfortable when you throw around figures, but unless I - I'd have to have a look [at] it, but my initial feeling is about five with a three for this, all right?

[DEFENCE COUNSEL]: As Your Honour pleases.

1. The judge summarised the offending. We shall not rehearse it again.[17] Her Honour then summarised the applicant's personal circumstances. In short compass, it was accepted that:

(a) at the time of the plea, the applicant was 50 years old;

(b) he completed year 9 at school. His parents are still alive and living in Lebanon as are most of his siblings;

(c) whilst living in Lebanon, he was sexually abused by an older man during his early teens and was subsequently sexually threatened at work;

(d) he came to Australia in 1993 as a result of an arranged marriage which did not last long;

(e) when he came to Australia, aged 20 years, he secured full time work at Chef Home Appliances and worked there for nine years, rising to foreperson;

(f) in 1996, he married again, also an arranged marriage. He has two children from that relationship - a boy and a girl. Both are now in their early 20's;

(g) in 2001, he was made redundant from work. He began using cannabis and gambling;

(h) he was involved in a serious car accident in 2003, and commenced using methylamphetamine in 2004 or 2005. He has undertaken some casual work as a pizza driver and courier, but has essentially not worked since 2005; and

(i) in 2006, he married again and at the time of the plea had three children aged 15, 12 and 10 from that marriage.

1. The judge summarised the applicant's criminal record; this is set out at paragraph [12] of these reasons.

1. Her Honour then turned to the various psychiatric and psychological opinions offered to explain the applicant's offending over the years. These are relevant to proposed ground 1 of this application.

Over the years you have been assessed obviously in relation to the numerous court appearances that you have made. There have been diagnoses of major depression, bipolar, so forth and so on. Again, there was an assessment of you by psychologist Jeffrey Cummins. He talked about the difficulties you have faced in your life. He talked about you having a depressive disorder and anxiety disorder. You were also neuropsychologically assessed by Dr Simon Crowe who incredibly, in my view, came up with an IQ putting you in the mid-60s which means you would be intellectually disabled.

I simply do not accept that diagnosis. It is quite clear to me the offending you engaged in was sophisticated, involved recruitment by you of numerous people, including people who created documentation for you. You undertook a wide variety of activities in order to obtain services and goods and lines of credit with a wide range of financial institutions. I do not regard your offending as in any way reflective of the activity of a person suffering an intellectual disability. Indeed, it was noted by Dr Crowe in his report that the results could not really be relied upon because he felt that you were not giving of your best - in other words, malingering, Mr Mustum, and I do not accept the findings.[18]

Moral culpability, remorse and sentencing purposes

1. Her Honour observed, firstly, that the applicant entered his plea at an early stage, albeit when confronted with strong cases against him, and secondly, that gambling is not seen by the court as a mitigatory factor.[19]
2. The judge said that she considered the applicant to be 'an entrenched and remorseless offender', offending in ever increasing amounts, notwithstanding the chances offered to him over the years.[20]
3. Her Honour considered that general deterrence, specific deterrence, protection of the community and denunciation 'dominate the sentencing exercise before [her]'.[21]
4. The judge took into account the plea of guilty and some of the difficulties the applicant had faced in his life, however noted that they 'fall away ... in face of the entrenched nature of [the applicant's] offending ...'.[22]

1. The applicant pursued proposed grounds 1 and 3 on this application.[23]

Proposed ground 1 - rejecting evidence regarding applicant's IQ

1. Proposed ground 1 contended that Her Honour erred in rejecting the evidence, and related submissions, contained within the written report of Professor Crowe to the effect that the applicant had a full-scale IQ of 65.[24]
2. We have set out the transcript of the relevant discussion at paragraph [19] of these reasons.
3. This proposed ground can be dealt with quite shortly. Firstly, it was open to the judge to reject the proposition that the applicant had an IQ of 65 which placed him 'at the first percentile rank in the extremely low range' of intelligence.[25] We agree that the opinion, as expressed by Professor Crowe, ought to be rejected. The applicant's modus operandi is not that of an unsophisticated rudimentary thinker functioning below 99 per cent of the population. Over the course of years, he has deceived financial institutions and corporations by either using stolen identities or fictitious identities, falsifying documents, or commissioning their falsification, and overseeing their presentation to those financial institutions. As we have observed, whilst in custody from March 2020 to October 2020 he continued to control his enterprise by counselling criminal associates as to how to sell unlawfully acquired mobile phones and what to do with the proceeds. In doing so, likely aware of the chance that the calls would be recorded, he used a 'subtle code'. This description was used on the plea by the prosecutor and no issue was taken with it either before his Honour or before this court.
4. Further, the applicant is not only serially dishonest, but is also likely a malingerer. In three out of five of the performance tests 'validly administered', 'some or all of the deficits noted in his profile of performance [were] attributed to motivational compromise rather than to actual organic deficit.'[26] In plain English, the applicant did not try in 60 per cent of the performance tests. Later in his report, Professor Crowe said this:

Although he does demonstrate particular weakness with regard to his cognition overall, currently operating in the mildly intellectually disabled range, all other aspects of his performance are above this, raising concern about the interpretation of this compromised pattern of general cognitive performances. It may be that it is attributable to his educational deprivation or to his non English speaking early years or alternatively, perhaps to his less than genuine effort to perform to the best of his ability, as noted in the impaired performance on three of five tests of performance validity which indicate some, or all, of the deficits are attributable to motivational compromise.[27]

1. It is well established that where an accused wishes to rely on factors mitigatory to sentence, the burden falls upon an accused to establish those factors on the balance of probabilities.[28] Defence counsel was on notice that the judge was not minded to accept Professor Crowe's opinion. He did not seek to call the professor to give evidence, or request a Forensicare report; he conceded there was a 'disconnect' between the offending and an IQ of 65; and he said 'that's why we didn't lead with that'. Whilst we commend counsel for his frankness, it does little to support this proposed ground which is bereft of merit.
2. Leave to appeal on this proposed ground is refused.

1. This proposed ground contends that two remarks made by the judge during the plea hearing were sufficient as to constitute a denial of procedural fairness and thus vitiate the entire sentencing exercise. We have identified and highlighted those remarks in their context in paragraphs [18] and [25] of these reasons.

1. A person facing sentence before a criminal court is entitled to procedural fairness.[29] It is permissible for a judge to form and express a preliminary view of an appropriate sentence.[30] In the NSW Court of Criminal Appeal case of Anae,[31] Price J (with whom Johnson J and Hoeben CJ at CL agreed) said:

In recent years, the criminal caseload of the District Court has substantially increased. Judges of the Court are faced with the onerous task of dealing efficiently with their criminal work, which includes sentencing proceedings. A judge is neither prevented from forming a preliminary view of the appropriate sentence to be imposed nor is a judge obliged to listen endlessly to meritless arguments. However, notwithstanding that efficiency is a laudable objective; the principles of impartiality and procedural fairness require a judge to give some time to an offender's arguments which are to be listened to with an unfixed mind.[32]

1. For convenience, we shall repeat the impugned remarks:

(a) ' ... and the reality here I'm thinking and I am talking numbers here, I'm [thinking] five with a three with your client'; and

(b) 'I'd have to have a look [at] it, but my initial feeling is about five with a three for this, all right? ... So yes, for all the reasons that I have said ...'.

1. The applicant now says that, had her Honour not made these statements more fully developed, submissions on the objective gravity of the offending would have been put on the applicant's behalf, and more detailed reference to the comparative cases (particularly Eagles v The Queen[33]) could have been made.
2. The respondent accepts that by making the impugned remarks her Honour 'took an unusual course', albeit it was made clear on both occasions that her Honour's view on the appropriate sentence was far from a concluded view.
3. In Mendelle v The Queen,[34] the sentencing judge enquired of defence counsel 'whether he (defence counsel) would have any argument against the applicant receiving the same sentence as did [a co-offender]'.[35] Defence counsel indicated he would have no problem with such a sentence, as did the prosecutor (although somewhat reluctantly). The judge then indicated that he proposed Mendelle be sentenced to the same term as a co-offender.[36] After some further discussion concerning the co-offender's prior convictions, the co-offender's acquired brain injury and an examination of the CCTV footage of the offending, the judge said Mendelle 'might have to wear an extra three months on the totality, I think'.[37] The Court of Appeal then said ' ... no one voiced any great concern at that particular statement by his Honour'.[38] Ultimately, Mendelle received a sentence at first instance that was six months greater than the co-offender's sentence, not three months greater as foreshadowed.[39]
4. Counsel for the respondent in Mendelle conceded that there had been a denial of procedural fairness in the process described above. The Court of Appeal accepted this concession without any further discussion as to its merits, but denied Mendelle leave to appeal as it considered there was no reasonable prospect that it would impose a less severe sentence.[40]
5. In Weir v The Queen,[41] the applicant was charged with recklessly causing grievous bodily harm[42] and intentionally or recklessly destroying property.[43] He was sentenced to a total of 4 years' imprisonment after an indication from the sentencing judge that the sentence would be 3 years. The indication was at first expressed in tentative terms but those terms firmed up in discussion. At paragraphs [69]-[72], Garling J (with whom Macfarlan JA and Johnson J agreed) set out the evolution of the indication:

I agree that in the circumstances described above that there has been a breach of procedural fairness. The sentencing judge included in his remarks on a number of occasions the phrase "... my tentative view ...". Ordinarily, such a phrase would not be taken as precluding departure from that view on a later occasion: Baroudi[[44]] at [33].

However, in this case, within a short time there were further comments which fell from the bench which included:

(a) if the counsel disagreed "... with that you would need to persuade me ...";

(b) if the counsel did not disagree with the judge's "tentative view" then "... I will put the matter over to another date and give judgment ...";

(c) the judge said that without binding himself he considered it "... highly likely that would be the sentence ...".

These comments were immediately followed by offering the applicant's lawyer an adjournment to take his client's instructions on the question of the proposed sentence. Once the response was made that the applicant did not wish to make any further submissions, in my view, the sentencing judge was obliged to grant the applicant an opportunity to make those submissions if he determined that he was going to impose a longer sentence. This did not happen. There was a breach of procedural fairness.

The Crown accepts that there is a breach of procedural fairness and that the applicant ought to have been given an opportunity to make further submissions by the sentencing judge before the imposition of the sentence which was actually imposed.[45]

1. We consider that in the present application - unlike in Mendelle and Weir - her Honour did not go beyond expressing a tentative view. The expressions 'I am [thinking] five with a three' and 'my initial feeling is about five with a three' are not the language of a concluded view. In comparison, in Weir, the sentencing moved seamlessly from a 'tentative view' to a 'highly likely' outcome, and that after the applicant's counsel took instructions from his client, he elected to make no further submissions.[46]
2. We are of the view that a fair reading of the transcript of the entire plea hearing demonstrates that the impugned remarks did not appear to constrain defence counsel in any meaningful way. He stuck doggedly to his task. Before the impugned remarks, he referred to a table of cases he had prepared, setting out sentencing practices in a small number of purportedly comparable cases. He addressed oral submissions to them which he submitted demonstrated head sentences of three, four, and five years 'more often in the two-to-three-year cluster'. This was, according to counsel, 'broadly what people are getting for similar sorts of offences with significant priors'.
3. In that context, defence counsel proposed that the applicant, who had already spent two years on remand, could be sentenced to a further 12 months' imprisonment together with a lengthy CCO commencing upon his release. Provided her Honour avoided making an order for pre-sentence detention, there would be no breach of s 44 of the Sentencing Act 1991.[47] The judge made it 'perfectly clear' that a CCO is 'absolutely not on the cards'. It was then that her Honour made the first impugned 'five with a three' statement.
4. Thereafter, defence counsel remained proactive and enterprising in his client's cause. As we have noted, he took her Honour to the Professor Crowe report which unsurprisingly found little favour, and then contended that the offending was relatively unsophisticated and nowhere near as complicated as it appeared. He then directed her Honour to Mr Cummins' opinion of bipolar mood disorder and his client's current medication regime. He submitted that the applicant's health issues could make his imprisonment more burdensome than otherwise. Counsel then returned once more to the objective seriousness of the offending and where this case sat in relation to high-end cases. As we have observed, the judge remarked to him that she was more concerned with the sheer persistence of his offending and his prior criminal history. Defence counsel returned to his point that higher end cases where educated people breached trust reposed in them were objectively more grave than this case.
5. Defence counsel then canvassed the prospects for rehabilitation and the supports available to the applicant on his release, including a family and a job. He reminded her Honour of the principles in Grossi[48] and argued that whilst pathological gambling was not a factor in mitigation, there was an absence in this case of aggravating factors that might otherwise be present.
6. After the prosecution's reply, the judge then made the second impugned remark, 'my initial feeling is about five with a three'. By this stage, the oral hearing was in its concluding phase. Had defence counsel wished to say anything more he had the opportunity, but in truth, there was nothing more to say. The applicant had been thoughtfully and competently represented by experienced counsel who stood firm against a strong headwind. The applicant has been equally thoughtfully and competently represented on this application.
7. That strong headwind was represented by an experienced criminal judge who was fairly bringing to counsel's attention matters that were exercising her mind. As we have said, we consider it to be good judicial practice to do so and certainly more procedurally fair than the judge who sits in silence. That said, it was unwise of her Honour to be discussing numbers, even if expressed in tentative terms. It can create unrealistic expectations, unnecessary disappointment, and ultimately, unsuccessful appeals.
8. In the circumstances that we have identified, however, we do not consider that there was a denial of procedural fairness. The impugned indications were of a tentative kind, and as we have said, defence counsel soldiered on saying all that could reasonably be said.
9. We would grant leave to appeal under proposed ground 3 but dismiss the appeal.

1. Leave to appeal on proposed ground 1 is refused.
2. Leave to appeal on proposed ground 3 is granted and the appeal is dismissed.

[1] Contrary to s 82(1) of the Crimes Act 1958.

[2] Contrary to ss 321M and 82(1) of the Crimes Act 1958.

[3] Contrary to s 83A(2) of the Crimes Act 1958.

[4] Contrary to s 192C(1) of the Crimes Act 1958.

[5] Contrary to s 5AA of the Control of Weapons Act 1990.

[6] Contrary to s 194(1) of the Crimes Act 1958.

[7] Contrary to s 83A of the Crimes Act 1958.

[8] Contrary to s 83A of the Crimes Act 1958.

[9] Contrary to s 195 of the Crimes Act 1958.

[10] This summary is largely taken from the Summary of prosecution opening for plea on each of the four indictments.

[11] DPP v Mustum & Ors (County Court of Victoria, Judge Gaynor, 1 September 2023), [43]-[50] ('Reasons').

[12] Citing a report from psychologist, Mr Jeffrey Cummins, dated 24 March 2023 [70]-[71] ('Mr Cummins' report').

[13] Citing a report from neuropsychologist, Professor Simon Crowe, dated 11 May 2023 ('Professor Crowe's report').

[14] R v Grossi [2008] VSCA 51; (2008) 23 VR 500 [47]-[57] (Redlich JA, Neave JA agreeing at [2], Vincent JA agreeing at [1]); [2008] VSCA 51 ('Grossi').

[15] The trial transcript reads ' ... I'm thing five with a three ...' We understand her Honour to have said 'thinking' not 'thing'.

[16] Chow v DPP (1992) 28 NSWLR 593, [606], cited with approval in R v Grillo [2003] VSCA 143, [17].

[17] See paragraphs [4]-[11] of these reasons.

[19] Ibid [54], citing Grossi (2008) 23 VR 500; [2008] VSCA 51.

[23] Proposed ground 2 was abandoned before the hearing of the application.

[28] The Queen v Olbrich (1999) 199 CLR 270, 281 [27]; [1999] HCA 54, adopting what was said in R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking , Hayne and Callaway JJA and Southwell AJA).

[29] Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 472-474; [1989] HCA 18.

[30] Anae v The Queen [2018] NSWCCA 73 ('Anae').

[32] Ibid [51] (Price J, Hoeben CJ at CL agreeing at [1], Johnson J agreeing at [2]).

[33] [2012] VSCA 102.

[34] [2018] VSCA 204 ('Mendelle').

[40] Pursuant to s 280 of the Criminal Procedure Act 2009.

[41] [2011] NSWCCA 123 ('Weir').

[42] Contrary to s 35(2) of the Crimes Act 1900 (NSW).

[43] Contrary to s 195(1)(a) of the Crimes Act 1900 (NSW).

[44] Baroudi v The Queen [2007] NSWCCA 48.

[45] Weir [2011] NSWCCA 123 [69]-[72] (Garling J, Johnsons J agreeing at [2], Macfarlan JA agreeing at [1]).

[46] See paragraph [47] of these reasons.

[47] Sentencing Act 1991, s 44.

[48] Grossi (2008) 23 VR 500; [2008] VSCA 51.