Pang v The Queen [2019] VSCA 56

1 The applicant pleaded guilty in the County Court to three charges relating to obtaining property by deception for which he was sentenced to an aggregate sentence of nine months' imprisonment and a Community Correction Order ('CCO') for 30 months.[1] We shall shortly recount the details of that offending.

2 Unconventionally, the judge in effect directed that the nine months' imprisonment be cumulative upon the applicant's pre-sentence detention of 114 days. The judge did, however, purport to declare under s 18(4) of the Sentencing Act 1991 ('the Act') that the period of 114 days be reckoned as already served under the sentence.[2]

[s.321M and s.81(1) Crimes Act 1958]

9 months' imprisonment and a 30-month Community Correction Order with Supervision and Treatment and Rehabilitation Conditions (aggregate sentence for charges 1, 2 and 3)

[s.81(1) Crimes Act 1958]

[s.81(1) Crimes Act 1958]

9 months' imprisonment and a Community Correction Order for 30 months duration with supervision and treatment and rehabilitation conditions

3 years' imprisonment with a non-parole period of 2 years

• A Compensation order of $20,000 to be paid to Westpac Banking Corporation Limited

• A Forensic sample order pursuant to s 464ZF of the Crimes Act 1958

4 The applicant has applied to this Court for leave to appeal against sentence advancing three proposed grounds. The first contends that the judge erred in failing to order that the pre-sentence detention be deducted from the sentence of imprisonment. Proposed ground 2 contends that the judge took into account an irrelevant or extraneous factor when considering charge 1, being the likelihood of a conviction of a charge of obtaining property by deception had the matter proceeded to trial in circumstances where the applicant had been charged with the lesser offence of an attempt to obtain property dishonestly. The final ground alleges that the sentence was manifestly excessive.

5 On Wednesday 10 May 2017 the applicant went to the Westpac Bank ('Westpac') branch in Chapel Street and presented himself as Lei Zheng, producing a false Chinese passport in that name but bearing a photograph of the applicant. Lei Zheng held an account with the bank and had funds on deposit in his name. At the at the applicant's request, $330,000 was transferred from the account into a Commonwealth Bank ('CBA') account in the name of Southbank Investments Pty Ltd, an entity related to Crown Casino ('Crown account').

6 On the same day, the applicant went to Crown Casino where he advised staff that he had transferred funds into the Crown account and wanted withdraw them. He signed an application for a deposit account in the name of Lei Zheng and presented false documentation. Although the money was transferred and was immediately available in clear funds, staff at the casino did not release the funds to the applicant pending further investigation. As things transpired, the money was not paid out to the applicant (charge 1 - attempt to obtain property by deception).

7 On the following day, the applicant returned to the Westpac branch, again identified himself as Lei Zheng, produced the false passport and obtained $10,000 in cash from Lei Zheng's account (charge 2 - obtaining property by deception).

8 Later that day, the applicant attended a different Westpac branch and, using the false name and passport, withdrew a further $10,000 in cash from Lei Zheng's account (charge 3 - obtaining property by deception).

9 On 12 May, and again on 15 May, the applicant went to Crown Casino to withdraw the funds that had been transferred. On the second occasion, he was arrested by Crown security staff and handed over to police who seized the false Chinese passport, a Crown rewards card and bank documents recording the transfer of $330,000.

11 On the plea, the applicant's solicitor submitted that a combined CCO and term of imprisonment of time served (114 days) was the appropriate disposition.

12 The judge accepted a submission that the applicant had a lower role in the offending and had acted as a 'mule' (albeit that he had undertaken all of the offending conduct),[4] that the transactions were undertaken on behalf of a third party[5] and that the applicant stood to gain $7500 as a result of the offending.[6] The judge noted that there was no evidence as to the motivation for the crimes but accepted, as feasible, that they were committed to fund a gambling addiction.[7] In this respect, the judge, after referring to the judgment of Southwell J in Martin,[8] observed that the applicant's gambling addiction may explain the offending but did not reduce the primary consideration of general deterrence.[9]

13 The judge described the criminality executed by the applicant as 'brazen'.[10] However, his Honour also noted that the applicant had no dishonesty priors and had not offended since the date of this offending.[11]

14 In response to a submission made by the applicant's counsel regarding the sufficiency of the period of pre-sentence detention of 114 days, the judge obtained a Community Correction report.[12] The report found that the applicant was suitable for a CCO, noting his gambling addiction. The judge also referred to the applicant's addiction to drugs, which was not put as an explanation for the offending, and the recommendation that he complete a gambling program, a drug treatment program and a psychological program.[13]

15 The judge also accepted that the plea was made at the earliest opportunity and that this was indicative of remorse, of assistance to the justice system and of utilitarian benefit.[14]

16 On the second day of the plea, the applicant tendered a medical report from Dr Roland Lee which said that the applicant is suffering from severe cardiomyopathy for which the applicant was prescribed multiple medications.[15] The heart condition caused severe shortness of breath, swelling of ankles and other unspecified symptoms. The applicant also tendered a statement from a pharmacist indicating that he was currently prescribed medications for diabetes, blood pressure and heart and chest pain.[16]

17 In light of the medical evidence, the judge accepted that a term of imprisonment would be more onerous for the applicant than a person in normal health.[17] Although there was no evidence, and the judge did not accept, that the applicant would not be given adequate treatment in prison for his medical condition.

18 Turning to the gravity of the offending the judge concluded that the offences were sophisticated and planned and that, given the maximum penalty prescribed and the need for general deterrence, appropriate punishment was warranted.[18] His Honour identified a need for specific deterrence related to the applicant's gambling addiction.[19]

19 The judge said that he regarded charge 1 as a high-end example of an attempt to obtain property by deception.[20] The judge noted that $300,000 was transferred from the bank account of the victim and was lodged with an account held by Crown Casino. The judge said that '[i]t [was] clear in [his] view, had the matter not been settled and had it proceeded to trial, the provisions of s 81(2) [of the Crimes Act] would have clearly covered the issue as to the obtaining of property.'[21] The judge immediately went on to say that given the plea was made on the basis of an attempt his observation was 'academic only'.[22]

20 In relation to charges 2 and 3, the judge noted that the amount involved was moderate, however the offence was nevertheless serious having regard to the prescribed maximum penalty.[23]

21 His Honour was persuaded that a combination of imprisonment and CCO was appropriate and that the CCO should contain a supervision order, a treatment and rehabilitation order covering gambling and drug addiction and 'some form of psychotherapy'.[24]

22 Ultimately, having regard to the maximum term of imprisonment for charges 2 and 3, being 10 years' imprisonment, and charge 1, being five years' imprisonment, and the need for both general and specific deterrence, the judge said that the time spent in custody of 114 days was an insufficient term of imprisonment in the circumstances.[25]

23 Relevantly for ground 1, the reasons for sentence record an exchange between the judge and the parties. After inviting the solicitor for the applicant to explain the sentence to his client the judge said 'specifically, it is important to explain that it is after the deduction of [post-sentence detention ('PSD')], that is a further nine months'.[26]

COUNSEL: If I could, Your Honour?

HIS HONOUR: So specifically, it is important to explain that it is after the deduction of PSD, that is a further nine months.

COUNSEL: Nine months from today, that's right.

HIS HONOUR: So it is exactly in the terms of s 44 [of the Act].

COUNSEL: Yes.

HIS HONOUR: I think, [Mr Prosecutor], the way to do it is simply not - the pre-sentence detention I have taken into account is, I have to declare pre-sentence detention is 114 days.

PROSECUTOR: Correct.

HIS HONOUR: But it is not to be deducted.

PROSECUTOR: Correct.

HIS HONOUR: The sentence must read, sentenced to a period of nine months, as in s 44, after deduction of the pre-sentence detention. So it is not to be deducted administratively. There must be, is there a [s] 44 order?

COUNSEL: As I understand it, Your Honour, sorry, I might just hand this back to your associate, if I might approach?

HIS HONOUR: Yes.

COUNSEL: In terms of the way the order is structured, I don't see an issue with it.

HIS HONOUR: The issue is this, to make sure that down below understands.

COUNSEL: Yes.

HIS HONOUR: We do not want a situation where - see, as it was framed, it was just the normal, sorry, the PSD is to be deemed as part of this sentence and is to be deducted administratively. Well, it is not.

COUNSEL: Yes.

HIS HONOUR: Because this sentence is, in terms of [s] 44, after deduction of the PSD.

COUNSEL: As I understand

HIS HONOUR: I am not sentencing to imprisonment of nine months plus 118 days, I am sentencing him to nine months after deduction of the PSD.

COUNSEL: Yes, so the effective sentence is

HIS HONOUR: Another nine months from today.

COUNSEL: Yes, I understand that. So the effective sentence

HIS HONOUR: But it is a question of making sure it is right here, on the order, because we do not want any mistakes down below.

COUNSEL: As I understand, the effective sentence is just shy of 13 months if you don't deduct

HIS HONOUR: No. Well, I do not declare it as an effective sentence.

COUNSEL: No, but the consequence of the order, as I understand Your Honour's intention, is essentially a 13 months.

HIS HONOUR: Yes, essentially 12 months or 13 months, yes.

COUNSEL: A 13 month term of imprisonment. And from that, that includes the 114 [days].

HIS HONOUR: No, but you do not do it that way. You do it under [s] 44 as it says.

COUNSEL: No, I understand what Your Honour's saying.

HIS HONOUR: No, no. Just so it is

COUNSEL: We're on the same page. I'm just saying, the consequence of your sentence is, the total time he'll serve is just under 13 months.

HIS HONOUR: Is nine months from today plus what he has already done.

COUNSEL: Yes, which is just under 13 months.

HIS HONOUR: Yes.

COUNSEL: Yes, I understand Your Honour's intention. It'll just have to be worded

HIS HONOUR: So I think you just declare the, as you do in the normal way, but do not do anything else about administratively, effective sentence of nine months, direct that the period of 114 days already served is not to be deducted administratively. The sentence of nine months is to commence from the date of sentence. I think that is clear enough, isn't it?

COUNSEL: I think that's clear, Your Honour.[27]

25 On charges 1, 2 and 3 the judge imposed an aggregate sentence of nine months' imprisonment with a CCO of 30 months' duration to commence upon completion of the term of imprisonment. As previously noted,[28] the judge declared that the period of 114 days already served not be deducted administratively.

26 The applicant submitted that in not deducting the 114 days of pre-sentence detention the judge failed to give effect to ss 18(1) and (4) of the Act and, in doing so, acted upon a wrong principle. It was further submitted that structuring the sentence in that way gave rise to a justifiable sense of grievance that the period served on remand had no purpose or value, and, accordingly, the sentence bespeaks specific error.

27 The respondent accepted that any relevant pre-sentence detention served by an offender must ordinarily be reckoned as a term of imprisonment that has already been served under the sentence imposed pursuant to s 18(1) of the Act. However, the respondent submitted that it was open to the judge to structure the sentence in that way and that the sentence imposed accurately reflected the judge's intention.

28 In that regard, the respondent pointed to the discussion at the conclusion of the sentence, set out above at [24], as demonstrating that the judge had taken the PSD into account in formulating the appropriate sentence.

29 Section 17 of the Act provides that, subject to ss 16 and 18, a sentence of imprisonment commences on the day that is imposed. Section 18(1) and (4) provide as follows:

(1) If an offender is in respect of an offence sentenced to a term of imprisonment...any period during which he or she was held in custody in relation to -

_(b) proceedings arising from those proceedings including any period pending the determination of an appeal - _

must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders.

(4) If an offender was held in custody in circumstances to which subsection (1) applies, then the court must declare the period to be reckoned as already served under the sentence and cause to be noted in the records of the court the fact the declaration was made and its details.

30 Accordingly, s 18(1) provides that any pre-sentence detention must be reckoned as a period of imprisonment already served under the sentence imposed. The operation of that subsection may be countermanded when the court otherwise orders. When such an order is made, the period of detention already served is not served under the sentence imposed by the court. Section 18(4) is an ancillary provision and requires that, where subsection (1) applies, the court must declare the period to be reckoned as already served. That declaration is required to be noted in the records of the court.

31 The introductory words to subsection (4) identify the occasion on which a declaration must be made, namely, where an offender was held in custody in circumstances to which subsection (1) applies. Those circumstances are where the offender has been held in custody in relation to the proceedings for the offence, or related proceedings.

32 In our view, if an offender is held in custody in relation to proceedings for the offence for which he or she is sentenced, the court must make a declaration under s 18(4) as to the period to be reckoned as already served. Usually the period reckoned to be served will be the period served and the declaration will reflect that period. However, if a court otherwise orders for the purposes of s 18(1), then the period served and the period to be reckoned will not align. The extent of the difference will depend on whether the judge orders that all, or only some of, the time served not be reckoned as served under the sentence.

33 Where a judge 'otherwise orders' for the purposes of s 18(1) that none of the time served is to be reckoned as served under the sentence, a declaration must still be made but to the effect that the period to be reckoned as already served is nil days. his has the effect of ensuring that there is a declaratory statement, noted in the records of the court, as to how much pre-sentence detention is to be reckoned as already served. That declaration provides the basis for prison authorities to calculate the date on which the sentence comes to an end.

34 There is no doubt that the judge was alive to the fact that the applicant had been incarcerated on remand for 114 days. That period of time was expressly referred to in the submissions, and the applicant submitted to the judge that it reflected the appropriate period of imprisonment and that the applicant should be immediately released on a CCO. It was also referred to by the judge the conclusion of the reasons for sentence and is reflected in the judge's orders.

35 In the present case, the judge did not in terms order that s 18(1) not apply, although his direction that the period of 114 days already served 'is not to be deducted administratively', and that the sentence of imprisonment is to commence from the date of sentence, are probably sufficient to amount to an order to that effect. However, the judge did not make a declaration of the kind contemplated by s 18(4).

36 Were such a declaration to have been made, then, having regard to the judge's reasons and the exchange with the applicant's solicitor, the amount to be reckoned as served was nil days.

37 It is not entirely clear why the judge held that no PSD should be deducted from the sentence of imprisonment. Having regard to the exchange set out above, it is likely that the judge thought that s 44 of the Act was relevant because, after referring to his intention that there be a further nine months of imprisonment, the judge said that it was 'exactly in the terms of s 44'.[29]

38 Section 44 allows for the court to make a combined term of imprisonment and CCO. Such a course is only permissible if the term of imprisonment to be served (after deduction of any PSD) is one year or less.[30]

39 There is nothing in s 44 that requires a judge to commence the term of imprisonment on the day of sentence without deducting PSD and s 44 itself contemplates that there will be a deduction. Indeed, s 18(1) so provides unless a court otherwise orders.

40 The judge could only adopt the course that he did by making an order under s 18(1). The circumstances in which a judge might otherwise order for the purposes of s 18 have arisen in the context of combined imprisonment/CCO orders when s 44 provided that a combination was only available for a term of imprisonment of less than two years and no allowance was made by way of deduction for PSD.

41 In Director of Public Prosecutions v Hudgson[31] a sentencing judge had imposed a sentence of 23 months and refused to declare PSD of 150 days in order to allow for a combined term of imprisonment/CCO. This Court set aside the sentence on the basis that the failure to make a declaration under s 18 involved a specific error.[32] The Court held that it is an error of principle to craft a sentence in such a way as to allow for a combined imprisonment/CCO by keeping the term of imprisonment to 12 months or less in circumstances where a longer sentence is required.

42 The circumstances in which a court may otherwise order were also considered in R v Foster.[33] In that case the accused's matter had been set down for a contested committal hearing at the Magistrates' Court at Ballarat on 22 October 1999. He subsequently changed his plea to guilty and a presentment was filed in the County Court at Ballarat on 16 November that year. On that occasion, the accused terminated the retainer of his counsel and reserved his plea. The matter was adjourned to 6 December 1999 before the same judge in Melbourne. The judge then sentenced him but declined to declare that the period between 16 November and 6 December 1999 as time served. In a report to the Court of Appeal, the judge indicated that the adjournment was 'judge shopping' in an endeavour to get a different judge to hear the plea, that the further delay in the hearing was the accused's fault and that the period should not be declared as time served.[34] The accused's appeal was successful on other grounds and he was resentenced. The period of time that the sentencing judge had excluded was declared as time served.

43 The Chief Justice held that there was no evidentiary basis upon which the judge could conclude that the adjournment had been a judge shopping device and that there was no basis not to deduct the relevant period of time in custody.[35] Justice Batt made some remarks about the circumstances in which a judge might otherwise order for the purposes of s 18 of the Act.[36] His Honour said that a judge might otherwise order as to a certain period were an offender had, through his or her own deliberate and obstructive action, caused himself or herself to be detained in custody longer by the length of that period than he or she need have been.[37] In making that observation, Batt JA referred to the strong cautions to be found in a collection of unreported cases suggesting that the discretion should only be used in compelling circumstances.[38]

44 The logic underpinning s 18(1) is clear. The purpose of remanding a person in custody pending trial or sentence is not to punish the person but to ensure that they are available to be dealt with by the court. They are not under sentence during any period of remand. When the prisoner falls to be sentenced, the court is obliged to formulate the appropriate sentence. The sentence is not adjusted to take into account any time served but, by means of the declaration, addresses the time served.[39]

45 Whether an order overcoming the terms of s 18(1) requires compelling circumstances, as some authorities may suggest, need not be decided. Certainly some good reason for otherwise ordering is necessary. The clear legislative starting point is that time on remand should count as time served under the sentence.

46 There was, in the present circumstances, no sound reason to order that pre-sentence detention not be reckoned as time served under the sentence the judge imposed. The applicant was in custody in respect of the charges before the judge and for no other reason. The fact that the judge considered it appropriate to impose a combined term of imprisonment and CCO was irrelevant.

47 We shall return to the consequences of this conclusion after dealing with proposed grounds 2 and 3, which seek to attack the sentence of nine months' imprisonment.

48 Under cover of this ground, the applicant submitted that the judge took into account an irrelevant or extraneous consideration by concluding that, had the matter proceeded to trial, the Crown could have proved that the applicant had obtained a financial advantage under s 82 of the Crimes Act in respect of charge 1. We note that the reference to s 82 of the Crimes Act is an error. The judge did not refer to that section nor did he refer to the charge of obtaining financial advantage. The charges were under s 81: obtaining property deception.

49 Further, the applicant submitted that, although the judge stated that he was sentencing the applicant on the basis that he had plead guilty to an attempt to obtain property to deception, this consideration only formed part of the basis upon which the sentence was imposed. In relation to this, the applicant submitted that the judge's remarks gave rise to a 'justifiable sense of grievance' on behalf of the applicant that he was sentenced in part for an offence for which he was not convicted.

50 The respondent submitted that the judge did not take into account the likelihood of a conviction under s 82 of the Crimes Act with respect to charge 1. The respondent referred to judge's observations concerning the first charge, made immediately following the impugned passage, where his Honour expressed the view that his observation on s 81(2) was of academic interest only given the plea to an attempt.[40] The respondent submitted that the judge was clearly alive to the fact that the applicant was pleading to an attempt to obtain property by deception in circumstances where he expressly noted the reduced maximum penalty and referred to it a number of times in the reasons for sentence.

52 In our view, the observation of the judge that had charge 1 proceeded to trial, the provisions of s 81(2) of the Crimes Act 1958 would have clearly covered the issue as to the obtaining of property did not vitiate the sentence.[41] It is clear that the judge's observation that s 81(2) would have applied to the initial transfer of $300,000 had no bearing on the sentence imposed. The judge clearly stated that his observation was only of academic interest and it is clear that the judge differentiated between an attempt in charge 1 and the obtaining of property by deception in charges 2 and 3.

53 At [35] of the reasons for sentence, the judge expressly noted that, although he regarded the settlement as being fortunate for the applicant in relation to charge 1, he would proceed and sentence on the basis of that settlement, including that charge 1 only alleged an attempt to obtain property by deception. His Honour returned to the point two paragraphs later, noting that his observation that a completed offence under s 81(2) might have been made out, was of academic interest only. His Honour expressly sentenced on the basis of an attempt. The applicant's submission that we should, in effect, go behind his Honour's reasons for sentence and conclude that he had sentenced on the basis of a completed offence, must be rejected. It finds no foothold in the reasons for sentence nor in the sentence imposed. That is all the more so in the circumstances where an aggregate sentence is imposed for all three offences.

54 It is not reasonably arguable that the judge's aside made any difference to the sentence nor does it show that the judge sentenced the applicant on an irrelevant or extraneous basis. For those reasons, ground 2 cannot be upheld.

55 Finally, the applicant submitted that the sentence was manifestly excessive. The applicant submitted that the judge gave insufficient weight to the applicant's personal circumstances, among them his strong support in the community, including from his father and wife; the absence of relevant prior convictions; the impact of the applicant's gambling addiction; and his medical condition. Conversely, the applicant submitted that the judge gave excessive weight to the objective severity of the offending.

56 Further, the applicant submitted that the judge gave insufficient weight to the fact that the applicant was a 'mule' acting at the behest of others with a limited financial compensation and his early plea of guilty.

57 The respondent contended that this was serious and well-planned offending. It occurred over the course of two days; the applicant attended the bank on a number of occasions using a false passport bearing his image; and considerable amounts of money were involved.

58 Although a CCO was a disposition that was available to the judge, on its own, in our opinion it would have been inadequate to serve the goals of just punishment and general deterrence. As the judge correctly observed, the nature of the offending was serious, it involved a large amount of money and called for an appropriate sentence. The attempt that formed the subject of charge 1 was very serious, involving a substantial amount of money and an elaborate deception including the use of a false passport. Before us, the applicant accepted that charge 1 was a serious example of an attempt.

59 The applicant accepted on the plea that a term of imprisonment and CCO was appropriate (albeit that the term of imprisonment should be limited to time served). In our view, it was open to the judge to conclude that a sentence of 114 days' imprisonment, even when coupled to a CCO of 30 months' duration, would not adequately have reflected the objective gravity of the applicant's offending. We are not persuaded that the period of imprisonment chosen by the judge was wholly outside the permissible range.

60 In our view, the combination of CCO and an adequate sentence of nine months' imprisonment was well open to the judge.

61 Accordingly, in our view, the applicant has failed to demonstrate that the sentence is manifestly excessive. Ground 3 cannot be upheld.

62 Given our conclusions on grounds 2 and 3, leave to appeal must be refused on those grounds. As a consequence, the aggregate sentence of nine months' imprisonment with the CCO for 30 months remains undisturbed. We would also refuse leave on ground 1 on the basis that there is no reasonable prospect that we would impose a lesser sentence. In this regard, we proceed on the basis that the sentence imposed by the judge was one of nine months' imprisonment.

63 As we have indicated, however, the judge should not have made the declaration as to pre-sentence detention in the form that he did. Having refused leave to appeal, it is nevertheless open to this Court to make an order in relation to pre-sentence detention. We reject the submission of the respondent that there is no power to do so. Further, regardless of whether or not the judge intended to impose a sentence which was effectively a term of 13 months' imprisonment, the sentence that was reflected in the order was nine months' imprisonment and a CCO of 30 months. In our view, the error in not deducting pre-sentence detention should be remedied.

64 In those circumstances, pursuant to s 280(3) of the Criminal Procedure Act 2009 we will amend the orders of the County Court made on 30 November 2018, so as to declare that the period of 114 days be reckoned as a period of imprisonment already served under the sentence up to that date. For the avoidance of doubt, the declaration as to 114 days' pre-sentence detention relates to the sentence as imposed on 30 November 2018. Any further period served since sentence was first imposed will fall to be deducted administratively by correctional services.

[1] A course permitted by s 44 of the Act.

[2] The signed Record of Orders sets out the relevant order:

Direct that the period of 114 days [sic] already served is not to be deducted administratively. The sentence of 9 months' [sic] imprisonment is to commence from the date of sentence on 30/11/2018.

[3] This summary of the circumstances of offending is drawn from the Summary of Prosecution Opening on Plea and DPP v Pang (Unreported, County Court of Victoria, Judge McInerney, 30 November 2018) ('Reasons').

[8] (1994) 74 A Crim R 252, 257.

[28] See footnote 2 above.

[30] Younger v The Queen [2017] VSCA 199 [65].

[31] [2016] VSCA 254.

[32] Ibid [37]. The Court cited DPP v Grech [2016] VSCA 98.

[33] [2000] VSCA 187.

[39] R v Renzella [1997] 2 VR 88, 96-97.