R v Asad [2003] VSCA 3

9. On 21 August 2001, approximately a month after the repossession of the first motor car, the appellant purchased another motor car, giving a false name and address and producing a forged learner's licence. He said that he was an engineer with the Brimbank City Council and claimed that he earned $726 a week. He completed an application form and obtained a loan in an amount of $25,000 from Ford Credit. Again, no repayments of the loan were made, and the car was repossessed.

12. When he was interviewed by the police, the appellant admitted that he had supplied false information and documents in order to obtain the loan. He acknowledged that he knew that he was dishonest and admitted to planning the deceptions by obtaining the false documents. Although the appellant said that he used a false name and address because he thought that if he was truthful he would not be granted a loan, he made no repayments of either loan. The name in which the appellant purchased the second motor car was that of the father of a friend. The father worked at Brimbank City Council.

15. The appellant pleaded guilty at the first opportunity to one count of

dishonestly obtaining a financial advantage, namely the loan from the Commonwealth Bank, by deception, and to one count of dishonestly obtaining the second motor car by deception, with the intention of permanently depriving of it the owner.

19. In the course of a plea before a County Court judge, the appellant's counsel said that the appellant was a very intelligent man who had obtained excellent results in the courses which he had undertaken at the Royal Melbourne Institute of Technology. Certificates were tendered that recorded high distinctions in a large number of subjects in a course for a Diploma of Engineering Electronics. Counsel said that the appellant was currently engaged in the third year of a four-year bachelor's degree course. A receipt in an amount of $9,085 was tendered. The receipt was said to be for the fees for a semester for the year 2002. A personal identification card purportedly issued by RMIT for the year 2002 with the appellant's photograph was also tendered. Counsel said that the appellant resided at the RMIT Hostel and was occupied in attending lectures and tutorials and engaged in work in the laboratory or in the library.

22. As a result of an inquiry made by the informant to RMIT, it emerged that a great number of matters put forward during the course of the plea were false. The personal identification card was false, as was the transcript of the appellant's academic record. Many of the high distinctions claimed were false, in that the appellant either merely passed the subject or did not complete it or, in some cases, did not even enrol for it. The appellant did not reside at the RMIT Hostel.

25. The appellant was sentenced to be imprisoned for a term of 18 months on each count. The sentencing judge ordered that six months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, creating a total effective sentence of two years' imprisonment. The sentencing judge directed that the appellant serve a term of 14 months before he was to be eligible for parole.

28. The appellant came to Australia from Bangladesh to study at RMIT. The fees were paid by his parents. Apart from the appellant's achievements at RMIT, which were in large measure false, no other information as to the background of the appellant, his history or prospects, was put before the sentencing judge.

31. The appellant had no prior convictions. His student visa has been cancelled and he will be deported from Australia on the completion of his sentence.

34. The appellant has appealed against his sentence on the grounds that it was manifestly excessive and that the sentencing judge gave undue weight to the question of specific deterrence, and insufficient weight to his age and previous good character, his plea of guilty and the admissions which he made to the police. It is also contended that the sentencing judge erred in regarding the appellant's conduct during the course of the plea as an aggravating feature of the offences.

37. In my opinion, the sentence imposed upon the appellant was not beyond the range of sentences available to the sentencing judge. The appellant was entitled to a discount from the sentence which was otherwise appropriate as a consequence of his plea of guilty. His lack of prior convictions and relative youth were further mitigating factors of some weight. On the other hand, the offences were serious. On two separate occasions, the appellant created false documents and put forward a false but convincing spiel in order to obtain loans in significant amounts. The crimes were premeditated, carefully planned and competently executed. The appellant's conduct was of a type which has repercussions for honest borrowers by rendering it more difficult to obtain finance. General deterrence is important in such a case. See D.P.P. v. Bulfin[1]. In my view, the mitigating circumstances personal to the appellant did not outweigh the circumstances of the crimes to the point that the sentencing judge was precluded from imposing a sentence of imprisonment to be served immediately, and the length of the sentence which he imposed was, in my view, not excessive, even if the sentence could be described as stern.

40. The sentencing judge was careful to limit the effect upon the sentence of the

lies advanced by the appellant in the course of the plea. His Honour treated the lies as bearing upon the existence of remorse on the part of the appellant and the need for personal deterrence. He said:

"[I]t is not my function to impose sentences in relation to matters forming the basis of the false information in relation to your RMIT status, nor the false documentation tendered to the court in relation thereto."

His Honour went on to say that he had taken the circumstances "into account as a clear indication that you have no remorse for your criminal conduct" and added:

"Further, despite arrest, interrogation and presentment thereon in relation to these charges before me, he has not been deterred from engaging in further false representations and deceptions. In that regard I am quite satisfied that personal deterrence is necessary."

47. In my opinion, the sentencing judge was entitled to use the appellant's conduct during the plea in the way in which he did. It cannot be denied that a judge sentencing an offender may draw conclusions as to the existence and degree of remorse exhibited by the offender in his demeanour and in evidence. Equally, in my view, the sentencing judge can infer from lies told to him that the offender is not sufficiently remorseful to refrain from practising deceit. Remorse and the need for a sentence to deter the offender from like conduct in future are closely related. In my view, the readiness of the appellant to use fraudulent devices for his personal benefit notwithstanding his arrest and convictions for fraud was properly taken into account by the sentencing judge as relevant to the purpose for which a sentence may be imposed, which is set out in s. 5(1)(b) of the Sentencing Act 1991, namely to deter the offender from committing offences of the same or a similar character.

54. Apart from the ground relating to the appellant's conduct on the plea, the essential argument before this Court was that the sentence imposed is manifestly excessive. It is important to make clear that the arriving at the sentence to be

imposed upon an offender is a discretionary determination par excellence, and also that the question for this Court in deciding an appeal based on the ground that the sentence is manifestly excessive is not whether this Court, if it were sentencing the appellant in original jurisdiction, would have imposed a lesser sentence than that in fact imposed by the County Court judge, but whether that sentence was within the range open to the sentencing judge in the exercise of a sound discretionary judgment. In my view, in this case it was. These offences strike at the conduct of commercial transactions as they sow the seeds of doubt in minds of intending parties to such transactions and therefore lead to checks and extra precautions being taken. General deterrence is therefore an important sentencing purpose. Further, the appellant's conduct on the plea, besides showing that he was not remorseful, showed also, to my mind, that his prospects for rehabilitation were not good.

58. I recognise the force of the points stressed by Mr Croucher on behalf of the appellant, and in particular that he was a young first offender who made full admissions, in a case where the two cars in question were recovered. But, for the reasons I have given and also for those more fully given by Buchanan, J.A., I am of the view that this appeal should be dismissed.

62. I agree that the appeal should be dismissed for the reasons given by Buchanan, J.A. I also agree with the learned presiding judge that this Court cannot interfere with a sentencing discretion below unless it is satisfied, in a case such as this, that the sentence is wholly wrong. Although I am of the view that the non-parole period here is long, neither it nor the head sentence is outside the relevant range.

65. In the circumstances, as I have said, I agree that the appeal should be dismissed.

[1] [1998] 4 V.R. 114 at 131-2.