R v Breen, Hall & Sanderson [2008] VSCA 178

Court of Appeal (Vic)|2008-09-15|Before: BUCHANAN and VINCENT JJA and OSBORN AJA

Criminal law - Sentence - Offences of dishonesty - Offences committed while on parole - Cancellation of parole - Sentences failed to differentiate between completed crimes and attempted crimes.

Mr S Ward, Acting Solicitor for Public Prosecutions

3 The applicants were each sentenced in the County Court on 2 March 2007 to imprisonment in respect of a series of offences of dishonesty.

4 In and after June 2005 the applicant Breen entered into an arrangement with one Brecko to create and market fraudulent identification papers in a series of false names.

5 Brecko then sold packages of fraudulent identity documents to Breen, Hall and Sanderson, who each used them to commit frauds upon various banks and credit institutions.

6 It is this conduct which constituted the core offences the subject of sentence.

7 Breen and Hall are older than Sanderson. At the date of sentence Breen was aged 50, Hall aged 53 and Sanderson aged 31.

8 All three had extensive prior convictions for dishonesty. Breen had 15 prior convictions from five court appearances, Hall 70 prior convictions from seven court appearances and Sanderson 225 prior convictions from 17 court appearances. Both Breen and Hall did not commence offending until a relatively mature age. In Breen's case at the age of 40 and in Hall's case at the age of 44.

9 Each of the applicants was on parole at the time of the offences in issue. The differing consequences of this circumstance in respect of each applicant and the totality of the penalty imposed, is a matter which each contends was not properly

addressed by the sentencing judge. The sentencing judge observed with respect to the accused jointly:

Gentleman in reaching the appropriate relevant sentences, I have, inter alia, borne in mind the principles of proportionality and totality, and of course your pleas of guilty.

But he did not in terms address the application of the totality principle to the case of each accused on an individual basis.

10 In each case his Honour imposed sentences cumulatively upon any period of imprisonment currently being served and which the applicants were or might be required to serve on cancellation of the relevant parole order.[1]

11 A further element common to the appeals is that his Honour imposed like sentences with respect to counts both of attempting to obtain financial advantage by deception and obtaining such advantage by deception. It is submitted that the penalties imposed should have differentiated between categories of offence in this and other respects.

12 Hall pleaded guilty to nine counts of obtaining financial advantage by deception; seven counts of attempting to obtain financial advantage by deception; one count of obtaining property by deception; one count of possession of an unregistered firearm; one count of dealing with proceeds of crime; and one count of handling stolen goods.

13 He was convicted and discharged with respect to the unregistered firearm count and in respect of each of the other accounts on the presentment was sentenced to be imprisoned for a period of 2½ years. The sentencing judge ordered that 3 months of the sentence on each of counts 2, 4, 5, 10, 11, 12, 14 and 19[2] be served cumulatively upon each other and upon the sentence in respect of count 1. This amounted to a total effective sentence of 4½ years. His Honour fixed a non-parole period of 2½ years and directed that the sentence be cumulative upon any sentence currently being served and upon any period of imprisonment that Hall may be required to serve in prison on cancellation of any past parole order. He declared pursuant to s 18 of the Sentencing Act that 356 days of the sentence be reckoned as already served.

14 The evidence was that between September 2005 and January 2006 Hall fraudulently obtained eight credit card facilities to the value of between $3,000 and $19,000. He also attempted to fraudulently obtain credit card facilities on seven further occasions.

15 He utilised the cards inter alia to obtain a television and other goods.

16 In October 2005 Breen and Hall used a false Commonwealth Mastercard to pay for a bank cheque in the sum of $2,080.

17 When first arrested in November 2005 Hall was in possession of an unregistered air rifle. When again arrested in March 2006 he was in possession of six credit cards, three driver's licences and $814 cash comprising the proceeds of crime. He was also in possession of stolen goods comprising postal mail and Civic Video membership forms.

18 Hall's offences occurred when he was on parole and in the case of the last three counts, whilst he was both on parole and on bail with respect to the first 18 counts.[3]

19 The Court was told Hall had been admitted to parole on 6 April 2005 and that some 22 months of paroled sentence were yet to be served if the Adult Parole Board so directed. The sentencing judge stated:

That is a matter exclusively for the Adult Parole Board but it is proper that I bear in mind the possibility of the Adult Parole Board so directing.

20 It is submitted on behalf of Hall that, although the approach taken accorded with the then current understanding of authority, it conflicts with the subsequent decision of this Court in R v Piacentino & Ahmad.[4]

21 Moreover, and in any event, the Parole Board subsequently cancelled the applicant's parole, with the result that Hall's effective head term of imprisonment has now in fact been extended by 1 year, 9 months and 30 days (approximately 22 months) in addition to the total effective sentence of 4 years 6 months imposed by his Honour.

22 This circumstance bears on the question whether the cumulative effect of the sentence in issue offends the principle of totality. As the decision in Piacentino made plain, this principle applies to all situations in which an offender may become subject to more than one sentence.

23 The principle is concerned to ensure that sentencing is as McHugh J held in Postiglione v R,[5] a 'just and appropriate measure of the total criminality involved'.[6]

24 Hall had been convicted on 7 November 2003 of one count of obtaining financial advantage by deception, 20 counts of handling stolen goods, 28 counts of theft, two counts of obtaining property by deception, one count of burglary, and four counts of possession of property being the proceeds of crime. He received a total effective sentence of 62 months, with a minimum non-parole period of 40 months.

25 It can be seen that the offending in issue at that time involved extended and pervasive dishonesty.

26 In this context the sentences now in issue raise significant questions of appropriate punishment and of both general and specific deterrence.

27 The question of general deterrence has two aspects. It is significant first, because credit fraud of the type in issue strikes at the foundations of the modern consumer economy.[7] The fraud of offenders such as Hall imposes a burden upon the credit system not only directly affecting financial institutions but also indirectly affecting honest users of that system. The implementation of deliberate ongoing schemes of rolling fraud must be confronted with adequate penalties if the law is to have any effect as a general deterrent.

28 Secondly, the commission of such offences when an offender is on parole raises acutely the need for punishment sufficient to demonstrate that the community refuses to accept continuing conduct of this kind.

29 The question of specific deterrence also gains particular significance from the fact that the offences in issue were committed while Hall was on parole and in the last instances also on bail.

30 Hall has engaged in a course of ongoing conduct which requires a material cumulation of sentences by way of response. The question of totality, therefore, requires consideration of the substantial period of cancelled parole, but also falls to be considered in the light of the associated factors which I have highlighted.

31 His Honour imposed the same sentence of 2 years 6 months' imprisonment with respect to all counts except the count upon which Hall was discharged. In so doing, he imposed the same sentence for both obtaining and attempting to obtain a financial advantage by deception.

32 It is submitted that his Honour did not give due weight to the principle of proportionality.

33 It is apparent that, although the attempted obtaining of financial advantage occurred in the course of a continuing course of similar conduct, nevertheless the individual offences did not cause actual loss, nor do they carry the same maximum penalty as do the offences of obtaining financial advantage. Both considerations are relevant pursuant to the Sentencing Act. The question of loss is relevant by virtue of s 5(2)(daa) and (db). The question of maximum penalty is relevant by virtue of s 5(2)(a). The maximum penalty for the offence of obtaining a financial advantage by deception contrary to s 82(1) of the Crimes Act 1958 is 10 years' imprisonment. The maximum penalty for attempting to obtain a financial advantage by deception contrary to s 321M of the Crimes Act 1958 is 5 years' imprisonment.

34 I accept, as the Crown submits, the applicant did everything he could to commit fraud by the conduct comprising counts 3, 6, 7, 8, 9, 15 and 16. He simply did not receive the credit he sought. Nevertheless, in my opinion, the sentence should have differentiated between the attempt offences and those in which Hall succeeded in obtaining benefits.

35 The sentencing judge differentiated between the two offences by providing for cumulation upon the counts of obtaining a financial advantage by deception and providing for no cumulation upon the counts of attempting to obtain a financial advantage by deception.

36 In my view this was insufficient differentiation in the circumstances of the case.

37 It is also submitted that the penalties imposed by the sentencing judge do not adequately reflect the actual quantum of loss caused as a result of individual completed offences. Thus, by way of example count 5 involved a deception resulting in credit of $3,000 with a consequent loss of $2,053, while count 11 involved a deception resulting in credit of $19,000 with a consequent loss of $15,147.

38 I do not accept that this range of differences warranted a difference in sentence in respect of the deception offences. Each of the offences involved perpetration of the same fundamental fraud and resulted in losses within a broadly comparable commercial range. That range led to a total loss of approximately $55,000.

39 Likewise, while the proceeds of crime and handling of stolen goods offences were concerned with goods of relatively low value, both offences carry a higher maximum penalty of 15 years than that applicable to the deception offences. It was not inappropriate to regard them as comparable in terms of culpability with the offences of obtaining financial advantage by deception.

40 The considerations referred to above relating to cancelled parole and the need to differentiate between the offences the subject of conviction, are further relied on by Hall as factors supporting the conclusion that the sentence should be set aside as manifestly excessive or breaching the principle of totality. These submissions also go to the question of the appropriate sentence on re-sentencing.

41 It is submitted that the individual sentences, total effective sentence and non-parole period imposed were manifestly excessive having regard both to the factors to which I have referred and to:

(b) the extent of the total loss actually caused being in the order of $55,000;

(d) the effect on Hall of separation from his mother as a result of imprisonment, she being in her 80s and at risk of death.

42 The offences in issue were constituted by the deliberate and premeditated acts of a mature individual. They were carried out for the purpose of personal financial gain and involved an ongoing course of conduct, entered into when the applicant was on parole and at the time of the last three offences also on bail.

43 These matters called for a substantial penalty in the context of Hall's prior criminal record, both by way of punishment and having regard to the factors of general and specific deterrence which I have addressed above.

44 I do not regard Hall's position of trust within the prison system as being of any significant weight, in the circumstances of his case which involves very significant breaches of parole.

45 I also place little weight on Hall's relationship with his mother, particularly in the circumstances where he elected to engage in extended offending when on parole and having the opportunity to avoid offending and spend time with her.

46 Nevertheless, in my view the sentences with respect to the offences of dishonesty causing loss should be reduced having regard to:

(b) the fact that the total loss resulting from his offences was approximately $55,000 and the dishonesty offences causing loss had an average quantum of less than $7,000; and

47 The sentences with respect to attempts should be further reduced by reason of their lesser culpability as reflected in the maximum penalty applicable and the absence of loss to third parties.

48 In all the circumstances I would re-sentence Hall as follows:

On counts 1, 2, 4, 5, 10, 11, 12, 14 and 19 (obtaining a financial advantage by deception) - 18 months' imprisonment.

On counts 3, 6, 7, 8, 9, 15 and 16 (attempting to obtain a financial advantage by deception) - 12 months' imprisonment.

On count 13 (obtaining property by deception) - 18 months' imprisonment.

On count 17 (possessing an unregistered firearm) convicted and discharged.

On count 20 (dealing with the proceeds of crime) - 18 months' imprisonment;

On count 21 (possession of stolen goods) - 18 months' imprisonment.

49 I would direct that 3 months of the sentence on each of counts 2, 4, 5, 10, 11, 12, 14 and 19 be served cumulatively upon each other and upon the sentence with respect to count 1. This results in a total effective sentence of 3½ years. I would fix a non-parole period of 2 years. That sentence is cumulative upon the period of imprisonment Hall has been required to serve upon cancellation of parole on 21 March 2007 of 1 year 9 months and 30 days.[8]

50 The cumulative effect of this period together with the sentence I would impose is thus 5 years and 3 months and 30 days' imprisonment with a non-parole period of 3 years and 9 months and 30 days as from the date of sentence in the County Court.

51 As at the date of sentence in the County Court Hall was entitled to a declaration that 356 days of his sentence be reckoned as already served.

52 As I have said, the false identity documentation used by each of the appellants in the core offences with which they are charged was prepared by Brecko following agreement with Breen that it would be created and marketed to others.

53 Breen pleaded guilty on a Victorian presentment to eight counts of obtaining financial advantage by deception, four counts of attempting to do so, one count of obtaining property by deception and one count of conspiracy to defraud. On a Commonwealth indictment he pleaded guilty to one count of using a false document and two counts of making false statements.

54 The evidence was that at the end of May 2001 Breen first obtained a credit facility from the ANZ Bank and then attempted to obtain a further credit facility from that bank by way of deception (counts 1 and 2). In June he entered into the arrangement with Brecko which he carried forward over the subsequent months. This was the subject of a charge of conspiracy to cheat and defraud (count 3). Thereafter, he obtained a series of credit facilities from financial institutions utilising false documentation and making false representations (counts 4, 8, 9, 10, 11 and 13). He further attempted to obtain credit facilities by deception in the same way on three additional occasions (counts 5, 6 and 7). The evidence was that, although Breen obtained lines of credit amount to some $121,000, only $41,500 loss was suffered as a result. One of the credit transactions related to the financing of the purchase of a BMW motor car and the judge was also satisfied that no significant loss was incurred as a result of this transaction. Breen was also party in October 2005 to obtaining with Hall the bank cheque for $2,080 by using a false bankcard. The three Commonwealth offences related to applications for false passports which were supported by a falsely endorsed photograph and false declarations.

55 Breen was sentenced on the Victorian presentment to 2 years' imprisonment on counts 1 and 2. He was sentenced to 3 years' imprisonment on count 4, being the count of conspiracy. He was sentenced to 2½ years' imprisonment on each of counts 4 to 13. It was ordered that 3 months of each of the sentences in respect of counts 4 to 13 be served cumulatively upon each other and upon the sentence in respect of count 3, resulting in a total effective sentence of 5½ years' imprisonment. His Honour fixed a non-parole period of 3 years and 3 months.

56 Breen was sentenced in respect of the Commonwealth offences to 6 months' imprisonment on each of the three counts. Each Commonwealth sentence was to commence upon the expiration of the non-parole period fixed pursuant to the State presentment, resulting in an effective period before Breen would be eligible for release of 3 years and 9 months.

57 In the course of sentencing, his Honour observed that Breen should not be twice punished in effect for the conspiracy count and for the conspiracy element of the use of documentation produced by conspiracy and utilised for other offences.

58 His Honour recognised that Breen had a good work record until first offending at the age of 40. His Honour accepted on the basis of a report from a psychologist that Breen suffered from a 'disassociative identity disorder' and required therapy. He also accepted that Breen had formed a stable relationship with a woman who was supportive of him and his continuing therapy. His Honour accepted this relationship gave rise to prospects of rehabilitation.

59 His Honour also took account of Breen's pleas of guilty and his willingness to make a statement in respect of Brecko.

60 It was submitted on behalf of Breen that nevertheless his Honour gave inadequate effect to the principle of totality and that the penalties imposed were manifestly excessive having regard to Breen's pleas of guilty, his psychological condition, his prospects of rehabilitation, his willingness to make a statement in respect of Brecko and his age.

61 It was submitted on behalf of the Crown that the core offences involved an organised course of action, taken in brazen disregard of others and motivated by greed. The appellant had an extensive criminal history involving 15 dishonesty offences from five separate court appearances between July 1995 and November 2004. The appellant was involved in developing the false identity scheme used by his co-offenders and committed the offences in issue when on parole.

62 In these circumstances, it was submitted, considerations of both general and specific deterrence had major roles to play in the sentencing process. Further, the perpetration of sophisticated and continuing frauds by a person with an extensive criminal history, called for condign punishment.

63 I accept the fundamental thrust of the Crown submission.

64 It is also submitted on behalf of the Crown that the psychological diagnosis of disassociative identity disorder has not been adequately linked to Breen's offending. I also accept this submission and note that the psychologist's report states in part:

I am unable to assess at this time the number or discrete nature of his ego fragmentation.

65 Nevertheless, the combination of the appellant's relationship with a new partner who appears to be committed to his ongoing support, together with counselling, do offer a possibility of rehabilitation as his Honour recognised.

66 Further, in my view the penalties imposed by his Honour do not adequately differentiate between attempts and completed offences. Moreover, insofar as the completed deception offences are involved, they are excessive when regard is had to the penalty imposed for conspiracy, the relatively low quantum of loss involved and the totality of the sentences imposed.

67 Accordingly, I would re-sentence Breen as follows:

On count 3 (conspiracy to defraud) - 3 years' imprisonment.

On counts 1, 4, 8, 9, 10, 11 and 13 (obtaining a financial advantage by deception) - 18 months' imprisonment.

On count 2, 5, 6 and 7 (attempting to obtain a financial advantage by deception) - 12 months' imprisonment.

On count 12 (obtaining property dishonestly) - 18 months' imprisonment.

68 I would order that 3 months of the sentence in respect of counts 1, 4, 8, 9, 10, 11, 12 and 13 be served cumulatively on each and upon the sentence in respect of count 3, resulting in a total effective sentence of 5 years' imprisonment. I would fix a non-parole period of 3 years. I would declare that as at the relevant date being the date of sentence in the County Court, 96 days of the above sentence be reckoned as served.

69 On each of the Commonwealth counts I would affirm the sentence given below being one of 6 months' imprisonment. But I would not direct that they commence to be served upon the completion of the non-parole period fixed with respect to the Victorian convictions.

70 Sanderson pleaded guilty to four counts of obtaining a financial advantage by deception and one count of attempting to do so.

71 As the sentencing judge recognised, Sanderson's role in the false identity offences was the most limited of the three men before him.

72 Sanderson was sentenced to be imprisoned for a period of 2 years on each count. The sentencing judge ordered that 3 months of the sentence in respect of counts 2, 3, 4 and 5 be served cumulatively upon each and upon the sentence in respect of count 1. This resulted in a total effective sentence of 3 years. His Honour fixed a non-parole period of 18 months. He declared that 10 days of the sentence be reckoned as already served.

73 Each of the offences occurred within a five day period. Sanderson first obtained three credit facilities in the order of $6,000 and then obtained a further facility of $4,100. He then attempted to obtain a further facility of like kind. The moneys obtained were used to purchase television sets, a computer and accessories.

74 Sanderson's prior criminal and custodial record is such that he may be regarded as institutionalised. Sanderson admitted 173 dishonesty offences, numerous assaults and drug offences from 17 court appearances between April 1991 and October 2004. Prior to the sentence in issue he was last before the County Court on 4 November 2004 when on appeal from the Magistrates' Court at Sunshine he was sentenced with respect to three charges of burglary, three charges of theft, two charges of attempting to obtain property by deception, one charge of handling stolen goods, one charge of being found on premises without lawful excuse, one charge of possession of a drug of dependence (methylamphetamine), one charge of possession of ammunition without licence, one charge of trafficking a drug of dependence (heroin).

75 Nevertheless, as in the cases of Hall and Breen, in my view the sentences imposed upon him failed to differentiate appropriately between the attempt offence and the concluded deceptions.

76 It was also submitted on his behalf that the sentences as a whole were manifestly excessive having regard to their totality and previous periods in custody, the plea of guilty, Sanderson's institutionalisation, the brief period of offending, the appellant's role in the offending, the quantum of actual loss, Sanderson's drug addiction and his ill health.

77 The Crown submits that general and specific deterrence were dominant factors in the sentences to be imposed having regard to Sanderson's criminal record.

78 I accept this submission but in my view the penalty of 2 years' imprisonment imposed with respect to the offences of obtaining financial advantage was nevertheless excessive having regard to the quantum of loss and circumstances of the offences in issue and Sanderson's pleas of guilty.[9]

79 The matter is, however, further complicated because Sanderson had become eligible for parole on 17 March 2005, at which time he had a parole period of some 13 months to serve. He committed the offences now in issue in September 2005. Since that date he has served a substantial period in custody for breach of parole. He was also sentenced to 6 months' imprisonment on 8 March 2006. By the date of the sentences now in issue, the non-parole period was extinguished and the 6 months' sentence was completed. These facts bear on the question of totality.

80 Further, since being sentenced in the present matters, Sanderson has been convicted of additional dishonesty offences in the Magistrates' Court on 27 April 2007 and 7 November 2007. On the first occasion he was sentenced to 18 months' aggregate imprisonment, 3 months of which was made concurrent with the sentences he was already serving. A non-parole period of 6 months was fixed. On the second occasion he was sentenced to a further 18 months aggregate imprisonment, 12 months of which was ordered to be concurrent with the sentences he was then serving. No non-parole period was fixed.

81 Counsel for the appellant submitted that if Sanderson is to be re-sentenced, a new single non-parole must be fixed pursuant to s 14 of the Sentencing Act 1991.[10]

83 I accept that at the time of sentence in the Magistrates' Court on 27 April 2007, the Court failed to fix a new single non-parole period in accordance with s 14. It so failed despite the fact that at the date it fixed a non-parole period, Sanderson was serving a sentence in respect of which a non-parole period had previously been fixed, which period had not expired. That sentence is not, however, before this Court.

84 In turn, if the sentence with which we are concerned is set aside, the non-parole period fixed in the Magistrates' Court on 27 April 2007 has expired and the case before us does not fall within the terms of s 14(1)(b) at the time of re-sentence.

85 Having regard to the matters I have otherwise set out above, I would re-sentence Sanderson as follows:

On count 1, 2, 3 and 4 (obtaining a financial advantage by deception) - 12 months' imprisonment.

On count 5 (attempting to obtain a financial advantage by deception) - 9 months' imprisonment.

I would order 3 months of the sentence upon counts 2, 3 and 4 be served cumulatively upon each other and upon count 1 resulting in a total effective sentence of 21 months' imprisonment as from 2 March 2007.

[1] Although in the case of Breen the relevant parole order had already been cancelled and the consequential period of imprisonment completed.

[2] Being together with count 1 the counts of obtaining financial advantage by deception.

[3] Count 18 was subsequently not proceeded with.

[6] Applied in Piacentino, 508 [37] (Eames JA with whom Buchanan and Vincent JJA agreed).

[7] See the observations of Charles JA in R v Kostikidis & Mpehelevanas, unreported decision of the Court of Appeal, 12 September 1996.

[9] I do not accept that Sanderson's drug addiction or state of health has been shown to be materially relevant.

[10] Fixing of new non-parole period in respect of multiple sentences

(a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and

(b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period -

the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete.

(2) The new single non-parole period fixed at the time of the imposition of the further sentence -

(a) supersedes any previous non-parole period that the offender is to serve or complete; and

(b) must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed.

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