R v Chan [2000] NSWCCA 345 | Case summary

1 JAMES J: Colin Shu Wing Chan has applied for leave to appeal against sentences imposed on him in the District Court on 3 March 2000 by Judge Howie on twenty-seven counts of obtaining money by deception, being offences under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years. The applicant had pleaded guilty in the Local Court and had been committed for sentence and he had adhered to his pleas of guilty before Judge Howie. For each of the offences, apart from the offences in the 25th and 27th counts, his Honour imposed a fixed term of imprisonment of two years, to date from 18 February 2000, the date on which, during the proceedings on sentence, Judge Howie had declined to continue the applicant's bail. For each of the offences in the 25th and 27th counts his Honour imposed a sentence of three years, consisting of a minimum term of one year and an additional term of two years, these sentences to commence on 18 February 2002. 2 The objective facts of the offences were summarised by his Honour in his remarks on sentence as follows: "All of the offences arose during the course of the prisoner's employment with the ANZ Bank between 7 February 1999 and 4 August of that year. The prisoner obtained money from the bank to which he was not entitled by approving personal loans from the bank to fictitious clients and using that money for the purposes of gambling. The total amount of money for which the prisoner approved these loans was $731,000. However, in respect of the three last loans, which totalled $153,000, the money was not obtained by the prisoner as, before he could access the funds, the bank became aware of the prisoner's offences. Therefore, the loss to the bank occasioned by the criminal conduct of the prisoner was $578,000." 3 His Honour described the applicant's employment with the ANZ Bank as follows: "The prisoner was employed by the bank in 1988. Throughout his 11 years in this employment he worked in various positions rising, through his hard work and dedication, to the position of relief manager. Toward the end of 1988 he was appointed as investment manager at the Chinatown branch. It was while he was in this position that he was able to raise loans with the bank and have the funds paid into accounts of his friends or relations or otherwise into accounts over which he had authority to draw money. The prisoner was able to perpetrate the offences with little difficulty by making entries in the bank's computer and causing the computer to approve the loans, which were then paid into an account nominated by the prisoner. " 4 In August 1999 the bank began to investigate the loans which had been arranged by the applicant. According to evidence given by the applicant in the proceedings on sentence, the bank asked him to take leave and the applicant suspected that his frauds had been discovered. 5 On 24 August 1999, having learned of the investigation, the applicant sought out the investigators and admitted his frauds to them. He supplied the investigators with a list of the twenty-seven loans and assisted in the investigation. He took part in a long recorded interview in which he made extensive admissions. 6 The applicant gave evidence in the proceedings on sentence, and the sentencing judge evidently accepted, that the applicant had been subjected in 1998 to a number of stressful events or situations, including the obligations of his position as investment manager of the Chinatown branch of the bank. 7 Before the end of 1998 the applicant had been only a social gambler. However, in the course of his employment as the investment manager of the Chinatown branch of the bank, he met a number of persons who were customers, or potential customers, of the bank and who were heavy gamblers at the Sydney Casino. The applicant came to frequent the Casino with these persons and he became an addicted gambler. 8 In his remarks on sentence his Honour summarised the applicant's offences by saying: "The offences committed by the prisoner are clearly serious acts of criminality. There are 27 occasions over a period of six months when the prisoner used his trusted status in the bank to obtain large sums of money for his own purposes. As such offences go, these were not particularly sophisticated frauds and apart from the use of fictitious names there was really no effort made by the prisoner to cover his tracks. However, it must be said it was by reason of the nature of the position he held at the bank and his seniority within that organisation that he was in a particularly advantageous position to carry out these offences." 9 In his remarks on sentence his Honour then turned to the subjective circumstances of the applicant. The applicant was born in 1966. He came to Australia from China with his parents when he was twelve years old. He obtained a university degree in science. Apart from the instant offences, he had no criminal history of any kind. As a result of the commission of the offences he had lost his position with the bank and his career in the bank. 10 After his arrest and while he was at liberty on bail pending being sentenced, the applicant had attended counselling at the Wesley Mission and had attended Gamblers Anonymous and had done voluntary work for the Wesley Mission. 11 His Honour accepted that the applicant was highly remorseful, as evidenced, inter alia, by his co-operation with the investigators and police, his early pleas of guilty and his attempts at rehabilitation before being sentenced. 12 As regards the applicant's previous character, the sentencing judge said in his remarks on sentence: "There are a number of offences committed over some months in a substantial breach of the trust placed in him by his employer. In those circumstances his lack of prior criminal record cannot be accorded the significance which it might have had, if there had been but an isolated act of criminality." 13 His Honour said that, while a gambling addiction is generally not a mitigating factor, in the present case the fact that the applicant's offending had its genesis in a treatable personality defect and in a combination of circumstances which was unlikely to recur was of significance in assessing the applicant's prospects of rehabilitation and the likelihood of re-offending. 14 His Honour arrived at the sentences he imposed by adopting the following reasoning: "The maximum penalty for each of the offences is five years imprisonment but in my view the totality of the criminality in the offences could not be reflected by a sentence which is less than the maximum penalty for any one of those offences, even though normally the maximum penalty is reserved for the worst class of offence. The decision of the High Court in Pearce v The Queen requires me to fix appropriate sentences for each of the offences and then to reflect the totality of the criminality by making orders for cumulation and concurrency. In order to achieve what is, in my view, the appropriate sentence for the totality of the criminality before me, it is necessary to cumulate sentences in a somewhat arbitrary fashion. The 25th and 27th counts, however, are in respect of significantly greater sums of money than the other counts and for that reason it seems to me appropriate those are the matters which are dealt with separately from the rest and punished by way of cumulative sentences." 15 His Honour found that there were special circumstances in the need of the applicant for assistance on his release to overcome his gambling addiction and in the fact that his Honour would be accumulating some of the sentences he would be imposing. 16 It was submitted on behalf of the applicant that the sentencing judge had made a number of specific errors in the sentencing of the applicant. I will deal with those submissions in the order in which they appear in the applicant's counsel's written submissions. 17 (1) It was submitted that his Honour had erred in saying in the passage in his remarks on sentence, which I have already quoted: "In those circumstances, his lack of prior criminal record cannot be accorded the significance which it might have had, if there had been but an isolated act of criminality." 18 It was submitted that his Honour had failed to give the evidence of the applicant's previous good character the weight it deserved. 19 In support of this submission, counsel referred to the case of Ryan v The Queen, in which on 30 November 1999 the High Court granted special leave to appeal from the decision of the Court of Criminal Appeal (R v Ryan, unreported 2 March 1998). The High Court heard the appeal on 15 June 2000 but has not yet handed down its decision on the appeal. 20 I do not accept the submission that the trial judge made this error in the part of his remarks on sentence which I have quoted or elsewhere in his remarks on sentence. The observation by the sentencing judge that the applicant's lack of a previous criminal record could not be accorded the significance it might have had, if the applicant had committed only one isolated offence and not a large number of offences over a period of six months, was a proper observation for his Honour to make. This observation was not equivalent to saying that no credit whatever would be allowed to the applicant for his previous good character. In my opinion, it is apparent from his Honour's remarks on sentence that his Honour took into account in favour of the applicant such matters as the history of his employment with the bank and that "apart from these offences, he is a well respected member of the community, hard working and an honest young man". 21 Ryan's case is clearly distinguishable. Ryan was a Catholic priest who was sentenced for many sexual offences committed against pre-pubescent boys. There was evidence before the sentencing judge that, apart from the commission of the offences for which he was being sentenced, Ryan was a person of good character, who had performed many charitable works. However, the sentencing judge in his remarks on sentence made the categorical assertion: "He was a man of unblemished character and reputation but unblemished character and reputation is something expected of a priest. His unblemished character and reputation does not entitle him to any leniency whatsoever." 22 In the present case his Honour did not make any such assertion and gave some weight to the applicant's previous good character. 23 (2) It was submitted that his Honour had fallen into error in attempting to comply with the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610. It was submitted that his Honour had fallen into error in the part of his remarks on sentence which I have already quoted, in which his Honour referred to Pearce v The Queen: 24 It was accepted by counsel for the applicant that in the second paragraph of this extract from his Honour's remarks on sentence his Honour had correctly stated part of the substance of para [45] in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce. However, it was submitted that his Honour had then wrongly adopted a global approach of the kind condemned by the High Court in Pearce, that there was no justification for his Honour treating differently the offences in the 25th and 27th counts and that, on the basis that all the offences should have been regarded as having been committed in the course of a single criminal enterprise, all the sentences should have been made concurrent. 25 I do not consider that any of these submissions should be upheld. 26 When a judge is sentencing for multiple offences, and especially when a judge is sentencing for as many as 27 offences, a judge is required by an aspect of the sentencing principle of totality to have regard to whether the total effective sentence, made up of the sentences imposed for the individual offences, properly reflects the total criminality of the prisoner. Such a requirement has not been superseded by the decision of the High Court in Pearce and was in fact reaffirmed in Pearce. What was condemned in paragraph [45] of the joint judgment in Pearce is a sentencing judge having regard "only (my emphasis) to the total effective sentence that is to be or has been imposed on the offender". 27 When a judge is sentencing for as many as 27 offences, it is vital that the judge have regard to the total effective sentence, lest an aggregation of the individual sentences results in a total effective sentence disproportionate to the prisoner's total criminality. 28 In my opinion, the sentencing judge was entitled, for the reason which he gave, to deal separately with the offences contained in the 25th and 27th counts in the indictment. I do not consider that the sentencing judge, in sentencing for the other 25 offences, was required by the decision in Pearce to attempt to set differentiated sentences, the sentence for each offence being precisely proportionate to the criminality in that offence. 29 Nor do I consider that the sentencing judge erred in making the sentences for the offences in the 25th and 27th counts cumulative on the sentences for the offences charged in the other counts. 30 The offences were not committed in the course of a single criminal enterprise, in the sense of all having been committed on the same occasion. The offences were committed on different occasions over several months. 31 Since the decision in Pearce it will more often be necessary for a judge, when sentencing for a number of offences, to make some of the sentences he imposes, cumulative on other sentences. Under the sentencing practice which prevailed in this State before Pearce, a sentencing judge could choose one of the offences for which he was sentencing a prisoner as being the principal offence and impose a sentence for that offence which would reflect the total criminality of the prisoner in all the offences. The sentences imposed for the other offences could all be made concurrent with part of the sentence for the principal offence. However, since the decision in Pearce it is necessary to set an appropriate sentence for each offence and to consider whether the sentences for the individual offences should be made cumulative or concurrent, as well as questions of totality. 32 In the present case, where there were 27 offences, if a sentence was set for each offence which was appropriate simply to the criminality in that offence and there was no accumulation of sentences, then the total effective sentence would be seriously inadequate to reflect the total criminality in all the offences. 33 (3) It was submitted that the sentences imposed by his Honour were manifestly excessive, having regard particularly to the applicant's previous good character, his voluntary disclosure of offences to the bank, his admissions to the investigating police, his prompt pleas of guilty, the psychological condition and personal circumstances which had led to the commission of the offences and his excellent prospects of rehabilitation. 34 Counsel for the applicant referred particularly to R v Ellis (1986) 6 NSWLR 603. In R v Ellis, in a much cited passage, Street CJ said, at p 604: "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence". 35 Although the present applicant was entitled to some credit for his voluntary disclosure of his guilt and his co-operation with the bank's investigators and the police, the present case was not a case where it was unlikely that the applicant's guilt would have been discovered and established, without his voluntary disclosures. The bank had already, to the applicant's knowledge, begun investigating the loans purportedly arranged by the applicant and had asked the applicant to take leave. It would have been obvious to the applicant that the bank had asked him to take leave, so that the bank could pursue its investigation in his absence. I infer it was highly probable, if not certain, that the applicant's guilt would have been discovered by the bank's investigators, even in the absence of any disclosures by the applicant. The bank would have had records of the alleged loans and would soon have discovered that the alleged loans were fictitious. As his Honour noted in his remarks on sentence, the applicant, apart from using fictitious names, had not made any effort to cover his tracks. 36 In sentencing the applicant his Honour took into account all the matters sought to be relied on by counsel for the applicant. His Honour was clearly entitled to regard the offences as serious and I am unpersuaded that the sentences imposed by his Honour exceed the upper limit of a sound exercise of his Honour's sentencing discretion. 37 I would grant leave to appeal but I would dismiss the appeal. 38 DOWD J: I agree with the proposed orders and the reasons articulated by his Honour. 39 JAMES J: The orders of the Court will be as proposed by me.

R v Chan

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