R v Do [2007] VSCA 308

1 I consider, for the reasons given by Redlich JA, that the appeal should be allowed and the matter disposed of as his Honour proposes.

**2 The appellant having pleaded guilty to 14 counts of obtaining property by deception, six counts of burglary, seven counts of theft and one count of attempting to obtain property by deception, was sentenced to four years and nine months' imprisonment with a minimum term of three years before he would be eligible for parole. Leave having been granted he now appeals against his sentence on the primary grounds that the sentencing judge failed to treat his pathological gambling addiction as a mitigating factor and imposed a total effective sentence and non-parole period which were manifestly excessive.

3 A detailed summary containing a full description of each of the offences committed by the appellant, some of them of some complexity, was provided by the prosecution on the plea and on appeal. In his reasons the learned sentencing judge summarised those offences. There being no attack made upon the accuracy of that summary, it is convenient to adopt it.**

The crimes which you committed were crimes carried out with the intention of stealing money belonging to other people. A mode of operation commonly used by you was to obtain detailed information of a person's bank account and to use that information to illegally access the account and to remove funds from it. You obtained the information in different ways. In some cases you deceived people into giving you their personal banking details. In other cases, you obtained those details from documents stolen in the course of a burglary.

It is sufficient for present purposes to give a brief account of each of the offences for which you are being sentenced. Count 1, between 18 December 2002 and 22 December 2002 you transferred sums totalling $37,285 from the home loan account of Na Van Doan with Westpac. Mr Doan was not a person known to you. You selected his name and telephone number, called him, told him that he had won a prize and deceived him into giving you his Westpac Visa card account details. You contacted the Westpac call centre and managed to obtain a telephone banking access code and a temporary internet banking password to

Mr Doan's Visa card account and home loan account. You then used that to make 11 B-pay transfers from the account totalling $37,285. The amount of $27,000 was used to purchase a motor car which you then sold to a car yard for $16,000.

Count 2, between 27 October 2004 and 1 November 2004 you transferred sums totalling $7865 by similar means from the bank account of Nhat Phan with the Commonwealth Bank. You obtained the account details over the telephone, used the information to obtain a telephone banking password and made seven B-pay transfers totalling $7865 from the account over the telephone.

Count 3, between 1 November 2004 and 4 November 2004 you obtained the details of the bank accounts of Kien Tran with the Commonwealth Bank and transferred sums totalling $10,950 from his accounts.

Count 4, on 2 November 2004 you obtained the details of the bank accounts of Taimanh Phan with the Commonwealth Bank, used the information to change his telephone banking password and transferred the sum of $2020 from his account.

Count 5, between 3 November 2004 and 11 November 2004 you obtained the telephone banking password of a home loan account of Ngoc Nguyen with the National Australia Bank. You also set up another account in his name. You transferred the sum of $242,000 from the home loan account to the other account and then made B-pay transfers into an ANZ account of your mother-in-law and sister-in-law. You attended at the bank with your mother-in-law and sister-in-law to withdraw sums from this account.

Count 6, on 3 February 2005 you stole mail containing National Australia Bank documents and other documents belonging to Josip Kapas from the letterbox of his property at 58 Mulhall Drive, St Albans.

Count 7, by telephone calls to the National Australia Bank you reset the access password for Mr Kapas' accounts, opened a new savings account in his name, arranged to redirect his mail to a post office box in West Footscray and ordered a cheque book to be posted from his Flexi-plus mortgage account. On 18 February 2005 you obtained the cheque book of 30 cheques.

Count 8_,_ between 15 February 2005 and 18 February 2005 you obtained the sum of $107,075.75 by drawing seven cheques on the account of Josip Kapas with the National Australia Bank and forging the signature of Josip Kapas.

Count 9, between 16 February 2005 and 5 May 2005 you attempted to obtain the sum of $84,581.40 by drawing four cheques on the account of Josip Kapas with the National Bank. These cheques were not honoured by the bank.

Count 10, between 15 April 2005 and 18 April 2005 you obtained the sum of $22,500 from the account of Josip and Tereza Kapas' with the National Australia Bank. You achieved that by forging their signatures and transferring the amounts from this investment loan account to an account in your name.

Count 11, on 3 May 2005 you obtained the sum of $10,450 from the account of Josip and Tereza Kapas with the National Australia Bank by transferring the amount from their Visa card into a bogus account and then transferring it from that account into accounts operated by you.

Counts 12 and 13, on 25 May 2005 you committed a burglary at 21 Sandford Avenue, Sunshine, and stole personal and banking documents, cash and other property worth $7000 belonging to Guang Qiu and My Huynh.

Counts 14 and 15, on 19 June 2005 you committed a burglary at 187 Main Road East, St Albans and stole property including credit cards, banking documents, cash, a handbag and jewellery belonging to Thong Nguyen.

Counts 16 and 17, on 20 June 2005 you committed a burglary at 38 Power Street, St Albans and stole property, personal and banking documents belonging to Khoung Pham and Hong Dinh.

Counts 18 and 19, on 22 June 2005 you committed a burglary at 53 Fox Street, St Albans and stole personal and banking documents and other property belonging to Thai Pham, Mai Pham and Thi Hoang.

Count 20, between 25 May 2005 and 25 June 2005 you obtained the sum of $47,900 from the account of Guang Qiu and My Huynh with the Commonwealth Bank. This crime involved a series of dishonest transactions. You obtained your victims' banking details in the burglary, you completed a form and forged signatures that enabled you to make transfers from their home loan account. You arranged to redirect their mail to a post box under your control. You opened a Visa account in the name of Guang Qiu over the Internet. You transferred money from the home loan account totalling $25,400 to the Visa account and $25,000 from the home loan account to a stream line account in My Huynh's name. There were numerous other associated transactions including 100 transactions using the bogus Visa account.

Count 21, between 20 June 2005 and 22 June 2005 you obtained the sum of $1490 from the home loan account of Thong Nguyen. You did this by using the banking details and cards stolen in the burglary. You withdrew $800 from an ATM using your victim's MasterCard and transferred $690 from his account into the bogus Visa account of Qiu.

Count 22, between 20 June 2005 and 21 June 2005 you obtained the sum of $11,100 from the Commonwealth Bank account of Khoung Pham. Again, you did this by using the banking details obtained in the burglary.

Count 23, between 22 June 2005 and 24 June 2005 you obtained the sum of $2740 from the Commonwealth Bank account of Thai Pham and Mai Pham using banking details obtained in the burglary.

Count 24, between 22 June 2005 and 24 June 2005 you obtained the sum of $66,000 from the ANZ account of Thai Pham and Mai Pham, again using banking details obtained in the burglary. You did this by setting up phone banking in the name of Thai Pham to enable you to access his home loan account. The password was reset, you transferred $27,000 and $50,000 from that account into another ANZ account in the name of Thai Pham and then transferred money out of that account to other destinations including a bogus MasterCard account in the name of Qiu. You also arranged for the documents to go to the post office box you had established. A number of purchases were made with the MasterCard including a mobile phone for $800, a Pomeranian puppy for $508 and a diamond for $14,000.

Counts 25 and 26, on 30 June 2005 you committed a burglary at 1 O'Brien Avenue, St Albans and stole personal and banking documents, passports and other property including a DVD player and jewellery worth $2649 belonging to Diep Bui, Michelle Bui and Mai Tran.

Counts 27 and 28, on 30 June 2005 you committed a burglary at 2 Tribe Street, Sunshine and stole papers and property belonging to Kim Bui.

Putting aside the offence that took place in December 2002, the 27 counts before the court took place between late October 2004 and June 2005, a period of approximately eight months. In that relatively short period of time, you committed 14 offences of using dishonestly obtained banking information to withdraw or transfer money from other people's bank accounts. The amounts total almost $580,000, although I am told by the learned prosecutor that owing to the manner in which sums were transferred to various accounts, the total loss was in the order of $313,476.

You also carried out six burglaries where personal documents were stolen and another theft. The burglaries occurred in the short period between 25 May 2005 and 30 June 2005, a little more than a month.

4 The following terms of imprisonment were imposed:

2 months of each term of imprisonment to be served cumulatively on each other and count 5

1 month of each term to be served cumulatively on each other and count 5

making a total effective sentence of 4 years and 9 months. His Honour fixed a non-parole period of 3 years.

**5 The sentencing judge accepted that the appellant had a gambling addiction which explained his offending conduct. Counsel for the appellant on the plea submitted that the appellant's gambling addiction had a limited relevance as showing that the appellant was motivated by his addiction and not by greed in committing the offences. In his careful reasons the sentencing judge found that the appellant's compulsion to gamble did not provide a 'just basis' for reducing the appellant's responsibility for his criminal conduct, the importance of denunciation of those crimes or the importance of general deterrence. In reaching that view his Honour relied upon the appellant's prior convictions which showed a repetition of the same offending conduct. In February 1997 the appellant had been convicted of multiple counts including obtaining property by deception, handling stolen goods and making and using false documents and had been sentenced to 10 months' imprisonment. In September 2000 the appellant was convicted on 85 charges and was sentenced to 12 months' imprisonment and a further 11 months' imprisonment which was wholly suspended. In May 2003 the appellant was convicted of 36 similar charges and was sentenced to two years' imprisonment with a non-parole period of 15 months. These convictions constituted a breach of the suspended sentence which the appellant was subsequently ordered to serve. The appellant was released on parole in April 2004. Counts 2, 3 and 4 on the present presentment were committed whilst the appellant was on parole. It also emerged on the plea that following the commission of the offence constituting count 10, the appellant had been arrested at Melbourne Airport whilst attempting to leave Australia. He was bailed to appear on 21 April 2005. When he did not appear on the return date his bail was revoked and a bench warrant was issued. Whilst at large the appellant committed the remaining offences counts 11 to 28. The appellant was arrested on 30 June 2005.

6 Two psychologists' reports were tendered on the plea, the first having been prepared for the appellant's much earlier court appearance in May 2003 and the second dated 8 August 2006. The latter report merely asserted that the appellant satisfied the criteria for a 'pathological gambling addiction' described in the Diagnostic and Statistical Manual of Mental Disorder, 4th ed, Text Revision (DSM-IV-TR). The 2003 report said that the available evidence suggested that the appellant's gambling behaviour warranted a diagnosis of 'pathological gambling disorder'.

7 It is plain that the learned sentencing judge was acutely conscious of the appellant's gambling addiction. His Honour adverted to the relevant sentencing principles which entitled him to attach little weight to the appellant's gambling addiction as part of the intuitive sentencing synthesis.[1] Faced with this conclusion, counsel on the appeal, advanced a submission which had not been raised on the plea, to the effect that as the appellant suffered from a pathological gambling he had a form of mental disorder which, applying the principle in R v Verdins[2] required his condition to be treated as a mitigating factor.

8 The statement of principle in R v Tsiaras[3] as explained in Verdins applies to a mental disorder or abnormality or an impairment of mental function whether or not the condition could properly be described as a serious mental illness.[4] The mental condition may affect the offender's moral culpability, the extent of the need for denunciation or general or specific deterrence.[5] But just as Verdins explains that the absence of a label for the condition does not preclude the operation of the principle, so the ability to attach a label to the condition will not necessarily mean that the principle will apply. A diagnostic label is only the beginning, and not the end of such an enquiry. It is not the classification of the condition which matters but 'what the evidence shows about the nature, extent and effect of the mental impairment' at the relevant time.[6] The focus must be on how the particular condition affected mental functioning of the offender in the circumstances.[7]

9 Where an appellant advances submissions on an appeal against sentence that were not advanced before the sentencing judge, it is necessary for this Court to scrutinise the evidence which had been placed before the sentencing judge, to determine whether the new submission rests upon a sound factual basis. Apart from tendering the reports to which I have referred, no evidence was led and no submission was made to amplify the psychologists' opinions. In particular nothing was said to indicate how the disorder, if it should be so described, may have impaired the appellant's mental functioning or contributed to the offending conduct. The sentencing judge was not called upon to make any finding as to whether the appellant suffered from any mental disorder or psychiatric illness which was causative of his offending, the addiction being relied upon only to show that the appellant was not motivated by greed in committing these offences.

10 In any event, it would not necessarily have followed, had it been established by evidence that this disorder impaired the appellant's ability to exercise appropriate judgment or make calm and rational choices or if it made him disinhibited,[8] that there should be a diminution in the appellant's moral culpability or that there should be any amelioration of denunciation or specific or general deterrence. As Nettle JA states in R v Howell[9] 'the theory in reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique' and the assessment of moral culpability or the need for amelioration of denunciation or deterrence will depend upon the facts of each case.

11 There were a number of cogent reasons why the sentencing judge viewed the appellant's gambling addiction as of little significance. The offences, as his Honour found, were premeditated, well planned and sophisticated and involved a high level of criminality. They involved the commission of a considerable number of separate criminal acts over a seven-month period and involving a substantial sum of money. A large number of the victims were vulnerable. The offending conduct had commenced some six months after the appellant was released on parole for similar offences. After his arrest in April 2005 the appellant whilst at large continued to offend and committed a number of burglaries. On the plea it appears to have been accepted that the proceeds of the appellant's offending were used in part to pay for personal expenses some of which were enumerated in his Honour's sentencing remarks. As the sentencing judge found, the appellant had many opportunities in the past to address his gambling addiction. Rehabilitative and other sanctions in the past had little effect upon the appellant's proclivity to commit offences of this nature. When regard is had to the appellant's extensive criminal history, the continuing influence of his gambling and the circumstances of his present offending, his Honour was, in my view, entirely justified in giving the appellant's gambling addiction little weight.

12 In light of the foregoing conclusion the argument that the total effective sentence and non-parole period fell outside the range of a sound discretionary judgment was difficult to maintain as it rested substantially upon the implications of the appellant's gambling addiction for his level of moral culpability and general deterrence. But counsel for the appellant also relied upon other mitigatory factors which were referred to in the sentencing remarks and which his Honour recognised supported a claim for clemency.

13 The appellant, born in Saigon, had fled Vietnam in 1990 with his family when he was aged 16. He then spent four years of his life in a camp in Indonesia and came to Australia as a refugee in 1994. The learned sentencing judge considered that the personal hardship experienced by the appellant during those years called for a measure of compassion. His Honour referred to the appellant's plea of guilty, to the complexity of some of the banking transactions and the saving of significant time and resources as a consequence of the plea. His Honour found the plea to be an expression of genuine remorse. His Honour took into account the appellant's relatively young age and his wish to support his wife and three young children. His Honour adopted a benevolent attitude to the appellant's prospects of rehabilitation.

14 No complaint is made about the individual sentences imposed. His Honour moderated and accumulated the individual sentences so as to give effect to the totality principle. In my view the contention that the total effective sentence and the non-parole period are manifestly excessive has no merit. The sentencing remarks reflect a clear recognition by his Honour of the need to balance the gravity of the offences against the appellant's personal circumstances and other mitigating factors. The sentence imposed was a moderate one for offending of this level of objective seriousness committed by someone with the appellant's record and reflected his Honour's intent to extend a degree of clemency to the appellant.

15 The appellant relied upon two other grounds which alleged specific errors in the sentencing process. The first of those grounds is said to arise because of an error that the sentencing judge initially made in treating count 4 on the presentment as a 'continuing criminal enterprise offence.'[10] The judge sentenced the appellant to 18 months on that count and ordered that three months of it be cumulated. Immediately following the imposition of the sentences and the fixing of a non-parole period of three years it was drawn to his Honour's attention that he had erred in treating the offence as a criminal enterprise offence. His Honour then reduced the sentence on that count to 15 months' imprisonment and ordered cumulation of two months. His Honour did not alter the non-parole period of three years.

16 Under this ground it is contended that his Honour failed to give discrete consideration to refixing the non-parole period following the identification of this error. The ground has no substance. His Honour was invited by counsel for the appellant to refix the non-parole period in view of the alteration to the total effective sentence. His Honour determined to leave the non-parole period unchanged. It was plainly open to his Honour to follow such a course as the amended sentence reduced the total effective sentence by only two months. The non-parole period which was fixed was not so unusual as to invite scrutiny.[11]

17 The final ground of appeal alleged that the learned sentencing judge had erred in ordering that the sentences on counts 2 to 5 inclusive be served cumulatively on any period of breached parole. In his sentencing remarks his Honour noted that those counts were committed whilst released under a parole order made in April 2004 in respect of the sentence which had been imposed in May 2003. His Honour then said:**

Pursuant to sub-s (3B) of s 16 of the Sentencing Act, the term of imprisonment imposed today must be served cumulatively on any period of imprisonment which you may be required to serve in custody on cancellation of the parole order made by the Parole Board on 7th April 2004.

**18 The individual sentences imposed on counts 2 to 5 form part of the overall sentence fixed by his Honour. Count 5 was the base sentence of two years' imprisonment. On each of counts 2, 3 and 4 the appellant had been sentenced to a term of imprisonment of 12 months and it was ordered that two months of each of those terms of imprisonment be served cumulatively on the base sentence. It was submitted on the appellant's behalf that it was unclear from his Honour's sentencing remarks whether the cumulation was in respect of the two months' cumulation on counts 2 to 4 or the total effective sentence on these individual counts. Counsel for the respondent submitted that his Honour had not made any order at all and that in substance his Honour was doing no more than stating that in the event that the appellant was required to serve the parole sentence by the Adult Parole Board, the Sentencing Act provisions would have the effect of requiring the sentences imposed on counts 2 to 5 be served cumulatively on the parole sentence. I doubt that his Honour's remarks can be construed in any of the ways suggested by either party.

19 The genesis for these remarks emerged during the course of the plea. The learned prosecutor had drawn his Honour's attention to the fact that s 16(3B) of the Sentencing Act 1991 applied to counts 2 to 5 inclusive as those offences had been committed whilst the appellant was on parole. It had been submitted that his Honour should order that the sentences imposed on those particular counts should be made cumulative on any order to be made by the Parole Board. As explained hereafter, this submission was wrong in law.[12] Unfortunately, counsel for the appellant on the plea adopted the prosecutor's submission and informed his Honour that he did not contend that there were any exceptional circumstances associated with the commission of those offences. Counsel for the appellant submitted that it was a relevant matter bearing upon the sentence to be imposed that the appellant might well have to serve the parole sentence. Unsurprisingly, his Honour then made an order although its effect may not have been what his Honour or either party intended as the order was not confined to the individual sentences for counts 2 to 5 or the orders for cumulation in relation to those sentences. The prisoner's return, signed by the sentencing judge, after reciting the total effective sentence and the non-parole period reflected his Honour's sentencing remarks. It provided -**

Pursuant to sub-s (3B) of s 16 of the Sentencing Act the term of imprisonment imposed today must be served cumulatively on any period of imprisonment which the prisoner may be required to serve in custody on a cancellation of the parole order made by the Parole Board on 7th April 2004.

20 Subsequent to sentencing the appellant this Court published its decisions in R v Piacentino[13] and R v Alashkar and R v Tayar.[14] As explained in Alashkar and Piacentino, where the Parole Board has not yet cancelled parole, no order is to be made under s 16(3B) nor is any account to be taken of possible action by the Parole Board.[15] As no order should have been made pursuant to s 16(3B) it is unnecessary to resolve the question of the intended ambit of the order as the error is one which requires the reopening of the sentencing discretion. For the reasons I have already

given, I consider the sentences that were imposed to be appropriate. I would reimpose the sentences fixed by the learned sentencing judge.

21 I also agree with the reasons advanced by Redlich JA and the course proposed by him.

[1] R v Con Chi Huynh [2004] VSCA 128, [58] (Eames JA); DPP v Raddino [2002] VSCA 66; (2002) 128 A Crim R 437, [26]-[27] (Chernov JA); R v Atalla [2002] VSCA 141; (2002) 132 A Crim R 531, [12]-[15] (Vincent JA); R v Galletta [2007] VSCA 177, [15] (Redlich JA).

[2] [2007] VSCA 102, [26].

[3] [1996] VicRp 26; [1996] 1 VR 398.

[4] [2007] VSCA 102, [5].

[9] [2007] VSCA 119, [24].

[10] Section 6H of the Sentencing Act 1991 provides that the maximum penalty for an offence declared to be a continuing criminal enterprise offence shall be doubled.

[11] Cf R v Detenamo [2007] VSCA 160, [26]-[27].

[13] [2007] VSCA 49.

[14] [2007] VSCA 182.