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[2009] VSCA 110
appellant. By majority (Buchanan JA, Vincent JA) the Court re-sentenced Faneco. Revised sentences proposed by Buchanan JA: first presentment total effective 5 years; second presentment total effective 4...
Faneco ran elaborate identity- and document-fraud schemes, pleaded guilty to multiple counts across three presentments and was sentenced in the County Court. The Court of Appeal held that the County Court erred by imposing aggregate sentences on rolled-up counts (which is contrary to law) and misapplying the continuing criminal enterprise (CCE) maxima and sentencing approach to CCE counts. The majority (Buchanan JA and Vincent JA) ordered re-sentencing to correct those errors, resulting in a revised total effective sentence of 8 years 6 months with a non-parole period of 5 years 6 months. The Court also confirmed principles about the application of CCE maxima, the prohibition on automatic higher terms for CCE counts without reasons, and cumulation for offences committed while on bail.
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James Roderick Faneco was the central organiser of a large-scale, sophisticated fraud operation using false identities, fabricated businesses, forged documents and diverted mail and telephone verification to obtain credit cards and draw down funds from financial institutions. The offending spanned several years, produced an assessed aggregate loss in excess of $1.2 million on the first presentment and a further near $800,000 on the second presentment, and involved many fabricated documents and production-line arrangements to create fictitious identities and employers [37]-[45], [50]-[52].
Faneco pleaded guilty in the County Court to multiple counts across two presentments on 1 December 2006 and was sentenced on 14 December 2006. The sentencing judge imposed aggregate sentences on rolled-up counts in the first presentment and imposed a structure of concurrent and partly cumulative sentences across the first and second presentments, producing an effective term of six years and six months with a non-parole period of four years. He was later charged on a third presentment with conspiracy to defraud, committed while on bail for the earlier offences, and was sentenced on that offence on 12 August 2008 to five years' imprisonment with three years cumulative, producing a total effective sentence of nine years and six months and a new non-parole period of six years [46], [54].
On appeal to the Court of Appeal (Maxwell P, Buchanan JA and Vincent JA), the Crown conceded that the first sentencing judge had erred by imposing aggregate sentences on rolled-up counts (a conceded error which the Court treated as significant) [6], [56]. The Court also addressed the application of the continuing criminal enterprise (CCE) provisions in the Sentencing Act 1991 (Vic), namely whether the increased statutory maximum applied to each qualifying CCE count once the offender became a CCE offender, and whether it was permissible for a sentencing judge to elevate sentences on counts merely because they attracted a higher maximum [13]-[18]. The majority (Buchanan JA, Vincent JA) considered the errors infecting the earlier sentences sufficiently serious to require re-sentencing and set out a revised sentencing scheme producing a total effective sentence of eight years and six months with a non-parole period of five years and six months [67]-[68].
The decision rests on a chain of statutory and common law sentencing principles applied to the particular facts of multiple rolled-up counts and CCE offences.
Rolled-up counts:
Continuing criminal enterprise maxima:
Prohibition on automatic elevation for CCE counts:
Cumulation and offences committed on bail:
Sentencing range, discount for plea and parity:
Given these legal constraints and the significance of the procedural error in failing to sentence individual components of rolled-up counts, the majority found that re-sentencing was required to produce a transparent sentencing record and to ensure correct application of the CCE rules and cumulation statute, while nevertheless arriving at a result within the overall range for the offending [56]-[67].
Before this decision:
After this decision:
The decision also reiterates that a sentencing judge must not elevate sentences for CCE counts without explanation; the higher statutory maximum does not justify automatic higher terms [18]. Practitioners must therefore ensure sentencing processes in complex multi-count frauds make explicit how each count was assessed and how cumulation was applied.
"It is contrary to law to impose an aggregate sentence on a rolled-up count." [6] (Maxwell P)
"Where the offender becomes a CCE offender because of findings of guilt of three (or more) CCE offences, the increased maximum applies to all of the CCE offences for which he is to be sentenced, including those offences which qualify him as a CCE offender." [15] (Maxwell P)
"His Honour appears to have 'automatically' imposed a higher sentence on what he had identified as the CCE counts, simply because they were CCE counts attracting a higher maximum." [18] (Maxwell P)
"The imposition of aggregate sentences has precluded scrutiny of the sentence: it is not possible to discern the means by which the sentencing judge arrived at the sentences." [56] (Buchanan JA)
"I would re-sentence the applicant as follows... The total effective sentence I propose is eight years and six months' imprisonment. I would fix a term of five years and six months before the applicant is to be eligible for parole." [67] (Buchanan JA)
This decision is engaged when:
Practitioners should therefore be alert to rolled-up counts, to record how individual incidents are reflected in sentence components, to ensure that any application of increased CCE maxima is clearly reasoned, and to address statutory cumulation for offences committed while on bail.
This decision itself applies and clarifies pre-existing authorities (for example DPP v Felton, Roussety and Arundell). It is likely to be cited in future cases that involve:
As this is a Court of Appeal decision with two-judge concurrence on the re-sentencing (Buchanan JA, Vincent JA), it will be persuasive and often followed in Victorian sentencing practice where similar factual and count structures occur.
Degree of transparency required in sentencing rolled-up counts:
Quantification for CCE 'financial advantage':
Weight afforded to late pleas in multi-presentment complex frauds:
Interaction between s 16(3C) mandatory cumulation and principle of totality:
Limits to appellate re-sentencing where original sentences were 'moderate':
Practitioners dealing with complex frauds, rolled-up charges, or CCE issues should consult Faneco for the particular rules on rolled-up counts and CCE maxima, and ensure sentencing hearings produce transparent, reasoned, count-by-count sentencing records to withstand appellate scrutiny [6], [15], [56]-[67].
CRIMINAL LAW - SENTENCE - Obtaining a financial advantage by deception - Rolled-up counts - Aggregate sentences inappropriate - Offender re-sentenced.
Mr S Ward, Acting Solicitor for Public Prosecutions
1 On 14 December 2006, the applicant ('F') was sentenced to imprisonment on a number of counts contained in two separate presentments. (They will be referred to as 'the first presentment' and 'the second presentment' respectively). His application for leave to appeal against that sentence was refused by a judge of this Court under s 582 of the Crimes Act 1958 (Vic). F then exercised his right to renew his application for leave before a bench of three judges.
2 On 12 August 2008, before that application could be heard, F was sentenced to a further term of imprisonment on a separate presentment ('the third presentment'). F applied for leave to appeal against that sentence also. The hearing of that application was referred for hearing by the same bench as was hearing the renewed application for leave to appeal relating to the sentences imposed on the first and second presentments.
3 For reasons which follow, I would grant leave to appeal on the first application but dismiss the appeal, and I would refuse the second application.
4 The conduct the subject of all three presentments involved, or was directed at, the commission of large-scale fraud for financial gain, by means of false documents and the creation of false identities and false businesses. The details of the offending are set out in the reasons for judgment of Buchanan JA, which I have had the advantage of reading in draft.
5 For ease of reference, I set out below the counts in the respective presentments and the sentences imposed.
Conceded sentencing error on first presentment
6 All of the counts on the first presentment were rolled-up counts. His Honour purported to impose aggregate sentences on all but count 7. The Crown conceded, quite properly, that this was a sentencing error. It is contrary to law to impose an aggregate sentence on a rolled-up count.[1]
7 The Crown submission was, however, that the error had worked to F's advantage.
By imposing an aggregate sentence on the rolled up counts, his Honour has imposed sentences which do not truly reflect the criminality involved, and if the sentencing discretion is opened up, in re-sentencing a higher sentence would be called for.
8 There is considerable force in this submission, in my view. This becomes apparent when regard is had to the amounts involved in the rolled-up counts of obtaining financial advantage by deception, which were as follows:
9 Had the sentencing task been approached correctly, the judge would have imposed an individual sentence on each of these counts. It would then have been appropriate to order some measure of cumulation among the counts, to take account of the fact that each count concerned the defrauding of a different financial institution. The same exercise would have had to be undertaken in relation to the seven counts of attempting to obtain a financial advantage by deception.
10 That is, of course, the task which this Court should undertake, since the errors have the effect of reopening the sentencing discretion. It seems to me, however, that - in whatever way the sentence might be structured - no sentence could reasonably be arrived at which resulted in a total effective sentence of less than the four and a half years which the judge imposed for this very serious offending.[2] As his Honour said, considerations of both specific and general deterrence were of particular importance. The sentence imposed was lenient in the circumstances.
11 On the other hand, I would not accede to the Crown submission that a higher sentence should be imposed. Had that course been in contemplation, the applicant would have been notified, in accordance with the usual practice.
The second presentment: continuing criminal enterprise offences
12 The second presentment contained five counts of obtaining financial advantage by deception and one of attempt. The amounts involved were as follows:
13 Counts 3, 4 and 6 were 'continuing criminal enterprise offences', within the meaning of Part 2B of the Sentencing Act 1991 (Vic) ('the Act'). In each case, the offence was that of obtaining financial advantage by deception, and the value of the financial advantage obtained exceeded $50,000.[3] (Although this was also true of count 1, the relevant conduct occurred before 1 July 1998, when Part 2B came into force).
14 Having pleaded guilty to three continuing criminal enterprise ('CCE') offences, F fell to be sentenced as a 'continuing criminal enterprise offender' ('CCE offender') within the meaning of s 6H(1) of the Act. In accordance with s 6I, therefore, he was liable to be sentenced in relation to each CCE offence to a maximum term of imprisonment of twice the prescribed maximum. Hence the maximum for those offences was increased from 10 to 20 years.
15 On the authority of The Queen v Roussety ('Roussety'),[4] the increased maximum was applicable to each of counts 3, 4 and 6. Where the offender becomes a CCE offender because of findings of guilt of three (or more) CCE offences, the increased maximum applies to all of the CCE offences for which he is to be sentenced, including those offences which qualify him as a CCE offender.
16 Sentence was imposed in the present case long before the decision in Roussety was handed down. The prosecutor informed the sentencing judge on the plea that the increased maximum only 'kicked in' on and after the third CCE offence. Counsel correctly identified count 6 as the third CCE offence on this presentment. The sentencing judge, however, stated that count 4 was the third CCE offence and that the increased maximum was applicable to count 4 as well as to count 6, but did not explain why.[5]
17 In the light of the decision in Roussety, both the prosecutor and the sentencing judge were in error. The increased maximum was applicable to each of counts 3, 4, and 6 on the second presentment.
18 Counsel for the applicant in his reply submission identified a further error in the judge's application of the CCE provisions. The passage in the sentencing reasons to which objection was taken was in these terms:
Upon counts 1, 2 and 3, obtaining a financial advantage by deception, you are sentenced to two and a half years' imprisonment. Upon each of counts 4 and 6, which constitute continuing criminal enterprise offences, you are sentenced to four years' imprisonment.[6]
His Honour thus imposed a significantly higher sentence on counts 4 and 6 than on counts 1, 2 and 3, but gave no reasons for doing so. His Honour appears to have 'automatically' imposed a higher sentence on what he had identified as the CCE counts, simply because they were CCE counts attracting a higher maximum. This was held in The Queen v Arundell[7] to be a sentencing error. A concession to that effect was subsequently made by the Crown in The Queen v Grossi.[8]
19 Once again, however, I am wholly unpersuaded that any more lenient sentence could be justified. As Buchanan JA has said, these counts also involved sophisticated fraud, using false documents, and represented an amount of almost $800,000. The first of the errors concerning the CCE offences was favourable to the applicant, in that the judge sentenced him as a CCE offender in respect of only two, rather than three, CCE offences. When it is appreciated that F ought to have been sentenced as a CCE offender in respect of three of the five counts of dishonestly obtaining a financial advantage, it can be seen that the sentences imposed, and the orders for cumulation, were moderate indeed.
20 This conclusion is reinforced when regard is had to the effect of the orders for cumulation. The overall result in respect of all of the offences covered by the two presentments was a total effective sentence of six years and six months, with a non-parole period of four years. That sentence reflected the judge's view that F was entitled to 'a significant discount' because of his pleas of guilty. Having regard to the criminality involved in the offending, and to F's central role throughout, I do not consider that this Court on re-sentencing could reasonably impose a more lenient sentence.
21 Accordingly, I would grant leave to appeal in respect of the sentence imposed in respect of the first and second presentments, but would dismiss the appeal.
22 The third presentment contained a single count of conspiracy to defraud. It is of considerable significance, in my view, that F committed this offence while he was on bail for the fraud offences the subject of the first and second presentments. As Buchanan JA has described,[9] the conspiracy involved another very elaborate scheme to defraud, devised by F.
23 It was not in issue that, in respect of this count, F was to be sentenced as a CCE offender. Accordingly, the maximum sentence applicable was 25 years' imprisonment.
24 The primary submission for F was that the conceded error regarding the first presentment must have the consequence that the sentencing discretion was also re-opened in relation to the third presentment. This was so because, as appears from the table of sentences set out at the beginning of these reasons, the head sentence imposed by the second judge was made partly cumulative upon the sentences imposed by the first judge.
25 I have already concluded that no different sentence should be imposed in relation to the first and second presentments. It is therefore necessary to consider the substantive grounds relied on to challenge the sentence on the conspiracy count. For reasons which follow, I would reject each of those grounds.
26 It was first contended that the head sentence of five years' imprisonment was manifestly excessive having regard to the following matters:
27 As noted earlier, the maximum penalty applicable to F when he was sentenced for this offence was 25 years. Given his record of serious offending of this kind, and in particular the fact that this offence was committed soon after he was released on bail for the earlier fraud offences, it is in my view clear beyond argument that the sentence which was imposed was well within the range reasonably open to the sentencing judge. Her Honour had specific regard to F's health problems, which she accepted constituted 'an additional burden' for him.[10] She also took the same view of the effect on F of the ill-health of his elderly parents, his uncle and his sister.[11]
28 The second ground was that the sentence infringed the principle of totality. As appears from the table above, the total effective sentence (after cumulation) was nine years and six months' imprisonment, with a new non-parole period of six years. This was said to be disproportionate to the total criminality represented by the offending covered by the three presentments. I disagree. This submission fails altogether to recognise the scale and seriousness of F's offending, and the remarkable circumstance that he had no sooner been released on bail for the earlier fraud offences but he was planning another elaborate large-scale fraud.
29 The next ground concerned the judge's statement, made in accordance with s 6AAA of the Sentencing Act 1991 (Vic), that but for F's plea of guilty she would have imposed a head sentence of six years with a non-parole period of four and a half years. By reason of the plea of guilty, therefore, the head sentence was reduced by one year. It was submitted for F that 'it was not open to the learned judge to accord such a minor benefit to the appellant on account of his plea'.
30 this argument, too, must be rejected. As this Court explained recently in The Queen v Burke,[12] a complaint about the sentence discount identified in the s 6AAA statement is simply a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether the sentence imposed was within range taking into account all the relevant sentencing considerations, including the discount for a plea of guilty. As I have already said, the sentence imposed here was well within range.
31 A further complaint was that the trial judge failed to apply the sentencing principle of parity as between co-offenders. The co-offender Williamson was sentenced to four years' imprisonment with a non-parole period of two years, having pleaded guilty to the same offence as F. Attention was drawn to the judge's findings that Williamson:
32 The co-offender Hayes was sentenced to three years and six months' imprisonment, with a non-parole period of 21 months. Attention was drawn to the judge's findings that Hayes:
33 In my view, this argument must fail. The sentence differentials were also well within range. There were clear distinctions between F and the others. He was the initiator of the scheme; he had committed this offence while on parole; and the applicable maximum for him was 25 years' imprisonment whereas it was only 15 years for the others.
34 Finally, complaint was made regarding the following paragraph of her
I am satisfied on the evidence produced at the trial and the evidence relied upon by the Crown in respect of the plea, that your role, James Faneco, was as the deviser of the scheme, and that you introduced your co-accused, Williamson and Hayes, to it. I am satisfied, in reliance on the material contained in the diary notes to which I have already made reference, that that conclusion is fortified by the additional circumstances of which I was informed on your plea, namely that you have since then, that is since your arrest but before this plea, pleaded guilty to and been sentenced by Judge Dyett for your involvement in a very similar scheme. Both the Crown and your counsel told me on the plea that some of the matters for which you had already been sentenced by Judge Dyett were very similar to the circumstances of this conspiracy. I was also informed that you were on bail in respect of your involvement in the other scheme at the time of the commission of these offences. In fact, at the time of your arrest, you were arrested for failing to answer bail to attend what was then proposed to be your trial in respect of the offences to which you ultimately pleaded guilty before Judge Dyett. I was also informed that as part of the other scheme, there was found at your home in Berwick, similar documents to those the subject of this conspiracy. These other matters are clearly put not as constituting prior convictions and are not taken into account by me as constituting prior convictions for any sentencing purpose, but they confirm the view that I have already formed on the materials relevant to the trial and to your plea in respect of this matter, about your role.[13]
35 It was said that her Honour should not have had regard, when sentencing F on the conspiracy count, to the facts on the basis of which the judge imposed sentence in respect of the first and second presentments. There is no substance in this submission. As the reasons make clear, the sentencing judge was careful not to treat F's convictions in respect of those matters as prior convictions. But, in circumstances where she was obliged - as an earlier ground asserted - to have regard to totality, it was not only appropriate but necessary to take into account the facts surrounding his role in the earlier frauds.
36 For these reasons, I would refuse leave to appeal in respect of the sentence imposed on the third presentment.
37 On 1 December 2006 the applicant was arraigned in the County Court and
pleaded guilty to 19 counts in two presentments charging the applicant with obtaining or attempting to obtain a financial advantage by deception from a number of banks and other financial institutions and to a count of using a forged passport.
38 The maximum sentence for obtaining a financial advantage by deception and using a false passport was ten years' imprisonment; the maximum sentence for attempting to obtain a financial advantage by deception was five years' imprisonment. Upon pleading guilty to count 3 on the second presentment, the applicant became a continuing criminal enterprise offender and thus liable in respect of that count and in respect of counts 4 and 6 on the same presentment to a maximum term of 20 years' imprisonment pursuant to the provisions of ss 6H and 6I of the Sentencing Act 1991 (Vic).[14] The offences of obtaining or attempting to obtain a financial advantage by deception were rolled up counts.
39 The facts giving rise to the counts in the presentment were as follows. On 19 October 2004 a police officer arrested Denis Smith while he was collecting a credit card in a false name from a branch of the Westpac Banking Corporation. The applicant, who was seen watching the bank from the opposite side of the road, was also arrested. A BMW sedan driven by the applicant to the bank was found to contain credit cards and other documents relating to persons other than the applicant. Among the documents was the false passport in the name of Smith bearing the applicant's photograph. The applicant had used the passport to travel abroad on numerous occasions. While travelling, the applicant used credit cards in false names, which had been obtained by deception.
40 In the applicant's house police officers found piles of documents relating to a number of false businesses, including letterheads, business cards and payslips. Each false business had folders of employees with forged birth certificates, driver's licences and employee identification cards. The postal addresses were those of existing householders, but the mail was diverted to post office boxes so that the occupiers were not aware of the use to which their addresses were being put. Telephone numbers were hired in the names of fictitious persons and diverted to a central number at the applicant's house. The names of the fictitious persons were used in applications for credit facilities, supported by forged documents.
41 Once cards were obtained, funds were drawn down by use of automatic teller machines or at retails outlets.
42 In the applicant's garage there were mobile telephones labelled with the name of each person. Notes on the wall behind each business file listed the names of the persons associated with the business, their addresses and postbox numbers.
43 Also at the applicant's house the police found a computer containing pro forma documents used to create bogus birth certificates, passports, drivers' licences and employee identification cards.
44 The police found credit cards with an aggregate limit of approximately $1,958,700. Amounts totalling $1,258,472.20 had been drawn using the credit cards.
45 The fraud involved in the first presentment was a sophisticated and well organised deceit against seven different financial institutions over a period of some five years between 1999 and 2004, resulting in a detriment to those institutions totalling more than $1.2 million. The offending the subject matter of the second presentment also involved sophisticated fraud using false documents and represented an amount of almost $800,000.
46 On 14 December 2006 the applicant was sentenced. An aggregate sentence of four years' and six months' imprisonment was imposed in respect of the counts of obtaining a financial advantage by deception in the first presentment. An aggregate sentence of two years' imprisonment was imposed in respect of the counts of attempting to obtain a financial advantage by deception in the first presentment. Upon the count of using a forged document the applicant was sentenced to three years' imprisonment. The sentences were made concurrent. In respect of the counts in the second presentment the applicant was sentenced to be imprisoned for a term of two-and-a-half years on each of four counts of obtaining a financial advantage by deception, for a term of four years on each of two counts of obtaining a financial advantage by deception, which were continual criminal enterprise offences, and for a term of two years on the remaining count of obtaining a financial advantage by deception. With a measure of cumulation with counts in the first presentment, a term of six years and six months was produced. A minimum term of four years' imprisonment was fixed. The sentencing judge ordered that the applicant pay a total of $1,258,472.30 in restitution. This obligation was reduced by the sum of $258,376.93 representing the proceeds of the sale of property of the applicant that had been confiscated.
47 On 31 July 2008 the applicant was arraigned in the County Court on a third presentment containing a single count of conspiracy to defraud.
48 This offence was committed while the applicant was on bail after being arrested for the offences the subject matter of the earlier two presentments. The conspiracy involved a similar fraudulent scheme.
49 On 4 October 2006 the applicant was arrested, which led the police to an apartment at Docklands. In the apartment were materials intended to be utilized to induce banks and other financial institutions to provide credit cards, which were then to be drawn down to obtain cash advances. Documents were manufactured to create false identities and steps were to be taken to intercept telephone calls made by banks to which credit card applications had been made, when it was sought to verify the identity or employment details of the applicant for the credit card, and to divert any mail sent to the applicant or to an invented employer from the addresses given in the applicants' supporting documents to post office boxes obtained for the purpose.
50 The principal room in the apartment was set up as a production line. Individual files in respect of each false identity were arranged in plastic trays on tables. Each file generally contained a pro-forma document on which was entered the name of the fictitious person, the address, date of birth, telephone numbers, previous address, licence number, employer address, the position of the false person in the employing company, the number of years for which that person had been employed, his or her gross salary, and other details. In some cases there were Queensland birth certificates in the name of the false identity, a reference from the purported employer, internet advertisements for residential properties, some including advertisements for the residential address given to the fictitious identity, internet advertisements for commercial properties advertised for lease or sale, including advertisements for the addresses given to the employer, business cards in the name of the fictitious employers, applications for post office boxes filled out in the name of the fictitious person, Australia Post mail redirection forms used to redirect mail from a particular address to a post office box, Telstra telephone bills in the name and address of the fictitious person or in the name and bearing the address of the purported employer, credit card applications in the names of various fictitious persons.
51 The fictitious persons were given employers. The employers were actual companies. Genuine addresses, usually taken from advertisements for commercial premises for sale or lease, were provided for the employers. Letterheads were manufactured for the employers and landline telephone numbers were obtained. The landlines were all diverted to mobile telephones so as to intercept verification calls from the banks or other financial institutions. Letters from the purported employers verifying the identity of the person, the fact that they were employed by the company and giving their job position or description were also produced.
52 The sum of $13,041.93 was obtained from the credit cards issued by banks and financial institutions to the conspirators. The modesty of the amount was due to the fact that the scheme was detected while it was in its early stages and the applicant was arrested. The potential loss to banks and financial institutions had the operation not been frustrated was very great. The fraud was sophisticated and carefully planned, requiring significant effort over a considerable period of time.
53 The sentencing judge found that the applicant devised the scheme and introduced his co-conspirators to it.
54 On 12 August 2008 the applicant was sentenced to be imprisoned for a term of five years. The sentencing judge directed that three years of that term be served cumulatively upon the sentence which the applicant was undergoing as a consequence of his conviction on the first two presentments. The total effective sentence became one of nine years and six months. A new non-parole period of six years was fixed.
55 The sentencing judge said that the applicant was to be sentenced as a continuing criminal enterprise offender pursuant to the provisions of s 6H. This was because the list of continuing criminal enterprise offences set out in schedule 1A includes 'the common law offence of conspiracy to defraud where the property, financial advantage or economic loss in respect of which the offence is committed is $50,000 or more'. Although the sum obtained by the conspirators was less than $50,000, the financial advantage in terms of the limit of credit they obtained exceeded $50,000. Accordingly, the maximum sentence for the offence was 25 years' imprisonment.
56 Counts 1 to 15 on the first presentment were rolled up counts. The first sentencing judge imposed aggregate sentences in respect of those counts. In my opinion that course was not appropriate. The number of individual crimes encompassed by the counts and the sums thereby obtained were significant. The imposition of aggregate sentences has precluded scrutiny of the sentence: it is not possible to discern the means by which the sentencing judge arrived at the sentences. The components of the sentences and the sentencing judge's view of the appropriate individual terms and the extent of concurrency and cumulation that should be applied are hidden. That result is entailed by aggregating sentences in relation to rolled up counts which, by their very nature, have already been aggregated.[15]
57 The error has been conceded by the respondent. In my view this Court should re-sentence the applicant in respect of the counts contained in all of the presentments. The errors in respect of the first presentment infect the sentences imposed in respect of the later presentments, for the sentences were made partially cumulative and were built one upon another.
58 The applicant is now 62 years' old. He has 11 prior convictions from eight court appearances between June 1965 and April 1991. The offences included larceny of a motor vehicle, attempted theft and three counts of obtaining a financial advantage by deception.
59 The applicant was educated at Ivanhoe Grammar School. He moved with his family to Croydon after his father was imprisoned as a result of fraudulent business dealings. The first sentencing judge said that the applicant came under the influence of lawless friends and that led to his imprisonment for the offence of theft of a motor vehicle. His Honour noted that there were gaps of quite lengthy periods in the applicant's criminal record and that in those periods the applicant had a good work record, including managing a large Holden dealership and acting as a real estate agent. The applicant has children from three marriages. He appears to have become estranged from the children of his first two marriages.
60 A psychologist who made a report dated 1 December 2006 said that the applicant had marked periods of depression, which were associated with heavy alcohol use. The psychologist endeavoured to explain the applicant's offending as follows:
A relevant continuing pattern was one of hyperbolic or catastrophic thinking. With this sort of cognitive and emotional style underlying fears tend to inflate the emotional responses to situations. The process tends to be automatic and pervasive. Thought patterns are over inclusive in detail with no opportunity for effective challenge to the connections. The result generates anxiety which in turn impels behaviour or reactions. One situation then leads to another and in this man's case there is a sense of rationalisation as he seeks internal justification of his responses. This may well have been the pattern which led to his offending behaviour.
I do not think that this explanation reduces the applicant's culpability to any extent.
61 The second sentencing judge found that there was some prospect of the applicant's rehabilitation, as he wished to re-establish a relationship with his wife and daughter. On the other hand, her Honour found that the prospects were limited having regard to the fact that the applicant's current offending occurred while he was on bail awaiting trial in respect of the first two presentments.
62 The applicant relied upon a number of mitigating circumstances: his plea of guilty, the effect of the sentence upon the applicant's health, the willingness of the applicant to assist the authorities to prosecute others engaged in the fraud, the applicant's age and his psychological condition bearing upon the offences.
63 As to the applicant's health, the sentencing judge said:
In the course of the plea submissions, Ms Cure also told me that since about June or September of last year, you have suffered considerable ill health whilst in gaol. You appeared in court on the plea and again today, using a crutch to assist you to walk and with your arm in a sling. Documents tendered to me on the plea show that you have a history of reporting frequent bouts of dizziness, nausea, and pain in your shoulder over the last 12 months. You have had extensive tests, I am told, but no specific diagnosis has been made or identification of what is causing the dizziness, nausea and shoulder pain apart from a diagnosis of a viral infection in the middle ear. I accept that the lack of clear diagnosis and the persistence of the symptoms has created anxiety in you about your long term health, and that is an additional burden which I take into account in your favour.
In a recent affidavit, the applicant's father, who is 88 years' old, deposed that he had advanced prostate cancer, which was inoperable. He deposed that the applicant's mother suffered from cancer and the applicant's sister had an aggressive form of brain cancer, and that both were unable to care for themselves. Until his imprisonment, the applicant had been the full time carer of his mother.
64 Those matters are of some significance. In addition, I bear in mind the applicant's aptitude for hard work and the premature death of his daughter, who suffered from Down's syndrome and died some four months after her birth, which was part of the context in which the offending began in 1999.
65 On the other hand, it is necessary to weigh in the balance the circumstances of the offences themselves. The crimes were premeditated, well planned and entailed deception on a large scale by the organised creation of false documents relating to fictitious persons and businesses and the fraudulent use of addresses of existing householders. The amount of money lost as a consequence of the fraudulent conduct in which the applicant participated in respect of the first two presentments represented a large sum. Many of the counts in the first presentment were rolled up counts. The applicant's prior criminal record is also relevant.
66 The offence the subject matter of the third presentment was committed while the applicant was on bail as a consequence of being charged with the offences the subject matter of the first two presentments. Section 16(3C) of the Sentencing Act provides that any sentence committed while on bail for other offences is to be served cumulatively unless otherwise ordered. I propose an order for partial cumulation to accommodate the concept of totality.
67 I would re-sentence the applicant as follows. In respect of the first presentment, I would sentence the applicant to be imprisoned for a term of four years on each of counts 2 to 6, 9 and 15, for a term of two years on each of counts 1, 8 and 10 to 14 and for a term of 12 months on count 7. I would cumulate three months of the sentence on each of counts 4, 6, 10 and 12 on each other and on the sentence on count 2, creating a total effective sentence of five years' imprisonment in respect of that presentment. In respect of the second presentment, I would sentence the applicant to be imprisoned for a term of three years on each of counts 1 to 4 and 6 and to a term of 18 months' imprisonment on count 5. I would cumulate six months of the sentence on each of counts 2 and 4 on each other and on the sentence on count 1, creating a total effective sentence of four years' imprisonment in respect of that presentment. I would impose a sentence of four years' imprisonment in respect of the single count in the third presentment. I would cumulate 21 months of the sentence imposed on the second presentment and 21 months of the sentence
imposed in respect of the third presentment on the sentence imposed in respect of the first presentment. The total effective sentence I propose is eight years and six months' imprisonment. I would fix a term of five years and six months before the applicant is to be eligible for parole.
68 Pursuant to the provisions of s 6AAA of the Sentencing Act, I state that I would have imposed a total effective sentence of nine years' and six months' imprisonment and a non-parole period of six years' and six months' imprisonment but for the applicant's plea of guilty. As the sentencing judge observed, the plea was made at the last minute, the case against the applicant was overwhelming and the plea did not constitute evidence of remorse.
69 I agree that the applicant should be re-sentenced for the reasons given by Buchanan JA in his judgment.
[1] DPP v Felton [2007] VSCA 65 [42] and [51].
[2] Cf R v Bardsley [2008] VSCA 174.
[3] See s 6H(1) and Schedule 1A para 1(e) of the Sentencing Act 1991 (Vic).
[5] The Queen v Faneco (Unreported, County Court of Victoria, 14 December 2006) [24], [37] and [38].
[7] [2003] VSCA 69 [28]-[29].
[8] [2008] VSCA 51 [44]-[45].
[10] The Queen v Faneco (Unreported County Court of Victoria, 12 August 2008), [34].
[12] [2009] VSCA 60 [31].
[13] The Queen v Faneco (Unreported County Court of Victoria, 12 August 2008), [17] (emphasis added).
[14] R v Roussety [2008] VSCA 259. The sentencing judge erred in thinking that the increased maximum applied only to counts 4 and 6.
[15] See DPP v Felton [2007] VSCA 65; R v Galletta [2007] VSCA 177.
R
Faneco [2009] VSCA 110
By majority (Buchanan JA, Vincent JA) the Court re-sentenced Faneco. Revised sentences proposed by Buchanan JA: first presentment total effective 5 years; second presentment total effective 4 years; third presentment 4 years; with partial cumulation yielding a total effective sentence of 8 years 6 months and a non-parole period of 5 years 6 months. The Court held aggregate sentences on rolled-up counts were unlawful and corrected application of CCE maximums and cumulation (Buchanan JA) [67]-[68], [56]-[57], [15].