R v Fletcher [2002] VSCA 40

5. Leave to appeal was granted on 3rd August 2001. There are seven grounds of appeal. The first is that the learned sentencing judge erred in failing to give sufficient weight to matters of mitigation, including the appellant's personal circumstances, the impact of incarceration on his family, his prior criminal history, his background, his substantial degree of remorse and his plea of guilty. The second is that his Honour gave insufficient weight to the circumstances surrounding the appellant's offending, in particular the fact that the offences were committed in order to repay a gambling debt under threat of violence to both himself and his family. The third is that his Honour erred in giving undue weight to the principles of general and specific deterrence, the fourth that he erred in not giving due weight to the fact that all property was recovered, the fifth that both the head sentence and the term to be actually served are manifestly excessive and the sixth that in all the circumstances the sentence is crushing. The seventh ground of appeal, added by order of the Registrar on 30th January 2002, reads:

"(g) The learned sentencing judge erred in mistaking the position of the Crown in relation to sentence."

9. Before turning to counsel's submissions I shall say something about the offences and the circumstances in which they were committed. On 6th October 1998 the appellant opened an account with a branch of the Bank of Melbourne. The account was opened in the name of the appellant's business, Australian Information Technology Solutions. He was the sole signatory and the only person who operated the account. On 11th June 1999 the bank issued a merchant facility number to Australian Information Technology Solutions. The facility, being electronically linked to the account, enabled the appellant to accept payment for goods and services supplied from the credit and debit cards of his customers. Between 1st and 8th February 2000, 275 transactions were processed via the merchant facility linked to the account. 55 transactions totalling $147,945.60 were approved and credited to the account. The remaining 220 transactions, totalling $534,125.58, were declined. The appellant admitted that he had effected all those transactions using credit card numbers obtained from a Swedish woman over the Internet. The arrangement was that she would provide the appellant with the numbers in exchange for 10% of any money credited to his account. Of the $147,945.60 so credited, the sum of $28,900 was withdrawn in three amounts on the day on which he was arrested.

12. By the end of January 2000 the appellant had borrowed very significant sums from a money lender to fund his gambling addiction. The money was borrowed at 50% interest, with the result that he allegedly owed $120,000. The appellant gave evidence on the plea that the lives of himself, his de facto wife and their young child had been threatened by the money lender and that on one occasion the latter had held a gun to his head demanding payment. He said that he was terrified and desperate for himself and his family and that that was why he had committed the offences. Because of its importance I shall refer to that evidence in a little more detail.

15. On 29th January 2000, the appellant said, he had approached the money lender, who had given him a couple of days to work out how to repay the loan. It was two days later that the appellant was threatened with the gun at the money lender's premises in Springvale. It will be recalled that the offences began on 1st February. Not long after that the money lender came to the appellant's house. The evidence continues:

"Were you surprised when he came to your house?---I was absolutely petrified. What did he say to you on that occasion?---That he knew where I was and I've got two days to make amends. What did he say to you on occasion - did he say anything to you on the occasion when he's put the gun to your head?---He's going to kill me and kill my family. Can you remember the correct, the exact words that he used?---He's going to blow me. That's his exact words. Did he say anything specifically in relation to your defacto and your child?---That he will hurt them and then kill them. You believed him?---When you have a gun to your head, you believe it. What did you think when he's first demanded the money?---I didn't know what to think. I didn't know what to do. I had nowhere to go. Can you explain to His Honour through what process you came to be involved in the offences for which you plead guilty?---I just thought of ways to get money and that was the easiest way to get money without hurting anyone. I didn't want to hurt anyone to get money and I went onto the Internet and went to a chat room and watched people giving credit card numbers across and - - - You fully realised that what you were doing was illegal?---Totally but - - - Did you think about the possible consequences of doing those things?

---All I was thinking about was what was going to happen to my family."

19. Mr Croucher argued the seventh ground first. It arises in this way. In the course of his sentencing remarks the learned sentencing judge said:

"In all the circumstances Mr Gwynn [who was counsel for the appellant] submitted that I ought to suspend any term of imprisonment imposed. In reply, Mr Combes, who appeared to prosecute, submitted that a term of imprisonment actually served was the only appropriate sentence."

"It's the Crown's position that, because of the sums involved, a term of imprisonment is warranted. Whether it's immediate custodial or not is a matter for Your Honour."

It is clear that he did not submit that a term of imprisonment actually served was the only appropriate sentence.

26. A mistake by a judge as to the Crown's position does not always reopen the sentencing discretion, but in the present case I consider that it does. Not only was the question whether to suspend the sentence a major issue on the plea, but what the prosecutor was wrongly thought to have said went also to the Crown's estimate of the seriousness of the offences and the severity with which they should be punished. Among other things, it implied that a total effective sentence not exceeding three years' imprisonment was at least open: see s.27(1) of the Sentencing Act 1991.

29. In those circumstances I find it unnecessary to say anything about the other grounds of appeal. They do no more than raise points to be taken into account, where appropriate, in the task of re-sentencing. The matters of mitigation on which Mr Croucher concentrated in arguing them were: the appellant's plea of guilty and full admissions; his remorse; the fact that the previous convictions related to offences committed when he was young and, given the penalty imposed, may have been regarded as minor offences; the recovery of the moneys, or, as the prosecutor put it on the plea, the fact that nobody was out of pocket; evidence that the offending would not have continued, or at least that it might well have ceased, even if the appellant had not been arrested when he was; his prospects of rehabilitation both from his gambling addiction and generally; and the very short duration and circumstances of the offending.

32. The seriousness of the offences is not to be under-estimated. Although they were committed over a short period, they required ingenuity and involved numerous transactions and large sums of money. I take into account, however, that the 220 transactions the subject of the counts of attempt were failed transactions. As the appellant explained in the course of his evidence, when a transaction was declined he would try again, but if it continued to fail he would move on to another number. That having been acknowledged, general deterrence is important. The appellant's gambling addiction is of limited significance. Specific deterrence is not to be ignored either.

35. Mr Cummins, who furnished a report and also gave evidence on the plea, did not think that the appellant would re-offend but he acknowledged that the appellant remained vulnerable. The appellant claims that his experience with the money lender has cured him of gambling. His previous convictions, although relevant, were ten years ago. The judge accepted that the appellant exhibited remorse. He did make full admissions and pleaded guilty at a relatively early stage. The only reason for the delay in pleading guilty was his initial intention to rely on a defence of duress.

38. 11 Mr Croucher submitted that his Honour erred in imposing the same sentence on all the counts of attempting to obtain a financial advantage by deception and the same sentence on all the counts of obtaining a financial advantage by deception. The amounts involved in the former case ranged from $2,942 to $86,869. The amounts involved in the latter case ranged from $1,996 to $68,830. I do not accept that submission. The distinction between the attempted offences, i.e. the failed transactions, and the completed offences was much more important than the individual sums involved. Even as between the two categories of offences a broad-brush approach was, and is, permissible in the circumstances of this case. In substance there was a single fraudulent enterprise of which the individual offences were components. Fortunately no one has suffered any financial loss.

41. It is the element of duress, not as a defence but as an explanation, together with the other mitigatory factors to which I have referred and the appellant's relatively good prospects of rehabilitation that lead me to think that a greater measure of leniency should be extended. To achieve that end I would allow the appeal in part, confirm the sentences imposed below, but direct that they be served concurrently, and fix a non-parole period of 18 months.

The appeal is allowed in part. The sentences imposed below are confirmed. The directions for cumulation and concurrency are set aside. In lieu thereof it is directed that all the sentences be served concurrently, making a total effective sentence of 3 years' imprisonment. A non-parole period of 18 months is fixed.

It is declared that the period of 476 days is to be reckoned as already served under the sentence and it is ordered that there be entered in the records of the Court the fact that that declaration was made and its details.