R v Kuzucu, Arslan & Hanson [2000] VSCA 110

Court of Appeal (Vic)|2000-06-02|Before: WINNEKE, P., BATT and BUCHANAN, JJ.A.

The applicant was attracted to Ceylan's scheme because he had been gambling heavily and owed friends some $5,000 which he had borrowed to pay gambling debts.

In May 1998 Kuzucu became engaged. He told his fiancee about the fraudulently obtained cheque and that the police wanted to speak to him. His fiancee told him that, unless he confessed to the police, she would not marry him. He obeyed her and they married. In the course of the plea the applicant's wife gave evidence. She said that the applicant no longer gambled as a consequence of her disapproval.

Arslan is now 28 years old. He has 12 prior convictions from five court appearances including convictions for handling stolen goods and theft. He wanted to obtain a loan to purchase a motor car and approached Ceylan to help him to arrange a loan. Ceylan arranged the loan with the aid of false documents, although the finance company was supplied with the applicant's correct name and address. The applicant gave Ceylan the cheque. When he saw the car which Ceylan had caused to be purchased at auction he said that he did not want it. Ceylan promised to find another car, but did not do so. The sentencing judge said that he was not satisfied that the applicant positively did not intend to repay the loan.

The applicant Hanson is 43 years old. He has no prior convictions, although after the commission of the offence he was convicted of offences of dishonesty in a magistrates' court. The applicant's birth name was Nigel Patience. He was in financial difficulties in 1997 as a result of a debtor of his business as an electrician becoming bankrupt. He needed a car for the purposes of his business but was unable to obtain a loan. The applicant was referred to Ceylan. He wanted to borrow $6,500 to purchase a friend's car but was told by Ceylan that the finance company would not lend money to buy such an old car. The applicant was persuaded to obtain a loan of $31,907 to purchase a later, more expensive car.

In order to disguise his true financial position, Ceylan told him to change his name by deed poll to Hanson and supplied false documents to give to the finance company.

The applicant repaid over $4,000 to the finance company before the car was repossessed. The sentencing judge said that he was satisfied that the applicant intended to pay for the car. An order was made that the applicant pay the sum of $26,059.65 to the finance company as compensation.

As I have said, each of the applicants freely confessed their crimes to the police. They also agreed to give evidence against Ceylan. Responding to an invitation from the sentencing judge, each of the applicants gave sworn evidence that he was willing to testify against Ceylan.

"If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details."

In the present case the sentencing judge did not announce that he was imposing a lesser sentence than he would otherwise have imposed by reason of the undertakings given by the applicants and he did not cause the fact of the undertakings to be noted in the records of the Court. Counsel for the respondent has conceded that it is plain that the sentencing judge did not impose less severe sentences on the applicants because of their undertakings.

Leave was granted to each applicant by this Court to amend his notice of application for leave to appeal by adding the following ground:

"The sentencing judge erred in failing to impose a lesser sentence on account of the applicants' undertaking to give evidence against Ceylan."

While a promise to give evidence against a co-offender is a matter to be taken into account in determining the appropriate sentence [see, for example, R v. Nagy [1992] VicRp 45; [1992] 1 V.R. 637; R v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97], it is not a factor that necessarily leads to a reduced sentence in each case. [compare R v. Singleton (1980) 24 A.Crim.R. 82 at 97 per de Jersey, J; R v. Mackley, unreported, Court of Criminal Appeal, 12 August 1988, at 5, per Crockett, A.C.J.] Nevertheless, in the circumstances of this case, and particularly the circumstance that the sentencing judge caused the applicants to give undertakings on oath, I consider that the undertakings should have led to some reduction in the sentences imposed on the applicants.

Accordingly, in my opinion, there was a specific error in the sentencing process which requires this Court to re-sentence the applicants.

Each of the applicants has heard the clang of the prison gate, for each of them has spent 22 days in gaol before being granted bail pending the hearing of these applications.

In each case I consider there are significant mitigating factors. The crimes are now more than three years old. They were bound to be discovered, for their identities were barely disguised. Two of the applicants had the use of the motor cars for short periods. That is the only benefit they have received. One of them did not even have that. All of them incurred substantial obligations to the finance companies.

Kuzucu has no prior convictions, and although he participated in the scheme at a deeper level than the other applicants and did not intend to repay the loan, his background and personal circumstances, which I have described, indicate that there is a good prospect of his rehabilitation. The other applicants did intend to repay the loans and their participation in the scheme was to be explained simply by their desire to borrow money. In the case of Hanson, who had no prior convictions, loan repayments were, in fact, made. Arslan made no repayments, but he did not obtain possession of a motor car.

I would propose that the applicants be re-sentenced to the same terms of imprisonment imposed below, but I would suspend all but 22 days of those sentences for a period of 24 months from 31 March 1999. But for the undertakings given by the applicants I would have imposed more severe sentences.

I agree with the orders which are proposed by Buchanan, J.A. and for the reasons which he has given.

Kuzucu, Arslan and Hanson, this Court has decided to extend leniency to you not in the terms of imprisonment imposed, but in making the whole of those terms a suspended sentence, save for the 22 days that each of you has served. That suspended sentence will operate until March of next year, that is 31 March of 2001. If at any time during that period you commit another offence which is punishable by a term of imprisonment, the suspended sentence or that portion of it which is held in suspense will be liable to be served by you as to the whole of the suspended sentence. Do you understand that? It really means that you have to be of good behaviour until 31 March of next year and one would hope beyond that period for the rest of your lives. Do you follow what I am saying to you?

The other thing that I want to say to you is this: The undertaking that you gave to Judge Neesham on 31 March or 29 March of last year is still binding upon you. Do you follow? If you are called upon by the prosecution to give evidence on the trial of Sedat Ceylan, you will be bound to do so. Do you follow that? If you do not do so, the prosecution here has the liberty to bring the matter back on before this Court to fix a period of imprisonment for breach of that undertaking. Do you understand that?

The formal orders of the Court will be as follows: Each of the applications for leave to appeal against sentence is allowed.

The respective appeals are treated as having been instituted and heard instanter. They too are allowed.

The sentences imposed below are quashed and in lieu thereof the Court orders the following sentences:

A. That the applicant Sureya Kuzucu be sentenced to be imprisoned for a term of 16 months. Pursuant to s.27 of the Sentencing Act 1991 the Court orders that the whole of the sentence other than the 22 days already served be suspended for a period of 24 months from the 31st day of March 1999.

B. That the applicant Ugur Arslan be sentenced to be imprisoned for a term of ten months. Pursuant to s.27 of the Sentencing Act, the Court orders that the whole of the sentence other than the period of 22 days already served be suspended for a period of 24 months from the 31st day of March 1999.

C. That the applicant Nigel Hanson, otherwise known as Nigel Patience, be sentenced to be imprisoned for a term of six months. Pursuant to s.27 of the Sentencing Act, we order that the whole of the sentence other than the 22 days already served be suspended for a period of 24 months from the 31st day of March 1999.

In the case of each applicant we note in accordance with s.5(2AB) of the Sentencing Act that the Court has in ordering the substitute sentences, imposed a less severe sentence than it would otherwise have imposed because of an undertaking given by each applicant to Judge Neesham on 29 March 1999 which is still in force to assist, after sentencing, law enforcement authorities in the prosecution of an offence, namely an undertaking to give evidence for the Crown, if required to do so, upon the trial of Sedat Ceylan for offences in relation to the matters in which that applicant has been involved.

We order that the fact that each of these applicants has given such undertaking, and its details, be noted in the records of the Court.

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