R v Lim & Ko [1998] VSCA 54

Court of Appeal (Vic)|1998-09-23|Before: BROOKING, PHILLIPS and BUCHANAN, JJ.A.

CRIMINAL LAW - Sentence - Attempted insurance frauds - No error as regards prevalence - Undue complexity of law relating to sentencing deprecated - Labeo doubted as role model.

Last April two Singaporean nationals, Adam Lim and Hiang (Joanne) Ko, who are husband and wife and in Australia on student visas, pleaded guilty in the County Court to a presentment charging each of them with nine offences, which were either offences of dishonesty or offences committed with a view to the commission of offences of dishonesty. There were three counts of attempting to obtain property by deception, counts 2, 4 and 9, three of making a false report to the police, counts 1, 3 and 8, and three of theft, counts 5, 6 and 7.

Both Lim and Ko had pleaded guilty at the stage of committal.

They wish to appeal against the sentences passed upon them, which were all of imprisonment and were the same for each of them.

The three counts of attempting to obtain property by deception related to three attempted insurance frauds. The first was committed in April 1997, when the applicants made a fraudulent claim on their insurer in which they falsely alleged that they had been the victims of an armed robbery in, I gather, the street. They had, in November 1996, insured the contents of their flat with RACV Insurance Limited for $55,000, and on 17 March 1997, about a fortnight before the supposed robbery, the policy had been amended to provide multi-risks cover for $3,850.

On 1 April 1997 they falsely reported to the police that they had been robbed of cash, jewellery and other items a few minutes earlier, and very shortly after that they made a claim on the insurer giving $4,420 as the value of what was stolen (count 2). The claim was withdrawn at the end of June. The applicants were sentenced to one month and nine months on counts 1 and 2 respectively.

About seven weeks after the first attempted fraud they falsely reported to police the theft from a car park of a Toyota Celica car (count 3), and on the following day, 25 May 1997, they made a claim on the RACV company - later withdrawn - for $29,000 for the loss of the car (count 4). These counts led to sentences of one month and fifteen months respectively.

The applicants had insured the car for an agreed value of $29,050. The car had, of course, not been stolen. Lim had arranged for a friend to hide it in his garage in Box Hill. Lim was the outright owner of the car. It had been damaged in a collision at a time when it was not insured. He had insured the car with the RACV company about six months before making the insurance claim that it had been stolen. The car had been in a second traffic accident before the fraudulent claim was made and as a result of the two accidents its value was much reduced.

About three weeks after claiming on the RACV company for the value of the car, the applicants staged a burglary at their flat for the purpose of making a third claim - also ultimately withdrawn - on the same insurer, this time for $46,944. This, and the associated crimes, gave rise to a charge of falsely reporting a burglary and theft to the police (count 8), which led to a sentence of two months, three charges of theft from their lodgers (counts 5, 6 and 7), leading to three sentences each of three months, and a charge of attempting to obtain property by deception (count 9), which resulted in the longest sentence passed, eighteen months.

Cumulation orders were made giving a total effective sentence of two years' imprisonment and a non-parole period of twelve months was fixed. On these applications the individual sentences passed have not been assailed as regards their duration.

The thefts from the lodgers were of cash and various items of property. While they were, no doubt, motivated by a desire to add colour to the suggestion of burglary for the purposes of the applicants' claim under their contents policy, Lim did in fact, some weeks later, sell and trade-in some of the property stolen from two of the lodgers. The applicants gave the police a list of property alleged to have been stolen from the lodgers which totalled $7,239.

Neither applicant had any previous convictions.

At the time of sentence Lim was aged 25 and Ko 23. They had married in Singapore in 1995.

Originally, Lim's grounds of appeal, and those of Ko, were two in number, that insufficient weight was given to the circumstances of the offences and the youth, immaturity and lack of prior convictions of the offender, and the manifestly excessive ground.

The applicants were represented on the plea by the same counsel, who, in answer to a number of questions from the judge, said that he was satisfied that there was no conflict of interest. Now, however, they are separately represented.

On the day before the applications were to be heard, and the day before that, leave was given by the Registrar to Lim to substitute eleven grounds of appeal, and to Ko to substitute four grounds of appeal for the existing grounds.

1. The sentencing judge failed to give sufficient weight to the circumstances in which the offences were committed, the applicant's personal background including his youth and immaturity and his previous good character.

2. The sentencing judge erred in charaterizing the offences as "grave" ones which called for "condign and just" punishment.

3. The sentencing judge erred in finding, alternatively made findings which were not supported by the evidence and matters put to him, namely that:

(b) The offences were "premeditated and preplanned";

(c) The Applicant was motivated by a desire "at least to maintain a lifestyle which was not disadvantaged and perhaps improve it somewhat".

4. The sentencing judge erred in finding that the "scale, planning and execution" of the offences was such as to make it appropriate to impose a wholly suspended sentence.

5. The sentencing judge erred in finding that the need for a rehabilitative sentence was outweighed by the need to protect the community.

6. The sentencing judge erred in finding there was a need to impose a generally deterrent sentence directed towards "particular groups in the community", namely overseas or foreign students.

7. The sentencing judge erred in finding that there was deliberation and persistence in the applicant's conduct, and that such deliberation and persistence justified a finding that specific deterrence was required.

8. The sentencing judge erred in finding that the applicant knew that "inconsistency in the application of sentencing law to young offenders ensures you will probably get off lightly".

9. The sentencing judge erred in finding that the evidence in relation to remorse was not convincing.

10. The sentencing judge erred in finding that the applicant had sought to obtain a tactical advantage by declining to make submissions through his counsel in relation to disparity.

2. The learned judge erred in placing undue weight upon general deterrence and the prevalence of the offence.

3. The learned judge erred in failing to place any or any sufficient weight upon the hardship to the applicant caused by an immediate sentence of imprisonment.

4. There has been a miscarriage of justice because matters personal to the applicant were not advanced on her plea, including:-

I should say a little more about the facts and the course of events before turning to these grounds. In the course of the plea the judge was told that both applicants were students at RMIT University, that the husband was studying marketing and that the wife had completed an arts course in professional communication. Both had worked in part-time employment and also in full-time employment. They rented accommodation owned by a relative in Singapore, paying $500 a month, but they received a total of $1,000 a month from their three lodgers. They owned two cars bought in 1995 and 1996. Each was earning about $400 a week at one stage, and Lim was receiving support from his family.

Lim told the police that he and his wife were not in financial difficulties and that he did not need money and that the offences were committed because of greed. The wife, in her record of interview, attributed her offences to a combination of greed and financial problems.

A character reference was put in evidence on behalf of the wife saying that since December 1997, by which time the applicants must have been fearful that criminal proceedings would be taken against them, she had done some voluntary work for the Royal Society for the Prevention of Cruelty to Animals.

At the end of the initial plea the judge raised with counsel the question whether counsel for the applicants wished to make any submission about parity, and counsel said that the prisoners were "really on a par" and that prisoners sometimes did themselves a disservice when each of them tried to maximize the culpability of the other. When the hearing of the plea was resumed some time later counsel accepted that parity did not present a problem.

Evidence was then led from Lim and from a friend of his. Lim's evidence included evidence that, contrary to what he had told the police, he had committed the offences because of financial difficulties, and evidence that the $1,000 a month received from the lodgers was sent on to the Singaporean owner of the flat.

Mrs Hampel, who appeared for Lim, has provided us with a comprehensive seven page outline of submissions and, in view of this, I shall not summarize her contentions as I might otherwise do. She contended that the judge had at every turn put the worst possible complexion upon the case and that a number of his findings or expressions of opinion were wrong.

The material before the judge was extensive; not all of it is before us. Having regard to the extensive material before the judge I see nothing to criticize in the judge's conclusions complained of in grounds 2, 3, 4 and 7, which were argued together. Mrs Hampel argued that the matters mentioned in these grounds taken together led to an erroneous conclusion concerning the gravity of the offence. She argued that the judge had erred in characterizing the offences as "grave", which, she submitted, meant more than serious; it meant something like an offence of, or approaching, the worst kind. But by "grave" the judge may well have intended only serious. The individual sentences passed, viewed in the light of the maximum penalties possible, certainly suggests to my mind that the judge was not treating the offences in the way in which counsel now suggests he was treating them.

As to ground 5, the reasons for sentence show, in my view, only that the judge was concerned with the weight to be given to the purpose of rehabilitation, and the purpose of rehabilitation in particular in relation to a young offender, in the light of the circumstances of the offences.

Having regard to the material before the judge, ground 3 is, I think, not established. I say this after having regard to the detailed criticisms sought to be made of the judge's findings in the argument in support of this ground to which much of Mrs Hampel's submission was directed.

As regards ground 6, the suggested finding sought to be impugned was not made. I accept the Crown's answer to this ground in its written outline of submissions, which has been discussed in the argument before us. The judge was, moreover, entitled to take into account the fact that Lim had, as he admitted, been told by his friends before he committed these offences that other people had committed similar frauds and "got past the law". He was also entitled to have regard to what the other applicant said in her record of interview about what she had been told by friends, as a result of which she had made the false report of the robbery.

I accept the Crown's answer to ground 8, an answer which has already been canvassed in the argument, namely, that the judge did not, in making this remark, treat the matter as something adverse to Lim.

Ground 9, which complains of the statement that the evidence of remorse was not convincing, is without merit. Any other finding would, I think, have been somewhat surprising.

Grounds 1 and 11 relate to the weight to be given to the circumstances in which the offences were committed, Lim's personal background and his previous good character, and assert that the sentence was manifestly excessive. I am unpersuaded by these contentions. Lim took his pitcher to the well three times, hoping to haul up $80,000 in liquid assets. He stole from his three lodgers and sold part of the stolen property. It was open to the judge to pass an immediate custodial sentence and to fix upon the term and non-parole period which he determined upon.

I turn now to the application by Ko. It is possible to deal with this application more briefly in view of what I have said in dealing with the other application. I do not rehearse Mr Tehan's arguments, which relied, of course, heavily on the age of his client and the absence of prior convictions. Again, despite what he has said, I am unable to regard the sentence as manifestly excessive.

Ground 2 is that the judge erred in placing undue weight on general deterrence and prevalence. Having considered the discussion in the course of the plea at pages 75 to 77 of the transcript, and what was said by the judge in his reasons for sentence at page 97, I am not persuaded that the judge erred in relation to the matter of prevalence. The discussion shows that his Honour was aware of the recent decision of the Court of Appeal dealing with prevalence, and the reasons for sentence show that he did not sentence on the basis that insurance frauds were prevalent among foreign students. Despite Mr Tehan's argument to the contrary, I think his Honour must be taken to have acted on the views set out in his reasons for sentence and not to have tried to pass such a sentence as would, in his opinion, deter a particular class of person from committing offences believed to be prevalent among them.

I have not mentioned in terms each of the grounds relied on by each applicant but I have considered each of them and am satisfied that none of them should succeed.

I should mention ground 4 in the case of Ko's application, which seeks to call in aid the affidavit of a psychiatrist, Dr Walton, producing a report on an examination made by him of that applicant last month. That report, which has been debated at some length before us, deals with the marital history and other background of the applicant and with the depression from which she is said to have been suffering, which depression, according to Dr Walton's expressed opinion, may have contributed to her offending. It deals mainly with events occurring prior to sentence, and is the kind of evidence that could have been led on the plea. I think it is clear that this Court could not receive the affidavit consistently with the principles upon which it acts concerning the reception of additional evidence. The material tendered falls far short of demonstrating or suggesting any miscarriage of justice.

Nowadays, no appeal against sentence is complete without the citation of authority, and Mrs Hampel and Mr Tehan both rose to the occasion by referring us to a number of reported cases. I have not found it necessary to discuss any of them, although I venture to record with respectful concern the melancholy fact that in one of the cases relied on, R v. Downie & Dandy (1998) 2 V.R. 517, it was found to be desirable, as an interim measure, to lay down nine large bundles of propositions as part of "the law on prevalence", which was said at 520 to await its Labeo. I note with apprehension that Labeo is the Roman jurist reputed to have written 400 books.

Most appeals against sentence can and should be disposed of without the citation of authority. We must do what we can to strive for simplicity. The present case is no exception so far as authority is concerned.

The order of the Court is that this application is dismissed.

At a glance

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Before

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Judgment (52 paragraphs)

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