R v Samia [2009] VSCA 5

Court of Appeal (Vic)|2009-02-06|Before: NETTLE and DODDS-STREETON JJA

CRIMINAL LAW - Sentencing - Obtaining financial advantage by deception and obtaining property by deception - Two presentments - Numerous counts - Sentenced to a term of 5 years and 10 months' imprisonment with a non-parole period of three years and nine months - Whether judge gave sufficient regard to cumulation, proportionality, totality and plea of guilty - Appeal allowed in part - Appellant re-sentenced to five years and eight months' imprisonment with a non-parole period of three years and six months.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 This is an appeal with leave against a total effective sentence of five years and 10 months' imprisonment, with a non-parole period of three years and nine months, imposed on the appellant on pleading guilty to thirty seven counts preferred by way of two presentments as follows:

a) By presentment S01635492.2 ('the first presentment'), 23 offences, committed over a five year and two month period between 7 July 1999 and 27 September 2004, of either obtaining or attempting to obtain financial advantage by deception or obtaining property by deception and using a false document. The deceptions were variously perpetrated in the appellant's own name and also through the use of aliases, and consisted in the appellant making false representations as to his identity, address, employment, and financial position, mostly to banks and telephone companies. The total loss to the various entities involved was $91,158.[1]

b) By presentment W00249974 ('the second presentment'), 14 offences, committed in the two month period between 29 November 2006 and 31 January 2007, of either obtaining financial advantage by deception or obtaining property by deception. Those offences included the appellant handling a stolen credit card and using it to make various purchases, providing credit card details of other persons to make or attempt to make purchases, and being the passenger in a stolen vehicle driven by a co-offender who was also involved in the commission of a number of the other offences on the presentment. The total loss incurred by the victims involved was $9,835.

2 On the first presentment, the judge sentenced the appellant to a total of 46 months' imprisonment. A sentence of 12 month's imprisonment imposed on count 8 was made the base sentence. Two months on each of the sentences imposed on counts 1, 2, 3, 4, 6, 9, 10, 12, 13, 15, 16, 18, 20, 21, 22 and one month each of the sentences imposed on counts 5, 11, 17, 23 were ordered to be served cumulatively on the sentence imposed on count 8 and upon each other.

3 On the second presentment, the judge sentenced the appellant to a total of 24 months' imprisonment. A sentence of 12 months' imprisonment imposed on count 1 was made the base sentence of 12 months' imprisonment. Two months of each of the sentences imposed on counts 2, 6, 8, 10, 11 and 12 were ordered to be served cumulatively on the sentence imposed on count 1 and upon each other.

4 The individual sentences and the extent to which each was ordered to be served cumulatively on others is conveniently presented in the form of a table which the sentencing judge annexed to his sentencing remarks.

5 The judge ordered that the total sentences imposed on each presentment be served cumulatively upon each other, resulting in a total effective sentence of five years and 10 months' imprisonment, with a non-parole period of three years and nine months' imprisonment.

6 Under the heading of manifest excessiveness, the appellant contends that the judge erred in imposing individual sentences of equal duration in relation to different offences involving significantly different amounts of money. Counsel for the appellant argued that as a result of that process the following individual sentences were plainly outside the range of sound discretionary judgment:

i. Count 20 (obtaining a telephone service to the value of $162.16 by deception), for which the appellant was sentenced to 12 months' imprisonment with two months cumulation on other sentences;

ii. Count 16 (opening two bank accounts in false names), for which the appellant was sentenced to 12 months' imprisonment with two months cumulation on other sentences; and

iii. Count 9 (obtaining a credit facility to the value of $500 by deception) for which the appellant was sentenced to 12 months' imprisonment with two months cumulation on other sentences.

i. Count 6 (obtaining by deception food worth $11.20), for which the appellant was sentenced to 12 months' imprisonment with two months cumulation on other sentences imposed;

ii. Count 8 (theft of motor car, committed by travelling as a passenger in a car stolen by another), for which the appellant was sentenced to 12 months' imprisonment with two months cumulation on other sentences; and

iii. Count 5 (obtaining financial advantage by deception by paying a $260 fine to Civic Compliance Victoria by means of a stolen credit card), for which the appellant was sentenced to 12 months' imprisonment.

7 At first sight there appears to be something in the contention that a significant number of those individual sentences are excessive. The principle of proportionality dictates that a sentence be proportionate to the gravity of the count to which it relates and, in cases of theft, obtaining financial advantage by deception and other cognate offences, the relative gravity of the offence is most often to be assessed by reference to the amount of money stolen or amount of monetary advantage otherwise obtained.

8 As against that, however, the amount of money in issue is not always the sole or even a precise indicator of the nature and gravity of such offences and thus, as Callaway JA observed in R v Albanus,[2] the fact that an unexplained structural difference can be discerned as between sentences imposed on multiple counts is not of itself evidence of sentencing error. Furthermore, where, as here, the offences in question form part of a pattern of sustained systematic offending according to a particular modus operandi, it may not make much if any sense to impose individual sentences of different duration simply because one offence results in the offender netting less of a financial advantage than from another or others of the offences.[3] To adopt and adapt an observation of Callaway JA in R v Belhaj, where an offender has committed two or more similar offences with the aim in each case of stealing or obtaining whatever can be gained, the sentences properly to be imposed in respect of each offence may sometimes be the same even if the amounts of money or advantage actually obtained in each case prove to be significantly different.

9 Consistently with those considerations, it seems to me that the judge in this case discerned a pattern of offending which largely explains why his Honour imposed individual sentences which might otherwise be seen as disproportionate to the gravity of some of the offences in issue. Thus, in dealing with the offences the subject of counts 18 and 20 on the first presentment, the judge described them as two offences committed by the appellant under the alias 'Machiko Mimura', of making false representations to two different telephone companies in order to obtain from them a telephone service for which the appellant would not have to pay. As events turned out, the telephone company the subject of count 20 woke up to the ruse faster than the company the subject of count 18, and thus was defrauded of only $162.16, whereas the latter company lost $1,092. But in substance the nature and gravity of each of the offences was similar. The appellant fraudulently obtained a telephone service with the object of using it as much as he could without having to pay for it.

10 Similarly in the case of count 9, his Honour identified the offence as one of a series of offences (namely, counts 7, 9, 10, 12 and 15) of obtaining financial advantage by deception using the aliases 'John Hilton', 'John Steven Hilton' and 'John S Hilton'. Count 7 involved making false representations in order to obtain a mobile telephone, and using it until it was disconnected, at which point the account balance stood at $2,633. 90. Count 10 was a similar offence, involving a different telephone company, and resulting in an outstanding account balance of $2,250.03. Count 9 consisted in obtaining a credit card facility by false pretences and then using it until it was revoked, at which point the outstanding account balance stood at $700.93. Thus understood, it may be seen that there was not a great deal of difference between the gravity of any of those three offences and, therefore, that it was not inappropriate to impose the same individual sentence of 12 months' imprisonment in respect of each.

11 The considerations informing the sentence imposed on count 16 were different, but in my judgment no less convincing. The judge described the offence the subject of count 16 as one of five offences committed by the appellant using the alias 'Benjamin Hearn', they being two of obtaining financial advantage by deception (counts 13 and 14), one of using a false document (count 16) and two of attempting to obtain financial advantage by deception (counts 17 and 23). The modus operandi in each case was similar but there were some differences between counts. Count 16 was a rolled-up count involving two attendance on branches of the Bendigo Bank at Preston and Coburg and using false documents to open two accounts in the false name of 'Benjamin Hearn'. Contrastingly, each of the other two counts was an individual count involving only one attendance and one account. His Honour imposed individual sentences of six months' imprisonment on each of counts 17 and 23 (about which there is no complaint) and, presumably because it embraced two offences, 12 months on count 16.

12 Of course the sentence to be imposed on a rolled-up count is not invariably the sum of the individual sentences which would have been imposed if the rolled-up offences had been presented as individual counts.[4] But where as here there are only two offences rolled-up and the rolled-up count stands to be considered among a number of other individual counts relating to similar offences, a penalty of twice as much for the rolled-up count is not necessarily incorrect. All things considered, I am not satisfied that any of the sentences imposed on an of counts 9, 16 or 20 was disproportionate to the gravity of the offence or offences to which they related.

13 In the case of the second presentment, however, on balance I am persuaded that the sentences imposed on counts 5 and 6 were disproportionate to the gravity of the relevant offences.

14 Count 6 entailed the use of a fraudulently obtained credit card to obtain food worth only $11.20. Count 5 involved using the same card to pay a fine of $260. And, just as significantly, in each case the object of the offence was to obtain no more advantage than in fact obtained. These two offences, therefore, are in that respect of a different nature to those the subject of counts 18 and 20 on the first presentment and, consequently, the sort of reasoning expressed in Belhaj does not apply to them. In my view the imposed individual sentences of 12 months' are manifestly excessive.

15 So to say does not detract from the importance of Callaway JA's observation in Belhaj that overworked trial judges cannot be expected to fine-tune every sentence. In a case of this complexity, there is room for a more broad-brush approach, particularly when as here, the apparent excessiveness of some individual sentences is more or less balanced by the inadequacy of others. With that in mind, I reject the appellant's complaint about other individual sentences. It is only in the case of counts 5 and 6 on the second presentment that I am persuaded that the sentences imposed were so disproportionate to the gravity of the offences as to be beyond the range of sound discretionary judgment.

16 The appellant's second ground of appeal is that the judge erred in cumulating all of the total sentence imposed on the second presentment on the total sentence imposed on the first.

17 I reject that contention. The judge gave detailed reasons for ordering cumulation,[5] which in my view are convincing. As his Honour explained:

The question of the operation of ss. 16(1A)(e) and (3C) of the Sentencing Act 1991 arises. On the plea, your counsel did not make any submission as to the operation of these sections, although he acknowledged the offending whilst on bail and whilst on a suspended sentence. I gave another opportunity to your (different) counsel today to address me on this issue. Your counsel submitted that the fact that you were on bail was only one of the factors to be taken into account in the totality of the sentence. I agree generally with that statement of principle. It was also submitted that I should avoid the imposition of any crushing sentence and that any sentence I impose must reflect the overall criminal conduct. Again, I agree. Your counsel said that the significant factor against ordering full cumulation of the sentences on the second presentment with those of the first was that the age of the offences go back to 1999. Ultimately, he conceded there should be some degree of cumulation, but not wholly so.

I have concluded that there is not good or sufficient reason to depart from the clear terms of ss. 16(1A)(e) and (3C), such that the sentence I intend to impose in respect of the second presentment will be served cumulatively on the sentence which I intend to impose on the first presentment. I have reached this conclusion for the following reasons - because of the seriousness of your offending in relation to the second presentment; the fact that the these offences were committed while you were on bail for other serious offences of a similar kind; that there was a significant period of time between the commission of the two lots of offences; because you had the benefit of psychiatric treatment in the interim; and, finally, because you were on a suspended sentence at the time of the commission of these offences for further offences of dishonesty - this in itself being a further aggravating feature: R v Bell [1999] VSCA 223 at paragraph [16].

When I raised each of these matters with your counsel this afternoon, he acknowledged that they were all relevant matters to be taken into account in reaching a conclusion on this question.

The commission of these offences whilst on bail is relevant in two ways. First, it is to be considered in the assessment of your prospects of rehabilitation: Gray [1977] VicRp 27; [1977] VR 225 at 229-230. Secondly, it constitutes an aggravating feature to be taken into account in determining the appropriate sentence: Basso v Frazzetto [1999] VSCA 201; (1999) 108 A. Crim R. 392 15 398 and 404-405.[6]

19 Counsel for the appellant argued that, since the judge had thus treated the fact that the offences were committed while on bail as an aggravating factor, and as relevant to the prospects of the appellant's rehabilitation, his Honour should not also have used it 'as a reason to prevent [him] from ordering a degree of cumulation between the sentences'.

20 I reject that argument. The judge stated correctly the two ways in which the commission of the offences while on bail was significant, and plainly each was a relevant consideration in determining whether then to relax the degree of cumulation for which s 16(1A) (e) and (3C) prima facie provide.[7] That does not mean that the commission of the offences while on bail was in effect twice counted against the appellant. It means simply that, in determining whether to relax the degree of cumulation for which the Act provides, the judge was bound to consider the nature and gravity of the subject offences and the prospects of rehabilitation, as they were informed by the fact that the offences were committed while on bail.

21 The third ground of appeal concerns the judge's determination that, although the appellant was suffering from early 2005 with a mental impairment associated with psychotic features and obsessive compulsive symptoms, the judge was unable and so not prepared to find that:

• the condition was extant when the appellant committed the first presentment offences between July 1999 and September 2004; or

• when the appellant committed the second presentment offences between 29 November 2006 and 31 January 2007, he was suffering from any active mental impairment other than one that was then in remission.

22 Counsel for the appellant submitted that, even if there were not sufficient evidence of the appellant's mental condition at the time of the first presentment offences, there was ample evidence of the appellant suffering from a mental illness at the time of the commission of the second presentment offences and thus that the judge had erred in not finding that the applicant was suffering from impaired mental function at that time.

23 I reject that submission too. As the judge explained in his detailed analysis of the evidence which bore upon this question, the probability was that the appellant suffered significant psychiatric symptoms which resulted in disability and deterioration in both behaviour and mood only during the period between the two sets of offences - its existence explained why the appellant had not offended during the period between the two sets of offences - and that it was only after those symptoms went into remission sometime during that period that the appellant began to offend again and so committed the second presentment offences.[8] With respect I agree with his Honour's analysis.

24 The judge remarked that he was fortified in his conclusions by the fact that the nature and longevity of the appellant's offending demonstrated that he had engaged in cunning, manipulative and organised behaviour involving the use of multiple identities; he knew what he was doing and continued to do it; and engaged in a good deal of calm and rational judgment in order to ensure the success which he achieved. Counsel for the appellant argued, however, that it should not be assumed that because the appellant suffered from psychotic symptoms including at minimum mood lability, persecutory delusions and obsessive compulsive symptoms, that the appellant was incapable of engaging in cunning, manipulative and organised behaviour and that even if it did, many of the offences involved simple acts of lying and did not evince any particular sophistication or pre-planning.

25 In my view such matters are at the periphery of the debate. The essence of his Honour's conclusion was the probability that the appellant did not commence to suffer symptoms until the death of his father after the commission of the first presentment offences and went into remission before the commencement of the second presentment offences. The remaining considerations were in my view make-weights upon which the judge, after seeing and considering all of the evidence, was entitled to take a view unfavourable to the appellant.

26 Counsel for the appellant argued further that, even if that were so, the judge erred in failing to have regard to the appellant's mental condition at the time of sentencing, whereas, according to authority, it was relevant to whether there was a need to provide for general deterrence and to the assessment of the burden of imprisonment on the appellant.

27 I do not consider that the judge committed any error of the kind alleged. At [92] of his sentencing remarks, the judge expressly referred to the relevance of a prisoner's mental condition to the need for general deterrence and at [101] the judge accepted that, because of the appellant's mental condition, prison was likely to weigh more heavily on the appellant than on someone of ordinary mental health. But as to the former, the judge said that, because the appellant's mental condition was in remission at the time of sentencing, he was not persuaded that there was any need for moderation of the extent to which the sentence to be imposed should provide for general and specific deterrence; and, as to the latter, his Honour held that the added burden of imprisonment would be but marginal and likely to lessen still further with continuing improvement in the appellant's mental condition.

28 I see no error in any of that. With respect it appears to me to represent a carefully reasoned application of principles identified in Tsiaras[9] and adumbrated in Verdins,[10] to which his Honour had earlier referred.

29 Finally, under cover of Ground 4, counsel for the appellant argued that the judge erred in finding that the appellant had no remorse and that his pleas of guilty were 'pragmatic responses' to the forensic situation he faced once his Honour determined to receive a volume of Crown evidence which the appellant had been contended should be excluded. In counsel's submission, the appellant's remorse was not only evident in his admission and pleas of guilty but also in his statement to one of his treating psychiatrists, Dr Vine, that he now realised how disruptive and damaging to his future his life had been.

30 That argument was not put below and it is not persuasive now. As the judge observed in his sentencing remarks, it was not suggested below that the appellant's pleas of guilty were other than a pragmatic response to his unsuccessful attempt to exclude admissible evidence. And in reality it could not be so. Evidently, the appellant was prepared to deny his guilt so long as there was a possibility of excluding evidence which he judged would be sufficient to convict him. Once that possibility was gone, he made the best of his situation by pleading guilty and thereby obtaining the benefits which that entailed. It is true that he made a number of admissions in relation to the second presentment offences. But I agree with the judge that there was nothing in that or in the appellant's statements to Dr Vine to suggest that his concerns were other than for himself and the situation in which he found himself once detected. There was nothing by way of the kind of contrition, empathy and insight which are the hallmarks of genuine remorse.

31 For the reasons earlier given, I am persuaded that the sentences imposed on counts 5 and 6 on the second presentment are manifestly excessive. To that extent I would allow the appeal and quash the sentences imposed on those counts. In lieu thereof, I would re-sentence the appellant on Count 5 on the second presentment to a term of one month's imprisonment and on Count 6 on the second presentment, to one month's imprisonment, to be served concurrently with the term of imprisonment imposed on Count 1. Otherwise, however, I would confirm the individual sentences and orders for cumulation passed and made below.

32 In the result, the total sentence for the counts the subject of the second presentment, and the total effective sentence for the counts the subject of the first and second presentments would be reduced by two months from five years and ten months to five years and eight months and I would order that the appellant must serve three years and six months of that term before being eligible for parole.

33 I agree. I observe that notwithstanding the two sentences in respect of which the appeal is allowed for the reasons given by Nettle JA, overall, the learned sentencing judge's conscientious and careful reasons were admirably comprehensive and analysed the relevant sentencing considerations in this voluminous and complicated matter persuasively.

[1] Unless otherwise stated, paragraph references are to the judge's sentencing remarks.

[3] R v Belhaj [2006] VSCA 153, [7].

[4] R v Jones [2004] VSCA 68[13]; R v Beary [2004] VSCA 229; (2004) 11 VR 151, 156[11]-[14].

[5] See [113]-[115] of his Honour's sentencing remarks.

[7] R v Garcia [2007] VSCA 194, [18] (Kaye AJA).

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