R v Schaefer & Tran [2007] VSCA 36

On count 1 - 15 months' imprisonment;

On count 2 - 15 months' imprisonment

These sentences were to be served concurrently. His Honour further ordered that six months of that period be served immediately, with the service of the balance of nine months to be suspended for a period of two years.[3]

Tran:[4]

On count 1 - 18 months' imprisonment;

On count 2 - 18 months' imprisonment;

On count 3 - 18 months' imprisonment.

His Honour directed that six months of the term imposed on each of counts 1 and 2 be served cumulatively with that imposed on count 3 and upon each other. This created a total effective sentence of two years and six months' imprisonment in respect of which he fixed a non-parole period of 12 months.[5]

Jennison:[6]

Jennison was, on each of the four counts on which she was presented, sentenced to 18 months' imprisonment. It was ordered that six months of each of the terms imposed on counts 1, 2 and 3 be served cumulatively upon the sentence imposed on count 4 and upon each other. This created, in her case, a total effective sentence of three years imprisonment, in respect of which his Honour fixed a non-parole period of 12 months.[7]

3 I now turn to the circumstances relating to the commission of the appellants' offences, concerning which I understand there is no dispute.

The Background

4 Between August and September 2004, the ANZ Bank was defrauded of $650,000 with an eventual actual loss of $140,000 though the illegal transfer of money from Equity Manager Accounts of customers of the bank to outside accounts held in the names of other persons.[8]

5 These transactions occurred in the Mortgage Servicing area of the bank. All were performed utilising internal vouchers that were not available to the public and all were written by the same and apparently unidentified author. Inquiries into the customer accounts were made using a bank computer program called "Hogan" to which access was restricted to authorised employees. This enabled the perpetrator to ascertain how much was in the accounts concerned. False vouchers would be prepared and placed in a supervisor's "in" tray. They would be checked, signed and placed in an "out" tray where they were then processed overnight in accordance with the bank's normal procedures.

6 At the time of these offences, Jennison had been employed by the bank for a period of four years. She was familiar with the procedures involved, but she was not authorised to access the computer program containing the account details. It was accepted that she was the person responsible for the placement of the fraudulent vouchers in the "out" trays, enabling the withdrawal of $650,000 from four customers accounts, and that she arranged the transfer of the credit to the outside accounts.

Appellant Schaefer

7 On Sunday 13 September 2004, Jennison, accompanied by her boyfriend, Malcolm Pascal ("Pascal"), went, after hours, to the ANZ Bank Building in Collins Street, Melbourne, where she was recorded as having logged onto the Hogan program.

8 At approximately 3.45pm on 14 September 2004, she placed two false debit vouchers in the "out" tray of a supervisor's desk.

9 The first was a drawing voucher being made against the account of Daniel Blackburne Oliver for the amount of $90,000. The second was a similar voucher against the account of Robert George Hallett for $40,000.

10 Corresponding credit vouchers were also placed in the tray, authorising payment to two accounts held in the name of Schaefer, one with the ANZ Bank and the other with the Bank of Melbourne.

11 The vouchers were processed, resulting in the sum of $90,000 being deposited into Schaefer's Bank of Melbourne account,[9] and the sum of $40,000 being deposited into his ANZ Bank account.[10]

12 Inquiries revealed that both of these accounts had been opened on 6 September 2004, at the South Melbourne branches of the respective banks. The ANZ account held an initial deposit of $50, whilst none was recorded in the Bank of Melbourne account. Inquiries also revealed that Schafer had opened a third account with the Commonwealth Bank, on 2 September 2004, with a deposit of $100.

13 At approximately 11.00am, on 15 September 2004, ANZ Bank investigators discovered this fraud and froze all money transfers into Schaefer's accounts. At approximately 11.30am, Schaefer attended at the South Melbourne branch of the ANZ Bank and tried to withdraw $30,000. After his account details were checked, he was informed that there were insufficient funds available.

14 Immediately upon leaving the bank, Schaefer made a mobile telephone call to a person named Dario Bestel. Bestel's mobile phone was recorded as having equally quickly contacted that of Pascal's mobile telephone (Jennison's boyfriend). He, in turn, was recorded as having called Jennison on her mobile telephone.

15 ANZ records showed that Jennison then accessed Oliver's and Hallett's ANZ Bank accounts, utilising the Hogan program. Police examination of telephone records revealed that there was substantial mobile phone traffic between Jennison, Pascal and Bestel just prior to, at the time of, and immediately after all fraudulent transactions.

Appellant Tran

Counts 2 and 3

16 The Crown alleged that Jennison was the "inside" person at the ANZ Bank who was responsible for orchestrating all the unauthorised withdrawals of funds from customers accounts, and who was directly responsible for directing funds to the account of an accomplice, who in turn transferred them to the account of Tran. The Crown alleged that Tran was recruited by others to be a "money launderer."

17 The investigation of these matters led to the discovery of an earlier unrelated fraud on a bank by Tran involving a false application for a personal loan (count 1).

18 On 4 August 2004, an unauthorised transaction was made by way of an internal debit voucher by Jennison from the Equity Managers Account of TW & RJ Wall for $110,000. The corresponding credit voucher was made out to a Bendigo Bank account in the business name of Dieu Hien Fashions.

19 On the 11 August 2004, a person purporting to be the proprietor of that business, Ms Dieu Hien Nguyen, attended at the Bendigo Bank Footscray Branch and electronically transferred $27,950 of the $110,000 into Tran's NAB account.[11] This money was removed on the following day in four withdrawals from bank access points throughout the metropolitan area.

20 Also on 11 August 2004, $80,000 was electronically transferred from the Bendigo Bank account of Dieu Hien Fashion and deposited into Tran's ANZ Bank account from which the whole amount was almost immediately withdrawn in five separate transactions.

Investigation/Interviews

21 Tran was arrested about one month later at the Crown Casino in Melbourne and interviewed by investigating police.

22 He told them that he had been introduced to a person named "Van"[12] through a friend, whilst at the casino approximately four months earlier. He said that "Van," a female, offered him a sum of money if he provided her with his bank details, on the understanding that he would receive five per cent of whatever funds were deposited into his accounts. He knew very little about "Van", including who she was, what she did for a living or where she resided. However he expressed interest in her proposal and he provided her with his mobile phone number. He subsequently received a phone call from her and supplied her with his NAB and ANZ Bank savings accounts details, cards and pin numbers.

23 He stated that, on or about 11 August 2004, he received a call from "Van" who informed him that money had been deposited into his accounts. Tran then collected her from outside a block of high rise housing ministry flats in Fitzroy and they went together to banks in the Collingwood, Fitzroy and Melbourne CBD where, over two days (11 and 12 August), they withdrew a total of $106,880[13] in cash from his accounts. Tran stated that he handed all the money to "Van". On the following day, he received a call from her and met her in a car park in Footscray where he was handed $5,000 in $50 notes.

24 Tran stated that he was told that there was no risk involved in these transactions, although he was not given any information concerning the source of "Van's" money. When he asked her about this, she informed him that there was no need to worry and he did not pursue the subject.

Tran - Count 1

25 As earlier mentioned, inquiries into Tran's role in these withdrawals revealed a further suspicious transaction involving his ANZ Bank account. Inspection of bank records indicated he had deposited a NAB cheque made out to Van Hoi Doan in the sum of $24,900 into his ANZ Bank account on 26 May 2004.

26 It was established that Tran obtained this money as a result of making an application for a personal loan at the NAB (Telesales) on 14 May 2004 in which he indicated that he required the loan to purchase a vehicle and that, at the time, he was employed by Dinh Son Restaurant in Footscray as a kitchen hand since March 2001. The application was approved on the basis that the information contained in it was correct. On 26 May 2004, he was issued with a bank cheque which was made out to the owner of the car that he claimed he intended to purchase.

27 When interviewed with regard to this matter, Tran admitted that the employment details provided by him in his application were false and that he had supplied a false group certificate. He conceded that he was aware that the loan application would not have been approved without these details and stated that initially he had intended to purchase a vehicle with the money, but changed his mind used it to gamble at the Crown Casino.

The Grounds of the Appeals

Schaefer

28 The appellant Schaefer now seeks to appeal against his sentence upon the grounds that:

1. The sentencing discretion miscarried, in that the learned sentencing judge's consideration of the appropriate level of disparity as between the sentences to be imposed on the appellant and his co-accused, was impermissibly affected by his failure to impose sufficiently disparate sentences as between the co-accused Tran and the co-accused Jennison.

2. The sentencing discretion miscarried in that the learned sentencing judge had regard to his own interpretation of the sentencing submissions of the Crown in circumstances where such interpretation was incorrect.

Tran

29 Tran who also seeks to appeal his sentence relies upon the following grounds:[14]

1. That with respect to counts 2 and 3 the learned sentencing judge erred in failing to apply the relevant principles of parity as between the sentences imposed on the appellant and those imposed upon the co-accused Melissa Jennison.

2. The sentences imposed on counts 2 and 3 did not properly take into account the limited criminality and role of the appellant.

3. The sentences imposed on counts 2 and 3 failed to adequately distinguish between the appellant's role and criminality with the role and criminality of the co-accused Melissa Jennison.

...

5. That the learned sentencing judge gave insufficient weight to the appellant's:

(a) prior good character

(b) plea of guilty

(c) remorse

(d) background

(e) personal and family circumstances

(f) prospects of rehabilitation.

Schaefer - Ground 1

Tran - Grounds 1 and 3

30 As I understand the arguments advanced on behalf of each of the appellants in support of these grounds, it has not been submitted that the individual sentences or the total effective sentences handed down upon them by the judge were not available in the sound exercise of his discretion, but rather that, when compared with the disposition of the charges against Jennison, they can be seen to breach the principle that there should be parity of treatment of similarly circumstanced offenders.

31 Jennison, it was pointed out, was sentenced for four offences involving $640,000 initially and an actual loss of $140,000. On count 4, she fell to be sentenced as a continuing criminal enterprise offender. Her position in the offending was pivotal and involved serious breaches of trust. The roles of Schaefer and Tran, their respective counsel argued, were less important and neither was in a situation of trust. Other differences in the situations of the three offenders related to the number of offences and the amounts involved which, it was submitted, required the imposition of significantly lower sentences in the case of each of them than those imposed on Jennison.

32 In response, counsel for the Crown contended that it had to be borne in mind that the judge in this case can be seen from his sentencing remarks to have directed attention to all relevant principles of law (including the principle of parity) and all relevant factual considerations, in the determination of the appropriate disposition in each case. No complaint, he argued, has been made concerning the sentences handed down on Schaefer and Tran, save by reference to those imposed on Jennison, and the submissions that have been presented came very close, it was said, to suggesting that the extension of what was claimed to be excessive leniency in her case, should be reflected in the sentences imposed upon each of the others. However, he continued, their situations were quite different and, after taking into account a powerful plea made on behalf of Jennison, the judge imposed upon her a head sentence that was 50 per cent longer than that imposed on Schaefer and over 60 per cent longer than that imposed on Tran for the relevant offending. This reflected, the argument proceeded, that his Honour had had proper regard to the very matters relied upon in support of the application.

33 The principle of parity,[15] which is based upon a straightforward notion of the crucial significance of equal justice under the law, is often extremely difficult to apply. It is fundamental to any just system of sentencing that similarly circumstanced persons are dealt with in the same fashion. However, as a practical proposition, seldom are offenders identically positioned. Differentiation can almost always and very often must be made between co-offenders in a criminal enterprise by reference to their respective roles, relationships, personalities, criminal histories, levels of intellectual functioning, states of health, ages, backgrounds, pleas of guilty, motivations and prospects of rehabilitation, to list a few of the matters to which regard may be required. Often the mitigatory factors operating in one case will be of a quite different kind and, in more than one sense, incomparable with those operating in that of a co-offender. Very different considerations may impact upon the sentences to be imposed upon separate offenders and assume significance in effecting an appropriate balance between them. True parity of treatment is often not to be achieved by the imposition of the same sentence on co-offenders; but through the making of appropriate distinctions between them and bearing in mind that more often than not there can be no precision in the weighting process or the relative significance to be attributed to the quite different factors that may bear upon the determination of appropriate sentences in the separate cases. The most that a sentencing judge can be required to do in such situations is to impose sentences that cannot be seen to have given rise to a legitimate sense of grievance in the mind of one or some that they have been dealt with unfairly when compared with one or more co-offenders and avoid the appearance of injustice to an objective bystander.

34 I do not consider that there is any basis for such a view to be adopted in this case. Jennison was dealt with significantly more severely than her co-offenders. That was appropriate, given her role and the breaches of trust in which she engaged. But there were personal considerations in her case which the judge viewed as justifying the extension of some leniency to her. In this regard, his Honour accepted there were "a number of quite powerful and mitigatory factors" to be taken into account, including her extreme remorse. He found that she was not involved in the planning of the scheme, that the vouchers used had not been written out by her and that she had not received any enrichment as a result of the commission of the offences. I do not think that it is necessary to provide a catalogue of the various considerations to which his Honour adverted in this context or the factors bearing upon the respective situations of the two appellants.

35 His Honour, who has very considerable experience in this area, made clear in his carefully constructed sentencing remarks that he gave careful consideration to the task in hand. There is nothing in them that suggests that he may have fallen into error in any respect. He was clearly mindful of all of the relevant principles of law and factual considerations to be taken into account in the determination of appropriate sentences in each case and the dispositions at which he arrived certainly do not bespeak error with respect to the application of the principle of parity in the circumstances.

Schaefer -Ground 2

36 There is no substance in this ground. It is based upon the assertion that counsel for the appellant in the Court below indicated to the judge that he understood that the prosecutor accepted that an imposition of a wholly suspended sentence in his client's case was within the range of dispositions available and, when not disabused concerning this understanding, did not consider that it was necessary to address the issue further.

37 It can be confidently assumed that at no stage did his Honour regard his discretion as fettered in any way by the prosecutor's stance and it is apparent that the appellant's counsel had not been misled into not presenting submissions as a consequence of any ambiguity in it, as the following passage demonstrates -

"COUNSEL: Your Honour, I understand the Crown to be saying that whilst in other cases a sentence of actual imprisonment should be imposed, of course it's a matter for Your Honour in this particular case as to whether an actual term of imprisonment should be imposed and ---

HIS HONOUR: Well (indistinct) that [the prosecutor] actually said that. He said according to my note he had (sic) got no money, custodial sentence should be imposed. Whether it was to be served wholly or partially and you are talking about a suspended ---

COUNSEL: Yes.

HIS HONOUR: Suspended in part.

COUNSEL: Well, wholly or part ---

HIS HONOUR: That's my note. I don't know whether I have written it correctly, is another matter.

COUNSEL: Yes. That's what I heard him say and [the prosecutor] - yes, he is saying it again. And what I am saying to Your Honour is whether it is to be suspended wholly or in part is a matter for Your Honour and what I am urging Your Honour to do is to suspend it wholly."[16]

38 In his sentencing remarks, his Honour referred to the prosecution stance, saying -

"The Crown submission was that a sentence of imprisonment was appropriate but and I use [the prosecutor's] words as he said them, 'Whether such sentence has to be served wholly or partially will be a matter for the court'. I take that submission to mean that at the very least, you should be required to serve part of a sentence of imprisonment immediately with perhaps the balance of the sentence being suspended."[17]

39 He was mindful of the submissions made by the appellant's counsel and continued -

"Rejecting as I do your version of events at the ANZ Bank on 15 September 2004 and having considered all the circumstances surrounding these offences, to accede to [counsel's] submission to wholly suspend the sentence of imprisonment which he has acknowledged would be imposed, would in my judgment fail to give appropriate weight to both general deterrence as well as denunciation."[18]

There is no reasonable foundation for any suspicion that the appellant's position may have been compromised by reason of any misunderstanding on the part of his counsel or that the appellant may have been denied natural justice in the circumstances. Counsel made clear that he appreciated that the prosecution was contending that at least part of the sentence imposed should be served in custody and that he was "urging" the judge to suspend the whole of it.

Tran - Grounds 2 and 5

40 Although not so expressed, these grounds incorporate two contentions; first, that the sentences imposed upon the appellant were manifestly excessive in the circumstances and, secondly, that they demonstrate that the sentencing judge fell into error with respect to the principle of parity. With respect to the latter claim, I do not think that I need make any further comment. Concerning the former, perusal of his sentencing remarks, considered in the context of the plea, discloses that his Honour directed attention to each of the matters mentioned in the ground. There is no necessity to set out the detail of his treatment of any of them, and sufficient to state that all, save the question of remorse, was the subject of specific reference. I do not accept that the absence of any reference to the appellant's expressions of remorse can be taken as indicating that they were overlooked or inadequate regard given to them. It is to be noted that the presence of remorse was addressed by counsel in the course of the plea in his submission that -

"Your Honour, Mr Tran is ashamed of his involvement in these frauds in 2004. He pleads guilty accordingly. He has no priors whatsoever having lived in Australia for the past 17 years. In early 2004 when he became involved in these matters he was gambling heavily. He was estranged from his immediate family, namely his longtime partner, ... and their three sons, the eldest of who is 16 years of age today, sir.

He was also, Your Honour will learn, without a significant social network. He was unemployed, he was in poor health and he was without any significant work or language skills."[19]

"Your Honour, Mr Tran is remorseful. He's pleaded guilty today. In Mr Ives' report, Mr Ives ... notes: 'He's remorseful and ashamed at his previous gambling activities and addiction and the resulting financial and psychological cost to his family and he's distressed and stressed over his impending court appearance.'"[20]

41 His Honour accepted the view of the appellant's offending urged upon him by his counsel, describing him as a "somewhat sad case" and concluding that he had reasonable prospects for rehabilitation, if he was able to control the gambling addiction that had contributed substantially to his involvement in the offences. There is no reason to suppose that, in addressing the position of the appellant, his Honour did not have regard to the presence of remorse and, indeed, these remarks

and the tenor of his description of the appellant's background, level of involvement in the offences and prospects of rehabilitation strongly suggest, as could be reasonably expected given the judge's extensive experience, that he attributed appropriate weight to this consideration. The sentences at which he arrived certainly do not suggest that he may have fallen into error.

42 It follows from the above that I would dismiss these appeals.

43 I consider these appeals should be dismissed for the reasons given by Vincent JA.

44 For the reasons given by the learned presiding judge, I agree that these appeals should be dismissed.

[1] Leave to appeal was granted on 29 November 2006.

[2] Presentment No C0504622.1.

[3] A confiscation order was also made pursuant to s 78(1) of the Confiscation Act 1997.

[4] Presentment No C0504622.

[5] A confiscation order pursuant to s 78(1) of the Confiscation Act 1997 and a compensation order pursuant to s 86 of the Sentencing Act 1991 was also made.

[6] Presentment No C0504622.2.

[7] A confiscation order pursuant to s 78(1) of the Confiscation Act 1997 and a compensation order pursuant to s 86 of the Sentencing Act 1991 was also made against this co-accused.

[8] Equity Manager Accounts are personal transaction accounts with a credit facility secured by a first registered mortgage over a residential property. Funds can be withdrawn at any time provided the balance of the account does not exceed the approved line of credit.

[9] The Oliver amount.

[10] The Hallett amount.

[11] That account had been opened on or about 21 April 2004 in Melbourne, and bank records indicate that it was credited with $27,950 from DH Nguyen on 11 August 2004.

[12] It was accepted that this person existed.

[13] She, he said, had withdrawn $1,000 as a test run earlier that day.

[14] A further ground (4) was not pursued.

[15] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402; Lowe v R [1984] HCA 51; (1984) 154 CLR 505.

[16] T29-30.

[17] Sentence T121.

[18] Sentence T121.

[19] T32.

[20] T39.