R v Sen [1999] VSCA 181

Court of Appeal (Vic)|1999-11-16|Before: PHILLIPS, C.J., TADGELL and BUCHANAN, JJ.A.

The applicant, who is aged 29, was convicted by a jury in the County Court at Melbourne on 20 November last of one count of theft. The verdict was a majority verdict of 11 jurors out of 12. The offence was said to have been committed at Melbourne on 27 March, 1997. It allegedly involved the sum of $4 million, the property of the ANZ Banking Group Limited.

The offence carried a maximum penalty of ten years' imprisonment. The applicant later lodged notices of application for leave to appeal against conviction and sentence. That touching conviction originally pleaded various grounds, but by order of the learned Registrar on 14 October last a sole ground was substituted.

As to the application touching conviction, it is agreed between the parties that the jury retired to consider its verdict at 11:49 a.m. on 18 November, 1998. At 4:18 p.m. on the same day the jurors entered the court and were later sworn in accordance with s.51A (supra). They then separated, returning to the court the following morning. They further deliberated and were redirected during 19 November until a little after 4:00 p.m. They then returned to the court room whereupon the foreman informed the judge that the jury had not made a decision but, he thought, they were of the opinion that they were "making progress". In answer to the judge, the foreman said that the jurors would like to bring their deliberations to a halt at that point for the day. His Honour then said:

"That's not a problem. Please be seated, Mr Foreman, there is no need to have you go through the process of taking that oath again, you will be pleased to know. But I just remind you that the oath does bind you, it's important as you understand, not to discuss the case with anyone else except amongst yourselves. Would you like to resume again at ten in the morning; does that suit the jury? Very well, we will do that. If you would like to leave your notes, if you have brought any into court, in the jury room, collect your personal belonging, make your way home, have a good night and you can come back tomorrow and continue at ten o'clock." (410)

The jurors then separated for the night, returning to the court the following morning for further deliberation. At 11:55 a.m. the learned judge informed the jury that circumstances had arisen enabling the court to take a majority verdict of 11 out of 12 jurors. His Honour added some directions of a character which have come to be known as Black directions c.f. Black v. The Queen [1993] HCA 71; (1993) 179 C.L.R. 44. The jury then left the court and at 12:28 p.m. returned with their verdict.

The following grounds were pleaded on the application touching sentence:

"1. That the sentencing judge failed to properly apply the principle of parity in relation to the co-accused Kamil Mutlu. 2. That in all the circumstances the sentence imposed was manifestly excessive."

I now set out, in summary form, the evidence adduced at the applicant's trial.

It was the Crown case that the applicant was involved with two co-offenders. The first was a woman named Kadar Aslan. On 10 November, 1997, she pleaded guilty to the same count of theft upon which the applicant was later convicted. The Crown's case was that she had operated a computer at her workplace (the ANZ Bank) so as to effect a telegraphic transfer of the money to a Turkish bank account.

Subsequent to the trial of the applicant the learned trial judge sentenced her to be imprisoned for three years, such sentence being wholly suspended for three years. The second co-accused, a man called Kamil Mutlu, entered a plea in bar of autre-fois convict which plea was upheld by a jury on 11 November, 1998. He had been dealt with by High Criminal Court No. 1 of Turkey in Ankara. He appears to have been sentenced to approximately five months' imprisonment and was subjected to a large fine; calculated by the sentencing judge to be approximately 1.5 million Australian dollars.

Aslan was called as a witness by the prosecution. She had, she said, been employed by the ANZ Bank for some eight years as at March, 1997. For four of those years her job was that of automated payments clerk, making international transfers of funds. She was a single woman in her late twenties, living with her parents. In November, 1996 she met the applicant having known his wife for some years. Some months later, she said, the applicant "propositioned" her for a relationship. He told Aslan that he loved her and wanted to marry her. He said he did not love his wife. Aslan said she believed the applicant and developed "strong feelings" for him. A relationship of this sort was viewed "very disgraceful...very immoral" in the Turkish community. She used to meet the applicant at Mutlu's house in Carlton "maybe once a week". Conversation about her job, Aslan said, led to a suggestion from the applicant and Mutlu that she transfer money overseas. "You work in the bank, this is your job, you can do it easy." She did not, initially, take this suggestion seriously but it was renewed as a means of her and the applicant leaving the country together. Mutlu advised her of a special rate for airline travel and with the assistance of a woman called Adogan, a travel agent, three one way tickets to Ankara were purchased.

Aslan said that on 27 March, 1997, she operated a computer terminal at her work so as to make a telegraphic transfer of $4million to the credit of a bank account in Turkey. The amount was Mutlu's idea, she said. Save for the department in which she worked, Australian banks were closed on 27 March. Aslan intended to transfer $4million from the New York account of the ANZ Bank. That amount was transferred to the account in Turkey of one Askit, an uncle of Mutlu.

Having performed her part of the arrangement, Aslan travelled from the bank to Tullamarine Airport. The applicant and Mutlu gave her a ticket and the three departed Australia for Singapore at 3:00 p.m. Aslan said that by the time the aircraft arrived there, she was "hysterical" because what was being done was wrong. She confided in her brother, who lived in Singapore, and it was arranged that the applicant and she would return to Melbourne. The brother flew on to Turkey with Mutlu. In Melbourne, Aslan sought the advice of a solicitor and the next day told ANZ Bank officers what she had done. She did not implicate the applicant and referred to Mutlu as her boyfriend. At the solicitor's office, the applicant had asked her to do this and to tell the bank officers he had nothing to do with the theft. She repeated this version to the police but, later, upon a second interview, implicated the applicant and Mutlu as well as herself.

Aslan's brother was also called by the Crown. He, in effect, confirmed the understanding reached in Singapore. In Ankara, he spoke in very threatening terms to Askit, stopping him from withdrawing the funds which were sent back to Australia.

Evidence from a bank officer, also called by the Crown, confirmed that Aslan had been successful in transferring the money to Turkey from whence it was duly returned.

The Crown also called evidence from one Ozsoy, a bank manager friend of the applicant. This witness said the applicant, "towards the Easter holidays", sought advice from him about sending money overseas. The sum of $4million was mentioned as was the expression, "rob a bank". There was also mention of a female who worked in the international department of the Bendigo Bank. The witness said he did not take all this seriously.

The applicant was interviewed by the police in the form of a record-of-interview as to which evidence was called. In substance, the applicant denied any involvement in the theft of which he was not aware, he said, until he was in Singapore. He was journeying to Turkey to see his sick father. Ms Aslan had wanted to accompany him and he agreed he had had a relationship with her. When he became aware of the theft he decided to come back to Melbourne to deal with the situation. It is, I think, not necessary to say more about the Crown case.

The applicant stood mute and called no evidence.

I now turn to the arguments of counsel. As to the application touching conviction, counsel for the applicant delivered no oral argument. A written outline of argument stated "The applicant accepts that having regard to this Court's previous decisions in Patton and Ors. (1996) 88 A. Crim. R. 365 and Taylor (1996) 86 A. Crim. R. 293, this ground of application is unlikely to succeed. However, the applicant wishes to take the point in order to preserve his right to make application for special leave to the High Court of Australia challenging the correctness in law of this Court's previous decisions in Patton and Taylor (supra)".

I have read the abovementioned cases. It is sufficient to say that in my opinion, they were correctly decided. Accordingly, upon the agreed facts, this ground fails.

As to the application touching sentence, counsel pointed out in connection with ground 1 that the applicant had received a sentence of five years' imprisonment with a non-parole period of three years. This sentence he contrasted with those imposed on the co-offenders. Asked the relevance of the sentence imposed on Aslan having regard to the manner in which this ground is worded, counsel replied that her sentence was relevant to ground 2 in that it helped to show that, on its face, the sentence on the applicant was manifestly excessive.

Developing ground 1, counsel cited Lowe v R. [1984] HCA 46; (1984) 154 C.L.R. 606; Postiglione v R [1997] HCA 26; (1997) 71 A.L.J.R. 875 and R. v Taudevin [1996] VICSC 7; [1996] 2 V.R. 402, which cases, he submitted, established a principle of parity in sentencing which required that persons involved in the same crime, all other things being equal, should receive the same punishment. He further contended that the learned sentencing judge had fallen into error in his consideration of the sentence imposed upon Mutlu by the Turkish Court. As to this, his Honour had said in his reasons for sentence "In the end, I have reached the conclusion that the sentence imposed upon Mr Mutlu in Turkey is not relevant to the exercise of the sentencing discretion in sentencing (the applicant) and Ms Aslan" (499/500). In this connection his Honour referred to R. v. Lillie (1995) 16 Cr. App. R. (S) 534 a decision of the Court of Appeal. In that case the appellant was convicted of assisting in the unlawful trafficking of drugs, which offence was committed in Holland. The sentencing judge, while noting that two co-offenders dealt with in Holland each received short sentences of six months' imprisonment, imposed a sentence of five years on the appellant, observing, "...I do not regard myself as in any way bound, or even helped, by the sentencing procedures and policies of Holland". In this the Court of Appeal agreed, the appellant's counsel having conceded that but for the disparity point, the sentence imposed on his client was "unimpeachable".

Counsel also submitted, citing a decision of the Court of Criminal Appeal of New South Wales Postiglione v. R. (1992) 57 A. Crim. R. 301, that evidence of previous convictions incurred in another country is receivable as prima facie evidence of past bad character. If this be so, the argument proceeded, then regard ought to be had for sentence parity purposes, to a sentence imposed by a foreign court on a co-offender. By reason of what follows it is unnecessary to decide this matter and, for my part, I am not disposed to regard Lillie as establishing a principle. That matters not, for it is plain that having regard to the meagre material available to the sentencing judge as to the Turkish sentence, that sentence was incapable of rendering him any assistance. Both the sentencing court and this Court were supplied with a translation of the Turkish court order. It appears Mutlu was sentenced, not for theft, but for either "defrauding" or "being an accessory to defrauding" under Article 3 of the Turkish Criminal Code. It is possible he was treated as an accessory to Askit but this is not clear. In contradistinction to the Victorian offence of the applicant, the Turkish court noted that "the crime had not been accomplished" and ordered a statutory reduction of penalty. No information was available as to whether this reduction was discretionary or compulsory. The same applies to an increase in the sentence by the Court because of the monetary amount. The Court had regard to "the circumstances of the offence and the personality of the defendant" and applied a particular statutory provision. Whether this was to the advantage or disadvantage of Mutlu was unclear. So, too, the court refused, for reasons which cannot be ascertained, to apply a particular Article of the Turkish Criminal Code. Before applying various reductions and an increase of sentence the court appears to have ruled in favour of "minimum sentence" having regard to the "social background" of the defendants. (Askit and another man were dealt with by the court, together with Mutlu.) In my opinion, having regard to the information available, it is just not possible to follow these ramifications. It is, I think, unnecessary to say more on this point.

As to ground 2, and treating the sentence imposed on Aslan in the way I have earlier described, counsel submitted that, without her, the joint enterprise could not have been executed. She had exploited, he contended, a weakness in the system and was guilty of a significant breach of trust. She was motivated by self-interest and her infatuation with the applicant and only withdrew from the arrangement when it appeared the funds may not have been available in Turkey. She had not been honest in her dealings with the bank officers and the police. These circumstances supported a submission, it was said, that her criminal responsibility was in a sense greater than that of the applicant. The problem with this submission is that it collides with the findings of the sentencing judge in circumstances where it has not been suggested that those findings were other than open to him. His Honour found that Aslan's evidence about the commencement and progression of her relationship with the applicant was true; that she developed strong feelings for the applicant and was in "a vulnerable position". He was satisfied that "she committed this theft out of her love for (the applicant) and desire to be with him and because she thought it was the only way that that could be achieved". His Honour also found beyond reasonable doubt that the applicant and Mutlu "used and manipulated Ms Aslan to carry out this theft. They took advantage of her vulnerability". He was likewise satisfied that the "moral culpability of (the applicant) and Mr Mutlu is greater than that of Ms Aslan". His Honour also noted her early plea of guilty, which he was satisfied "is accompanied by deep and genuine remorse," together with the assistance she had provided to the authorities.

It was also submitted as to this ground that Mutlu was the prime mover in the joint enterprise to steal the money. It was he who suggested the figure and made the arrangements with his uncle in Turkey and for the air tickets. Such a submission was, to a degree, consistent with the findings of the sentencing judge. But that cannot avail the applicant for his Honour found, "I am satisfied beyond reasonable doubt that Mr Mutlu and (the applicant) were the ones who were really the brains behind this audacious crime". For the purposes of this ground, it is for the applicant to show that the sentence imposed on him fell altogether outside the range of sentences properly available to the learned judge. I am unpersuaded that it did. Prominent among my reasons for this view are the very great seriousness of the offence committed; the applicant's unscrupulous involvement of Aslan and his entire lack of remorse for his conduct. I would reject the submission that Aslan's sentence (described as "generous") helps to show that, on its face, the sentence on the applicant was manifestly excessive. Counsel for the applicant accepted in argument that Aslan was, for sentencing purposes, in a significantly different position to that of the applicant and was entitled to a "significant" discount. This ground fails and the application should be dismissed.

I agree that the applications should be dismissed for the reasons stated by the Chief Justice.

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