R v Ta [2002] VSCA 142

5. The applicant had no prior convictions and after a plea for leniency, he was sentenced on 10 July 2001 to a total effective sentence of three years and six months' imprisonment, with a non-parole period of two years. I shall attach a schedule of the individual sentences and the cumulation directions made to this judgment. A declaration was made as to pre-sentence detention and a compensation order was made in the sum of $296,977.

8. The applicant later lodged and still later abandoned an application for leave to appeal against his conviction. The applicant also lodged notice of application for leave to appeal against his sentence, pleading that it was manifestly excessive. On 13 June last he was granted leave to amend this notice by substituting the following grounds:

"(1) the ill health of the applicant being present but unknown and diagnosed at the time of sentence and now are still present, however now diagnosed and under treatment, makes imprisonment more burdensome upon the applicant than was envisaged at the time of sentence, and accordingly a lesser sentence should now be imposed upon the applicant.

(2) the learned sentencing judge erred in that he failed to take into account or sufficiently take into account the extensive admissions as to facts made by the applicant which admissions greatly shortened the length of the trial and saved the community time, trouble and expense."

13. It is now necessary to set out in summary form the facts of these matters and relevant events touching the applicant's trial. In this exercise I have had recourse to a summary of evidence and other matters supplied to the Court as to which there has been no dispute.

16. In October 1998 the applicant registered a business name Hung Thinh Hi Fi Trade Import/Export Electronics. The business operated from a warehouse leased at 1A Bank Street, Braybrook. The lease commenced in March 1999. On 6 June 1999 the applicant applied to the ANZ Banking Group for an EFTPOS facility for his Braybrook premises. The ANZ Bank engaged a company called "Smack On Time" to install the facility at the Braybrook premises. One Janet Thomas installed the facility on 29 June 1999. Thomas gave the applicant instructions on the use of the facility and conducted a test showing that the facility was working and able to swipe cards. The applicant was instructed that the correct mode of operation was to swipe cards through the machine. Thomas explained to the applicant that if the machine was not working when attempting to swipe cards, that he should contact the help desk at the bank.

19. Under cross-examination Thomas conceded that the applicant's command of English was limited, but she believed that he understood her instructions. The method approved for the facility was for swiping credit cards, not for mail or telephone orders. The EFTPOS facility was linked to the applicant's cheque account with the ANZ Bank.

22. ANZ Bank records show that between 1 July and 10 July 1999 on five separate days, being the 1st, 7th, 8th, 9th and 10 July, the applicant fraudulently processed 34 credit card transactions that were accepted and obtained the sum of $299,300 which was credited to his ANZ account. The applicant attempted to obtain a further $80,000 by processing eleven transactions, however these were declined. These transactions were not authorised by the card owners.

25. When the EFTPOS machine was used, it generated a computer record of the transactions which indicated those which had been processed by manually keying in the numbers into the device. The records show that the credit card numbers had been manually keyed into the EFTPOS machine, although it was not known how the numbers were initially obtained. All of the credit cards were National Australia Bank cards, many with high credit limits. None of the card owners authorised the transactions. There were no legitimate EFTPOS transactions processed through the applicant's EFTPOS facility. There was no other unauthorised use of the credit cards except at the applicant's business during the relevant period.

28. On 8 July 1999 the applicant opened a deposit account with Crown Casino. The applicant deposited a cheque for $98,000 and withdrew a chip voucher for that amount. On 12 July 1999 he deposited $136,000 and withdrew a chip voucher for that amount. There was no record of the chips having been gambled and none of the money obtained was recovered. I shall return later to this matter.

31. The applicant was arrested on 13 July 1999 at the ANZ Bank in Barclay Street, Footscray. A record of interview was conducted and the EFTPOS facility was located at his home. The invoice book and EFTPOS receipts were seized. In the record of interview the applicant admitted that he was the only one who used the EFTPOS machine, that he was shown how to swipe the cards and that he entered the numbers in manually when processing the credit card transactions. He denied any knowledge of the deception.

34. On 15 July 1999 a Mr Robin Johnston, the manager for the Merchant Department at the ANZ Bank tested the EFTPOS machine. The machine was unable to read a credit card by swiping. The magnetic card reader within the PIN pad had been displaced and this would require manual manipulation with some force to dislodge it. The facility was able to function when numbers were keyed in manually.

37. The applicant gave evidence at his trial. He said that he started the business with his partner, one Ton Tong Hung. Hung looked after the administration of the business while he, the applicant, took care of the equipment. The applicant stated that he imported $100,000 worth of electrical equipment. One Brett Lennon, manager of a firm "Freight On Board", gave evidence of four consignments relating to the importation of electrical equipment by the applicant, showing only $18,189 worth of equipment was imported. The equipment was inspected on arrival in Australia by Lennon and described as being in poor condition. Upon his arrest there was no equipment located in the applicant's warehouse.

40. Telstra records for the telephone number 9362 0880 leased by the applicant between 8 June and 3 August 1999 showed there were only eleven calls made from his business premises. The applicant told the jury he had difficulty understanding the instructions relating to the use of the EFTPOS facility. The applicant said that the reason the credit card transactions were processed in quick succession was because purchasers wanted to buy a number of goods and the limit for individual grants on the EFTPOS machine was $10,000.

43. Under cross-examination he said he sold the televisions and electrical equipment for $300,000 after they were cleaned and repaired. He denied knowledge of the deception and denied interfering with the EFTPOS machine, causing the displacement of the card reader. He stated that he had gambled the money away.

46. The applicant made a number of admissions of fact during his trial pursuant to s.149A of the Evidence Act 1958. He admitted that he leased the Braybrook premises for a term of 12 months, commencing on 10 March 1999, and that the lease was terminated on 16 July 1999. He admitted that none of the credit card holders named in the presentment had any business dealings with him or his business, and that none of them purchased or attempted to purchase electrical goods from him or his business. He admitted that none of the card holders signed any EFTPOS receipts generated by the EFTPOS device and that none of them authorised any of the 34 transactions or eleven attempted transactions. He admitted that none of the card holders' National Australia Bank credit cards were lost or stolen during 1999.

49. On 19 June last an application for leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958 was refused by Phillips J.A. The applicant elected by a notice dated 26 June last to proceed to a court of three judges. In the application before his Honour, an affidavit by the applicant's solicitor, Mr Adrianakis, was sworn on 13 June and filed. This affidavit carried an exhibit, a report by Dr Eugene Tuck, dated 7 December 2001, in relation to the applicant. Later Mr Adrianakis filed a second affidavit and, ultimately the following medical reports were exhibited and placed before the court. They were two reports of Dr Anne Mijch and a psychiatric report of Dr Douglas Bell.

52. A condensation of much of these reports can be derived from a summary helpfully provided in the applicant's outline of argument. That of Dr Eugene Tuck, dated 7 December 2001, disclosed that on 4 July 2001 the applicant was received into custody. On 20 July 2001 he was notified of being diagnosed HIV positive and later transferred to the in-patient unit at Port Phillip Prison.

55. In early October 2001 he was transferred to the Alfred Hospital and suffered reaction to treatment. On 30 October 2001 was admitted to St Vincent's Hospital and, on 8 November following, he was transferred to the in-patient unit at Port Phillip Prison. On 15 November 2001 the applicant was reviewed at Alfred Hospital.

58. The reports of Dr Mijch, dated 15 August 2002 and 27 August 2002, disclose the following: The applicant suffered an acute allergic reaction to anti retroviral medication. He had had difficulties with his recent diagnosis of HIV. His poor health has resulted in difficulty accessing rapid assessment. The applicant's treatment is inhibited because of lack of direct immediate access to investigational amenities, and the applicant's illness is a stress in itself. The applicant's circumstances have resulted in sub-optimal clinical response to anti retrovirals and it is difficult for the applicant, in contradistinction to some others, to gain maximum benefit from this treatment. Incarceration of the applicant is likely to be detrimental to his treatment.

61. As to the report of Dr Bell, dated 22 August 2002, this discloses that the applicant's medication causes sleep disturbance. His HIV status causes him to be shunned by fellow prisoners and he is the object of abuse. He has a choice of a maximum security prison with its restrictions but access to support groups and access to appropriate medical care, or a more relaxed prison without support or ready access to medical treatment. Now, there is uncertainty in the applicant regarding his long-term survival and possible future disability. He is at a risk of developing a depressive illness and he has had no satisfactory access to support programs available to sufferers of HIV that are available in the general community.

64. I now turn to the arguments of counsel on this application. Mr Dickinson for the applicant began by assisting the Court as to the evidence given at trial by a casino employee who said that any chips obtained by the applicant "may have been gambled". There would be a record of this gambling if at the time it was undertaken the applicant had produced a casino card and thus identified himself. On the other hand, chips could have been randomly gambled at tables and of this activity no record would be made.

67. Counsel then turned to the substance of the application, reminding the court of the two grounds relied upon. The first related to the applicant's ill health, unknown and undiagnosed at the time of plea and sentence. Mr Dickinson explained, consistently, with the medical reports, that the applicant has been routinely tested upon being taken into custody, returning positive results as to HIV and hepatitis B. The emphasis in this application, counsel said, is to be on the former result.

70. The applicant's counsel continued that he had been variously transferred and for a time had been in both the Alfred and St Vincent's Hospitals. He was treated for the HIV but suffered a reaction. He had later been readmitted to hospital from time to time, and counsel then returned to the medical reports put in evidence.

73. Mr Dickinson made reference to a portion of the judgment of Crockett J in R. v. Eliasen[1]. His Honour there said, citing with approval what had been said in other authorities:

"Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

This supported a submission, Mr Dickinson said, that relevant authority showed there were two instances where appellate intervention, with respect to relevant ill health, was appropriate.

79. Counsel also referred to R. v. Morgan[2] when a non-parole period fixed for an offender was reduced on appeal in circumstances where the possibility of recurrence of cancer in her had been raised on the plea and, unfortunately, became an accomplished fact during sentence.

82. The contents of the various medical reports were extensively discussed by counsel and members of the court during this application. I will refer to aspects of them in detail in counsel's submissions in this judgment. Mr Dickinson accepted that a summary of his submissions touching these reports would be as follows: "They show", he said, "that the long-term life expectancy of the applicant is excellent, but there are particular health issues, complications, to which he is subject, and they are these: (1) his constant diarrhoea; (2) his stress and worry, in part caused by his health problems; (3) the stigmatisation to which he is subject in custody; and (4) the circumstance that rapid assessment and treatment of other complications, (some of which have actually occurred, for example, rash and fever) is compromised while he is in prison."

85. Turning to ground two, Mr Dickinson adverted to the admissions of fact of which I have already made mention. Involved in the case, he said, were some 45 relevant transactions and the applicant's admissions, which removed the necessity to call some 30 witnesses, reduced the issues at the trial to a very small compass. The applicant should have been given credit for saving the court time. Counsel cited R. v. Cameron[3]. It is sufficient to say that I am unassisted by this citation, having regard to the facts of this case and the circumstance that that decision involved a plea of guilty and a statutory requirement to give a discount therefor.

88. Mr Cooper for the Crown accepted that the principles of Eliasen had application to this matter. He addressed the medical reports, pointing out that Dr Tuck's report showed the HIV symptoms resolved after treatment and a reactive episode had been attended to. It appeared that on 22 November 2001 the applicant was well and in good spirits.

91. Dr Bell, counsel pointed out, referred to the HIV illness and the complications. The doctor felt that the HIV was under reasonable control, but that other matters fell short of that situation. That doctor also noted the services available to the applicant in the prison system. Counsel submitted that as to the applicant's health, incarceration would have a marginal effect, but not a substantial one. As to ground two, counsel emphasised that this involved a matter not raised with the sentencing judge.

94. I now turn to my conclusions. In my opinion ground two has not been made out. It involved a matter, as counsel for the Crown has pointed out, which was never put to the learned judge. I am of the view that no special consideration should be given for the agreement to make the admissions that were in fact made in this particular case by the applicant.

97. As to ground one, with some misgiving I have come to conclude that the evidence, although in an unsatisfactory form in a number of respects, does establish that the imprisonment of the applicant falls within the factual situations set out in the case of Eliasen supra. Those findings, however, in my opinion must be made in

a setting whereby the current services at the prison available to the applicant are in the state described by Dr Tuck in a conversation with Dr Bell, which occurred only a few days ago. In those circumstances I would propose that although the evidence is sufficient for appellate intervention and consequential re-sentencing, the only alteration warranted to the sentence imposed in the court below is the reduction of the non-parole period fixed to one of 18 months.

102. I agree, but I should say that I also reach the same conclusion with reluctance, in the sense that the sentence itself was modest and, moreover, I am by no means happy with the evidence put before the Court to justify a reduction in sentence based on a subsequently discovered medical condition. The preferable evidence as to the manner of treatment should have come from the St Vincent's Correctional Health Service or somebody with similar direct knowledge, but we were left with the speculations of Dr Mijch, serious though they were. In future, evidence led for this purpose should include up to date evidence as to facilities for treatment related to the particular illness being suffered by a prisoner. If necessary, this should be called by the Crown, though all evidence ought to be capable of being the subject of cross-examination.

106. I agree with the reasons of the learned Chief Justice and with the orders he has proposed. I also agree with the observations made by Ormiston, J.A. in his reasons.

110. The orders of the court are the application for leave to appeal against sentence

is granted, the appeal treated as instituted and allowed. The sentence imposed on the applicant in the court below is varied so as to quash the non-parole there fixed and in lieu thereof fix a new non-parole period of 18 months. The sentences imposed in the court below, together with the cumulation directions made, are otherwise confirmed.

114. 35 I shall ask counsel is it necessary for the Court to make a declaration? One of five days was made by his Honour. The sentence dates back, does it not, and therefore as long as it is made clear that the period served of pre-sentence detention is one to the date of the original sentence, then the correctional authorities will know what - - -

COUNSEL: Yes, I'd understand that to be the case, Your Honour.

119. Perhaps just to make assurance doubly sure, I will add to the orders that it is the intention of the Court that this sentence operate from the date of the original sentence. We thank counsel for your assistance. Sine die, please.

[1] (1991) 53 A.Crim.R. 391 at 396.

[2] (1996) 87 A.Crim.R. 104.

[3] (1992) 36 A.L.J.R. 382.