R v Wu [2005] VSCA 18

Court of Appeal (Vic)|2005-02-09|Before: WINNEKE, P., CHARLES and BUCHANAN, JJ.A.

Criminal law - Sentencing - Judge imposing "straight sentence" because of assumed executive action - Error - Re-sentenced to term with fixing of non-parole period.

The appellant, whom I shall call "Wu", travelled from Sydney to Melbourne on a date prior to 17 May 2004. He either carried with him or acquired here a number of false documents, which included:

* a document falsely identifying him as "Tan Tu" of 4 Kent Street, Lalor;

* a Victorian driver's licence or "learner's permit" in the name of Tan Tu, which incorporated his photograph;

* a Holmesglen TAFE student card also incorporating his photograph;

* a bill from an organisation called "Power Direct"; I assume that is an electricity organisation.

These documents satisfied what is described as the "100 point check" required to create a new bank account. "Tan Tu" was a false identity. He also had in his possession the following false documents:

* A Certificate of Registration of Business Name for an entity called "Ozlem Kebab Co."

* A Certificate of Registration of Business Name for an entity called "Yada International Trading".

The idea was to open bank accounts in false names in order to negotiate a stolen cheque in the sum of more than $107,000 - a cheque which had been stolen in Sydney and was payable to the "Ozlem Kebab Co." The appellant's claim was that he had been provided with the cheque by criminal elements in Sydney to whom he then owed gambling debts.

On 17 May 2004, the appellant attended the Box Hill branch of the ANZ Bank. He used the false documentation for the purposes of opening bank accounts at the ANZ Bank in the names of "Tan Tu" and "Yada International Trading". On the same day he used the same false documentation to open accounts in the names of "Tan Tu" and "Yada International Trading" at the Box Hill branch of the Westpac Bank. These events constituted counts 1 to 4 inclusive on the presentment.

On 19 May 2004, the appellant carried the same false documentation to the Swanston Street branch of the ANZ Bank. There he used the documents to open an account in the name of "Tan Tu", trading as "Ozlem Kebab Co." He then used the same false documents to open an account at the Westpac Bank Elizabeth Street Branch in the name of "Tan Tu, trading as "Ozlem Kebab Co." These were counts 5 and 6. On the same day he used the same false documents to open a bank account at the same Westpac branch in the name of "Tan Tu Tax Management Account" (count 7).

Count 8 alleged that, on 19 May 2004, the appellant dishonestly handled stolen goods, being an ANZ cheque numbered 001009 valued at $107,741.42, knowing or believing the same to be stolen.

Count 9 alleged that, on 19 May 2004, the appellant obtained for himself a financial advantage; namely the amount of $107,741.42, from the Westpac Bank by falsely representing that he was authorised to deposit a stolen ANZ cheque valued at that amount payable to Ozlem Kebab Co. into an account in the name of "Tan Tu, trading as Ozlem Kebab Co." Count 10 alleged that on the same day he dishonestly handled the stolen cheque knowing or believing the same to be stolen. Count 11 alleged that on the same day he dishonestly obtained for himself a financial advantage - namely the amount of $107,741.42 - from the ANZ Bank by deception; namely by falsely representing that he was authorised to deposit a stolen Commonwealth Bank cheque numbered 613089 valued at $107,741.42 made payable to "Ozlem Kebab Pty Ltd" into an account in the name of "Tan Tu trading as Ozlem Kebab Co."

On 31 August 2004, in the County Court at Melbourne, the appellant pleaded guilty to each of these counts. The judge was told that the cheque had been stolen from an office in Sydney. As I have said, it was a cheque in fact made out to the Ozlem Kebab Co. and was, as the judge accepted, stolen by persons unknown.

The fraud was uncovered when the ANZ Bank staff in Swanston Street became suspicious and called police. Wu made a "no comment" record of interview. No money changed hands as the fraud was "nipped in the bud". On the plea the case made for him was that he had not stolen the cheque but that he had accepted it from a man in a nightclub in Sydney. He claimed that he had got himself into debt in an Asian "poker school" and that his creditors had threatened him with physical harm unless he paid his debts. They said - so it was alleged - that they would forgive his debts if he cashed the cheque; and they provided him with the false documentation and an airline ticket to Melbourne. He claimed that he was following their instructions. In its essence, his story was that he was "hooked" into a situation that was out of his control. He was, so his counsel contended, a "very normal international student" studying in Sydney, subsidised by his Chinese family who were making sacrifices so that he could educate himself. He produced to the judge a bundle of reports and references from the teaching staff at Taylor's College in Sydney. He was, by the time of this offending, a student at a Sydney university.

Her Honour was told that it was almost inevitable that his student visa would be revoked and that he would be returned to China. Since his arrest in May 2004 he had been incarcerated at Port Phillip Prison. He then intimated that his intention was to plead guilty to all counts on the presentment, and that plea was "fast-tracked". The prosecutor told her Honour that it was accepted that "other people were involved"; or, at least, the Crown was not in a position to dispute the appellant's story. Indeed the prosecutor suggested to her Honour that she might consider a disposition which would enable the appellant to be immediately released from custody; a suggestion that her Honour dismissed as "inappropriate".

In the course of her reasons for sentence given on 2 September 2004, her Honour accepted the appellant's explanation for the offending and the fact that he had shamed himself and his family and was likely to be deported. Ultimately she sentenced him to eight months' imprisonment on counts 8 and 10; six months on counts 1, 2, 3, 4, 5, 6 and 7 and three months on counts 9 and 11. She ordered that one month of the sentences imposed on counts 1, 3, 5 and 6 and three months of the sentence imposed on count 8 be served cumulatively upon each other and upon the sentence of eight months imposed on count 10. The total effective sentence was therefore one of 15 months. Her Honour said that she would not fix a non-parole period because it was likely that the appellant would be deported upon release from prison. She declared that a period of 106 days had already been served. At the present time, the appellant has thus served nearly nine months in prison.

On 5 November 2004 a judge of this Court gave leave to the appellant pursuant to s.582 of the Crimes Act.

On the hearing of the appeal, Mr Croucher submitted that the sentencing judge was in error in failing to fix a non-parole period pursuant to s.11 of the Sentencing Act; and was in error in assigning the reasons which she gave for not doing so. In my view this ground is made out. With respect, her Honour was wrong to take into account the possible effect of executive action or policy in determining not to set a non-parole period (cf. per Marks, J. in R. v. Binder and Langer[1]; see also Shrestha v. The Queen[2]). The error of this approach is also reflected in s.5(2AA)(a) of the Sentencing Act 1991. I also agree with Mr Croucher that the circumstances of this case, including the youth and personal characteristics of the appellant, his "otherwise good character" and his rehabilitation made it highly desirable for her Honour to fix a minimum term following which he would become eligible for parole. It would seem that the respondent agrees that her Honour fell into error in the reasons she gave for not fixing a non-parole period. That much was conceded, quite properly, by Mrs Quin this morning. However, it is said on the respondent's behalf that this Court should nevertheless, in re-exercising the sentencing discretion, impose the same sentence of 15 months which her Honour has imposed.

12 Having considered the matter, I would allow this appeal. The sentencing discretion is thus re-opened. For my own part, I would re-sentence the appellant as follows: by confirming the individual sentences which her Honour imposed and the orders for cumulation which she made. The total effective sentence would therefore be the same one of 15 months. However, I would fix a non-parole period of nine months and I would declare that the appellant has now served a period of 266 days.

The formal order of the Court will be that the appeal is allowed. The sentences which her Honour imposed on the individual counts are confirmed, as are the orders for cumulation. That makes a total effective sentence of 15 months. The Court directs that the appellant serve a period of nine months before becoming eligible for parole.

The Court declares that the appellant has now served a period of 266 days. In accordance with s.18 of the Sentencing Act, that declaration and its contents are to be entered in the records of the Court.

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