Akkala v The Queen
[2012] VSCA 29
•29 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0447
| RAMA AKKALA | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG JA and CAVANOUGH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 January 2012 |
| DATE OF JUDGMENT | 29 February 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 29 |
| JUDGMENT APPEALED FROM | DPP v Akkala (Unreported, County Court of Victoria, Judge Harbison, 26 November 2010) |
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CRIMINAL LAW – Sentence – Obtaining financial advantage by deception – Single rolled-up charge – Sentenced to four years and six months’ imprisonment with non-parole period of two years and six months – Sentence manifestly excessive – Appeal allowed – Resentenced to three years and six months’ imprisonment – Non-parole period of one year and nine months fixed – No point of principle
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Leanne Warren & Associates |
| For the Respondent | Mr B Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
The appellant, Rama Akkala, now aged 33, pleaded guilty in the County Court at Mildura to a single rolled-up count of obtaining a financial advantage by deception. He was sentenced to a term of four years and six months’ imprisonment with a non-parole period of two years and six months. He now appeals against that sentence.
In March 2006, the appellant obtained employment with the Bank of Western Australia. Within a relatively short time, he had been promoted to the position of team leader within the lending services team at the bank. In that capacity, he supervised several other employees.
Between 6 March 2008 and 7 January 2009, the appellant caused a series of transfers of funds to be made across a number of different accounts. By means of these transfers, he misappropriated a total of $312,471.07. He did so through 14 separate transactions, involving transfers of sums ranging between $6,500 and $58,400.
The accounts into which these various amounts were transferred were held in the names of the appellant’s friends. He falsely told those friends that the money that had entered their accounts actually belonged to him or, in some cases, that it had been mistakenly deposited.
It was not until January 2009, when the bank became suspicious of one of those withdrawals in the amount of $38,200, that the appellant’ offending was detected. An investigation was launched. Initially, the appellant lied to the bank’s investigator, claiming that he had been asked to effect the transaction. Eventually, however, he admitted having stolen the money, and offered to pay it back. He did not, at that stage, reveal his other criminal offending.
Subsequently, when interviewed by the police, the appellant made a ‘no-comment’ record of interview. In due course, he was charged with offences relating to each of the 14 unauthorised transactions. His committal proceeded by way of hand-up brief. He did not at that stage enter a plea.
In July 2010, the appellant ultimately pleaded guilty. The sentencing judge observed that although the plea was not offered at the first available opportunity, and was only made in the face of overwhelming evidence of guilt, it was still to be given some weight because it had served to avoid the cost of a trial.
It was accepted on behalf of the appellant that he had committed this offence for financial gain. It was submitted, however, that his motivation was more complex than that. Put simply, it was said that he had stolen the money because he wanted to give his parents, who lived in India and who had provided him with a great deal of support over the years, the impression that he had made a success of his life in Australia.
It seems that the appellant had, prior to his offending, purchased a block of land and erected a house upon it. The first offence in 2008 was committed to pay debts. The further offences enabled the appellant to purchase a second block of land, build a larger house on it, fit the house out expensively, move into it and rent out the first house.
Mr Ian Joblin, a Forensic Psychologist, gave evidence on the plea that the appellant’s offending had been brought about, in part at least, by his desire to ‘repay’ his parents for their faith in him, and for having funded his studies in Australia.
The sentencing judge did not accept that as an adequate explanation. She referred to the appellant’s ‘rampant greed’.[1] She noted, in that regard, that he had used some of the money to install granite bench tops which, she noted, had cost some $26,000.
[1]DPP (Vic) v Akkala (Unreported, County Court of Victoria, Judge Harbison, 26 November 2010) (‘Sentencing Remarks’).
Her Honour characterised the appellant’s conduct as involving a significant breach of trust. She observed that his offending had been carefully planned, and that it involved a degree of sophistication. She also noted that offending of this kind was not easy to detect. An aggravating factor was the appellant’s use of his fellow employees, as well as his friends, to facilitate his wrongdoing.
The appellant ceased offending only when his actions were detected. Her Honour accepted that the appellant was ‘remorseful about the consequences of [his] offending’, but was ‘less confident’ that he was truly remorseful about the offending itself.[2]
[2]Sentencing Remarks, [30].
The sentencing judge noted that the appellant had been born in India, and that he was now a permanent resident of Australia. She noted further that his parents still reside in India. His father is a successful businessman. His mother, too, has had a prominent career in educational administration. Evidence was led on the plea to the effect that the appellant’s offending had brought great shame to his family.
The appellant had formerly been in a relationship, in this country, with a Vietnamese woman, with whom he has two children. Unfortunately, this relationship had come to an end, or at least been significantly interrupted, it seems because of his offending.
The sentencing judge further noted that the appellant had no prior convictions. Before coming to this country, he had obtained tertiary qualifications in commerce. Her Honour said that she took into account, as a mitigating circumstance, the fact that, by his offending, the appellant had ‘thrown away’ all his years of study, and all that he had achieved.
The Crown submitted, on the plea, that a head sentence of between four years and six months and five years and six months would be appropriate. The Crown further submitted that a non-parole period of between three and four years should be fixed. Counsel for the appellant, however, submitted that a head sentence of somewhere close to two years’ imprisonment would be more in line with current sentencing practice in this State.
The sentencing judge observed that although the appellant had pleaded guilty a single charge, it was ‘rolled-up’, and therefore involved a number of separate fraudulent acts. She said that this made it difficult to compare the appellant’s offending with the median sentences set out in the most recent Sentencing Snapshot for the offence of obtaining financial advantage by deception.
Her Honour accepted that the appellant had good prospects of rehabilitation.
The appellant relied upon two grounds in support of his application for leave to appeal. These were:
1. That the sentence imposed was manifestly excessive; and
2.That the learned sentencing judge erred in failing to accord sufficient weight to:
(a)the plea of guilty;
(b)the amount of restitution made;
(c)the genuine expression of remorse; and
(d)the other matters put in mitigation.
The appellant was granted leave to appeal on both these grounds. However, ground 2, as argued, was essentially nothing more than a restatement of ground 1.
In his written case, filed after leave to appeal was granted, counsel for the appellant sought to raise a new ground, which he described as ‘ground 2’. That proposed new ground is in the following terms:
(ii)The learned sentencing judge erred by failing properly to take into account the appellant’s reasons for committing the offence.
Detailed submissions relating to the proposed new ground were included in the appellant’s written case and also in the Crown’s response. The Crown has taken no objection to the appellant’s reliance on the proposed new ground. The parties addressed the matter orally during the hearing of the appeal. I would proceed on the basis that the appellant has the necessary leave. However, I see little substance in the new ground. In my view, the learned sentencing judge paid due regard to the evidence (including the expert evidence of Mr Joblin) concerning the appellant’s reasons for committing the offence, and in particular his asserted desire to demonstrate to his parents that he had repaid their support with material success in Australia.
However, in my opinion, ground 1 is made out. I consider that the sentence of four years and six months’ imprisonment, in the particular circumstances of this case, was beyond the range reasonably open to the sentencing judge.
As previously indicated, the appellant fell to be sentenced as a man with no prior convictions. More than that, he was able to call in aid a body of evidence of good character. He had shown himself, from the time of his arrival in this country, to be a diligent and hard-working employee.
The appellant ultimately pleaded guilty. As her Honour recognised, he was entitled to considerable credit for having done so. By his plea, he saved the community the cost of what might have been a lengthy trial. He also saved a number of witnesses from the inconvenience of having to give evidence in the proceeding.[3]
[3]I note that the sentencing judge declared that, but for the appellant’s plea of guilty, a sentence of five years’ imprisonment would have been imposed rather than four years and six months. It follows that the sentencing judge regarded the plea of guilty as meriting the reduction of only 10 per cent. Of course, the s 6AAA statement by her Honour cannot be used to support a claim of specific error; see Scerri v The Queen (2010) 206 A Crim R 1, 5-6 [23]. It is, however, a matter to be considered as part of the overall evaluation of the case, and particularly when determining whether the sentence imposed was within range: Lunt v the Queen; Huynh v The Queen; Sazdov v The Queen; LK v The Queen [2011] VSCA 56, [15] (Nettle JA with whom Neave and Tate JJA agreed).
There is one area where I have some difficulty with her Honour’s reasoning. As previously indicated, she was only prepared to make a qualified finding as to remorse. However, there was evidence before her, from Mr Joblin, to the effect that the appellant was ‘entirely remorseful’. Mr Joblin described him as having continually ‘berat[ed] himself’ for having led an ‘unrealistic lifestyle’, which, at least by implication, suggested that he had acquired a degree of insight into the wrongfulness of his actions, and regretted what he had done. It seems that her Honour read that evidence as suggesting that he was sorry for having been caught, but not sorry for his actions. It might be thought, in the face of Mr Joblin’s report, that that was a somewhat harsh finding.
It seems to me that the appellant was also entitled to some benefit for his having offered a measure of restitution, to the bank. He has actually repaid some $38,000 and has consented to an order under s 86(1) of the Sentencing Act 1991 for the balance, being some $274,000. Importantly, the sentencing judge found that he had good prospects of rehabilitation, a conclusion that seems entirely warranted.
What particularly strikes me about this sentence is that when one compares it with sentences imposed in several cases that seem broadly comparable,[4] a term of four years and six months’ imprisonment appears to be very much at the upper end of, if not actually beyond, relevant current sentencing practice.[5]
[4]The appellant relied upon, inter alia, R v Ralphs [2004] VSCA 33; R v Rollo [2006] VSCA 154; R v Galletta [2007] VSCA 177; R v Grossi (2008) 23 VR 500; and DPP (Vic) v Najjar [2009] VSCA 246. As regards Najjar, it was conceded by the appellant that the sentence in that case was merciful, and that it therefore provided little guidance.
[5]The Crown relied upon R v Samia [2009] VSCA 5 to support a submission that the appellant’s sentence in the present case was not manifestly excessive. In Samia, the appellant was dealt with for some 37 separate counts, in two different presentments. The offending took place over more than five years. With orders for cumulation, he received a total effective sentence of five years and 10 months’, with a non-parole period of three years and nine months. The Court of Appeal in that case rejected a submission that the overall sentence was manifestly excessive. However, the difficulty with treating it as a true comparator lies in the fact that the appellant in that case had to be sentenced separately for numerous offences, whereas the appellant in the present case managed to secure for himself the benefit of a single rolled-up charge. The fact that the appellant faced a maximum of ten years’ imprisonment in this case, whereas the appellant in Samia faced a theoretical maximum of some hundreds of years, makes the use of that case as a guide somewhat problematic. Similar comments may be made about R v Malcotti [2001] VSCA 97, to which the Crown referred in oral argument.
This in no way should be taken to suggest that the appellant’s offending was anything other than highly culpable. It involved a significant breach of trust. Moreover, I do not overlook the fact that this was a rolled-up charge.
Nonetheless, the appellant is entitled to be sentenced at least broadly in accord with the way in which like-offenders appear to have been treated in this State. Although the sentencing judge plainly gave careful consideration to all relevant factors in this case, a sentence of four years and six months for a first offender, for an offence that carries a maximum of only 10 years, in circumstances involving a plea of guilty, strikes me as difficult to justify.
I would allow the appeal. I would set aside the sentence imposed below. In lieu thereof, I would resentence the appellant to three years and six months’ imprisonment. I would fix a non-parole period of one year and nine months.
Pursuant to s 6AAA of the Sentencing Act 1991, I should indicate that, but for the appellant’s plea of guilty, I would have imposed a sentence of four years and six months’ imprisonment and fixed a non-parole period of two years and six months.
CAVANOUGH AJA:
I agree with Weinberg JA.
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