Arthur v The Queen
[2018] VSCA 58
•9 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0078
| SCOTT ALEXANDER ARTHUR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 March 2018 |
| DATE OF JUDGMENT: | 9 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 58 |
| JUDGMENT APPEALED FROM: | DPP v Arthur [2017] VCC 330 (Judge Lacava) |
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CRIMINAL LAW — Sentence — Appeal — Conspiracy to defraud — False information provided by accountant to lending institutions to obtain loans — Protracted fraud involving very large sums — Plea of guilty — Cooperation and assistance to authorities — Delay — Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A L Hands | Mr Allan McMonnies |
| For the Respondent | Mr B F Kissane QC | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA:
Introduction
Between July 2007 and December 2012, the appellant was a party to a massive fraud related to property development perpetrated on the Commonwealth Bank (‘CBA’) and Rhino Money (‘Rhino’). In total, the sum of $44,709,500.00 was fraudulently obtained ($15 million or so not having been recovered). Furthermore, between September 2009 and September 2013, the appellant was a party to another large fraud, in which the sum of $2,008,734.36 was obtained from four different lending institutions for financing the purchase of motor vehicles.[1]
[1]The prosecutor on the plea informed the sentencing judge that ‘the losses concerning the motor vehicle finance [are] not so clear … it’s hard to really put a figure on the actual amount of the loss’.
On 15 March 2017, the appellant, who is now aged 47 years,[2] pleaded guilty in the County Court to two charges of conspiracy to defraud.[3] Charge 1 related to the loans obtained for property development, and charge 2 related to the motor vehicle finance.
[2]The appellant’s date of birth is 4 July 1970.
[3]Conspiracy to defraud is an offence at common law. Pursuant to s 320 of the Crimes Act 1958, the maximum penalty is 15 years’ imprisonment.
Following a plea, on 20 March 2017, the judge sentenced the appellant to a total effective sentence of nine years’ imprisonment, with a non-parole period of six years, according to the following table:
Charge Offence Penalty Cumulation 1 Conspiracy to defraud (loan facilities) 8 years Base 2 Conspiracy to defraud (motor vehicle finance) 4 years 1 year Total effective sentence 9 years’ imprisonment Non-parole period 6 years Pre-sentence detention 5 days Section 6AAA statement 15 years’ imprisonment with non-parole period of 11 years Other orders · The appellant’s undertaking to assist law enforcement authorities after sentence is to be noted in the court’s records pursuant to s 5(2AB) of the Sentencing Act 1991
· Forensic procedure for taking of intimate sample pursuant to s 464ZF of the Crimes Act 1958
On 2 August 2017, the appellant was granted leave to appeal on a single ground asserting manifest excess, with particulars, formulated as follows: [4]
1. The head sentence is excessive;
2. The cumulation is excessive; and
3. The non-parole period is excessive.
4. The s.6AAA [of the Sentencing Act 1991] statement is excessive;[5]
in the circumstances of this case.
[4]Arthur v The Queen (Unreported, Supreme Court of Victoria, Court of Appeal, 2 August 2017, Priest JA) (‘Leave Reasons’).
[5]Although nothing turns on it, we note that it is to be doubted whether a complaint about a declaration under s 6AAA of the Sentencing Act 1991 as embodied in the ground may properly found a ground of appeal. See R v Burke (2009) 21 VR 471, 477 [30]–[31]; R v Howard [2009] VSCA 281, [15]–[16]; Scerri v The Queen (2010) 206 A Crim R 1, 5–6 [21]–[24]; Ciantar v The Queen [2010] VSCA 313, [29]–[30]; Saab v The Queen [2012] VSCA 165, [58]; Cummins (a pseudonym) v The Queen (2013) 40 VR 319, 326–7 [42]–[49]; Maybus v The Queen [2017] VSCA 125, [30].
Having now had the benefit of full argument on the appeal, we are of the opinion that the appeal should be allowed, and that the appellant should be resentenced in the manner we will later set out.
The appellant’s offending
The appellant was a qualified accountant. At relevant times, the appellant was a partner in an accounting firm, as were his co-accused, Robert Zaia (‘Zaia’) and Bill Jordanou (‘Jordanou’).
Both charges of conspiracy to defraud concerned the deceit of various financial institutions by the appellant, Zaia and Jordanou, in order to obtain loans.
In part, the prosecutor opened the facts to the sentencing judge as follows:[6]
[6]The written Summary of Prosecution Opening dated 14 March 2017 became Exhibit A.
... Between 2007 and 2012, [the appellant, Zaia and Jordanou] conspired to defraud the Commonwealth Bank of Australia by submitting false financial information and documentation in support of loan applications. These loans were primarily for property developments. This conspiracy totals 14 loans, with a total value of $44,709,500 [charge 1]. …
... Between 2009 and 2013, [the appellant, Zaia and Jordanou] conspired to defraud various lending institutions by submitting false financial information and documentation in support of loan applications. These loans were used for financing vehicle purchases. This conspiracy totals 12 loans, with a total value of $2,008,734 [charge 2]. ...
... [The appellant’s] role in this offending was preparing financial documents on instructions from Zaia and Jordanou. [The appellant] prepared, amongst other things,[[7]] false tax returns, ATO assessment notices and, on limited occasions, payslips which were used to support loan applications.
The purpose of preparing these false financial documents [was] to deceive the financial institutions into approving loans based on the belief that the applicants [for the loans] were in a better financial position than they actually were. Zaia and Jordanou dealt directly with the clients on whose behalf the loans were applied for. They then instructed [the appellant] to prepare the relevant false documents. The clients were not aware of the false documents being used on their behalf. [The appellant] did not actually benefit from his offending.
... [The appellant] is a qualified accountant. He first met Zaia in 1997 when [the appellant] worked as a bookkeeper in an accounting firm in Dandenong. At the time Zaia, a qualified accountant, was a partner in that firm. In 2002, [the appellant] and Zaia formed Zaia, Arthur & Associates Pty Ltd. The directors were Rita Zaia, [Zaia’s] then wife, and [the appellant].
In 2003, Zaia, Arthur & Associates moved to an office in Scoresby. Jordanou joined the firm around this time as a quasi-financial advisor and finance broker, with the intention of expanding the business.
Zaia and Jordanou expanded the business into property development by both sourcing and managing finance on behalf of clients and getting involved in developments themselves. They offered to facilitate the finance for clients and manage funds during the development, that is to facilitate draw-downs, pay invoices, accounting, et cetera.
Initially [the appellant] was under the impression that everything was above board. However, around 2007 he began to question the legitimacy of financials he was being provided and some of the accounts he was managing as a bookkeeper. Zaia and Jordanou were applying for finance on behalf of clients in order to develop properties. As part of the loan application they provided false information concerning annual salary and assets, amongst other things, in order to persuade financial institutions that the appellant [for the loan] would be able to service the loan.
[The appellant] was asked by Zaia and Jordanou to prepare false documents for use in applying for the loans. [The appellant] was provided with the figures to be used, usually by Zaia and occasionally by Jordanou, and he created false documents using the numbers provided. These false documents were used to support loan applications on behalf of clients of Zaia and Jordanou.
[7]During the plea hearing, counsel for the appellant objected to the inclusion of ‘amongst other things’. He told the judge that his client ‘prepared false tax returns, tax agreements and, on limited occasions, payslips, but that’s the limit of his offending’. Counsel, however, had ‘no issue with’ the rest of the summary, which he agreed was — apart from the one qualification — ‘an agreed statement of facts’.
The appellant was charged on 30 May 2014. At a committal hearing on 22 May 2015, he indicated that he would plead guilty to an ‘appropriate indictment’.
The plea hearing
During the plea hearing, immediately after the prosecutor had opened the case, counsel for the appellant called him to give sworn evidence. In the course of that evidence, the appellant agreed that the contents of a statement that he had made to police on 20 April 2015 were true and correct, and he undertook to give evidence against Zaia and Jordanou in accordance with that statement (Exhibit B).
Counsel for the appellant submitted that the appellant had wanted to plead guilty to an appropriate indictment from an early time. He provided a statement to police that accurately detailed his role and involvement in the offending. Significantly — and as was conceded by the prosecution — the appellant did not benefit financially from any of the false loan applications.
It was submitted that the appellant was ‘a backroom boy and his role was a minor one’. He was a ‘foot soldier’ and did what he was told to do. So much is supported by the opinion of forensic psychologist, Ian Joblin, in his report dated 2 July 2015 (Exhibit 2.7), that the appellant was a ‘highly submissive person which resulted in his being overborne’.
Counsel told the judge that the appellant had run a legitimate accounting business for many years prior to the offending. His role was to prepare tax returns, obtain the refunds and return refunded money to clients. During the offending period, the actual criminal activity only formed around 20 per cent of the business being transacted, the balance being legitimate.
With respect to the appellant’s personal circumstances, counsel informed the judge that the appellant’s parents separated when the appellant was in his teens. From age 17, he raised his younger brother. He changed schools regularly due to his family moving back and forth between Victoria and Western Australia. After high school, the appellant undertook a business course with an eye on accounting. Upon completing an accountant trainee position, the appellant commenced what was to be a long career in bookkeeping, accounting and taxation. Although the appellant holds an Advanced Diploma in Accountancy from Swinburne University, he is not a member of any professional association. The appellant was in a relationship for 17 years. He has a son with whom he has lost contact.
Ultimately, counsel made the somewhat optimistic submission that, given the weight to be given to the appellant’s very early plea and assistance to the prosecution, the Court should consider the imposition of a wholly or partially suspended sentence of imprisonment; or, alternatively, a community correction order (‘CCO’) with a ‘short, sharp gaol term’ of ‘something less than two years’.
The prosecutor submitted that the offending was too serious to permit the imposition of either a wholly or partially suspended sentence or a CCO.
General deterrence, the prosecutor submitted, is the primary factor in sentencing for this kind of offending. The gravity of the offending was sophisticated, calculated and serious, and involved an actual loss to CBA of $15,866,989. The appellant’s offending was not isolated. It was ‘something that was done over and over many, many times’ in the course of six years. Although there was no evidence of the appellant’s enrichment, the appellant was a willing participant and active co-conspirator who played a critical role in the fraud.
With respect to delay, the prosecutor submitted that cases involving financial crimes of this gravity commonly take years to prepare. The appellant could not reap the benefit of delay dating back to 2007, when the appellant continued to commit crime up until September 2013.
In response to the submission that the appellant would find imprisonment particularly onerous due to the need for protective custody, the prosecutor submitted that there was nothing in Mr Joblin’s report (or anywhere else) to support that proposition, although the submission that his assistance to police would ‘create difficulties’ was accepted.
Finally, the prosecutor drew the judge’s attention to another sentence imposed in the County Court which was said to have some very close parallels to the appellant’s case, and to be relevant to the ‘discount’ on sentence flowing from a willingness to assist police.[8]
[8]DPP v O’Brien [2014] VCC 859 (Chief Judge Rozenes). For a fraud involving over $22 million, the prisoner was sentenced to be imprisoned for nine years, with a non-parole period of five years and four months. Pursuant to s 6AAA of the Sentencing Act 1991, it was declared that, but for the plea of guilty, the judge would have imposed a sentence of 15 years’ imprisonment, with a non-parole period of 11 years.
The judge’s sentencing reasons
The judge concluded that the appellant’s offending was ‘very serious’, and made the following findings:
· the appellant’s role in the conspiracy was subordinate to that of the two co-accused, but was an ‘essential part of the success of the conspiracy’;
· his offending was ‘planned, sophisticated and in breach of trust and extended over more than five and a half years’;
· the amounts obtained under charge 1 were ‘very large’, as was the amount actually lost;
· the appellant’s moral culpability is high, in light of his knowledge of the fraudulent scheme and the fact that, as a qualified accountant, he held himself out to be a person who could be trusted with clients’ financial affairs; and,
· the offending involved a breach of commercial trust, striking ‘at the heart of commercial banking transactions’, white collar crime on this scale requiring ‘a stern sentence’ in light of the need for general deterrence.
Various factors were taken into account in the appellant’s favour:
· first, the appellant did not benefit financially from the offending, and ‘probably submitted to the will’ of the two co-accused;
· secondly, the appellant pleaded guilty at an early stage — in circumstances where a trial would have been long and expensive — indicating genuine remorse;
· thirdly, the appellant had provided a ‘high level of assistance to the authorities’, having signed a statement implicating the two co-accused and having undertaken to give evidence against them at their trial;
· fourthly, the appellant had an absence of prior convictions; and
· fifthly, the appellant had good prospects of rehabilitation.
The submissions on appeal
To support the contention that the sentence was manifestly excessive, the appellant submitted that Sentencing Advisory Council statistics reveal that for the relevant period the median sentence of imprisonment for conspiracy to defraud was two and a half years and the maximum sentence was five and a half years.[9] The maximum sentence, it was argued, is reserved for the worst example of the offence. This is, however, not a worst case.
[9]The statistics related to the period between 1 July 2011 and 30 June 2016.
It was also submitted on the appellant’s behalf that the judge either gave no weight, or gave insufficient weight, to:
· the delay in finalising the matter, which was ‘a significant issue in this case’;
· the appellant’s undertaking to give evidence against others; in that, whilst the judge said that the appellant was entitled to a substantial discount for his cooperation, such a discount was not reflected in the actual sentence imposed;
· the fact that the appellant would ‘do it hard’ in prison because he would be placed in protective custody;
· Verdins[10] considerations;
· the appellant’s prospects for rehabilitation, he having no relevant prior convictions; and
· the appellant’s pleas of guilty.
[10]R v Verdins (2007) 16 VR 269.
On the other hand, the respondent submitted that, when proper regard is had to the objective seriousness of the appellant’s offending, the matters personal to him and the applicable sentencing principles, the sentence imposed on the appellant ‘cannot be said to be wholly outside the range of sentences properly open’.[11]
[11]Acknowledging that they were not ‘factually similar’ to the present case, the respondent cited the following sentencing cases: Hoy v The Queen [2012] VSCA 49; Yusuf v The Queen [2010] VSCA 266; Porcaro v The Queen [2015] VSCA 244; and Schneider v The Queen [2016] VSCA 76.
In contending that the sentence is not manifestly excessive, the respondent in summary relied on the following factors:
· the objective seriousness of the offending was very grave (in particular, its duration; its sophistication; the breach of trust; the appellant’s important role; and the enormous sums of money involved);
· the impact of delay on the sentencing exercise was properly considered by the sentencing judge, and it was open to him to conclude that ‘the delay occasioned by the extensive investigation and preparation of the matter was not such that it should lead to a reduction in the [appellant’s] sentence’;
· the judge gave maximum benefit for the appellant’s undertaking to assist authorities;
· the judge in fact found that it was ‘highly unlikely’ that the appellant would re-offend and that accordingly his prospects of rehabilitation were ‘good’;
· although not mentioned specifically in the judge’s reasons for sentence, the judge had indicated in discussion that he ‘clearly accepted’ that because the appellant had undertaken to give evidence for the prosecution ‘his time in custody would be more difficult’; and
· the principles in Verdins have no application in the circumstances.
Discussion
There can be no doubt that the appellant’s pleas of guilty had very significant utilitarian benefit, and were indicative of genuine remorse. Any trial involving the appellant would have been lengthy, complex and difficult to prosecute. Indeed, during a mention in the County Court on 26 November 2015, the prosecutor informed the judge that the anticipated trial ‘is what they call a mega trial’ which would potentially occupy four months’ sitting time. The appellant’s pleas avoided that prospect (at least so far as the appellant was concerned).
Moreover, having read the appellant’s statement, Exhibit B, made as early as 20 April 2015, it is plain to us that the appellant was in a position to provide very valuable evidence against Jordanou and Zaia (and others), and, as we have said, had undertaken to do so. On the plea, the prosecutor accepted that the appellant was entitled to ‘a substantial reduction in sentence’, given that he had undertaken to give evidence, and the ‘reality’ is that imprisonment will be ‘harder’, in that the appellant will ‘have to be in protective custody’. In the circumstances, it cannot be gainsaid that the appellant was indeed entitled to a significant ‘discount’ on his sentence as a result of his undertaking and the value of his promised assistance.
The judge seems to have recognised that the value of the appellant’s cooperation should result in ‘maximum benefit’. In his sentencing remarks he observed:[12]
… There are in excess of 16,000 pages of depositions and there has been no contested committal. You are entitled to a reduction in sentence by pleading guilty at an early time and saving the substantial time and costs of what might have been a lengthy and expensive trial, perhaps even a number of trials. I also treat your pleas of guilty as being indicative of genuine remorse.
Importantly, you gave an undertaking before me to give evidence against Zaia and Jordanou on their trial. Your statement made on the 20 April 2015 is of substantial benefit to the prosecution. Your undertaking to assist the prosecution and give evidence against the others is a substantial mitigating factor in the sentencing of you. It is also indicative of remorse and acceptance by you of responsibility for the offending and shows your willingness to facilitate the course of justice. It is well recognised that cooperation is unlikely to be forthcoming without potential inducements. You provided a 16 page confessional statement to the police on 20 April 2015. That statement implicates you and your co-conspirators and details the method used to commit your deception. Your disclosures are full and frank and the statement will no doubt be of benefit to the prosecution of your co accused. You have accordingly provided a high level of assistance to the authorities and, as such, you are entitled to receive the maximum benefit for your cooperation.
[12]Emphasis added.
As it had transpired, the appellant did not actually plead guilty until 15 March 2017, having first indicated that he would plead guilty to an appropriate indictment when he faced committal almost two years earlier, on 22 May 2015[13] (and having first been charged a year before that, on 30 May 2014). At that time, the appellant’s counsel had indicated to the committing magistrate that the appellant would plead guilty to an ‘appropriately drafted’ indictment. That was the position that his counsel maintained at mentions before judges of the County Court on 27 August and 26 November 2015. Given those circumstances, the delay between his first being charged in May 2014, and his being sentenced in March 2017, cannot be sheeted home to the appellant. Once more, in our opinion, he was entitled to a significant amelioration of his sentence as a result of the delay.
[13]There were committal mentions on 17 September, 20 October, 11 November and 10 December 2014, and on 23 February 2015. A special mention was held on 27 March 2015, and there was an adjournment on 20 April 2015. The appellant was committed on 22 May 2015.
Contrary to our view of the significance of the delay, however, the judge seems to have reduced the benefit that the appellant should have received. In his sentencing remarks, he said:[14]
Your counsel submitted that there has been substantial delay in bringing this matter before the court. He submitted that you have had this matter hanging over your head for nearly three years and that accordingly I should reduce the sentence. Whilst I accept there may have been some delay in the charges coming on for trial, I am not convinced that delay is a significant matter involved in the sentencing of you. This offending occurred over a long period of time and was not detected until about May of 2014. Whilst you indicated initially that you would plead guilty and you did give a confessional statement in April 2015 you did not finally agree to plead until last Tuesday. This was a trial up until Tuesday. The investigation here was extensive and the preparation for trial extensive. They are the matters that have occasioned some delay but I am not convinced that they should reduce the sentence. The fact is such large fraud trials cannot be disposed of quickly in the normal working of the court.
[14]Emphasis added to this and passages following.
With due respect to his Honour, the appellant’s position — put repeatedly through his counsel from the time of his committal — was always that he was prepared to plead to an appropriately formulated indictment. Ultimately, he did just that in March 2017, having made a statement some two years earlier implicating himself and others. In those circumstances — and contrary to the judge’s expressed view — the appellant was entitled to a significant benefit for the delay. It was observed in Cockerell:[15]
… from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger,[16] there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.
[15]R v Cockerell (2001) 126 A Crim R 444, 447 [10].
[16][R v Schwabegger [1998] 4 VR 649, 659–60].
As the authorities recognise, delay intervening between the offending and the final resolution of criminal proceedings can, in recognised circumstances, be a significant factor going in mitigation of sentence[17] (although delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender).[18] The fact that the ‘preparation for trial’ was ‘extensive’ was no reason for denying to the appellant the full benefit of the delay’s mitigating influence. And it is to be noted, in any event, that extensive preparation for trial was necessary in the cases of Jordanou and Zaia, who did not follow the appellant’s example and indicate a guilty plea at an early stage.
[17]R v Cockerell (2001) 126 A Crim R 444, 447 [10]; R v Tiburcy (2006) 166 A Crim R 291, 292–3 [3]; R v Merrett, Piggot and Ferrari (2007) 14 VR 392, 400 [35]; Arthars v The Queen (2013) 39 VR 613, 620–22 [25]–[29] (‘Arthars’).
[18]Arthars, 621 [28].
A remarkable feature of the appellant’s offending is that his were not crimes of greed. He appears to have derived no financial benefit from the offending, the prosecutor conceding on the plea that ‘there is no evidence that [the appellant] was enriched in any way’. Indeed, we do not take the prosecution to have traversed any aspect of the appellant’s statement to police, including the following part:
Bill [Jordanou] and Rob [Zaia] were responsible for multiple fraudulent loans across years. On instruction I would prepare false financials. I never derived any benefit from this. People ask me and don’t believe me when I tell them I didn’t, but it’s true. I got nothing. My financial situation is poor and I have recently been declared bankrupt. I knew that my knowingly preparing false financial material for Bill and Rob was wrong. I cannot explain it. I didn’t know how to deal with it. I’m not a confrontational person. I was intimidated. I didn’t want to lose the business. I thought that if those two fall over, I fall over. …
Furthermore, the judge said that he generally accepted the opinion of Mr Joblin, the psychologist, including the following:
[The appellant] had difficulty expressing disagreement with Mr Zaia and Mr Jordanou because of the fear of the loss of support or approval. Again, this is his perception of the situation and may have been contradicted by others. His willingness to comply with what was requested of him, as outlined in the statement, indicates further the lengths to which he would go to secure the support of others, even doing things which to him were inappropriate and unpleasant. In my opinion [the appellant] is a man of average intellect. He is not to be considered superior but is not defective in my opinion. He is not psychotic. He has no medical history which will contribute to psychological issues. It is difficult to make a clinical diagnosis in relation to Mr Arthur and his presentation but it is strongly my opinion that there is a degree of inadequacy in his self-perception. His choice, for example, to avoid face to face interaction with major clients suggests a self-perception of being less competent. As indicated above, it is my opinion [the appellant] is a highly submissive person which resulted in his being overborne. …
When leave to appeal was granted to the appellant, it was observed:[19]
Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is excessive. A sentence is, or is not, unreasonable or plainly unjust; excess is, or is not, plainly apparent. To conclude that a sentence is manifestly excessive is not a statement of reasons for arriving at that conclusion.[20]
[19]Leave Reasons, [14].
[20]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J). See also DPP v Werry (2012) 37 VR 524, 534 [52]–[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).
The appellant has persuaded us that the individual sentences and the total effective sentence (effected by the order for cumulation) are each manifestly excessive, as is the non-parole period.
It must be acknowledged that the appellant’s offending was protracted and serious, and involved very large sums (a significant part of which was never recovered). The offending, as the judge correctly said, struck ‘at the heart of commercial banking transactions’; and the appellant’s role was an important one, in what was planned and sophisticated offending. As we have indicated, however, a remarkable feature of the appellant’s offending is that he does not appear to have been motivated by greed. Rather, it seems that he is a highly submissive person, and, as a result of his submissiveness, he was overborne by others with criminal inclinations.
Further, as appears from the available material — and as the judge accepted — the appellant was remorseful. His plea of guilty should, in our view, be regarded as early, in circumstances where a trial would have been very long, very complex and very expensive. And very significantly, the appellant had cooperated and provided a high level of assistance to the authorities, in that he had provided a statement implicating the co-conspirators (and others) and had given an undertaking to give evidence against them at their trial.[21]
[21]See R v Freeman (2001) 120 A Crim R 398, 405 [37] (Coldrey AJA, with whom Brooking and Tadgell JJA agreed); DPP v Cooper [2018] VSCA 21, [44]–[45] (Weinberg, Priest and Beach JJA).
Manifest excess is, as earlier observed, a conclusion which does not depend upon the attribution of identified specific error in the reasoning of the sentencing judge. That said, one can discern from the judge’s reasons that he was ‘not convinced’ that the delay ‘should reduce the sentence’. In our view, in that respect his Honour erred. It is probable that the sentence imposed is at least partly attributable to that error.
Moreover, had the judge given proper weight to the appellant’s cooperation and assistance to authorities, in our opinion that would have been reflected in a significantly more lenient sentence.
Finally, we venture to repeat some of what was said when leave to appeal was granted:[22]
… Of course, one must be cautious not to be swayed by naïve fractions,[23] but I note that the sentence on charge 1 represents more than fifty per cent of the available maximum penalty, and the total effective sentence equates to sixty per cent of the statutory maximum,[24] supporting my impression that the contention of manifest excess is reasonably arguable.
[22]Leave Reasons, [17].
[23]DPP v Aydin [2005] VSCA 86, [7] (Callaway JA).
[24]This is in circumstances where, although there were two charges to reflect the two different kinds of finance involved, it might be argued that the [appellant’s] offending was a single course of conduct.
For these reasons, we would allow the appeal. The appellant should be resentenced as follows:
· Charge 1 – five (5) years and six (6) months’ imprisonment;
· Charge 2 – two (2) years’ imprisonment.
We would order that six months of the sentence on charge 2 should be served cumulatively with the sentence on charge 1. The total effective sentence is thus six (6) years’ imprisonment. The appellant should serve the period of four (4) years’ imprisonment before being considered eligible for release on parole.
Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for his pleas of guilty, we would have sentenced the appellant to be imprisoned for 10 years, and would have fixed a non-parole period of seven (7) years.
We would declare appropriate pre-sentence detention, and otherwise would confirm all other orders and declarations made by the County Court.
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