Boyton v The Queen
[2016] VSCA 13
•22 February 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0198
| JOASH BOYTON |
| v |
| THE QUEEN |
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| JUDGES: | WHELAN and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 February 2016 |
| DATE OF JUDGMENT: | 22 February 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 13 |
| JUDGMENT APPEALED FROM: | [2015] VCC 1341 (Judge McInerney) |
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CRIME – Sentence – Multiple electronic commerce-based fraud offences, identification fraud offences and perjury offence – Total effective sentence of four years nine months’ imprisonment with two years six months’ non-parole period imposed – Whether manifestly excessive – Applicant between 17 and 20 years of age at time of offending – Full restitution of monies lost made by applicant – Excellent prospects of rehabilitation – Crown conceded manifest excess – Application for leave to appeal granted – Appeal allowed – Re-sentenced to one year imprisonment with three year Community Correction Order.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Tiwana | Dribben & Brown |
| For the Respondent | Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
On 12 August 2015 the applicant pleaded guilty to 15 charges of obtaining financial advantage by deception, three charges of obtaining property by deception, six charges of attempting to obtain financial advantage by deception, one charge of attempting to obtain property by deception, one charge of perjury, one charge of conspiracy to cheat and defraud, three charges of using identification information, one charge of supplying identification information, one charge of possession of identification information, one charge of making identification information, and one charge of possession of data with intent to commit a serious computer offence. On 22 September 2015 he was sentenced in the County Court on these 34 offences to a total effective term of imprisonment of four years and nine months. A non-parole period of two years six months was fixed. Annexed to these reasons is a schedule setting out the sentences imposed for each of the offences and other orders which were made.
At the time of sentence the applicant was 23 years of age. He had no prior convictions. He committed the offences while aged between 17 and 20. The police investigation was extensive and lengthy as a result of the complexity of the offending. The offending involved sophisticated use of computers and the internet, and extensive use of stolen credit card data obtained through the internet.
The applicant now seeks leave to appeal on the ground that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. The application was argued and heard on the basis that if leave were granted the appeal itself would be determined forthwith.
Before turning to the circumstances of the offending it is useful to begin by outlining the applicant’s personal background.
Personal background
The sentencing judge described the applicant as having had a ‘shackled upbringing’.[1] His parents were members of a religious group and their beliefs meant that the applicant’s childhood was socially isolated. He was home schooled. He had limited friends. He was not permitted to watch television or go to the cinema.
[1]DPP v Boyton [2015] VCC 1341 [62] (‘Reasons’).
The applicant has a sister and two brothers who are all younger than him. The family moved a number of times throughout Australia whilst he was young and their circumstances were financially difficult, and at times very difficult. The sentencing judge was told that part of the motivation for his offending was to assist his family in meeting bills.
The applicant formed a relationship with a girl from a similar although less restricted background. She was his girlfriend during the period of his offending, but she had been entirely ignorant of it. They have since married.
Whilst television and the cinema were forbidden, the internet was an outlet which had been available to the applicant throughout his youth. He told a psychologist who he attended for counselling after he had been apprehended that his parents had not understood much about the internet.
The applicant has never had any issues with drug or alcohol abuse.
The offending
The applicant’s offending began when he was 17 years old.
In 2009 he used false documents to create a PayPal account in his own name. He then published 44 advertisements on the internet site ‘Gumtree’ offering cheap air fares. A person answered one of these advertisements and paid the applicant $950. The applicant then purchased the ticket which that person wished to buy using stolen credit card data. The fraud was detected and the ticket was cancelled. When the person affected complained, the accused refunded the $950. The advertisements which the accused placed constituted an offence of attempting to obtain financial advantage by deception (charge 1) to which he was sentenced to 18 months’ imprisonment. The transactions concerning the $950 constituted an offence of obtaining financial advantage by deception (charge 2), in relation to which the applicant was sentenced to 12 months’ imprisonment. No part of these sentences was cumulated on the eventual base sentence.
The next two offences occurred when the applicant had just turned 19. In December 2010 he purchased a camera online for the sum of $429 using stolen credit card data. This fraudulent purchase was detected by police. The applicant made an elaborate false statement to the police. That statement contained an acknowledgement that the statement was true and correct and made in the belief that a person making a false statement in the circumstances was liable to the penalties of perjury. The credit provider refunded the $429 to the seller of the camera. This conduct constituted an offence of obtaining property by deception (charge 3) for which he was sentenced to four months’ imprisonment. It also constituted an offence of perjury (charge 4) for which he was sentenced to nine months’ imprisonment. No order for cumulation was made in relation to the four month term. A period of three months was ordered to be cumulated in relation to the nine month term.
In 2011, while he was still 19 years old, the applicant commenced a series of offences relating to the sale or purported sale of electrical and white goods through eBay.
The first offences of this kind were committed in May 2011. The applicant created false PayPal and eBay accounts. In substance, the scheme which he perpetrated was one whereby he advertised electrical and white goods and then, when he had attracted a ‘customer’, he would use stolen credit card data to source the item from a retailer with a view to having the item delivered directly to the person with whom he had dealt on eBay. There were eight transactions of this type. The goods concerned had a recommended retail price or an agreed price of between $1,418 and $3,999. The payments which the applicant sought to obtain varied between $510 and $1,556. Five of the transactions did not go ahead and no loss was sustained. Three of the transactions did go through. On those three transactions, one of the eBay ‘customers’ lost $869, an online appliance store lost $2,198, and another eBay ‘customer’ eventually had to pay $2,244 for an item which they had agreed to buy for $1,556.
This conduct constituted offences of attempting to obtain financial advantage by deception (charge 5 — the five transactions which did not proceed) for which the applicant was sentenced to nine months’ imprisonment, obtaining financial advantage by deception (charge 6 — the three transactions which proceeded) for which the applicant was sentenced to 18 months’ imprisonment, and two charges of obtaining property by deception and attempting to obtain property by deception (charges 7, 8 and 9 — the goods involved in the various transactions) for which he received a term of imprisonment of 18 months on each of the counts of obtaining financial advantage or property and nine months for the attempt. None of the sentences imposed for these offences were cumulated.
The applicant then changed his means of operation in relation to the fraudulent eBay activities. Instead of using an account he had created, he advertised for persons with existing eBay accounts to agree to become commission agents selling items through eBay for a false business entity the applicant called ‘Electronic Solutions Overstock’. The first eBay seller drawn into this scheme was an 18 year old who answered an ad placed by the applicant on the website ‘Career One’. The applicant used an alias. In this scheme there was no intention to actually obtain the goods and deliver them. The applicant used bank accounts in false names for this scheme. The transactions involving this 18 year old eBay ‘commission agent’ totalled 36 in number. A total sum of $31,472.30 was obtained, $20,878.30 by direct payment into one of the bank accounts and $10,594 through PayPal. Those who paid through PayPal obtained refunds. There were eight of them. The 28 ‘customers’ who made direct payments lost the sums they paid. This conduct constituted an offence of obtaining financial advantage by deception (charge 10) for which he was sentenced to 30 months’ imprisonment. Six months of that term was cumulated on the base sentence.
The next offences concerned a 21 year old ‘commission agent’ who similarly agreed to sell for ‘Electronic Solutions Overstock’. He was attracted by an ad placed by the applicant on the website ‘NowHiring’. Fifty-nine transactions were undertaken through this ‘commission agent’. The applicant had an identified accomplice in these transactions. The total amount obtained was $35,838.10. Forty-one ‘customers’ paid $25,389.10 to PayPal which was refunded. Eighteen ‘customers’ paid $10,449 by direct bank transfer which was lost. The applicant used stolen credit card details to pay $99 for the NowHiring advertisements and $2,500 for eBay listing fees. The ‘sales’ constituted an offence of obtaining financial advantage by deception (charge 12) for which the applicant was sentenced to 30 months’ imprisonment. This was the base sentence. The use of the stolen credit card details to pay for the advertisements and the listings was an offence of attempting to obtain financial advantage by deception (charge 11) for which the applicant was sentenced to six months’ imprisonment and obtaining financial advantage by deception (charge 13) for which he was sentenced to 18 months’ imprisonment. No part of the sentences other than the base sentence was cumulated.
The next eBay ‘commission agent’ was a 34 year old mother of two who answered an ad placed by the applicant on the Career One website in September 2011. Thirty-four transactions were processed through this agent and $29,468 was obtained. Fourteen ‘customers’ paid $13,535 via PayPal and 20 paid $15,933 by direct bank transfer. The PayPal payments were refunded. The direct payments were lost. In addition, there were four transactions which did not go through before the ‘commission agent’ discovered the fraud. These transactions totalled $2,396. The particular ‘commission agent’ involved in these offences made a victim impact statement setting out the effect which her involvement with the applicant had had on her. She had received threats and abuse from disaffected customers. She had been banned by eBay. She incurred liability for fees with eBay and she suffered a loss of confidence and general upset. This conduct constituted offences of obtaining financial advantage by deception (charge 16 — the 34 sales) for which the applicant was sentenced to 30 months’ imprisonment of which six months was cumulated, obtaining financial advantage by deception (charge 14 —eBay listing fees of $1,500) for which the applicant was sentenced to 18 months’ imprisonment, obtaining financial advantage by deception (charge 15 — agreed commission payments of $1,758) for which the applicant was sentenced to 18 months’ imprisonment, and attempting to obtain financial advantage by deception (charge 17 – the four transactions that did not proceed) for which the applicant was sentenced to nine months’ imprisonment.
The final eBay ‘commission agent’ used by the applicant answered an ad placed by the applicant on the website ‘CareerMums’. The method of operation was substantially similar to that employed in relation to the charges to which I have just referred. Nine transactions were affected before the ‘commission agent’ became suspicious and took down the listings she had placed on eBay. Four of the ‘customers’ never paid, having become suspicious. Five ‘customers’ paid $5,595. Four of these people had the payments refunded through PayPal. One ‘customer’ was reimbursed $999 by the ‘commission agent’ herself. This conduct constituted an offence of obtaining financial advantage by deception (charge 18 — the five transactions where payment was made) in relation to which the applicant was sentenced to 18 months’ imprisonment, and an offence of attempting to obtain financial advantage by deception (charge 19 — the four transactions where no payment was made) in relation to which the applicant was sentenced to nine months’ imprisonment. No cumulation was ordered on these sentences.
At around the same time as the applicant was committing the offences related to ‘Electronic Solutions Overstock’ the applicant used stolen credit card details to pay for a service known as a ‘virtual office’. He used the ‘virtual office’ for about eight days before the fraud was identified and the service cancelled. This conduct constituted an offence of obtaining financial advantage by deception (charge 20) for which the applicant was sentenced to six months’ imprisonment. No order for cumulation was made.
By December 2011 the applicant, who had just turned 20 years of age, was being monitored by police. He was detected accessing a website on which he posted credit card information belonging to British credit card holders. This conduct constituted an offence of using identification information (charge 21) in relation to which the applicant was sentenced to nine months’ imprisonment. No order for cumulation was made.
In December 2011 the applicant committed four offences of obtaining financial advantage by deception similar to those he had committed in 2009 concerning airline tickets. The applicant advertised cheap air tickets and when a ‘customer’ had been attracted he used stolen credit card data to buy the tickets. The ‘customer’ would then pay by direct transfer having confirmed through the applicable airline’s website that the ticket had indeed been purchased. All the tickets were cancelled once the fraud was detected and in each case the ‘customer’ lost the amounts paid. The amounts lost were $2,000, $1,400, and two amounts of $3,600. One of the customers who lost $3,600 made a victim impact statement. The cancellation in her case occurred in the middle of a family holiday overseas causing considerable disruption, anxiety and upset. This conduct constituted three offences of obtaining financial advantage by deception (charges 22, 23 and 24) in relation to which the applicant was sentenced to 18 months’ imprisonment on each, and a further charge of obtaining financial advantage by deception (charge 25 — the victim who submitted the victim impact statement) in relation to which the applicant was sentenced to 24 months’ imprisonment. Three months of the 24 month sentence was cumulated. No other orders for cumulation were made.
In January 2012 the police monitored the accused using an internet credit card checking tool in order to check the currency of stolen credit card data. This conduct constituted the offence of using identification information (charge 26) in relation to which the applicant was sentenced to nine months’ imprisonment. No order for cumulation was made.
In January 2012 the applicant attracted a new eBay ‘commission agent’. Two transactions were undertaken through this agent. The payments totalled $1,448, were made through PayPal and were refunded when the fraud was detected. The ‘agent’ listed goods totalling $105,109 before the police intervened. This conduct constituted an offence of obtaining financial advantage by deception (charge 27 — the two transactions) in relation to which the applicant was sentenced to 18 months’ imprisonment, and an offence of attempting to obtain financial advantage by deception (charge 28 — the $105,000 in listings) in relation to which the applicant was sentenced to a term of imprisonment of 24 months. An order for three months’ cumulation on the 24 month term was made. No cumulation was ordered on the other sentence.
In January 2012 the applicant made a series of donations to charities in small amounts using stolen credit card data for the purpose of testing the currency of that data. This conduct constituted an offence of using identification information (charge 29) for which he was sentenced to a term of imprisonment of six months. No order for cumulation was made.
At around the same time the applicant and an unknown co-offender undertook a series of steps in an attempt to establish a credible veneer for a false entity they named ‘Ausmachinery Sales’ which they intended to use for the purpose of engaging in fraudulent transactions in relation to the ‘sale’ of machinery. The scheme failed because potential buyers contacted by the applicant and his unknown co-offender were not deceived. This conduct constituted an offence of conspiracy to cheat and defraud (charge 30) in relation to which the applicant was sentenced to six months’ imprisonment. No order for cumulation was made.
In January 2012 the police monitored the applicant supplying stolen credit card information to others over the internet. This conduct constituted an offence of supplying identification information (charge 31) for which the applicant was sentenced to nine months’ imprisonment. No order for cumulation was made.
In February 2012 the police raided the applicant’s home and seized his computer equipment.
On the seized equipment police found a database containing 160,000 entries with credit card information, 10 images of stolen passports, and 12 images of stolen personal financial information in relation to nine individuals. This constituted an offence of possession of identification information (charge 32) in relation to which the applicant was sentenced to 15 months’ imprisonment. Three months was ordered to be cumulated on the base sentence.
The police also located on the seized equipment a bank debit card which had been electronically altered. This constituted an offence of making identification information (charge 33) for which the applicant was sentenced to nine months’ imprisonment. No order for cumulation was made.
Finally, police analysis of the equipment seized revealed the presence of programmes designed to infiltrate computer systems and exploit their vulnerabilities, software sometimes described as ‘malware’. This constituted an offence of possession of data with the intent to commit a serious computer offence (charge 34) for which the applicant was sentenced to 15 months’ imprisonment. An order for three months’ cumulation was made.
Repayment of losses
Prior to sentence the total of the losses as a result of the applicant’s offending which had not been refunded was $50,057. The applicant and his wife had saved a sufficient amount prior to the sentence to pay this sum, and they have done so.
Relevant events after the offending
Between his apprehension and his sentence the applicant married his then girlfriend. He left his family home and established a new home with her. He was initially employed full time in computer and marketing roles. He and a business partner then established an internet-based quote-comparison service for solar panels, in which his new wife and he, together with his business partner and others, were employed.
In October 2014 the applicant began consulting the forensic psychologist, Ms Pamela Matthews. He consulted her for counselling and for treatment. Prior to pleading guilty he had seen her on nine occasions.
Ms Matthews prepared a report for the sentencing judge.[2] Ms Matthews reported as follows:
Mr Boyton does not present with mental illness, personality disorder including antisocial personality disorder or cognitive impairment. He has however developmentally had a very sheltered, socially isolated/restricted childhood and at the time of the matters before the Court was developmentally in the early to mid-phase of adolescence lacking in life and worldly experience. He was also felt proud [sic] but further considerably stressed by his parent’s sudden expectations that he take on adult responsibilities for financially providing for the family: ‘trapped … pressured … didn’t want to let my family down’. However once caught up in the charade he found it difficult to exit, he felt he had no one he could talk to or seek help from, ‘overwhelmed … suicidal … weak … embarrassed … lonely … isolated … resentful, unsupported’.
[2]Exhibit 1.
Ms Matthews expressed the opinion that the applicant’s offending was:
consistent with adolescent difficulties in judgment and problem solving combined with still being dependent upon family support and still bound by family mores and expectations, including the authoritative expectations of his parents and the critical, punishing nature of his mother’s parenting style, while trying to establish psychosexual, financial and identity separation.
Ms Matthews further observed:
Mr Boyton is now a young adult, who in the writer’s view has managed a difficult transition from adolescence into adulthood and come through not unscathed but able to take on the responsibilities of adulthood because he has the clear headed support of his young wife and her family. He is in hindsight as he examines his behaviour of 17–20 years regretful and wanting to make amends. He has positively engaged in treatment and ensured that he has surrounded himself with sensible supports and advisors. In the writer’s view Mr Boyton’s adjustment over the last three years has been highly positive and is a good prognostic indicator for a low risk of re-offending and a bright future.
Shortly after his apprehension the applicant was diagnosed as suffering from type 1 diabetes for which he requires insulin injections several times a day.
The plea hearing
The principal matters in mitigation relied upon on the applicant’s behalf at the plea hearing were:
(a) the applicant’s youth. The offences were committed between the ages of 17 and 20. He was 23 at the time of sentence;
(b) the absence of prior convictions. It was not alleged that there were any subsequent matters or any other matters pending;
(c) an early guilty plea;
(d) genuine remorse;
(e) the repayment of the unrefunded losses totalling $50,057;
(f) the steps taken by the applicant to further his rehabilitation whilst awaiting sentence. He had undergone psychological treatment at his own expense, been engaged in full-time work, got married and established a home of his own, and had not been involved in any further offending or trouble of any nature; and
(g) his unusual, socially isolated and difficult background. In that regard particular reliance was placed upon evidence given at the plea by the applicant’s wife.
The applicant’s wife wrote a letter in support of her husband which was tendered on the plea and she gave oral evidence as well. In her letter and in her evidence she described what she had observed of the very restrictive and oppressive environment in which the applicant had grown up. When she met him he was naïve, with very limited general knowledge, and socially very awkward. She said she considered the applicant’s mother to have been more than strict, and to have been cruel. She also spoke of the applicant’s intense shame and remorse concerning his offending, of the benefit he had received from counselling, and of the new life they had made together.
Written references in very positive terms were also tendered from the applicant’s father–in-law, from a psychologist in the church he and his wife now attend, from business colleagues including his business partner, and a close friend.
Counsel on behalf of the applicant submitted at the plea hearing that the appropriate disposition was a community correction order (‘CCO’) without any term of imprisonment. Reliance was placed upon this Court’s decision in Boulton v The Queen.[3]
[3][2014] VSCA 342 (‘Boulton’).
The prosecution submitted at the plea hearing that all of the matters put in mitigation were properly to be taken into account. It was submitted, however, that, given the seriousness of the offending, a disposition which required a period of immediate imprisonment was required. The prosecutor submitted that that immediate term of imprisonment could be combined with a CCO.
Prior to the imposition of sentence the judge requested an assessment by Corrections Victoria. This assessment was a pre-requisite to the making of a CCO.[4] The assessment was undertaken. The applicant was assessed as suitable for a CCO. The recommended conditions were community work[5] and supervision.[6]
[4]Sentencing Act 1991 s 37. An assessment is not required if the sole proposed condition is unpaid community work of up to 300 hours: s 8A(3).
[5]Sentencing Act 1991 s 48C.
[6]Ibid s 48E.
Sentencing reasons
The sentencing judge began his reasons by referring to the applicant’s age both at the time of sentence and at the time of the offences.[7] The judge referred to the summary of prosecution opening which set out the relevant facts in relation to the offending, and he summarised some of the circumstances of the offences.[8] He made an error in the course of that summary which the prosecutor corrected.[9]
[7]Reasons [1], [3].
[8]Ibid [5]–[54].
[9]Ibid [54]–[58].
The sentencing judge described the applicant’s upbringing, and referred to Ms Matthews’ report and to the evidence given by the applicant’s wife.[10] The sentencing judge observed that he had found the applicant’s wife to be a ‘very impressive witness’.[11] He referred to evidence she had given about her reaction to the discovery of what her then boyfriend had been involved in, and to the life that they had established together, professionally and personally, since their marriage.[12]
[10]Ibid [61]–[81].
[11]Ibid [77].
[12]Ibid [79]–[81].
The sentencing judge then stated that despite the applicant’s ‘socially deprived life’ the applicant ‘knew right from wrong’.[13] He said the offending was ‘determined’ and ‘very calculated and meticulously planned’, taking place over a ‘substantial’ period, and he emphasised that the applicant was the principal offender.[14] He took into consideration the applicant’s steps to rehabilitate himself, and he noted that this should be rewarded,[15] that the applicant had not reoffended, that the applicant had no prior convictions, that the applicant is remorseful and has family support.[16] He took into account the utilitarian value of the plea of guilty, but noted that this was to be put into perspective given the ‘arduous’ investigation the police undertook to uncover the offending. He noted the positive assessment from Corrections Victoria as to the applicant’s suitability for a CCO.
[13]Ibid [91].
[14]Ibid [100]–[102].
[15]Ibid [97]–[99] citing R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 403 [49].
[16]Reasons [92]–[95].
The sentencing judge then referred to the submissions made on the applicant’s behalf and to the submissions made by the prosecutor. In relation to the prosecutor’s submission, the sentencing judge said the following:[17]
The Crown in response to such a submission, submitted that this was a case which required immediate imprisonment because of — notwithstanding the youth of the offender, the youthful time that these matters took place and his background, this conduct was brazen and deceitful. To use her words:
‘His fraudulent actions were gobsmacking’.
She submitted, as I said, immediate imprisonment was the appropriate penalty that this Court should pass.
[17]Ibid [89]–[90].
The sentencing judge then addressed other submissions made and referred in particular to observations by this Court in relation to white collar crime.[18]
[18]Amongst other cases, he referred to R v Zarrinkafsh [2005] VSCA 22 the circumstances of which bear some similarity to the circumstances here, and to DPP v Bulfin (1998) 4 VR 114, concerning ‘white collar crime’ generally.
Before imposing the sentences on the particular offences the sentencing judge concluded in the following terms:[19]
It is necessary as I said, to effect a very difficult balance in these circumstances. Mr Boyton, unfortunately for you, my consideration of all the facts and authorities leave me to conclude that the only sentence appropriate in regard to your criminality is one of immediate imprisonment. I say that despite the strong factors that I have referred to and identified, which have been put to me by [counsel for the applicant]. It is necessary in regard to the totality of your offending, and its severity, to pronounce a sentence which denounces such offending and effects the principles of both general deterrence, punishment, and in your case, specific deterrence.
The grave nature of this offending, its degree, the length of time over which it took place, its sophistication and the steps taken by you to hide your role in it, are such that in my view, it is not appropriate to impose a Community Corrections Order, or a suspended sentence. I come to such conclusion doing as best I can, and being merciful to you, understanding that this is a first time that you come before a Court.
[19]Reasons [120]–[121].
After the sentence was concluded the following interchange took place:
[COUNSEL FOR THE APPLICANT]: … I think the — your Honour indicated that the Crown submitted (indistinct) immediate custodial sentence. As I understand it, the submission was that a sentence of imprisonment in combination with a Community Corrections Order was open. That was the submission made – – –
HIS HONOUR: Is that correct Madam Prosecutor?
[PROSECUTOR]: That’s right, your Honour.
HIS HONOUR: Yes, I apologise. My notes are some time since and there has been a lot of water under the bridge, but I have not got that on my notes of what was your submission, so I will amend that accordingly.
[PROSECUTOR]: Thank you your Honour.
HIS HONOUR: That is, your submission was immediate imprisonment was necessary. Whether it is combined with a Community Corrections Order was a matter for the court.
[PROSECUTOR]: I think it was that it could be.
HIS HONOUR: It could be.
[PROSECUTOR]: Yes.
HIS HONOUR: That is what I mean.
[PROSECUTOR]: That’s right.
HIS HONOUR: Whether it was a matter for the Court.
[PROSECUTOR]: Indeed.
HIS HONOUR: Well I have clearly rejected that submission.
[PROSECUTOR]: Yes indeed.
Submissions
The sole proposed ground of appeal is that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
In the prosecution response to the written case filed in support of the application for leave it was conceded that the sentences imposed on many of the individual offences, and the total effective sentence and the non-parole period, were all manifestly excessive. The prosecution’s response indicated that this position had been reached as a consequence of a consideration of a number of ‘salient’ features of the case. Those features included the applicant’s youth at the time of the offending and at the time of sentence, the absence of prior convictions, and the fact that the financial losses which had been sustained and not recovered had been paid by the applicant himself. The prosecution response contained the observation that the sentencing judge’s omission to make any reference to the possibility of a sentence involving a combination of imprisonment and a CCO during the sentencing remarks (before the interchange which occurred after sentence, which I have quoted) was striking given the submissions made by the prosecutor at the plea hearing.
At the outset of the hearing of the application before us the prosecutor was asked to clarify the Crown’s position. He told the Court that in the Crown’s view many of the individual sentences were manifestly excessive. The only individual sentences which the Crown considered to be not manifestly excessive were those imposed in relation to the fraudulent purchase of the camera and the false statement to police (charges 3 and 4), and the sentences imposed on the conspiracy and the data related offences other than that imposed in relation to the possession of the ‘malware’ (charges 26, 29, 30, 31, 32, 33 but not 34). In addition to the many individual excessive sentences which the Crown considered had been imposed, the Crown position was that the total effective sentence and the non-parole period were also manifestly excessive. Counsel for the Crown particularly emphasised in this respect the applicant’s youth, the recompense which the applicant had paid, and the steps taken by the applicant after his apprehension and, in particular, the counselling which he had undertaken at his own expense.
In submissions made on the applicant’s behalf his counsel emphasised the applicant’s youth, and the excellent prospects of rehabilitation which the evidence before the sentencing judge had demonstrated. In the significant period of delay between the applicant’s apprehension and the sentence he had married and moved away from the very restrictive circumstances in which he had previously lived. He had been employed full time and had established his own business. He had voluntarily undertaken counselling and, according to evidence accepted by the sentencing judge, had benefitted considerably from it. Counsel for the applicant also emphasised the fact that he and his wife had worked hard and had sold their motor vehicles in order to meet the compensation orders. It was submitted that the sentencing judge had failed to address the alternative of a combination of imprisonment and a CCO, and that he had clearly misunderstood or overlooked the submission which had been made by the prosecution in that regard at the plea hearing. It was submitted that this was a clear case where a combination of a term of imprisonment and a CCO was appropriate. Particular reliance was placed upon the observations in Boulton concerning CCOs and young offenders.[20] It was submitted on behalf of the applicant that the time which the applicant has already served in custody (134 days at the time of the hearing) was sufficient.
[20]Boulton [2014] VSCA 342 [183]–[190].
Counsel for the applicant also outlined the events said to be relevant to any re-sentence which had occurred since sentencing. The applicant is serving his term at Fulham Prison. He has employment within the prison. He has undertaken courses. The treatment which he requires for his diabetes is difficult and very inconvenient in gaol. The applicant has experienced conflict as a consequence of other inmates observing his young wife during weekly visits which she makes to him. The Court was told that as a result of one incident the applicant received a broken nose. The applicant’s wife has not been able to maintain the rental accommodation in which they were living prior to his incarceration and has moved to her parents’ home. The business the applicant established with his partner has suffered significantly but is still operating.
Counsel were asked whether an aggregate sentence could be imposed for all or certain of the offences. Counsel for the applicant submitted that an aggregate sentence could be imposed on all 34 offences. Counsel for the prosecution considered that charge 4 (perjury) might not properly be included in an aggregate sentence but that otherwise an aggregate sentence on all of the offences would be appropriate.
Prior to termination of the hearing, arrangements were made to have Community Correctional Services assess the applicant for a Community Correction Order. The applicant was assessed and found to be suitable. The recommended conditions included unpaid community work and supervision, as had been recommended in the report obtained by the sentencing judge. A treatment and rehabilitation condition[21] was also recommended based upon Ms Matthews’ report.
[21]Sentencing Act 1991 s 48D.
Analysis — application for leave and appeal
Manifest excess is a stringent ground, difficult to make good. It must be shown that something has gone plainly or badly wrong.[22] In order to succeed an appellant must demonstrate that the sentences concerned are wholly outside the range of sentencing options available.
[22]Ayol v The Queen [2014] VSCA 151 [30].
This was serious offending. I will not repeat the detailed description I have already given. Electronic commerce is very important. It is vulnerable to the sorts of sophisticated frauds which can be perpetuated by offenders with the applicant’s skills. Detection is difficult and requires considerable resources.
I am conscious of the significance of the applicant’s youth. Youth can and should moderate the significance of general deterrence, but, in view of the seriousness of this offending, general deterrence remains an important consideration.[23] It seems to me that, notwithstanding the applicant’s youth, a sentence which imposed a term of immediate incarceration was required given the nature of the offending. Having said that, this Court also explained in Boulton how a CCO can operate to reduce the conflict between the objectives of deterrence (both general and specific) and rehabilitation in relation to young offenders.[24]
[23]The applicable principles are set out in Boulton [2014] VSCA 342 [183]–[190] citing: R v Mills [1998] 4 VR 235, 241; R v Wyley [2009] VSCA 17 [20]–[21]; Azzopardi v The Queen (2011) 35 VR 43, 57; DPP v Anderson (2013) 228 A Crim R 128, 140.
[24]Boulton [2014] VSCA 342 [186].
I accept the submissions made by both parties to the application that the total effective sentence imposed and the non-parole period ordered in this case were manifestly excessive. I also accept the Crown’s submission in relation to the manifest excess of the individual sentences.
The sentences imposed were manifestly excessive given the applicant’s youth, his personal circumstances, and his excellent prospects of rehabilitation. The applicant has not merely expressed a desire to rehabilitate himself. He has undertaken all that one could reasonably expect in order to further his own rehabilitation. Between his apprehension and sentence he undertook counselling at his own expense, he was fully employed and established a new business, he married and took significant steps towards building a social and domestic environment removed from the circumstances which may have influenced him to offend, and he and his wife saved to ensure he could make full restitution for the losses which had been sustained.
The applicant should have leave to appeal, the appeal should be heard forthwith and should be allowed.
Re-sentence
It seems to me that this is a clear case for a combination of a term of immediate imprisonment and a CCO. As this Court explained in Boulton, a CCO itself has a punitive element. It is not simply a means of facilitating rehabilitation through the imposition of supervision and other conditions. Because the applicant was young when he commenced his offending (under 18) and is still comparatively young, it is important, it seems to me, that the period of his detention in adult prison be no longer than is necessary to meet the requirements of both general and specific deterrence. General deterrence is, as I have said, still important notwithstanding the offender’s youth. Specific deterrence is also important, notwithstanding the optimistic assessment of Ms Matthews and the considerable support which the applicant is likely to have upon his release.
Balancing all the relevant factors it seems to me that the appropriate course is to impose an aggregate sentence on all of the offences, other than that the subject of charge 4, of one year’s imprisonment and a CCO of three years on the recommended conditions. On charge 4 I would impose a term of nine months’ imprisonment and make no order in relation to cumulation. Thus, the total effective sentence would be one year’s imprisonment and a three year CCO. The Court is not required to fix a non-parole period in relation to that sentence.[25] I would not do so for the reasons explained by this Court in Boulton.[26]
[25]Cf Sentencing Act 1991 s 11(2).
[26]Boulton [2014] VSCA 342 [196]–[200].
SANTAMARIA JA:
In this case, I have had the opportunity of reading in draft the reasons of Whelan JA. I agree with them and wish to associate myself with them.
The Crown very properly conceded that there was error in the approach taken by the sentencing judge. That meant that the task of re-sentencing fell to this Court.
The offending was very serious. It involved the violation of trust that is fundamental to everyday commerce; it involved also the manipulation of third parties that bordered on amoral. The applicant must be punished and brought to understand that his conduct merits proper retribution. He took advantage of other members of the community; the advantages that he took must be removed from him. But there is more to be taken into account when a.sentence is determined. I agree with Whelan JA, that the applicant’s period of detention in adult prison should be no longer than is necessary to meet the requirements of general deterrence and specific deterrence, both of which are important in this case. The applicant was a first-time offender. He committed his first offence when he was 17 and the other offences before he was 21. He appears to have been very immature at the time he commenced his offending. His offending was related to the oppressive circumstances of his upbringing, from which he wanted to escape. He is remorseful. Since carrying out the offences, he has married and has taken significant steps to rehabilitate himself. He has deployed his skills legitimately, repaid what he has stolen and participated in numerous psychological counselling sessions.
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ANNEXURE
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Attempting to obtain financial advantage by deception [Crimes Act 1958 s 82(1) & s 321M] | 5 years | 18 months | |
| 2 | Obtaining financial advantage by deception [Crimes Act 1958 s 82(1)] | 10 years | 12 months | |
| 3 | Obtaining property by deception [Crimes Act 1958 s 81(1)] | 10 years | 4 months | |
| 4 | Perjury [Crimes Act 1958 s 314] | 15 years | 9 months | 3 months |
| 5 | Attempting to obtain financial advantage by deception | 5 years | 9 months | |
| 6 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 7 | Obtaining property by deception | 10 years | 18 months | |
| 8 | Obtaining property by deception | 10 years | 18 months | |
| 9 | Attempting to obtain property by deception [Crimes Act 1958 s 81(1) & s 321M]] | 5 years | 9 months | |
| 10 | Obtaining financial advantage by deception | 10 years | 30 months | 6 months |
| 11 | Attempting to obtain financial advantage by deception | 5 years | 6 months | |
| 12 | Obtaining financial advantage by deception | 10 years | 30 months | Base |
| 13 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 14 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 15 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 16 | Obtaining financial advantage by deception | 10 years | 30 months | 6 months |
| 17 | Attempting to obtain financial advantage by deception | 5 years | 9 months | |
| 18 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 19 | Attempting to obtain financial advantage by deception | 5 years | 9 months | |
| 20 | Obtaining financial advantage by deception | 10 years | 6 months | |
| 21 | Using identification information [Crimes Act 1958 s 192B(1)] | 5 years | 9 months | |
| 22 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 23 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 24 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 25 | Obtaining financial advantage by deception | 10 years | 24 months | 3 months |
| 26 | Using identification information | 5 years | 9 months | |
| 27 | Obtaining financial advantage by deception | 10 years | 18 months | |
| 28 | Attempting to obtain financial advantage by deception | 5 years | 24 months | 3 months |
| 29 | Using identification information | 5 years | 6 months | |
| 30 | Conspiracy to cheat and defraud [Common law] | 15 years | 6 months | |
| 31 | Supplying identification information [Crimes Act 1958 s 192B(1)] | 5 years | 9 months | |
| 32 | Possession of identification information [Crimes Act 1958 s 192C(1)] | 3 years | 15 months | 3 months |
| 33 | Making identification information [Crimes Act 1958 s 192B(1)] | 5 years | 9 months | |
| 34 | Possession of data with intent to commit a serious computer offence [Crimes Act 1958 s 247E(1)] | 3 years | 15 months | 3 months |
| Total Effective Sentence: | 4 years 9 months’ imprisonment | |||
| Non-Parole Period: | 2 years 6 months’ imprisonment | |||
| Pre-sentence Detention Declared: | Nil | |||
| 6AAA Statement: | 6 years 4 months’ imprisonment (NPP: 3 years 6 months’ imprisonment) | |||
| Other orders: Compensation Orders totalling $50,057; Forfeiture Order; Forensic Sample Order; Identity Crime Certificates | ||||
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