Chris Dawn-Manuel v The Queen
[2015] VSCA 212
•12 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0243
| CHRIS DAWN-MANUEL | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 August 2015 |
| DATE OF JUDGMENT: | 12 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 212 |
| JUDGMENT APPEALED FROM: | DPP v Dawn-Manuel [2014] VCC 1810 (Judge Gaynor) |
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CRIME – Sentence – Multiple fraud offences – Specific error – Factual basis of sentence on three of seven counts confused – Sentencing discretion re-opened in respect of sentences for all counts – Appellant re-sentenced – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC | Patrick W Dwyer |
| For the Respondent | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA:
On 11 August 2014 the appellant pleaded guilty to three offences of obtaining financial advantage by deception, three offences of attempting to obtain financial advantage by deception, and one offence of possession of identification information. He also pleaded guilty to two uplifted summary charges, being possession of a controlled weapon without excuse and dealing in property suspected of being the proceeds of crime. A plea hearing was conducted the same day.
As a result of matters raised on behalf of the appellant during that initial plea hearing the judge adjourned the plea in order to obtain a psychiatric report from Forensicare. The prosecutor also indicated that some of the matters raised during the plea would be the subject of further investigation.
The plea hearing resumed on 4 September 2014. The enquiries undertaken by the prosecution revealed that important factual matters put to the court on behalf of the appellant at the initial plea hearing were false.
On 21 October 2014 the appellant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Obtain financial advantage by deception [Crimes Act 1958 s 82] 10 years [Crimes Act 1958 s 82] 8 months – 2 Attempting to obtain financial advantage by deception [Crimes Act 1958 s 82 and s 321M] 5 years [Crimes Act 1958 s 82 and s 321P] 4 months – 3 Attempting to obtain financial advantage by deception 5 years 3 years Base 4 Attempting to obtain financial advantage by deception 5 years 18 months 6 months
5 Obtain financial advantage by deception 10 years 3 years 2 years 6 Obtain financial advantage by deception 10 years 2 years 1 year 7 Possession of identification information [Crimes Act 1958 s 192C] 3 years [Crimes Act 1958 s 192C] 2 years 6 months Summary Charge 1 Possession of a controlled weapon without excuse [Control of Weapons Act 1990 s 6(1)] 120 penalty units or 1 year [Control of Weapons Act 1990 s 6(1)] $200 fine – Summary Charge 2 Dealing in property suspected of being the proceeds of crime [Crimes Act 1958 s 195] 2 years [Crimes Act 1958 s 195] 6 months – Total Effective Sentence: 7 years’ imprisonment Non-Parole Period: 5 years’ imprisonment Pre-sentence Detention Declared: 399 days 6AAA Statement: 8 years with a non-parole period of 6 years Other Relevant Orders: § Forfeiture Orders
§ Forensic Sample Order
Leave to appeal and additional ground of appeal
The appellant was granted leave to appeal on 12 March 2015 on the following grounds:
2The learned sentencing judge erred in finding that the applicant’s plea of guilty was worthy of only ‘the barest utilitarian value’.
3The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
4The plea hearing of the applicant miscarried because of bias demonstrated by the judge on the hearing on 4 September 2014.
The first proposed ground of appeal concerned the sentencing judge’s finding as to the applicant’s prospects of rehabilitation. Leave was refused on that ground.
At the outset of the hearing of the appeal counsel for the respondent informed the Court that her analysis of the sentencing reasons had led her to conclude that the sentencing judge had confused the factual basis of three of the six counts of obtaining and attempting to obtain financial advantage.
The position in this respect was as follows.
Count 3, upon which the base sentence of three years’ imprisonment had been imposed, had been confused by the judge with count 5. Instead of addressing count 3 as an attempt to obtain financial advantage from the ANZ for $489,999, the sentencing judge had said that the factual basis of that offence was obtaining financial advantage by deception from the NAB for $394,000, which was in fact the basis of count 5.[1]
[1]DPP v Dawn-Manuel [2014] VCC 1810 [7] (‘Reasons’).
Count 5, which was the count that did concern obtaining financial advantage by deception from the NAB for $394,000, was confused by the judge with count 6, which was a count of obtaining financial advantage by deception from the ANZ of $239,000.[2] Two years of the total cumulation of four years was ordered in relation to the sentence imposed on this count.
[2]Ibid [8].
Finally, the factual basis of count 6, which in fact concerned obtaining financial advantage by deception from the ANZ of $239,000, was confused by the judge with count 3, attempting to obtain financial advantage by deception from the ANZ of $489,999.[3] There was a year of cumulation ordered in relation to that count.
[3]Ibid.
Counsel for the respondent explained that the source of these errors was the layout of a chart which had been provided to the sentencing judge. Counsel for the respondent indicated that the confusing layout of the document provided to the sentencing judge had resulted in the errors. Counsel for the respondent accepted that the errors made necessarily re-opened the sentencing discretion in relation to counts 3, 5 and 6 and in relation to the total effective sentence and the non-parole period, but submitted the sentencing discretion was not re-opened in relation to counts 1, 2, 4, 7 and the summary matters.
Counsel for the appellant accepted counsel for the respondent’s analysis of the factual errors made. He submitted that the errors were of such significance that the sentencing discretion on all counts was re-opened.
By consent the appellant was granted leave to add the following ground of appeal, which becomes ground 5:
The sentencing judge erred in:
(i)sentencing the appellant for charge 3 on the basis of facts which related to charge 5; and
(ii)sentencing the appellant for charge 5 on the basis of facts which related to charge 6; and
(iii)sentencing the appellant in relation to charge 6 on the basis of facts which related to charge 3.
Effect of the specific errors
Where specific error is identified in respect of an individual sentence, the sentencing discretion will be re-opened in respect of other sentences where it is apparent the error also affected those sentences or the directions as to cumulation and concurrency in relation to those sentences.[4] This is necessary in order to ensure that the mix of sentences reflects the overall criminality of the offending, that the principle of totality is applied, and that the total effective sentence is the result of a process of proper consideration.[5]
[4]R v Fuller-Cust (2002) 6 VR 496, 511 [51] (‘Fuller-Cust’); R v Gill [2010] VSCA 67, [42] (‘Gill’); D H C v The Queen [2012] VSCA 52, [69]–[79].
[5]DPP v Bulfin [1998] 4 VR 114, 142; Fuller-Cust (2002) 6 VR 496, 511 [51]; Gill [2010] VSCA 67, [42].
The specific errors directly affected the offence upon which the base sentence was imposed, and directly affected the sentences upon which three years of the total cumulation of four years was imposed.
Two of the three sentences directly affected by the errors were the longest sentences (counts 3 and 5) and the other (count 6) was the next longest, equal with count 7 but with cumulation twice that of count 7.
All of the decisions as to cumulation, both to cumulate or not to cumulate, were necessarily interrelated.
The errors made accordingly affected all of the sentences. The Court advised the parties that it had reached that conclusion during the hearing.
The hearing of the appeal thereafter addressed the issue of whether a different sentence should be imposed (s 281(1)(b) of the Criminal Procedure Act 2009) and, if appropriate, the re-exercise of the sentencing discretion. It was unnecessary to address any of the other grounds of appeal.
The appellant’s personal background prior to the relevant offending
The appellant was born in India in 1988. He arrived in Australia as a 21 year old on a student visa in February 2010 and enrolled at Monash University. He attended Monash University that year and passed seven of the eight units he enrolled in. He also attended the first semester of the following year but withdrew in the second semester. It was during that year (2011) that he commenced his fraudulent activities.
The first fraudulent scheme which he undertook involved the use of a popular advertising website. He used this website to advertise courier delivery and taxi driver jobs and also sought to attract people needing help with credit or finance and people returning home overseas. The appellant fraudulently used personal details and copies of identifying documents obtained from people who answered his advertisements to order numerous mobile phones online under the names of those who had contacted him and to have these phones sent to various addresses where he would collect them. He also used the victims’ identities to order other products online. The appellant undertook this scheme between April and August 2011. When a search warrant was executed at his home on 3 August 2011, 39 SIM cards, photocopies of victims’ driver licences and credit cards, a card making machine, and 16 Monash University identity cards with the appellant’s photo but different names were located. When interviewed, the appellant made full admissions. He was charged with 26 counts of obtaining property by deception, one count of theft and one count of obtaining financial advantage by deception. On 30 August 2011 at the Magistrates’ Court at Moorabbin he was sentenced to a term of imprisonment of six months to be served by means of an intensive corrections order.
In November 2011 the appellant perpetrated a further fraud. He was working at a service station. A customer accidentally left a credit card at the service station. The appellant took the credit card and used it at a brothel, forging the victim’s signature, and used it to buy cigarettes. He was arrested and interviewed on 30 November 2011. He made no admissions. He was identified as the person who had used the credit card by CCTV. The appellant was charged with one count of theft and one count of obtaining financial advantage by deception.
Consequent upon the enquiries conducted after the initial plea hearing (in relation to the offences which are the subject of this appeal) on 4 August 2014, it was revealed that the appellant produced, or arranged for the production, of a fraudulent psychiatric medical report dated 18 April 2012. The report was purportedly written by a psychiatrist. The psychiatrist subsequently swore a statutory declaration that she had never seen the appellant.
The hearing of the charges concerning the service station credit card was held at the Moorabbin Magistrates’ Court on 8 May 2012. At the plea hearing on 4 September 2014 (in relation to the offences which are the subject of this appeal) it was not clear whether the fraudulent psychiatric report had been used at that hearing. The appellant was sentenced to a community correction order of six months duration with special conditions including a condition that he undergo assessment and treatment for mental health issues. On 30 October 2012 at the Magistrates’ Court at Dandenong the appellant was found to have been in breach of that order. The community correction order was re-imposed. On the hearing of the appeal the Court was told that the breach was a result of non-compliance with conditions.
The appellant did not enrol at university in 2012. During that year he began the offending which is the subject of the offences for which he was sentenced and now appeals.
Circumstances of the relevant offending
In 2012 the appellant established another identity fraud scheme. He again obtained the identification information of real people. One source of this information was Optus mobile phone application contracts. On the hearing of the appeal neither counsel was able to give the Court any further information as to the means by which he had obtained the identification information.
The information obtained included the name, address, date of birth, employment details and contact telephone numbers of real people. The appellant then used this information to apply for credit cards online from GE Capital Finance (‘GE’), National Australia Bank (‘NAB’) and Australia and New Zealand Banking Group (‘ANZ’).
The scheme devised and operated by the appellant was sophisticated and complex. He found postal addresses for premises that were empty and used those addresses for the receipt of the credit cards and PIN numbers, which were separately mailed. He recruited others to assist him.
The total number of credit facilities actually obtained was 45, with a total combined credit limit of $660,500. The total number of further credit facilities which he attempted to obtain was 59, with a total combined credit limit of $858,999.
The appellant, and his accomplices under his direction, used the fraudulent credit cards to purchase items at retail stores. One of the appellant’s accomplices created false driver’s licences on the appellant’s instructions. The fraudulent credit cards were used approximately 188 times to buy items or to withdraw cash. The total value of these transactions was $452,024.15.
On 18 September 2013 police executed a search warrant at the appellant’s residential address and the appellant was arrested. Police found 48 credit cards in various names, 65 false driver’s licences, a large number of electrical items, designer clothing and shoes, jewellery, 27 bottles of alcohol, a box of plastic identity cards and a hunting knife (summary charge 1 — possession of a controlled weapon without excuse). Police then searched a room rented by the appellant at another location where they found electrical items, eight mobile phones with sticky notes on the back stating names and associated banking instructions, 25 mobile phone contracts and documents containing personal identity information of other people. Police also searched the premises of one of the appellant’s accomplices and found 44 Optus mobile phone contracts in the names of different people which had been given to that accomplice by the appellant, as well as computer equipment and equipment for the manufacture of plastic cards.
Four of the appellant’s accomplices were dealt with prior to the initial plea hearing on 11 August 2014, and the plea of one of the accomplices was heard with the appellant on 11 August 2014. All five of the accomplices had given an undertaking to assist the prosecution. It was not suggested either at the plea or on this appeal that any parity issue arose.
The appellant had indicated his intention to plead guilty immediately prior to the commencement of a contested committal.
A factual summary of the offences on the indictment to which the appellant pleaded guilty is as follows:
Charge on indictment Offence Institution Relevant total credit limit Period of offending 1 Obtain financial advantage by deception GE $27,500 18 July 2012 – 22 July 2013 2 Attempting to obtain financial advantage by deception GE $8,000 17 September 2012 3 Attempting to obtain financial advantage by deception ANZ $489,999 1 October 2012 – 9 September 2013 4 Attempting to obtain financial advantage by deception NAB $361,000 11 November 2012 – 9 September 2013 5 Obtain financial advantage by deception NAB $394,000 10 December 2012 – 7 September 2013 6 Obtain financial advantage by deception ANZ $239,000 27 July 2013 – 9 September 2013 7 Possession of identification information N/A N/A 17 September 2013 The plea hearings
At the plea hearing on 11 August 2014, counsel on behalf of the appellant told the judge that until 2004 the appellant had been a ‘happy young man’ living in a seaside village in India with his parents and a brother. The judge was told that in 2004 a tsunami struck the town killing his parents and his brother. She was told that he was left destitute and eventually found himself begging on the streets in Chennai. It was there that he learnt how to apply himself to ‘a dishonest trade’. Notwithstanding the shocking tragedy which he had endured and his terrible circumstances, he nevertheless managed to gain an education and to eventually come to Australia as a student in 2010.
The account given to the sentencing judge prompted her to determine that it was necessary to obtain a psychiatric report. It also prompted her to make some suggestions as to where he might obtain further assistance and support from charitable organisations.
In response to the suggestion that a psychiatric report should be obtained, counsel for the appellant indicated that he had been assessed and that he did not suffer from mental illness. On the hearing of the appeal, it was confirmed by counsel on behalf of the appellant that these references were not to the fraudulent psychiatric report but to a psychiatric assessment which had in fact been undertaken.
As indicated, the judge determined to obtain a report from Forensicare. The prosecutor indicated that the matters raised on the plea on the appellant’s behalf would be the subject of further investigation.
The matter came back before the sentencing judge on 4 September 2004. Material placed before the judge indicated that what she had been told on 11 August was a complete fabrication. The appellant’s parents and his brother were alive and living in India. He was from an affluent family there. Other material indicated that the appellant had made, or attempted to make, arrangements for marriages in Australia directed at obtaining immigration benefits; that he had produced, or arranged for the production, of the fraudulent psychiatric report previously referred to; and that on social media he had flaunted the goods and cash which he had obtained. This material led to a number of exchanges involving the sentencing judge which were the basis of the ground as to apprehended bias which it has been unnecessary for this Court to consider.
Deception by an offender at a plea hearing is potentially relevant to the issues of remorse, rehabilitation and the need for specific deterrence.[6] In this case, the sentencing judge concluded that the appellant had revealed himself to be ‘brazenly dishonest’.[7] In my view, this conclusion was fully warranted. As the judge of this Court observed when granting leave to appeal, the material before the sentencing judge showed the appellant to be a ‘dishonest and manipulative recidivist’.[8]
[6]R v Fisher (2009) 22 VR 343, 360 [79]–[82].
[7]Reasons [46].
[8]Dawn-Manuel v The Queen (Unreported, Court of Appeal, Supreme Court of Victoria, Priest JA, 12 March 2015) [11].
The conduct of the plea does not, of course, aggravate the offending. Nor does it detract from the utilitarian value of his guilty plea.
Submissions as to sentence
On behalf of the appellant, it was submitted that he was still relatively young and that that was a factor which should be taken into account in mitigation. It was submitted that he was entitled to the utilitarian value of his guilty plea. In relation to rehabilitation and specific deterrence, it was submitted that strong adverse conclusions ought not to be drawn in relation to a person who was still relatively young. Comparable sentences were referred to and it was submitted that the total effective sentence which had been imposed of seven years’ imprisonment with a non-parole period of five years was ‘simply too much’.
In relation to events which had occurred since sentence, the Court was told that the appellant had re-established contact with his family in India after a period of estrangement.
On behalf of the respondent, it was submitted that whilst the appellant was still young, he had been given chances in the past but had continued his dishonest offending. The respondent accepted that the appellant was entitled to the full utilitarian value of his plea. In relation to seriousness of the offending, the respondent emphasised that he was the principal who had recruited others and that his culpability was at the highest level. The information used was information concerning real people. A victim impact statement which was read at the plea hearing revealed the inconvenience and anxiety which that had created in at least one case.
Re-sentence/different sentences
As the judge granting leave observed, the appellant was shown to be a dishonest and manipulative recidivist. There is no basis for a conclusion of any genuine remorse. Specific deterrence is important, as is general deterrence. Only the appellant’s comparative youth prevents the drawing of an entirely negative conclusion as to his prospects of rehabilitation.
Given the confusion as to the factual basis of the offences, it is clearly necessary that different sentences be imposed on two of the three counts where errors were made.
On count 3, attempting to obtain financial advantage (ANZ $489,999), in lieu of the sentence of three years’ imprisonment which was imposed on the erroneous basis that the offence was the more serious offence of obtaining financial advantage by deception (NAB $394,000), I would re-sentence the appellant to a term of imprisonment of 18 months.
On count 6, on which the judge imposed the sentence of two years’ imprisonment on the erroneous basis that the count was the less serious offence of attempted obtaining of financial advantage by deception (ANZ $489,999), when it was in fact obtaining financial advantage by deception (ANZ $239,000), I would impose a sentence of three years’ imprisonment.
I turn then to the other sentences, which must all be re-considered.
In relation to count 5, where a sentence of three years’ imprisonment was imposed on the erroneous basis that the offence was obtaining financial advantage by deception from ANZ in the sum of $239,000 whereas it ought to have been obtaining financial advantage by deception from NAB in the sum of $394,000, I would not impose a different sentence. I would re-impose the sentence of three years’ imprisonment.
In my view, the sentence imposed on count 7 was too high. The sentence imposed was two-thirds of the maximum penalty. That is too high given the guilty plea. I would impose a sentence on that count of 18 months’ imprisonment.
Otherwise, I would re-impose the sentences that the sentencing judge imposed. The orders for cumulation which I would make are as follows.
The sentence imposed on count 5 of three years’ imprisonment should be the base sentence. This is the most serious offence (judged by the value of the credit
obtained) of the three offences of obtaining financial advantage by deception.
On that base sentence of three years’ imprisonment, I would cumulate 18 months of the sentence imposed on count 6 and three months of the sentence imposed on count 1. These are the other two offences of obtaining financial advantage by deception.
In relation to the counts of attempting to obtain financial advantage, I would cumulate one month of the sentence imposed on count 2, and four months on each of the sentences imposed on counts 3 and 4.
On count 7, I would cumulate a period of six months.
The sentences on the two summary charges are unchanged. I would not order cumulation on summary count 2. The sentence on summary count 1 is a fine.
This results in a total effective sentence of six years’ imprisonment. I would fix a non-parole period of four years six months’ imprisonment.
Insofar as it is necessary to make a declaration under s 6AAA of the Sentencing Act 1991, I would declare that but for the plea of guilty, I would have imposed a total effective sentence of eight years with a non-parole period of six years six months.
BEACH JA:
I agree with Whelan JA that the appeal should be allowed for the reasons given by his Honour. I also agree that the appellant should be re-sentenced as proposed by his Honour.
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