Donovan v The Queen
[2010] VSCA 169
•28 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| STEVEN DONOVAN | S APCR 2009 0641 |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 June 2010 | |
DATE OF JUDGMENT: | 28 June 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 169 | |
JUDGMENT APPEALED FROM: | R v Donovan, (Unreported, County Court of Victoria, Judge Rozenes, 19 February 2009 | |
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CRIMINAL LAW – Sentence – Offences of dishonesty – Parity – Differences in the roles and antecedents of the co-offenders - Error as to maximum sentence – Error could not have had any impact upon the sentence – Sentence of three months’ imprisonment on a count of opening an account by a false statement and a total effective sentence of 32 months’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Victoria Legal Aid (Melbourne) |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of making false documents with the intention of inducing another person to accept the documents to be genuine and thereby causing prejudice to that other person, (count 1); a count of using false documents with the intention of inducing another person to accept them as genuine and thereby acting to that other person's prejudice, (count 2); a count of causing an unauthorised computer function, (count 3); a count of dishonestly obtaining property by deception, (count 4); four counts of dishonestly obtaining a finance advantage by deception, (counts 5, 8, 10 and 15); three counts of attempting to dishonestly obtain a financial advantage by deception, (counts 6, 7 and 9); a count of dishonestly obtaining property by a false representation, (count 11); a count of opening a bank account in a false name, (count 12); a count of attempting to open a bank account in a false name, (count 13); and a count dealing with the proceeds of crime, (count 14).
After a plea, the appellant was sentenced to be imprisoned for a term of nine months on each of counts 1 and 2; for a term of three months on each of counts 3 and 15; for a term of 12 months on each of counts 4 and 11; for a term of 18 months on count 5; for a term of four months on each of counts 6, 7, 9, 12, 13 and 14; and for a term of eight months on each of counts 8 and 10. With a measure of cumulation, the total effective sentence was 32 months' imprisonment. The sentencing judge fixed a 20 months' imprisonment before the appellant was to be eligible for parole.
A single judge of this Court granted the appellant leave to appeal against his sentence.
The offences took place over a period of some 12 months. Using sophisticated techniques, the appellant and a co-offender, Steven Marchingo, created false identifies and defrauded a number of corporations and individuals. Using a computer, the appellant took over legitimate e-Bay sellers' sites and stole their identities. The appellant created false identities and defrauded a number of persons who wished to purchase goods. The appellant received $30,028.78 for goods which he never supplied.
The offenders opened credit card accounts with the ANZ Bank and GE Capital Finance using false names. The appellant obtained $46,088.40 and his co-offender obtained $63,707.45. The sentencing judge found that the appellant and Marchingo acted together. In seven instances the offenders attempted to obtain credit cards from GE Capital Finance which failed. Similarly, five attempts were made to obtain credit cards from the ANZ Bank, which also failed. The appellant attempted to obtain a credit card from Bank West but his application was declined. The appellant succeeded in obtaining credit cards from the Commonwealth Bank and opened bank accounts with a number of major banks in false names. The count of being possession of proceeds of crime embraced the proceeds of the crimes I have described.
The appellant is some 49 years old. He left school during year 11 and concluded a plumbing apprenticeship with his father. Most of the appellant's working life has been spent at Sandringham Hospital. The appellant studied engineering and eventually became the head of engineering at the hospital.
The appellant had a prior conviction for going equipped for stealing. The sentencing judge said that was irrelevant. He had also been convicted on a number of counts of obtaining property by deception and making false documents. The convictions were not alleged as prior convictions as they post dated the commencement of the offending alleged in the presentment.
In the course of the plea, counsel for the appellant tendered a report by a psychologist. It is apparent from that report that the appellant has not experienced true remorse. The psychologist said: 'Mr Donovan's accepting attitude that rules are there to be broken, general disregard for authority and lack of remorse for unsuspecting individuals reflects an individual who does not care to be altruistic to faceless people he does not personally know.'
The grounds of appeal are as follows:
1.The individual sentences, total effective sentence and non-parole period are manifestly excessive.
2.The learned sentencing judge erred in his approach to the question of parity.
3.The learned sentencing judge erred in ordering partial cumulation in respect of Counts 1, 2 & 12.
4.The learned sentencing judge erred in sentencing on Count 14 on the basis of the wrong maximum penalty.
5.The learned sentencing judge was misinformed about the date of the commission of Count 15 and as a result formed an erroneous view of the applicant’s prospects of rehabilitation.
6.The learned sentencing judge erred in attempting on 26 February 2009 to amend the sentencing orders made on 19 February 2009 so as to take into account the fact that Counts 12 & 13 were Commonwealth counts.
The sentencing judge's approach to the question of parity was to adopt what was stated by King CJ in The Queen v Wilton, where his Honour said:
The correct approach to the sentencing of these co-offenders was for the sentencing judge to consider first the length of the sentence of imprisonment which was appropriate to each offender. In doing so, it was relevant to consider among the other things, the proper proportion which the sentences should bear to one another in the light of the respective degrees of culpability of the co-offenders and their respective circumstances.
Having determined the length of the sentences, the learned judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of the opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process, considerations of disparity have no part.
The applicant's co-offender was sentenced to a total effective sentence of 15 months' imprisonment, which the sentencing judge wholly suspended saying:
You are relatively young, have no prior convictions, were led by Mr Donovan and voluntarily desisted from the scheme. You have nothing pending and I have confidence in your prospects of rehabilitation. I am satisfied that you are remorseful.
Counsel for the appellant submitted that the sentencing judge erred in apparently disregarding the suspension of the sentence imposed upon Marchingo.
A proper comparison between sentences imposed upon co-offenders involves a consideration of all the components. See Postiglione v The Queen.[1] When the reasons in The Queen v Wilton are read as a whole, it is plain that King CJ did not say that suspension of an offender's sentence is irrelevant in deciding upon an appropriate sentence for a co-offender, only that suspension did not itself entail like treatment for a co-offender. Nevertheless in the present case, I do not think that the sentencing judge's reliance upon part of the reasons in The Queen v Wilson resulted in error. Whether or not a sentence is to be suspended having regard to the circumstances of an offender and the part which he or she played in the commission of the crime, depends upon the Court being satisfied that it is desirable to do so. In the present case, after citing The Queen v Wilton, the sentencing judge went on to identify a number of considerations that persuaded him that it was desirable to suspend Marchingo's sentence. These considerations were peculiar to Marchingo. It followed that the applicant ought not to justifiably feel grievance because his sentence was not reduced by reason of the suspension of Marchingo's sentence.
[1](1997) 189 CLR 295, 302-3, (Dawson J and Gaudron J).
Pursuant to Ground 3, it was submitted that Counts 1, 2 and 12 were offences which were preparatory in nature. In the light of the sentences imposed on Counts 4, 5 and 11 and the orders for cumulation made in respect of those counts, it was contended that further cumulation in respect of the preparatory counts was not open. Further, Counts 1 and 2 were similar to and contemporaneous with offences for which the appellant had already been dealt with in the Magistrates' Court and had those counts been dealt with at that time, it was unlikely that the sentence imposed would have been increased.
Effectively counsel for the appellant contended that the sentences in respect of Counts 1, 2 and 12 should have been made wholly concurrent with each other and with the sentences imposed on other counts.
In my view, it was within his Honour's discretion to order cumulation of one month on each of the counts to offences that did involve additional criminal acts.
It may well be that his Honour did make a mistake as to the maximum sentence in respect of Count 14. The prosecutor said in the course of the plea that the maximum penalty for dealing with the proceeds of crime was 20 years' imprisonment. In fact the maximum penalty is 15 years' imprisonment. His Honour did not state the maximum, but it is reasonable to assume that his Honour proceeded upon the basis that the prosecutor was correct. The error will vitiate the sentence unless it can be shown that it could not have had any impact upon the sentence. See The Queen v Beery.[2]
[2](2004) 11 VR 151, 158-9, (Callaway J).
The sentence imposed upon Count 14 was four months' imprisonment. Even in the case of a relatively low sentence, the judge's mind may be affected by a perception of the seriousness of the offence based upon the maximum sentence. In the present case, however, I think that the sentence was so short compared to the maximum sentence that the judge's mistake could not have had an effect on the sentence he imposed.
Ground 5 arose from the allegation in the presentment that 'On or about the 26th day of April 2007 the appellant dishonestly obtained for himself or another a financial advantage, namely a Telstra Bigpond account, by deception; namely, by falsely representing that the particulars contained in the application were true and correct.' If the offence did take place on 26 April 2007, it would tend to show that the appellant was undeterred by his arrest and charging on 27 March 2007. It would appear however that the Telstra account in fact commenced on 6 March 2007 prior to the appellant's arrest.
It does appear from his Honour's sentencing remarks that his Honour did proceed on the basis that the appellant committed the offence after he was arrested and charged.
Pursuant to Ground 1, counsel for the appellant contended that the sentence of three months' imprisonment imposed on Count 15, the opening of an account with Telstra on the basis of a false statement, was manifestly disproportionate to the offending. The offence caused no financial loss to the Telstra. On a general level, it was contended that the total effective sentence and the non-parole period were manifestly excessive in the light of the modest amounts involved, the early plea of guilty, the cooperation of the appellant with the authorities including his identification with co-offender, his limited prior offending and the impact upon him of the difficulties likely to be faced by his wife while he was in custody.
The mitigating factors relied upon by the appellant were taken into account by the sentencing judge in the light of the appellant's history and what his Honour described as 'a sustained and systematic course of conduct'. I am of the view that the total effective sentence and the non-parole period were within the range available to the sentencing judge in the exercise of a sound sentencing discretion. The sentence imposed in respect of Count 15, in my view, is not to be characterised as outside the range available to the sentencing judge in the light of the circumstances in which it was committed.
Ground 6 arises from the fact that the sentencing judge did not appreciate when he passed sentenced that Counts 12 and 13 were Commonwealth counts. A week after passing sentencing, his Honour said:
It was brought to my attention that Counts 12 and 13 on the presentment are in fact Commonwealth counts, not State counts. But having regard to the fact that we all now know that these are Commonwealth offences, I must correct the sentencing orders that I made and I do so to give effect to my intention. Section 104A of the Sentencing Act permits me to do that. So I make the following orders.
With respect to the sentence imposed on Count 12 I direct that the sentence commence three months before the expiration of the non-parole period that I have fixed; namely, after 17 months. This direction will give effect to my stated intention of cumulating one month of the sentence upon Count 12.
With respect to the sentence imposed on Count 13, I direct that the sentence commence on 19 February 2009. The effect of this order is that the sentence on this count will run concurrently with the total effective sentence.
In my opinion, the orders made by the sentencing judge on 26 February 2009 were authorised by s 104A of the Sentencing Act in that the original sentence contained 'an error arising from an accidental slip or omission'. The date of commencement of the sentence imposed on Count 12, a sentence of four months' imprisonment, was directed to be commenced three months before the expiration of the non-parole period; that is, after 17 months. The effect of his Honour's order appears to have been to have extended the non-parole period to 21 months, whereas before the order was made the non-parole period was 20 months.
In my opinion, the appeal should be allowed for the limited purpose of correcting this error.
The error identified in Ground 5 raises the question of whether a different sentence should now be passed. In my opinion, the sentence imposed on Count 15 and the total effective sentence and the non-parole period were each appropriate. I am not minded to pass a different sentence.
I would allow the appeal and set aside the sentence imposed on Count 12. In lieu thereof I would impose a sentence of three months' imprisonment and a direct that it commence after 17 month of the non-parole period. Otherwise I would confirm the sentences passed below and the ancillary orders for forfeiture and compensation.
BONGIORNO JA:
I agree with Buchanan JA for the reasons his Honour has stated.
BUCHANAN JA:
The orders of the Court will be as follows:
1. The appeal is allowed.
2. The sentence on Count 12 passed below is set aside and in lieu thereof the appellant is sentenced on that count to be imprisoned for a term of three months, the sentence to commence after the 17 month of the non-parole period.
3. Otherwise the sentence and non-parole period and the orders for forfeiture and compensation are confirmed.
4. It is declared that a period of 507 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
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