DPP v Toma
[2007] VSCA 315
•6 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 273 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN TOMA |
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JUDGES: | VINCENT, NEAVE and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 December 2007 | |
DATE OF JUDGMENT: | 6 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 315 | |
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CRIMINAL LAW – Sentence – Crown Appeal – Pleaded guilty to 11 counts of perjury and 11 counts of obtaining financial advantage by deception – Used false statutory declarations to avoid traffic, parking and toll infringements – Large number of dishonesty priors – Sentenced to 15 months’ imprisonment, wholly suspended for 15 months – Whether sentence manifestly inadequate – Appeal allowed – Re-sentenced to 26 months’ imprisonment, wholly suspended for three years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr R Richter QC | Rob Melasecca Barristers & Solicitors |
VINCENT JA:
I invite Neave JA to deliver the first judgment.
NEAVE JA:
The respondent, Martin Toma, pleaded guilty to 11 counts of perjury by swearing a false statement and 11 counts of obtaining financial advantage by deception. After hearing his plea in mitigation of sentence a judge of the County Court sentenced the respondent to six months’ imprisonment on each of the counts on the presentment, and made orders for cumulation which resulted in a total effective sentence of 15 months’ imprisonment. This sentence was wholly suspended for a period of 15 months. This is an appeal by the Director of Public Prosecutions against that sentence.[1]
[1]Under Crimes Act 1958, s 567A.
Background
The background to these offences is as follows. Mr Brigido Ramirez lost his wallet at some time in 2003 while dining at a café in Swanston Street. The wallet contained his drivers licence, which showed his residential address and date of birth, as well as items containing other personal details. Shortly after losing his wallet, Mr Ramirez replaced his licence with another bearing the same details.
In 2005, Mr Ramirez received in the mail a number of speeding, toll zone and parking fines which he had not incurred. Enquiries made by him and by the compliance authority, revealed that these infringement notices had been issued to the registered owners of various cars who had falsely nominated the complainant as the infringing driver. Further enquiries revealed that the registered owners of these vehicles were all known to each other.
The respondent, Martin Toma, is aged 29 and was aged 27 at the time of committing the offences. His offences occurred in the following circumstances.
On 28 January 2005 the respondent went to Broadmeadows Police Station and produced four City of Melbourne parking infringement notices and two traffic camera speeding infringement notices, which he had incurred. The respondent produced the notices to Constable Coles, a member of the Victorian Police Force authorised to witness statutory declarations under s 107A(1)(j) of the Evidence Act 1958. He then completed the statutory declaration on the rear of each of the infringement notices, which allows another party to be nominated as the responsible driver. He nominated Mr Brigido Ramirez as the responsible driver. By signing the declarations, the respondent acknowledged that each declaration was true and correct, despite his knowledge that the declaration was false and that a false statement amounted to perjury. These false declarations provide the basis for six of the eleven counts of perjury, namely counts 1, 3, 5, 7, 9 and 11.
The respondent later submitted the false Statutory Declarations to the compliance authority (Civic Compliance) and Melbourne City Council. As a result, the fines were redirected to Mr Ramirez and the respondent avoided the financial penalty for the fines. The fines were never paid, so that the council and Civic Compliance were deprived of the money which they were owed. Avoiding these fines forms the basis for six of the eleven counts of obtaining financial advantage by deception, namely counts 2, 4, 6, 8, 10 and 12.
On 15 February, 25 February and 28 April 2005, the respondent again went to the Broadmeadows Police Station with a number of speeding infringement and parking infringement notices he had incurred. On each of these occasions, he completed statutory declarations nominating Mr Ramirez as the relevant driver, knowing them to be false. Afterwards, he forwarded the statutory declarations to Civic Compliance and Melbourne City Council. By doing so, he again avoided paying the relevant fines.[2]
[2]The Crown materials stated that the respondent also avoided the loss of driving demerit points, however this was assertion was challenged by the respondent’s counsel at the hearing of the appeal. Whilst the majority of the fines avoided were for parking or toll zone infringements, given that at least one of the infringements was for speeding (counts 15 and 16), it seems likely that the respondent avoided some demerit points. It is, however, unclear on the materials and there is no need to decide this matter.
The actions on these dates form the basis for five more counts of perjury (on 15 February 2005 for counts 13 and 15; on 25 February 2005 for counts 17 and 19; and on 28 April 2005 for count 21) and five more counts of obtaining financial advantage by deception (on 15 February 2005 for counts 14 and 16; on 25 February 2005 for counts 18 and 20; and on 28 April 2005 for count 22). The total amount of the fines avoided by respondent between January and April 2005 was $971.00.
Reasons for sentence
In her sentencing reasons the learned sentencing judge said that the seriousness of the offences of perjury and obtaining financial advantage by deception was reflected in the maximum sentences of imprisonment which applied to them, but that the particular offences were at the lower end of the scale for this type of offence and reflected errors of judgment by the respondent. Her Honour acknowledged that the offences undermined the integrity of the provisions for collecting parking and traffic infringement fines, which ‘is designed to enable such infringements to be processed in a simple, effective and timely manner, without the need to involve courts’.[3] She also referred to the effect of the offences on the victim Mr Ramirez.
[3]Reasons [9].
Although her Honour took account of the appellant’s significant criminal history she pointed out that he had not offended since committing these offences. Her Honour gave some weight to the appellant’s guilty plea and made the following remarks about other mitigating factors:
[The respondent comes] from an Iraqi background. [His] parents are Syrian in origin and [he] came to Australia at age 6. [The respondent’s] parents and [his] background is described as being very strict and I do not propose to go into great detail of the matters that were put by [his counsel] in the plea. They are fully articulated in the report from Ms Carla Lechner and I have taken all those matters into consideration. The difficulties that [the respondent] has had over the years with corporal punishment and other issues have arisen specifically from [his] background.
Following [the respondent’s] incarceration for the multiple credit card frauds in 2000, [he] did show that [he] could utilise the opportunities provided in prison and gained a number of certificates in first aid, hospitality, communication skills, debating, parenting, relationship counselling, martial arts and other education. [He was] motivated upon [his] release, to continue [his] rehabilitation and to develop further [his] interests in the martial arts. It is hard in that context to understand that [he was] involved in this further offending and these offences represent a significant error of judgment on [his] part because in all other respects [he] had taken positive steps to turn [his] life around and it was evident from the material placed before me, and in particular the references of Daryl Ford and Tiziana Scacco, that [he does] have a lot of potential in the areas that [he] is now pursuing.
Ms Carla Lechner reviewed [the respondent] and she says that [he] presents with underlying depression that is masked by anger and she suggested an attendance at an anger management course. The nature of the sentence that I am about to impose does not have any conditions but I would urge [the respondent] to pursue those recommendations of Ms Lechner. She has given specific advice in her report about a referral to a clinical psychologist under the Better Mental Health Scheme and also suggested contact with the Men’s Referral Service for advice regarding an anger management group in [his] local area and I strongly recommend that [he] pursues those avenues.
As I have said the respondent was sentenced to six months’ imprisonment on each of the counts on the presentment and to a total effective sentence of 15 months’ imprisonment, which was wholly suspended.
Counsel’s submissions
Counsel for the respondent relied upon the principle in DPP v Leach that:
the fact that Director's appeals are now quite common should not detract from the continuing application of the principle that it is only in very clear and rare cases of manifest inadequacy or error that a Director's appeal should be allowed.[4]
[4](2003) 139 A Crim R 64, 74 (Eames JA).
Counsel submitted that this was not a ‘very clear or rare case’ of manifest inadequacy such as would justify the allowing of the Director’s appeal. Both the individual sentences and the total effective sentence imposed were well within her Honour’s sentencing discretion. In the broad spectrum of perjury offences it was correct for her Honour to regard the respondent’s perjury as being at the lower end of the scale and, on the basis of the material before her, to give considerable weight to the respondent’s prospects of rehabilitation. The respondent could not have anticipated the very serious effects of the offences on the victim, Mr Ramirez.
It was further submitted that her Honour had taken appropriate account of the principle of parity when considering the sentence which should be imposed on the respondent, compared with his co-offenders. In particular counsel referred to the sentences imposed on another offender, Mr SF, who pleaded guilty to one count of perjury, five counts of dishonestly obtaining a financial advantage and four counts of perverting the course of justice, arising out of the misuse of Mr Ramirez’ personal details to avoid traffic infringements. Mr SF was sentenced to six months on each of the individual counts and received a total effective sentence of 15 months’ imprisonment for these offences. It was submitted that, like the respondent, Mr SF had an extensive criminal history and that he was the first to misuse Mr Ramirez’s personal details and to provide them to others. I note that Mr SF also pleaded guilty to a number of other offences on two other presentments at the same time. Counsel also referred to the sentences which her Honour imposed on Ms Mikhael, who was convicted of a similar number of counts as the respondent, and to Mr Bakalov, who was sentenced after the respondent.
Counsel for the respondent said that the Director had not appealed against the sentences imposed on comparable offenders, in particular Mr SF, whose circumstances were very similar to those of the respondent, and that allowing the Director’s appeal in this case ran the risk of creating a manifestly excessive disparity between the respondent’s sentence and the sentences imposed on these offenders. In the circumstances of this case, counsel also contended that it was appropriate for her Honour to suspend the total effective sentence imposed on the respondent.
Counsel for the Crown submitted that this was an example of a case where the sentence imposed revealed an error in principle, or failure to apply adequate standards of punishment.[5] Neither the individual sentences nor the total effective sentence imposed by her Honour reflected the gravity of the offending behaviour. Although they did not involve curial perjury,[6] the offences committed by the respondent were brazen and deliberate and could not accurately be described as errors of judgment. They had serious effects on Mr Ramirez, who had suffered significant stress and had to establish that he had not committed the traffic infringements to protect his licence.
[5]See R v Clarke [1996] 2 VR 520, 522.
[6]For example, see R v Schroen [2001] VSCA 126.
Counsel also contended that her Honour should have given greater weight to general deterrence, specific deterrence and denunciation of the offences. It was submitted that the appellant’s many prior convictions required the learned judge to place considerable emphasis on specific deterrence and that her Honour had placed too much weight on mitigating factors, including the respondent’s prospects of rehabilitation.
Counsel for the Crown submitted that there were significant differences between Mr Toma’s circumstances and criminal history and the circumstances of the other offenders. Although Mr SF had numerous prior convictions for relevant offences, his sentence reflected a discount for the cooperation he had provided in another matter. Although Mr Bakolov also had a substantial number of prior convictions for offences involving dishonesty, he also had a significant psychiatric history.
Were the individual sentences and the total effective sentence manifestly inadequate?
The principles which apply in determining a Crown appeal against sentence have been enunciated on numerous occasions. In DPP v Josefski Maxwell P said that:[7]
[7](2005) 13 VR 85, 89 (citations omitted). See also R v Clarke [1996] 2 VR 520, 522.
It is the common law’s abhorrence of double jeopardy which explains why a Crown appeal on sentence should only occur in the "rare and exceptional case". In R v Clarke, this Court restated the cardinal rule and the reasons for it, before setting out six sets of circumstances in which this Court’s intervention at the instance of the Crown might be required, as follows:
(a) where a sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle;
(b) to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;
(c) to establish and maintain adequate standards of punishment for crime;
(d) to correct idiosyncratic views of individual judges as to particular crimes or types of crimes;
(e) to correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience;
(f) to ensure, so far as the subject-matter permits, that there would be uniformity in sentencing.
Her Honour’s sentencing reasons made appropriate reference to all relevant sentencing matters and having regard to the principles set out in DPP v Josefski to which I have already referred, I would normally be reluctant to allow a DPP appeal in these circumstances. However, in my opinion the orders for cumulation resulted in a total effective sentence which was so manifestly inadequate as to demonstrate that an error in principle must have occurred.
The maximum penalty for the offence of perjury is 15 years’ imprisonment, while the maximum penalty for obtaining financial advantage by deception is 10 years’ imprisonment. In R v Morgan, the Western Australia Court of Criminal Appeal said:[8]
Perjury offences are … regarded as serious offences. They … are offences which strike at the heart of the criminal justice system and are also difficult to detect. They likewise are offences for which considerations of deterrence are paramount.
[8](1995) 82 A Crim R 518, 525.
Although the respondent did not give false testimony in criminal proceedings[9] or interfere with witnesses,[10] these were nevertheless serious offences. The appellant attended the Broadmeadows police station on four separate occasions and swore numerous statutory declarations, in order to avoid parking fines, speeding infringements and road toll notices. As her Honour pointed out, the appellant’s behaviour undermined the systems which have been established to collect parking fines and traffic infringements. Such offences affect public confidence in these systems and require the expenditure of public moneys to investigate and prosecute people who falsely claim that they were not responsible for fines and traffic penalties. The perjury offences had a serious impact on Mr Ramirez, who was nominated as the driver of the vehicle which had committed the various infringements.
[9]As in R v Morgan (1995) 82 A Crim R 518.
[10]As in R v Healy (Unreported, Victorian Court of Appeal, Winneke P, Tadgell and Charles JJA, 4 August 1997). Note this actually related to a charge of perverting the course of justice.
The appellant had numerous prior convictions for offences involving dishonesty, including multiple credit card frauds in 2000. Even taking account of the mitigating factors to which her Honour referred in her judgment, I consider that the sentences of six months imposed for each count of perjury were extremely lenient.
In sentencing the appellant for the counts of obtaining financial advantage by deception it appears that her Honour took account of the fact that these offences were, in effect, a consequence of the acts of perjury for which the respondent was also being punished and that the value of the advantage obtained was only $971. Having regard to these matters, I would regard the sentences imposed on these individual counts as very moderate, but not so far outside the range as to be manifestly inadequate in these circumstances.
The combined effect of the orders for cumulation was to produce a total effective sentence which was manifestly inadequate, even when the principle of double jeopardy is taken into account.
For these reasons, it is necessary to re-sentence the respondent.
How should the appellant be re-sentenced?
The offending in this case did not occur on the spur of the moment. In re-sentencing the appellant it is necessary to take account of the systematic and calculated nature of these offences. The perjury offences occurred on four separate occasions and involved 11 false declarations. The counts of obtaining financial advantage by deception also involved multiple offences on separate occasions, although the two sets of offences are closely linked.
I must also consider the effect of these offences on Mr Ramirez, who was unable to drive for a period as the result of the suspension of his licence, due to the demerit points he received as a result of the traffic infringements. Mr Ramirez found the whole experience stressful and spent considerable time and effort establishing that he was not responsible for the infringements.
The respondent submitted that these offences were not as serious as acts of perjury which place another person at the risk of false conviction or which involve corrupt conduct by a person in a position of trust. It was said that ‘it would not have been thought by anyone that the victim would in fact be saddled with improper fines given that the lost licence had been replaced.’
While acts of perjury which are intended to or make it likely that another person may be convicted of a substantial criminal offence are more serious than the counts of which the appellant was convicted, the consequences of these offences could have been foreseen by the respondent and the difficulties and stress that the victim experienced must be taken into account in re-sentencing the respondent.
Both the individual sentences and the orders for cumulation must give considerable weight to denunciation and general deterrence. The integrity of commercial and legal transactions frequently depends on the truth and accuracy of statements made in statutory declarations. The seriousness with which the criminal law regards the offence of perjury and its capacity to undermine public trust in legal institutions is reflected in the maximum penalty of 15 years which applies to this offence. People who make statutory declarations must appreciate that it is a serious matter to knowingly make false statements. More particularly, the sentences imposed for both the perjury and obtaining financial advantage by deception counts must give weight to the fact that current systems for payment of parking and traffic infringement fines depend on public honesty in nominating drivers who were in fact responsible for infringements. As her Honour commented ‘it is important that courts are seen to maintain and uphold the administration of justice, even in such areas as traffic management notices and their processes.’[11]
[11]Reasons [11].
The circumstances of the offending and the offender require considerable emphasis to be placed on specific deterrence. The respondent has admitted to eight previous court appearances involving 330 prior convictions, some of which were for driving offences, but 313 of which were for offences involving dishonesty. On 9 November 1999 he was convicted of 266 charges of obtaining property by deception and sentenced to be released on an Intensive Corrections Order for six months. After breaching that order it was cancelled and he was sentenced to a term of imprisonment of 149 days. On 3 April 2000 he was convicted of 31 counts of obtaining property by deception, four counts of obtaining financial advantage by deception and 12 counts of attempting to do so, three counts of attempting to commit an indictable offence and one count of stating a false name of address. These convictions related to multiple occasions of credit card fraud involving the use of a false identity. He was sentenced to a total effective term of four years with a non-parole period of two years. Almost all of his other convictions were for driving offences.
In re-sentencing the appellant I must consider all the factors in mitigation of penalty to which her Honour referred, including the appellant’s guilty plea, the fact that the appellant has not been convicted of offences since 2000 or been charged with further offences since he was charged, and that he has strong family support. Ms Carla Lechner’s report, referred to by her Honour, said that the appellant understood the dishonest nature of his offences and was motivated not to re-offend.
As already observed, the complainant was one of a number of registered vehicle owners who, over a period in 2005, falsely nominated the complainant as the infringing driver in relation to infringement notices they received. The court has been provided with the details of eight other offenders aged between 20 and 34, who were sentenced by her Honour for comparable offences arising out of the use of Mr Ramirez’ identity. The principle of parity is therefore relevant in re-sentencing the respondent. For that reason I briefly set out below the offences and criminal history of the other offenders, and the sentences they received.
Ahmed Akl pleaded guilty to three counts of perjury and three counts of obtaining financial advantage by deception. He had two prior convictions for speeding offences, but none for offences involving dishonesty. He was sentenced to an aggregate sentence of six months’ imprisonment, wholly suspended for 12 months.
Andrew Georgiou, who was the youngest offender, pleaded guilty to three counts of perjury and three counts of obtaining financial advantage by deception. He had one prior Children’s Court appearance in relation to underage and unlicensed driving offences. He was sentenced to an aggregate sentence of six months’ imprisonment, wholly suspended for 12 months.
Tony Kamoun, also known as Bilal Fnash, pleaded guilty to one count of perjury and one count of obtaining financial advantage by deception. He had 34 prior convictions from four previous appearances, including for traffic and dishonesty offences. He was sentenced to an aggregate sentence of three months’ imprisonment, wholly suspended for 12 months.
Aref Chor pleaded guilty to one count of perverting the course of justice[12] and one count of obtaining financial advantage by deception. It appears he had no prior convictions. He was sentenced to a Community Based Order for a period of 12 months, with conviction.
[12]It appears that the reason Mr Chor was charged with perverting the course of justice rather than perjury was because, upon receiving the relevant infringement notice in the mail, he had told his wife that a work colleague had been driving instead of him and asked her to fill in the false statutory declaration on his behalf.
Shady El-Mahmoud pleaded guilty to one count of perjury and one count of obtaining financial advantage by deception. He had one prior appearance, a without conviction fine for robbery. In his sentencing him, the judge noted that he developed a psychiatric condition following the death of his father in 2004 and that a conviction would impact on his future prospects to obtain certification as a public accountant, for which he had completed some study. He was sentenced to a Community Based Order for a period of 12 months, without conviction.
Mr Bakalov, who was sentenced after the respondent, also pleaded guilty to one count of perjury and one count of obtaining financial advantage by deception, arising out of the use of Mr Ramirez’ identity. He had 67 prior convictions from 25 court appearances, a number of which were for driving offences or involved dishonesty. He was sentenced to an aggregate term of six months’ imprisonment, wholly suspended for 12 months.
Josephine Mikhael pleaded guilty to 11 counts of perjury, 11 counts of obtaining financial advantage by deception and one count of perverting the course of justice. Ms Mikhael had no prior convictions. In respect of the multiple counts of perjury and obtaining financial advantage by deception, she was sentenced to an aggregate sentence of 12 months’ imprisonment, wholly suspended for two years. In respect of the single count of perverting the course of justice, she was sentenced to a Community Based Order for a period of 12 months.
I have already referred to the circumstances of and sentence imposed on Mr SF (see para 15).
In my opinion, the differences between the circumstances of the appellant and the other offenders justify a disparity between the sentences imposed on them on and the respondent. Although Mr SF had extensive prior convictions for dishonesty offences, her Honour recognised that there were some compelling mitigating factors in his overall offending and also recognised that he had provided a high level of assistance to authorities. It was also necessary for her Honour to take account of totality in the context of Mr SF because he was sentenced for offences on three separate presentments. In these circumstances it is not surprising that the Crown did not appeal against the sentence imposed for the offences arising out of misuse of Mr Ramirez's identity. When the offences on the other presentments were taken into account, he received a total effective sentence of four years' imprisonment. Although Ms Mikhael was convicted of a similar number of counts she had no prior convictions. Mr Bakalov suffered from serious psychiatric problems. All of the other offenders committed fewer offences and had more limited criminal histories.
Having regard to all of these matters and to the need to give weight to the fact that the appellant has been exposed to ‘a species of double jeopardy’[13] I would re-sentence the appellant on the individual counts as follows:
·for each of the perjury counts (counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19 and 21) - eight months’ imprisonment
·for each of the counts of obtaining financial advantage by deception (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20 and 22) - six months’ imprisonment
[13]See R v Hayes (1987) 29 ACrim R 452, 469 (Kirby P).
Like the sentencing judge I would make orders for cumulation which reflect the four separate occasions on which the offences occurred. I have treated count 1 as the base sentence. I would order that six months of the sentence imposed on count 13, six months of the sentence imposed on count 17 and six months of the sentence imposed on count 21 be served cumulatively on each other and on count 1. This results in a total effective sentence of 26 months’ imprisonment.
Having regard to the principles set out in s 27 of the Sentencing Act 1991 and the matters set out above, I would have partially suspended that sentence for a period of 14 months, if it had not been for the principle of double jeopardy. In my
opinion a partially suspended sentence would have taken appropriate account of the need to denounce the respondent’s criminal behaviour, and the principles of general and specific deterrence. However, because of the double jeopardy principle and because the appellant has been serving a suspended sentence since 1 August 2007, I would suspend the whole of the total effective sentence for a period of three years.
VINCENT JA:
I agree.
REDLICH JA:
I also agree.
VINCENT JA:
The orders of the Court are:
1. The appeal is allowed.
2.The sentences imposed in the court below are quashed and in lieu thereof the respondent is re-sentenced as follows:
on each of counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19 and 21: eight months' imprisonment;
on each of counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20 and 22: six months' imprisonment.
Six months of the sentence imposed on count 13, six months of that imposed on count 17 and six months of that imposed on count 21 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 26 months' imprisonment.3.That sentence is to be suspended for an operative period of three years.
4.The sentence is deemed to have been imposed and the period of suspension to have commenced on 1 August 2007.
5.The Court confirms the compensation orders made by the judge below.
The Court grants an indemnity certificate pursuant to s 15 of the Appeal Costs Act 1998.
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