Erden Hassan v The King - [2024] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0099

ERDEN HASSAN	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 212
JUDGMENT APPEALED FROM:	DPP v Hassan [2023] VCC 632 (Judge McInerney)

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of 6 charges of obtaining financial advantage by deception – Total effective sentence of 2 years and 11 months’ imprisonment with non-parole period of 20 months – Applicant property developer – Contracts of sale of properties to purchasers – Applicant inserted false name of real estate agents in order to deceive a bank and assist purchasers to obtain mortgage loans – Whether judge erred in finding that purchasers were financially vulnerable – Whether judge erred in finding applicant motivated by greed – Whether sentence manifestly excessive – Application for leave refused.

Clarkson v The Queen (2011) 32 VR 361; Farrugia v The Queen (2011) 32 VR 140, referred to.

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Counsel
Applicant:		Mr G Traczyk
Respondent:		Ms J Warren
Solicitors
Applicant:	Portfolio Law Pty Ltd
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
KAYE JA:

The applicant was charged on an indictment with ten charges of obtaining a financial advantage by deception. On 3 March 2023, following a trial in the County Court of 16 days, the jury convicted the applicant of six of those charges (charges 4, 5, 6, 8, 9 and 10), and acquitted him on the remaining four charges.
Following a plea made on his behalf, the applicant was sentenced, on 10 May 2023, as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment H12187140
4	Obtain financial advantage by deception (contrary to s 82(1) of the Crimes Act 1958)	20 years’ imprisonment (s. 6I of the Sentencing Act 1991)	2 years’ imprisonment	1 month
5	Obtain financial advantage by deception (contrary to s 82(1) of the Crimes Act 1958)	20 years’ imprisonment (s. 6I of the Sentencing Act 1991)	2 years’ imprisonment	1 month
6	Obtain financial advantage by deception (contrary to s 82(1) of the Crimes Act 1958)	20 years’ imprisonment (s. 6I of the Sentencing Act 1991)	2 years’ imprisonment	1 month
8	Obtain financial advantage by deception (contrary to s 82(1) of the Crimes Act 1958)	20 years’ imprisonment (s. 6I of the Sentencing Act 1991)	27 months’ imprisonment	1 month
9	Obtain financial advantage by deception (contrary to s 82(1) of the Crimes Act 1958)	20 years’ imprisonment (s. 6I of the Sentencing Act 1991)	27 months’ imprisonment	1 month
10	Obtain financial advantage by deception (contrary to s 82(1) of the Crimes Act 1958)	20 years’ imprisonment (s. 6I of the Sentencing Act 1991)	30 months’ imprisonment	Base
Total EffectiveSentence:		2 years 11 months' imprisonment
Non-Parole Period:		20 months
*Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Erden Hassan v The King

Details

AGLC: Erden Hassan v The King [2024] VSCA 212
Case: [2024] VSCA 212
Decision Date: 19 September 2024

CaseChat Overview and Summary

Erden Hassan was convicted in the County Court of Victoria of six charges of obtaining a financial advantage by deception. He was sentenced to a total effective sentence of 2 years and 11 months' imprisonment, with a non-parole period of 20 months. The applicant sought leave to appeal against his sentence. The Court of Appeal held that the sentence was not manifestly excessive. The applicant's offending was persistent and planned, and was carried out in circumstances which took advantage of the goodwill of the bank to established agents, in order to circumvent the banking practice of ANZ, which was known to him, for self-gain. The judge was correct in concluding that the offending was objectively serious. The offending was motivated by greed, and there was a high risk of loss to the bank. The applicant was not able to rely on remorse, and he did not have available to him the sentencing discount had he pleaded guilty. The Court of Appeal concluded that the individual sentences, the orders for cumulation, the total effective sentence and non-parole period were not manifestly excessive. The sentences imposed were appropriate and reasonable. The application for leave to appeal was therefore refused.

Orders