Haamid v The Queen
[2018] VSCA 330
•7 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| Redacted version |
S APCR 2017 0232
| SAFI HAAMID (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | KYROU, NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2018 |
| DATE OF JUDGMENT: | 7 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 330 |
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CRIMINAL LAW – Appeal – Sentence – 5 years’ imprisonment for conspiracy to defraud – Sophisticated system for defrauding financial institutions over period exceeding 3 years – Guilty plea – Cooperation with authorities regarding other participants in fraud – Letter of assistance – Whether cooperation ‘at the highest level’ – Whether judge gave sufficient discount for cooperation – Whether sentence manifestly excessive – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Oblique references to applicant’s cooperation with authorities in sentencing remarks – Problems with sentencing remarks in this form – Desirability of separate confidential and public versions of sentencing remarks, the former fully explaining how cooperation informed exercise of sentencing discretion.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Tehan QC with Ms A C Sharpley | Fayman Lawyers |
| For the Respondent | Mr R T Barry | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
KYROU JA
NIALL JA
WEINBERG JA:
Introduction and summary
This is a redacted version of the restricted reasons for judgment we have delivered in relation to the applicant’s application for leave to appeal against his sentence. The restricted version is not suitable for publication because it sets out in detail the circumstances of the offending and the applicant’s personal circumstances, the assistance that he has provided to the authorities and his concerns for his safety and that of his family due to the provision of that assistance. This redacted version provides only such details as are necessary to provide context to the offending, our reasons for finding that the opaque reference to the applicant’s assistance to the authorities in the judge’s sentencing remarks was inappropriate, and our reasons for granting the application for leave to appeal but dismissing the appeal.
The applicant pleaded guilty to one charge of conspiracy to defraud and was sentenced as set out in the following table:
Charge Offence Maximum Sentence 1 Conspiracy to defraud [Common law] 15 years
[Crimes Act 1958 s 320]5 years
Non-Parole Period: 3 years, 3 months Pre-Sentence Detention Declaration: 61 days 6AAA Statement: 7 years with a non-parole period of 4 years, 6 months
The fraud the subject of the charge involved a sophisticated system for defrauding financial institutions for a period exceeding three years.
After he was charged, the applicant made statements to authorities, which provided details of other participants in the fraud, and undertook to give evidence against them. The applicant was provided with a ‘letter of assistance’ in respect of his cooperation.
The applicant seeks leave to appeal against sentence on the ground that the sentence is manifestly excessive and on the further ground that the judge erred in failing to place sufficient weight upon the applicant’s cooperation with law enforcement authorities.
At the hearing of the application for leave to appeal, the applicant clarified that the only basis on which he contended that the sentence was manifestly excessive was that the judge did not give sufficient weight to his cooperation with the authorities. He accepted that if ground 2 failed, ground 1 could not succeed.
Circumstances of offending
The applicant established a company whose business was to prepare and submit fraudulent applications for finance for its clients. Many of the clients would have otherwise not qualified for loans.
The applicant interviewed clients, obtained relevant information from them, such as their employment details and actual income levels, and wrote an instruction sheet indicating what documents were required for loan applications. Employees would then complete fraudulent loan applications and prepare false documents — or doctor existing documents — to support the applications.
Once complete, the fraudulent applications and supporting documents were forwarded to financial institutions or intermediaries.
The applicant set up relationships with employees of those institutions and intermediaries who would facilitate the loan applications despite knowing that they were fraudulent.
The total value of the loans approved by financiers to whom the applicant’s company submitted loan applications exceeded $150 million.
The applicant’s company received facilitation fees, referral fees and commissions totalling in excess of $2 million.
After his trial had commenced upon his plea of not guilty, the applicant pleaded guilty. He made lengthy statements in which he named numerous employees of financial institutions, intermediaries and his company who were involved in the fraudulent activities. He described in detail his company’s fraudulent activities, and the nature of those individuals’ involvement.
In one of his statements, the applicant referred to threatening behaviour by one of the individuals he had implicated.
The applicant gave a written undertaking to give evidence for the Crown, in accordance with his statements or any further statement, in any proceeding the Crown may nominate in respect of any person, including a number of named individuals.
The applicant was provided with a letter of assistance, which was before the judge when the applicant was sentenced. The letter described the applicant’s assistance as valuable and particularly noted that it would significantly assist law enforcement authorities in the prosecution of a named individual and increase the prospect of another named individual being prosecuted because it corroborated the limited evidence already held in relation to that individual.
Personal circumstances
A psychological report stated that the applicant has a reactive adjustment disorder with mixed anxiety and depressed mood in response to being charged with the current offending. It was the psychologist’s opinion that the applicant’s mental health would inevitably deteriorate if he were incarcerated for the current offending.
The applicant has a limited but relevant criminal history comprising two offences which he committed more than 10 years prior to being sentenced for the current offending. The most recent of those offences involved causing false papers to be delivered and making a false or misleading statement. He was sentenced to a short period of imprisonment to be served by way of an intensive correction order, and was required to pay a small fine.
Sentencing remarks
The judge described the offending, and the applicant’s role as principal in the offending, in very strong terms.
The judge found that the applicant was motivated by greed and that his objective criminality and moral culpability were very high. The judge said that the level of criminality the offending involved — due to the actual sums involved and volume of documents — meant that general deterrence was particularly significant in sentencing the applicant.
The judge also stated that specific deterrence was a relevant sentencing consideration due to the applicant’s relevant criminal history which, although of a different scale and gravity, was of some significance and meant that undue weight could not be given to the applicant’s good character. The judge found that the applicant’s prospects of rehabilitation were nevertheless good.
The judge took into account the applicant’s plea of guilty as having utilitarian value because it avoided the need for what would have been a very complex and lengthy trial. However, the judge stated that the applicant’s plea of guilty was not entered at the first opportunity. The judge found that the plea was evidence of some remorse. The judge also took into account as a mitigating factor the delay between the execution of search warrants and the applicant being charged.
The judge did not refer in terms to the applicant’s cooperation with the authorities. There are two short passages in the judge’s sentencing remarks which could be construed as referring to that cooperation. Those passages were very oblique.
Relevant legal principles
The principles governing the discount on sentence for an offender who cooperates with the authorities are well known.[2] It is not necessary for us to restate them. For the purposes of the current application, it suffices to refer to the following:
[2]Although the term ‘discount’ is commonly used, in the context of the instinctive synthesis, the recognition given to the offender’s cooperation with the authorities should be seen as a moderating factor to be taken into account with all other relevant sentencing considerations. See Ooi v The Queen [2018] VSCA 78 [55] (‘Ooi’).
(a) There is no set ‘tariff’ or standard discount to be provided for cooperation.[3]
(b) Factors relevant to the determination of the discount to be provided include:[3]R v Cartwright (1989) 17 NSWLR 243, 255–6 (‘Cartwright’); R v Johnston (2008) 186 A Crim R 345, 350–1 [18], [21] (‘Johnston’); DPP v Cooper [2018] VSCA 21 [45] (‘Cooper’); Ooi [2018] VSCA 78 [54].
(i)the quality and reliability of the information provided by the offender and its value to law enforcement authorities;[4]
[4]Johnston (2008) 186 A Crim R 345, 350 [18]; Collins v The Queen [2018] VSCA 131 [23] (‘Collins’).
(ii)whether the offender fully and frankly discloses all relevant information of which he or she is aware;[5]
[5]R v Su [1997] 1 VR 1, 79 (‘Su’); R v Golding (1980) 24 SASR 161, 173 (‘Golding’).
(iii)whether, in addition to providing information, the offender has undertaken to continue to provide assistance and to give evidence against other offenders;[6]
[6]Cooper [2018] VSCA 21 [45].
(iv)the nature and gravity of the offences disclosed by the information provided by the offender and the number of people implicated;[7]
[7]Johnston (2008) 186 A Crim R 345, 350 [18].
(v)the nature of the offender’s involvement in the offending in respect of which he or she provides information and his or her moral culpability;[8]
[8]Johnston (2008) 186 A Crim R 345, 350 [18].
(vi)the extent to which the offender and his or her family are exposed to the risk of harm as a result of the offender’s cooperation;[9] and
[9]Cartwright (1989) 17 NSWLR 243, 255; Cooper [2018] VSCA 21 [45]; Collins [2018] VSCA 131 [24].
(vii)whether the offender’s cooperation has already achieved positive law enforcement outcomes, such as recovery of stolen or dangerous goods, the interception of a shipment of illicit drugs, the prevention of an act of terrorism or the arrest or conviction of offenders.[10]
(c)The offender is entitled to a discount even if his or her motive is self-interest. However, if the motive is remorse, contrition, acceptance of responsibility or rehabilitation, a greater discount may be warranted based on the application of normal sentencing principles.[11]
(d)The discount to be provided to a ‘true informer’ may be as high as 66 per cent.[12] An example of a ‘true informer’ is a person who is a member of an organised crime syndicate who provides information against other members of the syndicate in circumstances where his or her personal safety, and that of members of his or her family, is placed at grave risk.
(e)There are a number of cases in which a discount of 50 per cent has been provided.[13]
(f)The magnitude of any discount provided is not always apparent. Unlike the discount for a plea of guilty which must be quantified under s 6AAA of the Sentencing Act 1991, s 5(2AC) of that Act provides that a sentencing court need not quantify any discount provided for cooperation.
(g)As long as the offender provides genuine cooperation, the fact that, for reasons unconnected to the offender, the cooperation is ultimately not required to achieve a law enforcement outcome does not disentitle him or her to a discount.[14] An example is where the offender undertakes to give evidence against a co-offender but is not required to do so because the co-offender decides to plead guilty.[15]
(h)The discount allowed for cooperation will necessarily affect both the head sentence and the non-parole period.[16]
[10]Golding (1980) 24 SASR 161, 173.
[11]Cartwright (1989) 17 NSWLR 243, 252.
[12]Cottee v The Queen [2010] VSCA 285 [23] (‘Cottee’); Cooper [2018] VSCA 21 [43].
[13]See, eg, Johnston (2008) 186 A Crim R 345, 350 [20].
[14]Cartwright (1989) 17 NSWLR 243, 253; R v Freeman (2001) 120 A Crim R 398, 405 [37] (‘Freeman’); DPP v Nazari [2010] VSCA 293 [31]–[32]; Cottee [2010] VSCA 285 [24].
[15]Cartwright (1989) 17 NSWLR 243, 253; Freeman (2001) 120 A Crim R 398, 405 [37].
[16]R v Duncan [1998] 3 VR 208, 214–5 (‘Duncan’).
The Court will give considerable weight to any assessment in a letter of assistance in relation to matters such as the value of the offender’s assistance and the degree of risk to his or her safety. However, the Court will make its own assessment of these matters.
Section 5(2AC) of the Sentencing Act, to which we have already referred, must be read with s 5(2AB). Those sections provide as follows:
(2AB)If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.
(2AC)Nothing in subsection (2AB) requires a court to state the sentence that it would have imposed but for the undertaking that was given.
Section 5(2AB) promotes the public policy that offenders should be encouraged to provide information and other forms of assistance to law enforcement authorities to help them bring other offenders to justice.[17]
[17]R v McGookin (1986) 20 A Crim R 438, 449; Su [1997] 1 VR 1, 77; Cartwright (1989) 17 NSWLR 243, 252; Collins [2018] VSCA 131 [25].
Parties’ submissions
The applicant submitted that the discount which he received on his sentence as a result of his cooperation with authorities was inadequate, and that the judge erred by failing to place sufficient weight upon his past, present and future cooperation. He contended that his assistance should properly be regarded as ‘at the highest level’, that nothing in the sentencing remarks indicates that the judge independently evaluated the assistance he provided to the authorities, and that the sentence of 5 years’ imprisonment with a non-parole period of 3 years and 3 months imposed on him could not have been imposed had the judge applied an appropriate discount.
The applicant argued that his assistance was ‘at the highest level’ for the following reasons:
(a)His assistance was considerable because his statements were detailed, frank, and implicated a large number of individuals in serious offending. His undertaking was broad in its terms such that he might be required to make further statements. By contrast, in Arthur v The Queen,[18] the offender’s assistance was said to be confined to signing a statement implicating two co-offenders in a conspiracy to defraud and an undertaking to give evidence against them.
(b)His undertaking also required him to give evidence against others in any future prosecutions and to continue to assist the authorities. This assistance was particularly significant in the light of the current Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, and may, as a result of that Commission, have a broader use than criminal prosecutions against the named individuals, or result in further enquiries by the authorities. That is because he had identified systematic corruption in the finance industry and named individuals involved.
(c)The letter of assistance is the highest form of assistance that one of the authorities involved in this matter will acknowledge.
(d)He provided assistance despite his fears for his safety and that of his family, arising from his cooperation with authorities.
[18][2018] VSCA 58.
The applicant submitted that this Court has acknowledged that the discount for cooperation can be ‘very considerable indeed’,[19] and that authorities indicate that a reduction of up to 50 per cent of a sentence is not considered excessive.[20] He argued that, as his assistance was ‘at the highest level’, it should have attracted a discount of at least 50 per cent. He contended that it can be inferred that the s 6AAA statement made by the judge in fact reflected both the applicant’s plea of guilty and his cooperation with authorities such that they were ‘wrapped up’ together as a reduction in the order of 30 per cent. According to the applicant, that level of discount was inadequate in all the circumstances and thus the sentence was manifestly excessive.
[19]Duncan [1998] 3 VR 208, 215.
[20]The applicant relied on Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) [6.75].
The Crown submitted that nothing in the judge’s sentencing remarks suggested that the judge did not take into account all aspects of the applicant’s past, present and future cooperation with authorities. It submitted that the judge’s remarks referred to at [24] above could only be reasonably interpreted as the judge placing significant weight on the applicant’s cooperation and, as the undertaking was before the court, it could not be said that the judge gave no, or insufficient, weight to the applicant’s assistance.
The Crown contended that the applicant’s assistance was not ‘at the highest level’ because it primarily focused on one named individual. It argued that there was no ‘correct’ discount to be given for cooperation in a given case.
The Crown submitted that, in the light of the enormity of the conspiracy to defraud and the applicant’s role in that conspiracy, the sentence imposed by the judge was not wholly outside the range of available sentencing options. According to the Crown, the judge was entitled to conclude that the applicant’s objective criminality and moral culpability were very high, general deterrence was a paramount consideration, specific deterrence was relevant and therefore the sentence imposed was not manifestly excessive.
Decision
The task of a sentencing judge in explaining how the offender’s cooperation informed the exercise of the sentencing discretion involves a difficult balancing of two important principles. They are the need to be transparent and accountable by publishing sentencing remarks that accurately explain how the judge arrived at the sentence, and the need to avoid compromising the offender’s safety and the efficacy of ongoing criminal investigations. To date, sentencing remarks in cases involving plea submissions seeking a discount for cooperation have generally taken three forms. Each of these forms strikes a different balance between those principles.
The first form is sentencing remarks that fully explain how the cooperation informed the exercise of the sentencing discretion, but are restricted and not published beyond the parties. This has the advantage of fully informing the parties of the reasons for the sentence, protecting the offender and complying with s 5(2AB) of the Sentencing Act (if applicable).[21] However, it does not promote transparency and accountability or encourage other offenders to cooperate. To the extent that general deterrence is a relevant sentencing consideration, it is undermined if the sentencing remarks are not publicly available. Also, unless special arrangements are made for the Crown to communicate the outcome of the proceeding to victims of the offending on a confidential basis, their interests are not accommodated.
[21]See [27] above.
The second form is sentencing remarks that are silent in relation to cooperation and made publicly available. This has the advantage of protecting the offender. However, by omitting any reference to an important factor that was taken into account in the exercise of the sentencing discretion, the sentencing remarks are misleading, do not promote transparency and accountability and may contravene s 5(2AB) of the Sentencing Act (if applicable). This also has the potential to distort current sentencing practices because the discount for the cooperation is likely to result in a much lesser sentence being imposed than in comparable cases which do not involve cooperation. It may also give rise to appeals by the offender on the ground that the sentence is manifestly excessive because inadequate weight was given to the cooperation, and by co-offenders on parity grounds. The absence of any reasons concerning the cooperation would complicate the task of the Court of Appeal in assessing the merits of an appeal by the offender or a co-offender.
The third form, which the judge adopted in the present case, is sentencing remarks that make a veiled reference to cooperation and are made publicly available. This has the advantage of communicating to the parties the fact that cooperation has been taken into account without alerting other readers of that fact and thus protecting the offender from the risk of harm. The risk of harm may be further reduced where a pseudonym is used instead of the offender’s name. However, depending on the form of wording that is used, the risk of harm may not be totally excluded. Also, a pseudonym may not be effective if the circumstances of the offending and the applicant’s personal circumstances are set out in full because these details would enable some readers — particularly co-offenders — to identify the offender. Speculation may also arise as to the reasons for the pseudonym. Further, depending on the opaqueness of the reasoning, this form does not promote transparency and accountability and may have all the other disadvantages of the second form.
There is a fourth option available to sentencing judges, namely, the preparation of two versions of the sentencing remarks, one of which takes the first form and the other of which may take the second or third form or a variation of them, such as an edited version of the first form of the kind we have prepared in the present case. This option combines the advantages of the first and other adopted forms and addresses some of the disadvantages associated with them. For example, the existence of the restricted version means that the parties and, on appeal, the Court of Appeal, are able to assess the appropriateness of the consideration that the sentencing judge gave to the offender’s cooperation. However, the fourth option does not eliminate all of the disadvantages associated with the first and other adopted forms.
In our opinion, the interests of justice will often be best served by the adoption of the fourth option. Accordingly, unless there are particular features in a given case which necessitate the adoption of a different course, sentencing judges should adopt the fourth option where a discount on sentence is sought on a plea due to the offender’s cooperation. Where appropriate, a pseudonym may be used for both versions of the sentencing remarks.
Much of the difficulty in the present case has arisen because the judge adopted the third form. The complaints that the applicant has made about the judge’s sentencing remarks are understandable because those remarks did not refer in terms to the applicant’s cooperation and invited speculation about whether the judge took that factor into account and, if so, the weight that the judge gave to it.
Ultimately, the applicant did not contend that the judge failed to take his cooperation into account. He accepted that the first passage from the sentencing remarks, to which we have referred at [24] above, deals with his cooperation. We agree. We are of the view that the second passage referred to at [24] above also deals with cooperation. It can be inferred with some confidence that both passages are veiled references to the applicant’s cooperation, as they cannot sensibly refer to anything else. However, the fact that the references are veiled means that they do not provide any meaningful explanation of how the applicant’s cooperation informed the exercise of the sentencing discretion.
We reject the applicant’s submission that the discount of approximately 30 per cent reflected in the 6AAA statement ‘wrapped up’ both his guilty plea and cooperation. The 6AAA statement is expressly confined to the guilty plea.
In essence, the applicant’s complaint is that the judge failed to assess his cooperation as ‘at the highest level’ and provide a discount on sentence which was commensurate with that level of assistance, which was said to be at least 50 per cent.
We do not accept that the applicant’s cooperation was ‘at the highest level’. That level of assistance would apply to cases of true informers. It does not apply to the present case. The letter of assistance did not assess the applicant’s cooperation at that level. Rather, it assessed it as significant. That assessment is appropriate in the light of the extensive disclosures made in the applicant’s statements and his undertaking to give evidence against other individuals.
We accept that the large number of individuals whom the applicant implicated is relevant to the assessment of the value of his cooperation. However, there is no necessary correlation between the number of persons implicated and the value of cooperation. Assessment of value depends on all the circumstances, including the nature of the offending and the role of implicated individuals in that offending. By way of example, information provided by an informer which identifies a person who committed a murder would be more valuable than information which identifies several individuals who played a minor role in an affray or were incidentally involved in a small fraud.
Further, there was little evidence about the risk to the applicant’s safety as a result of his cooperation. While it may be accepted that there was some risk, particularly in the prison environment, it was significantly less than the risk of harm posed to a true informer.
The applicant did not cavil with the judge’s conclusions concerning the seriousness of his offending and the very high level of his moral culpability. That is not surprising. The applicant was at the apex of a sophisticated and prolonged fraud which undermined the integrity of the financial system because a large number of loans were made to people who did not have the capacity to repay them. The total value of loans fraudulently obtained and the period in excess of 3 years over which the fraud was conducted provide an insight into the vast scale of the applicant’s criminality. The applicant was motivated by greed. He had a relevant criminal history and, apart from his guilty plea, cooperation and the delay before he was charged, he could say little else in mitigation of sentence.
In the light of these circumstances and the maximum penalty of 15 years’ imprisonment, a very substantial term of imprisonment was warranted. Even allowing for the guilty plea, the sentence of 5 years’ imprisonment imposed by the judge is so low that the only inference that can be drawn is that the judge allowed for a significant discount on account of the applicant’s cooperation. While it is not possible to precisely quantify the discount allowed by the judge, we reject the applicant’s contention that it was inadequate in all the circumstances.
For the above reasons, ground 2 must be rejected.
Conclusion
Although we have rejected ground 2, as it was arguable, we will grant leave to appeal in relation to it. For the reasons set out at [6] above, our rejection of ground 2 means that ground 1 cannot be upheld. Accordingly, the appeal will be dismissed.
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