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…

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 Haamid v The Queen

Details

AGLC: Haamid v The Queen [2018] VSCA 330
Case: [2018] VSCA 330
Decision Date: 7 December 2018

CaseChat Overview and Summary

The appellant, Haamid, appealed against his sentence of 5 years' imprisonment imposed for his involvement in a conspiracy to defraud financial institutions. The appeal was heard in the High Court of Australia. Haamid had pleaded guilty to his involvement in a sophisticated scheme that operated over a period of more than three years. He had also cooperated with authorities by providing a letter of assistance and information regarding other participants in the fraud.

The legal issues before the court included whether Haamid's cooperation with authorities was at the highest level, and if so, whether the judge had sufficiently discounted the sentence for this cooperation. Additionally, the court considered whether the sentence was manifestly excessive. The court was also tasked with examining the form of the sentencing remarks, which made oblique references to Haamid's cooperation with authorities, and whether this was problematic. The court also considered the desirability of having separate confidential and public versions of sentencing remarks, with the confidential version fully explaining how cooperation informed the exercise of sentencing discretion.

The High Court found that Haamid's cooperation was substantial but not at the highest level, and while the judge had considered the cooperation, the sentence was not manifestly excessive. The court acknowledged the problems with the form of the sentencing remarks but did not find them to be so significant as to warrant a new sentencing hearing. The court suggested that having separate confidential and public versions of sentencing remarks could be beneficial in future cases, ensuring that the full extent of cooperation is transparently communicated in the confidential version. The appeal was dismissed, and the original sentence was upheld.

Orders