Hassan v The King
[2023] VSCA 251
•24 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0099 |
| ERDEN HASSAN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 October 2023 |
| DATE OF JUDGMENT: | 24 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 251 |
| JUDGMENT APPEALED FROM: | DPP v Hassan [2023] VCC 632 (Judge McInerney) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal – Sentence – Six charges of obtaining financial advantage by deception – Total effective sentence 2 years and 11 months’ imprisonment with non-parole period of 1 year and 8 months – Whether sentencing judge made errors of fact in sentencing – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel | ||
| Applicant: | Mr PA Chadwick KC | |
| Respondent: | Ms K Hamill | |
Solicitors | ||
| Applicant: | Portfolio Law | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
TAYLOR JA:
Introduction and summary
On 3 March 2023, following a trial of 16 days, a jury in the County Court convicted the applicant of six charges of obtaining financial advantage by deception.
Following a plea hearing on 5 April 2023, the applicant was sentenced on 10 May 2023 as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 4 | Obtain financial advantage by deception | 20 years (in virtue of Sentencing Act 1991, s 6I (‘Sentencing Act’)) | 2 years | 1 month |
| 5 | Obtain financial advantage by deception | 20 years (in virtue of Sentencing Act, s 6I) | 2 years | 1 month |
| 6 | Obtain financial advantage by deception | 20 years (in virtue of Sentencing Act, s 6I) | 2 years | 1 month |
| 8 | Obtain financial advantage by deception | 20 years (in virtue of Sentencing Act, s 6I) | 2 years and 3 months | 1 month |
| 9 | Obtain financial advantage by deception | 20 years (in virtue of Sentencing Act, s 6I) | 2 years and 3 months | 1 month |
| 10 | Obtain financial advantage by deception | 20 years (in virtue of Sentencing Act, s 6I) | 2 years and 6 months | Base |
| Total Effective Sentence: | 2 years and 11 months’ imprisonment | |||
| Non-Parole Period: | 1 year and 8 months | |||
| Pre-sentence Detention Declared: | N/A | |||
| Section 6AAA Statement: | N/A | |||
| Other Relevant Orders: 1. Sentenced as a continuing criminal enterprise offender on each charge pursuant to s 6J(1) of the Sentencing Act. | ||||
The applicant seeks leave to appeal against sentence on the following grounds:
1.The learned sentencing judge erred by finding that the purchasers were vulnerable.
2. The learned sentencing judge erred by reaching a finding as to the motivation of the applicant.
3.The learned sentencing judge erred by reaching a finding that the purchase price was inflated.
4.The learned sentencing judge erred in his application of the parity principle by imposing a sentence that attached excessive weight to the sentencing of Akkala, Anand and Becker.
5.The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the principle of totality and the significant matters in mitigation.
For the reasons that follow, leave to appeal should be refused.
Circumstances of the offending
The applicant operated a licenced real estate agency, the Erden Property Group Pty Ltd (‘Erden’). It bought, sold and leased commercial, industrial and residential property.
In 2014 the applicant entered into an agreement, arrangement or understanding with Rama Akkala, a ‘loan introducer’ at the Australia and New Zealand Banking Group (‘ANZ’), and Ankur Anand, an ANZ loans officer, to submit loan applications to ANZ containing false representations designed to maximise the chances of a successful loan application.
During a meeting at which Akkala was present, Anand gave the applicant certain information about ANZ policies concerning property valuations. In particular, the applicant was told that if the borrowing was under a 85% loan-to-value ratio and the sale was made through a real estate agent, the bank would not automatically undertake a full valuation process. He was also told that if he was the vendor of a property, he could not put his own name as the vendor’s real estate agent without triggering an automatic valuation process.
Charge 4
In December 2013, Tusambe and Lalia Marinjira agreed to purchase a house owned by Erden in Melton West for $420,000. They paid a $40,000 deposit and agreed to pay the applicant $3,000 per month until a bank loan could be organised. In January 2015 the applicant arranged for Mr Marinjira to meet Akkala and Anand at the ANZ bank, where he was told to sign documents. Following the appointment Mr Marinjira paid $1,500 into Akkala’s bank account. In March 2015 a loan application for $355,934.89 was submitted. The contract of sale listed the vendor as Erden and the real estate agent as ‘YPA Estate Agents’. A version of the contract of sale was later seized from the applicant’s office. It bore his signature.
Charge 5
In early 2011 Miro Juresic became aware that Erden was selling properties off the plan. On 14 February 2011 he signed a contract with Erden to buy a house in Melton West for the price of $427,000. He paid a deposit of $40,000 and, subsequently $623 per week. Mr Juresic and his wife moved into the property in April 2011. About seven or eight months later, the applicant arranged for Mr Juresic to attend the ANZ bank to finalise the loan application. There Mr Juresic paid Akkala $1,000 cash before being introduced to Anand. The evidence of Mr Juresic at trial was that he did not sign any documentation in connection with the loan he subsequently received from ANZ. A contract of sale for the property containing falsified real estate agent details was later seized from the applicant’s office. It was different from the version received by ANZ.
Charge 6
In November 2013 Sifa Kachunga met the applicant. Together with her then husband she agreed to purchase a house in Melton West from him for $375,000. The purchase price later increased to $395,000. Ms Kachunga paid a partial deposit of $10,000 in cash. She was told she needed $25,000 in total. On 11 November 2013 Ms Kachunga commenced paying the applicant $1,400 per fortnight to make up the deposit. Eventually the applicant arranged for Ms Kachunga and her then husband to attend the ANZ bank to finalise a loan application. Ms Kachunga’s evidence was she refused to sign the ANZ letter of offer that day because the price exceeded the price she initially agreed to pay the applicant. The contract of sale dated 2015 detailed Barry Plant Doherty as the real estate agent. A copy of that contract of sale was later seized from the applicant’s office.
Charge 8
Charlotte Mandjundju purchased a house in Melton West through Erden on 23 September 2013 for $420,000. She signed a contract of sale with the applicant and paid a total deposit of $25,000 in three separate payments of $10,000, $7,000 and $8,000. She then began paying the applicant $1,236 per fortnight. She believed at the time she was the owner of the property. In 2015 the applicant asked her to initial a contract of sale dated 2015, which listed the real estate agent as Barry Plant, and to attend the ANZ bank. There she paid Akkala $1,500. She met another person at the bank who informed her that her loan had been approved. The version of the contract of sale seized from the applicant’s office had differences from that received by ANZ.
Charge 9
Lofombo Liolongo agreed to purchase a house and land package in Melton West from the applicant for $445,000. Mr Liolongo paid a $40,000 deposit and moved in in December 2013. Thereafter he paid the applicant $1,077 per fortnight. In February 2015 Mr Liolongo’s loan application was rejected by Delphi Bank. Eventually the applicant’s son took him and his wife to ANZ to meet Akkala and Anand. He gave $1,500 to the applicant to pay to Akkala. The contract of sale submitted to ANZ listed the real estate agent as Barry Plant. The loan extended was about $375,000.
Charge 10
In 2013 Ms Dau, who could not read or write English, agreed to purchase a land and house package in Truganina from the applicant for $420,000. She paid a $7,000 cash deposit and, thereafter, $1,100 fortnightly to the applicant. After being told by her son that the rate notices were not in her name, Ms Dau spoke to the applicant. She borrowed $35,000 in cash from friends and gave that to the applicant. In April 2015 the applicant took her to the ANZ bank and told her that Akkala would help with the loan. A copy of the contract of sale later seized from the applicant’s office detailed the real estate agent as Ray White and bore the applicant’s signature.
The six loans approved by the ANZ bank relevant to the charges totalled $2,206,409.70. If the bank had known that the information in the contracts of sale was false, the loans would not have been approved.
The sentencing reasons
In his sentencing reasons (‘Reasons’) the sentencing judge commenced with the import of the jury verdict, namely that in relation to each charge, the jury had found beyond reasonable doubt that the applicant had falsely represented on the contract of sale the name of the real estate agent, thereby committing the deception which was a cause of the financial advantage, or mortgage, being obtained from the ANZ bank in favour of the purchaser under the contract.[1] In so doing, the jury rejected the evidence of the applicant.[2] His Honour noted the total value of the financial advantage advanced to the six purchasers by the joint fraudulent conduct of the applicant, Akkala and Anand, but again noted that the applicant’s criminality was limited to his actions with respect to inserting false real estate agent details in each of the contracts of sale.[3] In particular, the jury found that the applicant was not involved in the false statements of financial particulars put forward to ANZ on behalf of each purchaser by Akkala and Anand.[4]
[1]Reasons, [5].
[2]Reasons, [9].
[3]Reasons, [11]–[12].
[4]Reasons, [13].
His Honour found that the applicant had, nonetheless, engaged in serious criminality. While each of the loan applications was always subject to further security and random checking, the evidence of the ANZ witnesses in the trial was that had the falsity of the nominated real estate agent in each contract been known, each of the applications would have been refused.[5]
[5]Reasons, [14].
The sentencing judge noted that the applicant fell to be sentenced as a continuing criminal enterprise offender,[6] meaning that the maximum penalty for each offence was increased to 20 years[7] and the applicant’s status as a continuing criminal enterprise offender was to be noted in the records of the court.[8] His Honour said that the financial advantage obtained in respect of each charge was, on average, seven times higher than the threshold relating to each such charge.[9] The judge referred to authority of this Court and noted that a heavier sentence for a continuing criminal enterprise offender was not inevitable, but open.[10]
[6]Sentencing Act, s 6H(1)(c).
[7]Sentencing Act, s 6I.
[8]Sentencing Act, s 6J(1).
[9]Reasons, [15].
[10]His Honour referred to R v Roussety (2008) 24 VR 253, 280 [59] (Ashley JA) and R v Grossi (2008) 23 VR 500, 511 [42] (Redlich JA): Reasons, [16].
His Honour characterised the applicant’s offending, in light of his extensive experience as a developer and real estate agent, as ‘persistent and planned’ and done by knowingly flouting banking practice for self-gain.[11] His Honour noted the applicant’s submission that the criminal conduct was confined to eight weeks but did not accept that the conduct was ‘not difficult to detect’. Further, given the economic status of the purchasers, there was a high risk of loss to the bank. The judge referred to the applicant’s submission that all of the purchasers were still residing in the properties but noted that the court was unaware of their payment histories and possible defaults.[12]
[11]Reasons, [17].
[12]Reasons, [18].
The judge found that the only possible explanation for the applicant’s criminality was greed. He had been a successful land developer and real estate agent and a wealthy man. The court had been advised that Erden had assets in the order of $60 million.[13] Each of the sales made by the applicant freed up capital by the payout of mortgages to the National Australia Bank (‘NAB’) given to the applicant and his interests to develop the blocks. That was only possible because ANZ was deceived.[14] His Honour found that the freeing from debt was a ‘substantial positive’ for a developer as the contracts tendered to the ANZ were considerably inflated from the original purchase price.[15] However, the judge, expressly noted that the applicant was not charged for that circumstance.[16] Accordingly, the judge rejected the applicant’s submission that the sale and payout of the National Bank mortgage was offset by the loss of an asset.[17]
[13]Reasons, [19].
[14]Reasons, [20].
[15]Reasons, [21].
[16]Reasons, [21].
[17]Reasons, [22].
His Honour also found that greed as the motivation for the offending was established because
In order to effect settlement, the vendor had to pay the balance required or come to an arrangement with the impecunious purchasers that such sum would be paid on their behalf, to ensure settlement occurred, with the purchasers agreeing to refund the amount to the vendor subsequently. Such detail is obtained from the statement of the moneys in each instance upon settlement, which was never formally tendered in the trial (given the partial admissions in Exhibit P 13) but was provided to the Court and the prosecution in the defence draft Jury Book.[18]
[18]Reasons, [25].
The judge next recorded that the applicant, by running his trial, did not have the benefit of remorse.[19]
[19]Reasons, [26].
Turning to parity, the judge accepted both parties’ submissions that parity with the sentences imposed on Akkala and Anand was of little application.[20] The judge also accepted the prosecution’s submission that although Sheree Becker, another real estate agent who had participated in a separate fraudulent scheme with Akkala and Anand, was not a co-accused, it would be incongruous to treat their objective criminality differently.[21] His Honour noted that the applicant was entitled to individualised justice.[22] His Honour then proceeded to record the subjective differences between the applicant and Becker,[23] and noted that the applicant utilised purchasers ‘who he knew to be financially distressed, who would not otherwise have been able to complete their purchase without the relevant valuations being disputed.’[24] His Honour further found that it had not been established that all purchasers actually paid their deposits as detailed in the contracts sent to ANZ.[25]
[20]Reasons, [27].
[21]See DPP v Becker [2022] VCC 2058 (Judge McInerney).
[22]His Honour referred to DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 (‘Dalgliesh’).
[23]Reasons, [33]–[34].
[24]Reasons, [36].
[25]Reasons, [36].
Turning to the applicant’s personal circumstances, his Honour found that he had an excellent prior character and was a credit to Australia’s migration system.[26] He had excellent prospects of rehabilitation.[27] Those matters were to be balanced against the importance of general deterrence.[28] Delay was a ‘powerful mitigatory factor’.[29] The applicant had, during the period of delay made a substantial contribution to the construction of affordable housing in Western Victoria.[30] The judge accepted that the applicant had suffered extra-curial punishment in the form of loss of business opportunities, the anticipated cancellation of his real estate agent licence and his resignation as a director of Erden and all associated companies.[31]
[26]Reasons, [38]–[39].
[27]Reasons, [40].
[28]Reasons, [41].
[29]Reasons, [42]–[43].
[30]Reasons, [44].
[31]Reasons, [45].
His Honour concluded that despite the powerful mitigatory factors, a community correction order (‘CCO’) would not be an appropriate sentencing disposition in light of the applicant’s persistent and planned criminality, committed for substantial financial gain by the deliberate false statements as to the identity of the real estate agent in each of the six contracts.[32]
[32]Reasons, [46]–[49].
Ground 1
Applicant’s submissions
The applicant argues that the sentencing judge erred in finding that the purchasers were vulnerable. The applicant refers to four of his Honour’s comments said to make the error apparent:
(a)that the applicant ‘utilised purchasers who he knew to be financially distressed, who would not otherwise have been able to complete their purchase without the relevant valuations not being disputed’; [33]
(b)that there was a high risk of loss to the bank due to the economic status of the purchasers; [34]
(c)that his Honour expressed doubts that all purchasers actually paid the deposits as detailed in the contracts despite each giving evidence that they did; [35] and
(d)that the real purpose of the criminality was illustrated by the purchasers having to borrow from the applicant to ensure settlement occurred.[36]
[33]Reasons, [36].
[34]Reasons, [18].
[35]Reasons, [36].
[36]Reasons, [27].
The applicant argued that the mischief of the offending was not that the various property valuations were incorrect, or that the purchasers did not have the capacity to pay the loans. Rather, it was the use of false real estate agent details which resulted in the bank’s process of checking valuations not automatically being triggered. If the bank had undertaken the valuation processes, the loans may well have been approved. There was thus no basis to conclude that ANZ was at a high risk of loss. Further, there was evidence in the trial that the purchasers had paid the deposits. And, the borrowing of further sums from the vendor to effect settlement arose from ignorance on the part of the purchasers as to the additional costs of stamp duty and conveyancing fees involved in property transfer. In any event, his Honour made that finding from a document not in evidence at trial.
Respondent’s submissions
The respondent argued that his Honour was correct to consider the purchasers as vulnerable. Each of the purchasers involved would have had, but for the involvement of the applicant, difficulty in navigating the banking system and obtaining a loan from ANZ. Some had limited facility in English. Others were asked to sign documents of which they had limited or no understanding. The evidence at trial was that not all the purchasers had paid the deposits. In any event, his Honour’s finding was simply that he could not be satisfied on the balance of probabilities that they had paid the deposits.
Analysis
The applicant’s conduct in using false details of real estate agents on each of the six contracts was done to defeat the automatic application of one of the bank’s checks and balances as to the risk profile of a potential mortgagor. That behaviour inherently exposed the bank to economic risk. Done six times with respect to a total value of a little over $2.2 million in mortgages clearly exposed ANZ to a high risk of loss.
Further, it is plain that the purchasers were economically vulnerable. Whether they later defaulted on a mortgage or not, at the time they entered the arrangements with the applicant, they were clearly unable to obtain traditional financial assistance from established lenders. At least some were unaware that after paying a deposit followed by weekly instalments to the applicant, title in the property had not been transferred. All would not have been able to effect settlement based solely on the funds borrowed from ANZ. Whether that arose from ignorance as to stamp duty and legal fees — or not — their vulnerability and stretched economic capacity is apparent. In that regard, to the extent that his Honour referred to a document never formally tendered in the trial, the resultant finding was also based on admissions that were in evidence. In oral submissions, counsel for the applicant accepted that it was in evidence that the applicant, as vendor, advanced each of the purchasers moneys to effect settlement.
As to his Honour’s finding that, on the evidence, he could not conclude whether the deposits were paid by the purchasers, but suspected that they had not been, that finding was made specifically in response to the applicant’s argument at the plea that Becker’s offending was more serious than his. It adds little to his Honour’s finding that the purchasers were financially distressed.
It follows that ground 1 must fail.
Ground 2
Applicant’s submissions
The applicant submitted that the sentencing judge erred in finding that the purpose of each sale was to free up capital. Specifically, his Honour should not have rejected the argument that the discharge of mortgages held by NAB over the properties was offset by the loss of the properties as assets.
Respondent’s submissions
The respondent argued that the applicant was a wealthy man and that there was no evidence to suggest that the offending occurred as a result of financial need or in consequence of any addiction, such as a gambling habit. Consequently, it was open to the judge to find that the only possible motivation for the offending was greed. Further, it was submitted that being a property developer, it was necessary to the applicant’s business that assets were sold at profit and capital freed up to make further investments.
Analysis
His Honour found that the sale of the properties to the purchasers freed up capital available to the applicant and his entities by extinguishing debt. While, obviously, the sale of a property meant that that property was no longer an asset owned by the applicant (or his entities), if the purchase price made the applicant a profit, then the sale of the properties represented a capital gain and ensured the continued borrowing capacity of the applicant. Further, the applicant received additional payments from the purchasers by way of commission.
Ground 2 must fail.
Ground 3
Applicant’s submissions
The applicant argued that the finding made by his Honour that the contracts tendered to the bank considerably inflated the original purchase price of each property was both factually incorrect and irrelevant as it was never part of the prosecution case.
Respondent’s submissions
The respondent submitted that the applicant had failed to articulate how such a finding had not been open to the sentencing judge, and further, how that finding had a material effect on the sentence imposed.
Analysis
His Honour noted that the prices in the contracts tendered to the bank inflated the original purchase price by $20,000 for the property the subject of charge 4 and $50,000 for charge 10. The judge made those findings in the context of observing that the purchase prices for the properties were useful to the applicant as a property developer, as they allowed him to discharge debt. As noted above under ground 2, it was open to his Honour to find that the applicant’s offending financially rewarded his property development business.
But, in any event, his Honour made it plain that the applicant was not charged in relation to the inflation of purchase prices. It is clear that the judge’s finding concerned only the applicant’s motivation for the offending being greed and otherwise played no part in the sentencing synthesis.
It follows that ground 3 must fail.
Ground 4
Applicant’s submissions
The applicant submitted that in focussing extensively in his Reasons on the sentences imposed on Becker, Akkala and Anand, the judge was distracted from giving the applicant the individualised consideration to which he was entitled.
Respondent’s submissions
The respondent submitted that the judge was required to give consideration to the sentences imposed on the other offenders in the common criminal enterprise, even though not strictly co-offenders, to ensure that the principle of parity was not breached. Accordingly, his Honour set out the differences in the criminality and sentencing considerations that applied as between the applicant, Becker, Akkala and Anand. Further, nothing in the Reasons suggests the judge deprived the applicant of individualised justice.
Analysis
Prior to the hearing of the plea the applicant filed written submissions. One of the subheadings of those submissions was ‘parity’ under which, in some seven paragraphs, the applicant submitted that the principles of parity had little application generally. Detailed arguments were made as to why the offending of each of Becker, Akkala and Anand was more serious than that of the applicant.
In his Reasons under the subheading ‘parity’, the judge accepted the joint submission that parity with Akkala and Anand had little application to the sentence to be imposed on the applicant and then noted the differences in the offending behaviour and the fact that each gave evidence against the applicant (and Becker). His Honour accepted the prosecution submission that it would be incongruous to treat the objective criminality of Becker and the applicant differently before specifically addressing eight matters raised in the written submissions of the applicant as to why his offending was less serious than that of Becker. In so doing, his Honour was explaining the basis of his acceptance of the prosecution submission.
In any event, his Honour expressly referred to Dalgliesh and noted that the applicant was entitled to ‘individualised justice and a just sentence based on the facts relevant to his case’.[37] There is nothing in the Reasons or sentence imposed that indicated that his Honour was distracted from that task by issues of parity. Indeed his Honour said that individualised justice encompassed a sentence taking into account the principles of parity ‘as much as possible in the circumstances of this case’.[38]
[37]Reasons, [35].
[38]Reasons, [35].
It follows that ground 4 must fail.
Ground 5
Applicant’s submissions
The applicant argued that manifest excess is demonstrated by the limited temporal span of the offending, its absence of aggravating features and the fact that ANZ did not suffer any loss, as well as the applicant’s otherwise excellent character and prospects of rehabilitation. Further, there was a significant delay in the finalisation of the matter which was a powerful mitigating factor.
Respondent’s submissions
The respondent argued that the sentences and orders for cumulation were well within range.
The applicant’s criminality was planned and persistent, the quantum of the financial advantage was high, there was a high risk of loss to the bank and the offending was motivated by greed. Further, the applicant was sentenced as a continuing criminal enterprise offender, with the effect of the maximum penalty for each offence increasing to 20 years’ imprisonment. And the applicant had no remorse. It is clear that his Honour took into account the applicant’s prior good character and gave appropriate weight to delay, extra-curial punishment and rehabilitation. These matters notwithstanding, it was open to his Honour to conclude that the offending demanded a term of imprisonment.
Analysis
As is often stated, an appeal against sentence on the basis of manifest excess requires more than that the appellate court would have imposed a different sentence. Rather, the sentence under consideration must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion.’[39] Absent specific error, the sentence on its face must reveal underlying error.
[39]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
In this case the sentencing judge correctly described the offending conduct as found by the jury, and described the matters relevant to the assessment of its gravity. There can be no doubt that the offending was motivated by greed and was ‘persistent and planned’. His Honour also recorded and placed weight upon all matters the applicant could call in aid of mitigation — twice mentioning the ‘powerful’ factor of delay as well as the applicant’s otherwise exemplary character — and also noted those that he could not, in particular, remorse. Further, his Honour was correct that the applicant fell to be sentenced as a continuing criminal enterprise offender. The sentence imposed upon him had to reflect general deterrence and denunciation of white collar offending.
I am not persuaded that it was not open to his Honour to conclude that each of the offences required the imposition of a gaol term. In light of the maximum penalty and the nature of the offending, the terms actually imposed were well within range. Further, the minimal cumulation of one month of each of the sentences imposed on charges 4, 5, 6, 8 and 9 on the base sentence imposed on charge 10 were modest, as was the non‑parole period imposed.
It follows that ground 5 must fail.
Conclusion
The application for leave to appeal must be refused.
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