Hicks v The Queen
[2016] VSCA 162
•13 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0081
| DAVID HICKS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 July 2016 |
| DATE OF JUDGMENT: | 13 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 162 |
| JUDGMENT APPEALED FROM: | DPP v Hicks [2015] VCC 1760 (Judge Lewitan) |
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CRIMINAL LAW – Appeal – Obtaining financial advantage by deception (five charges) – Three victims – Sum of $595,000 – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Delay in finalising contested charges – Age and ill-health of appellant – Sentence manifestly excessive – Appeal allowed – Re-sentenced to total effective sentence of 4 years and 6 months’ imprisonment with non-parole period of 2 years and 6 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | PICA Criminal Lawyers |
| For the Respondent | Mr D Trapnell QC | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
Pursuant to leave that I granted on 16 March 2016, the appellant appeals against a total effective sentence of six years’ imprisonment, upon which the sentencing judge fixed a non-parole period of four years.
Following a trial in the County Court, a jury convicted the appellant of five charges of obtaining a financial advantage by deception.[1]
[1]Crimes Act 1958, s 82.
On 11 December 2015, the trial judge sentenced the appellant to be imprisoned for four years on charge 5; for three years on charge 1; for two years on charge 4; and for 12 months on each of charges 2 and 3. Orders for partial cumulation produced a total effective sentence of six years’ imprisonment, upon which the judge fixed a non-parole period of four years.[2] Although the maximum sentence for the offence ordinarily is 10 years’ imprisonment, by virtue of Part 2B of the Sentencing Act 1991, the appellant fell to be sentenced as a ‘continuing criminal enterprise offender’ on charges 1, 3, 4 and 5, so that the notional maximum penalty of those charges was imprisonment for 20 years.[3]
[2]The judge also made a forensic sample order pursuant to s 464ZF of the Crimes Act 1958; and, pursuant to s 86 of the Sentencing Act 1991, made the following orders for compensation:
(a) $193,653 to Rochelle England;
(b) $299,556.50 to Trevene Mattox; and
(c) $100,000 to Neena Scott.
[3]By virtue of Schedule 1A of the Sentencing Act 1991, an offence of obtaining financial advantage by deception is a continuing criminal enterprise offence ‘where the value of the financial advantage obtained is $50 000 or more’. The financial advantage on charge 2 was $45,000.
The appellant relies on two grounds as follows:
1. The sentencing discretion miscarried as a result of the Judge’s having failed properly to have regard to the delay between the commencement of the [appellant’s] proceedings and the date of sentence. In particular, the sentencing Judge erred by:
(a) eroding the significance of delay in the [appellant’s] sentence because ‘part of the delay was as a result of the [appellant’s] health and … was not the fault of the prosecution’ and
(b) assessing the [appellant’s] prospects of rehabilitation without regard, or proper regard, to delay.
2. In all the circumstances, the individual sentences imposed on charges 1 and 5, the total effective sentence, and the non-parole period fixed, are manifestly excessive.
For the reasons that follow, I would allow the appeal, and make orders that will produce a total effective sentence of four years and six months’ imprisonment. I would fix a non-parole period of two years and six months’ imprisonment.
The offending
The five charges of obtaining a financial advantage by deception, which involved the total sum of $595,000, arose from the following conduct.
On 30 May 2006 the appellant registered a business name, Financial Markets Trading Group. The next day, the appellant opened a Commonwealth Bank (‘CBA’) account in the name of David Hicks, trading as Financial Markets Trading Group (‘FMTG’).
In early 2008, the appellant was introduced to Mr Gordon Matthews as a banker. The appellant also sought advice from Mr Peter Bellomo, a financial services compliance advisor, about setting up a foreign exchange business. Mr Bellomo created a template ‘due diligence’ questionnaire as a basis for what would ultimately be required if the venture proceeded. The appellant and Mr Matthews met a number of times from July to August 2008, and discussed creating an investment scheme to generate income. Via email, Mr Matthews received several documents from the appellant, including an application form that the appellant had created for FMTG and a due diligence questionnaire for Tuscan Capital Secured Fund which listed Ernst and Young as auditors.
The appellant told Mr Matthews that the minimum sum to become involved in the investment scheme was $50,000. Mr Matthews did not have sufficient funds to invest, but he mentioned the investment scheme to several people, including the victims. He then passed on the FMTG application form and the due diligence questionnaire for Tuscan Capital Secured Fund, provided to him by the appellant, to the victims.
At trial, the prosecution alleged that the appellant obtained a financial advantage from each of the victims by falsely representing to each of them that:
(a)the due diligence questionnaire in the name of Tuscan Capital Secured Fund was a genuine and valid document;
(b)FMTG was a genuine licensed entity;
(c)the funds advanced would be invested as to 90 per cent in Australian bank securities;
(d)the balance of 10 per cent would be invested in long and short derivative instruments with protected margins; and
(e)the investment money would be placed in true and genuine investments.
It was also alleged that the appellant made an additional false representation to victims Trevene Mattox and Neena Scott that the return would be 30 per cent per annum of invested money.
Given their verdicts, the jury must have been satisfied beyond reasonable doubt that the appellant made at least one of the alleged false representations to each of the victims; that he knew that that representation was false; that he intended the representation to be acted upon; and that he obtained a financial advantage as a result of making the representation.
The victim on charges 1 and 2 was Rochelle England, and involved a total of $195,000. With respect to charge 1, on 14 September 2008, Ms England signed an FMTG application form to invest $150,000 with the appellant. She then electronically transferred this amount from her bank account into the appellant’s account. The money was deposited into the appellant’s CBA account on 16 September 2008. Between the time the $150,000 was deposited on 16 September, and 9 October 2008, the appellant made 37 separate withdrawals from the account. Following those withdrawals, the appellant’s account was $367.99 in debt.
So far as charge 2 is concerned, on 9 October 2008, Ms England signed a second FMTG application form to invest a further $45,000 with the appellant. She then electronically transferred this money from her account into the appellant’s CBA account. The $45,000 was deposited on 10 October 2008. Between the time the $45,000 was deposited, and 17 October 2008, the appellant made 11 separate withdrawals from the account. Following those withdrawals, the appellant’s account was $4,932.01 in credit.
Charges 3 and 5 related to Trevene Mattox, and involved a total sum of $300,000. As to charge 3, on 10 October 2008, Ms Mattox signed an FMTG application form to invest $50,000 with the appellant. She then electronically transferred this sum from her bank account into the appellant’s CBA account, that sum being deposited on 20 October 2008. Between 20 and 24 October 2008, the appellant made 14 withdrawals from his account. Following those withdrawals, the appellant’s account was left $2,492.01 in credit.
With respect to charge 5, on 27 November 2008, Ms Mattox signed two additional FMTG application forms to invest a further $250,000 with the appellant. She then electronically transferred this money from her bank account into the appellant’s CBA account. The $250,000 was deposited into the appellant’s account on 28 November 2008. At the time that the funds were deposited, the appellant’s account was $214.87 in debit. On the following day, the appellant made eight withdrawals from this account. Following the withdrawals, the appellant’s bank account was $118,097.13 in credit. Between 28 November 2008 and 22 December 2008, he made a further 25 withdrawals, which took the account from $118,097.13 in credit to $494.62 in debit.
Charge 4 related to the victim Neena Scott. On 5 November 2008, Ms Scott signed an FMTG application form to invest $100,000 with the appellant. She then electronically transferred this money from her account into the appellant’s account. Between 5 and 27 November 2008, the appellant made 35 different withdrawals from his account, leaving the account $214.87 in debit.
As I have said, the three victims transferred in total the sum of $595,000 into the appellant’s account. None of the money deposited has been recovered.
Ground 1 — Delay
The appellant was arrested and interviewed on 20 March 2010, and was sentenced following a contested trial on 11 December 2015. During the near six year delay between arrest and sentence, the appellant suffered two major strokes (in 2011 and 2014). He underwent five-vessel coronary artery bypass graft surgery on 25 May 2015, which caused acute kidney damage.
Counsel for the appellant argued that the almost six years’ delay between arrest and sentence was partly the result of the ordinary passage of time attaching to the progress of the case through the courts, and partly as a result of the appellant’s very poor health. In neither case, it was submitted, could the delay be said to have been as a result of any of the appellant’s actions or his fault.
It was submitted that the sentencing judge’s reasons for sentence betray error in her treatment of delay. Thus, when speaking of the impact of the offending on Trevene Mattox, the judge remarked that ‘[t]he six year delay to the court case caused her further emotional stress and health problems throughout that time’. And later her Honour said:[4]
The prosecution conceded that there are no prior matters and there has been some delay but submitted that your offending is serious. There are multiple complainants and a significant amount of money involved and that [sic] general deterrence should be the primary consideration. The principles of specific deterrence, denunciation, just punishment and protection of the community remain alive. The complainants were unknown to you and were vulnerable due to their age and naivety in relation to these matters. There is no evidence of remorse. The impact on the complainants has been substantial and has been worsened by the delay. While there should be some concurrency, there should be substantial cumulation to reflect the impact on each of the complainants. The prosecution submitted that the only available sentence is an immediate term of imprisonment.
[4]Emphasis added.
The judge earlier had observed:
Since you committed these offences, there has been delay in the matter coming before me. Your counsel conceded that part of the delay was as a result of your health and that the delay was not the fault of the prosecution. I accept that this matter has been hanging over your head for a period of time and has left you in a state of uncertainty. I take the overall delay into account in mitigation of sentence.
In my view, the following may be drawn from the judge’s remarks:
· first, the impact of the offending on the victims has been worsened by the delay;
· secondly, counsel for the appellant had conceded that part of the delay was due to the appellant’s ill health;
· thirdly, counsel had conceded that the delay was not the fault of the prosecution;
· fourthly, the appellant had been in a state of uncertainty with the matter hanging over his head; and
· fifthly, the judge took the ‘overall delay into account in mitigation of sentence’.
The cases recognise that delay may be relevant to sentence in two principal ways. First, where there has been a relatively lengthy process of rehabilitation, insofar as circumstances permit, that process should not be jeopardised. Secondly, fairness dictates that the fact that an offender has been kept in suspense as to his or her fate should be taken into account in mitigation.[5] Dilatoriness, or leisurely progress by the prosecution, may bear on the question of fairness.[6] Where there has been delay in the prosecution bringing charges, or where the delay has resulted merely from the exercise of the right to contest criminal charges, it is the effect of any delay on an accused person that is relevant, rather than whether the delay is explicable. Any delay caused merely by the exercise of the right to contest criminal charges, and have them determined at trial, however, can never be regarded as the ‘fault’ of the accused for these purposes.[7] When considering whether a delay requires an element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay.[8] In that regard, delay which is caused by the ordinary prosecutorial process or the administration of the courts will carry more weight as a factor in mitigation than any delay attributable to the actions of the accused.[9]
[5]R v Cockerell (2001) 126 A Crim R 444, 447 [10] (‘Cockerell’); R v Tiburcy (2006) 166 A Crim R 291; Arthars v The Queen (2013) 39 VR 613, 621 [25] (‘Arthars’).
[6]See Crawley v R (1981) 36 ALR 241, 244 (Fox J), 247–8 (Blackburn J), 255 (Sheppard J); Cockerell, 447 [10].
[7]R v Merrett (2007) 14 VR 392, 400 [35]; Arthars, 621 [27].
[8]Arthars 621 [28].
[9]Ibid.
Ground 1(a) asserts that the judge erred by eroding the significance of the delay in that she found that ‘part of the delay was as a result of the [appellant’s] health and … was not the fault of the prosecution’. In my opinion, however, this part of the ground is not made out. Nothing that the judge said was inconsistent with authority. Without any apparent criticism of the appellant, the judge observed that part of the delay was attributable to the appellant’s ill-health. So much was true. The judge also observed that the delay was not attributable to the prosecution (which, had the prosecution been dilatory, might have had an effect on sentence). Again, so much was true. Importantly, the judge said that she took into account the ‘overall delay’ in mitigation of sentence, and in particular, that the appellant had been in a state of uncertainty with the matter hanging over his head. So much demonstrates an entirely orthodox approach. Finally, although the judge said that the impact of the offending on the victims has been worsened by the delay, it does not appear to me that, taken in context, the sentencing judge regarded that as in any way aggravating the sentence, or as lessening the mitigating effect of delay.
Ground 1(b) claims that the judge erred ‘by assessing the [appellant’s] prospects of rehabilitation without regard, or proper regard, to delay’. In my view, this part of the ground is without substance. On the plea, counsel for the appellant submitted that his prospects of rehabilitation were ‘high’. In her sentencing remarks, however, the judge said that, although the appellant had no previous convictions, and that she sentenced the appellant ‘as a person of previous good character’, ‘on balance’ she was satisfied that given the appellant’s age, the chances of his rehabilitation were ‘reasonable’. The appellant’s counsel submitted in this Court that the appellant was entitled to a finding that his prospects of rehabilitation were better than ‘reasonable’, particularly in light of the fact that he had not re-offended during the delay. Given the absence of any evidence of remorse, however, in my opinion it was open to the judge to characterise the appellant’s prospects of rehabilitation as she did.
I would not uphold the first ground.
Ground 2 — Manifest excess
Notwithstanding that the sentence was not to be mitigated by any plea of guilty, and that the appellant fell to be sentenced as a continuing criminal enterprise offender on four of the five charges that he faced, I have concluded that the head sentence of six years’ imprisonment, with a non-parole period of four years, is manifestly excessive when regard is had, in particular, to the appellant’s age and ill-health, against the backdrop of the delay in finalising the charges against him; his lack of criminal history; and his reasonable prospects of rehabilitation. Indeed, it can fairly be said that the non-parole period of four years was particularly stern, warrants intervention.
There can be no doubt that the offending had a profound effect on the three victims. In her sentencing remarks, the judge set out aspects of the relevant victims’ impact statements. I need not repeat their detail, save to observe that they speak eloquently of the financial, emotional, physical and social stress that the victims suffered. The impact of the appellant’s offending on the victims was, of course, a matter that the judge was required to take into account. That impact, however, had to be balanced against other factors bearing on the exercise of the sentencing discretion.
The appellant, who turned 71 years on the date of the hearing of the appeal, is in ill-health. A report of Dr John Jagoda, dated 17 December 2012, states that the appellant previously has suffered two strokes; and a further report, dated 7 October 2015, authored by Dr Hans Tu, records that the appellant was admitted to the Royal Melbourne Hospital from 11 to 25 May 2015, during which he underwent a five-vessel coronary artery bypass graft.
In her reasons for sentence, the judge accepted that ‘the condition of [the appellant’s] health would make prison more difficult for [him] than it would be for a prisoner in a healthy condition’. But she observed that, ‘[a]s stated by the Court of Appeal in The Queen v RLP[10] just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender’; and she considered that ‘general deterrence is the primary sentencing consideration’.
[10]R v RLP (2009) 213 A Crim R 461, 476 [39].
An examination of her reasons shows that the sentencing judge referred to considerations relevant to fixing sentence, including the delay, the appellant’s age and ill-health, his prior good character and prospects of rehabilitation. Notwithstanding the judge’s reference to relevant considerations, in my view the exercise of the sentencing discretion miscarried. In my opinion, when all relevant factors bearing on the imposition of sentence are properly synthesised, the sentence passed by the judge may be seen to be manifestly excessive. Although my conclusion does not admit of much in the way of sustained analysis, in my view the sentence is outside the range of sentences available in the sound exercise of discretion.
Ground 2 should be upheld, and the appellant re-sentenced.
Re-sentencing
In fixing sentence, it should be remembered that charge 1 and charge 2 involve the victim Rochelle England, and involve a total amount of $195,000. There is a close temporal and factual connection between the two charges, which should be reflected in only moderate cumulation. Similarly, charge 3 and charge 5 involve the same victim, Trevene Mattox, for a total sum of $300,000, where the close connection between the two charges justifies moderate cumulation. Charge 4 relates to a single victim, Neena Scott, for the sum of $100,000. Moreover, all charges embraced a relatively confined period, between 16 September 2008 and 28 November 2008.
In all the circumstances, I would sentence the appellant to be imprisoned as follows:
· Charge 1 — two years’ imprisonment;
· Charge 2 — 12 months’ imprisonment;
· Charge 3 — 12 months’ imprisonment;
· Charge 4 — 18 months’ imprisonment; and
· Charge 5 — three years’ imprisonment.
The sentence on charge 5 is to be the base sentence. I would order that six months of the sentences on charges 1 and 4, and three months of the sentences on charges 2 and 3, be served cumulatively with each other and with the sentence on charge 5. The total effective sentence is thus four years and six months’ imprisonment. I would fix a non-parole period of two years and six months. I would declare appropriate pre-sentence detention.
All other orders of the County Court should be confirmed.
WEINBERG JA:
I agree with Priest JA.
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