Jackson v The Queen

[2011] VSCA 338

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0459

LEIGH JACKSON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2011
DATE OF JUDGMENT	10 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 338
JUDGMENT APPEALED FROM	R v Jackson (Unreported, County Court of Victoria, Judge Gullaci, 9 December 2010)

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CRIMINAL LAW – Sentence – Fraud and dishonesty offences – Total effective sentence of 3 years and 8 months imprisonment with non-parole period of 2 years and 3 months – Whether judge erred in sentencing appellant on erroneous basis as to maximum penalty for dishonesty offences – Whether appellant subjected to double punishment in respect of some charges – Considerable overlap between two forms of offending – Appeal allowed – Appellant re-sentenced – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Balmer & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. I agree with Weinberg JA.

WEINBERG JA:

1. The appellant pleaded guilty in the County Court at Melbourne to a series of charges, all of which essentially involved fraud, and dishonesty.  The offences were committed between December 2005 and March 2008. 

1. The appellant was sentenced on 9 December 2010 as follows:

Charge number	Offence	Details of offence	Maximum penalty	Sentence imposed	Cumulation
1	Attempt to obtain financial advantage by deception (‘AOFAD’)	Attempt through multiple fraudulent transactions to obtain a total sum of $11,365	5 years (Crimes Act 1958 s 321M and 321P)	6 months	---
2	AOFAD	Attempt through multiple fraudulent transactions to obtain a total sum of $1,057,766.10	5 years	1 year	3 months
3	AOFAD	Attempt through multiple fraudulent transactions to obtain a total sum of $20,496	5 years	6 months	1 month
4	AOFAD	Attempt through multiple fraudulent transactions to obtain a total sum of $186,975.90	5 years	9 months	3 months
5	AOFAD	Attempt through multiple fraudulent transactions to obtain a total sum of $19,848.56	5 years	6 months	1 month
6	AOFAD	Attempt through multiple fraudulent transactions to obtain a total sum of $16,251.18	5 years	6 months	1 month

Charge number	Offence	Details of offence	Maximum penalty	Sentence imposed	Cumulation
7	AOFAD	Attempt through multiple fraudulent transactions to obtain a total sum of $803.20	5 years	14 days	---
8	Obtain financial advantage by deception (‘OFAD’)	Fraudulently obtained American Express (‘AMEX’) card with line of credit to the value of $4,000	10 years (Crimes Act 1958 s 82(1))	6 months	---
9	AOFAD	Fraudulently obtained nine separate AMEX cards with line of credit to the value of $109,000	5 years	9 months	3 months
10	OFAD	Fraudulent use of AMEX card separate from those the subject of both charges 8 and 9 to obtain goods to the value of $92,076.79	10 years	2 years	Base
11	Dealing with proceeds of crime	Use of AMEX card the subject of charge 10 to conceal offences committed in relation to charges 1, 2, and 4, to the amount of $1,252,857	15 years (Crimes Act 1958 s 194(2))	1 year	3 months
12	Theft	Theft of credit card	10 years (Crimes Act 1958 s 74)	3 months	1 month
13	OFAD	Unauthorised use of credit card the subject of charge 12 for purchases totalling $180	10 years	14 days	---
14	Theft	Theft of bank documents from mailbox	10 years	3 months	1 month

Charge number	Offence	Details of offence	Maximum penalty	Sentence imposed	Cumulation
15	OFAD	Use of bank documents the subject of charge 14 to obtain financial advantage to value of $1,117.73	10 years	14 days	---
16	Theft	Theft of Commonwealth Bank documents	10 years	3 months	1 month
17	Theft	Use of bank documents the subject of count 16 to access NetBank and transfer $5,000 into appellant’s own ANZ account	10 years	6 months	1 month
18	Theft	Theft of Commonwealth Bank Mastercard	10 years	3 months	1 month
19	OFAD	Use of Mastercard the subject of charge 18 to obtain financial advantage in amount of $270	10 years	14 days	---
20	Knowingly deal with proceeds of crime	Possession of items constituting proceeds of crime including mobile phone and SIM card	20 years (Crimes Act 1958 s 194(1))	3 months	---

1. With orders for cumulation, the total effective sentence was three years and eight months’ imprisonment.  A non-parole period of two years and three months was fixed.

Circumstances surrounding the offending

1. Details surrounding the offending are set out in the table above. 

1. Broadly speaking, in 2005, and for several years thereafter, the appellant set up and used a number of fictitious accounts with what was then known as the Australia Post Bill Pay System (now known as ‘Postbillpay’).  Customers seeking to use that system would register their personal and preferred bank account details.  When customers received bills, they could log in to the system and pay those bills online, using their preferred or registered bank account for that purpose.

1. The appellant set up numerous accounts in the names of friends and others known to her.  These included previous boyfriends and, in one case, the ex-partner of a former boyfriend.  She utilised these accounts to pay her personal bills.

1. The Bill Pay System operated in such a way that, when operated, payment would automatically be made.  Ultimately, however, when the frauds were detected (as they soon were in the vast majority of cases), the charges and transactions were reversed. 

1. The appellant made use of computers at various public venues, such as libraries and internet cafes, in order to perpetrate her fraud.  Even where the payment was ultimately declined, the effect of the appellant’s actions was to delay, at least for a time, payment on the debts owing. 

1. The appellant also used the fictitious accounts which she created to make what were described as ‘over-inflated’ payments.  She would then contact the various agencies to which those payments had been made, and request what was known as a ‘charge-back’.  Often, that request would be accepted.  In those cases, the ‘excess funds’ would be ‘returned’ to the appellant. 

1. For reasons that are not altogether apparent the appellant’s fraud remained undetected for a very considerable time.  Inquiries into unauthorised transactions would sometimes take weeks. 

1. Even after lengthy investigation, police were unable to establish the true amount of all of the appellant’s frauds.  What was established was that she obtained goods or received services to the value of $92,076.79 which had been debited to an AMEX card that she had obtained under a false name.  She then used that same AMEX card to launder money to the value of more than $1.2 million, in an attempt to conceal various transactions that formed the basis of charges 1, 2, and 4. 

1. The appellant’s offending did not stop there.  On a number of occasions, she took envelopes containing credit cards from her neighbour’s letterboxes.  She used those cards to purchase various items at supermarkets and liquor outlets, and also to pay various personal expenses. 

1. In all, the sum total of the appellant’s attempts to obtain property by deception, as reflected in charges 1 to 7 and 9, amounted to some $1.4 million.  The actual value of the property that she either stole or obtained by deception came to about $100,000. 

1. It should be noted that a number of the charges laid against the appellant were in ‘rolled up’ form.  Some of them involved multiple transactions.

1. To give an indication of the scale of the appellant’s criminality, charge 2 alone involved a total of 248 transactions having been effected between 28 December 2005 and 18 July 2006.  The appellant used some 10 separate bank accounts in the course of committing the offence the subject of that charge alone.

1. Of those attempted payments, 219 were dishonoured and 29 were cancelled.  However, although not a single one of these payments ultimately stood, they were recorded for a time, and no doubt caused significant inconvenience and worry to those affected. 

Appellant’s personal circumstances

1. The appellant was 51 years of age at the time of sentencing.

1. As a child, she attended a number of different schools, and completed her secondary education in 1977.  She had been committed to various sporting pursuits whilst at school and had represented Australia at swimming.    

1. After leaving school, the appellant commenced studies at teachers’ college.  However, she was unable to complete those studies due to illness.  She married in 1982 and had twin girls in 1984.  She eventually separated from her husband. She discovered at that time that he had run up significant debts using their home as collateral.  The house was eventually sold to satisfy those debts.

1. Subsequently, the appellant was left with around $30,000, and faced financial pressure.  Her drinking and gambling increased, and she began offending.  At one stage, she was brought before the Neighbourhood Justice Centre and was released on a community-based order, which involved engaging in unpaid community work.  She undertook that work with the Salvation Army.  She subsequently continued her work with the Salvation Army as a volunteer.  At the time of sentencing, she was living in a house provided by a church organisation. 

1. During the course of the plea, counsel for the appellant informed the judge that she had recently re-offended.  On that basis, counsel acknowledged that he could no longer rely upon a favourable assessment of the appellant’s prospects of rehabilitation that had been expressed by Mr Ian Joblin, a clinical psychologist, in a report which he had prepared.  That assessment had been based in large measure upon the appellant’s assertions to Mr Joblin that she had not offended since the community-based order, had been compliant with her treatment obligations, and had turned her life around.  Counsel also conceded, entirely properly, that the appellant’s recent offending undermined his proposed submissions on her behalf as to what might be an appropriate disposition.    

1. The judge, in his sentencing remarks, noted various factors he considered favourable to the appellant.  Those included her plea of guilty, the fact that she had no prior convictions and was facing her first term of imprisonment at 51 years of age, that she did not appear to have amassed significant assets from her offending, and that the pattern of offending appeared to have involved excessive use of alcohol and was linked to a gambling problem. 

Grounds of appeal

1. Harper JA granted leave to the appellant on the following grounds:

1)The sentencing judge erred by steering, on charges 1 to 7 and charge 9 (preferring the offence of attempting to obtain financial advantage by deception), by a maximum penalty of 10 years’ imprisonment.

2)        The sentencing judge erred by proceeding, on charges 1, 2, 4 and 11 to:

a.convict the appellant;

b.        impose terms of imprisonment; and

c.        make orders for cumulation on charges 2, 4 and 11

and, by doing so, subjected the appellant to double punishment.

Disposition of the appeal

1. Regrettably, the sentencing judge was erroneously informed by the Crown on the plea that the maximum penalty for the offence of attempting to obtain financial advantage by deception was 10 years’ imprisonment.  In truth, the maximum penalty for that offence was five years’ imprisonment.[1] 

   [1]Crimes Act 1958 ss 321M and 321P.

1. Eight of the 20 charges for which the appellant was sentenced were dealt with on that erroneous basis. 

1. There may be some cases where a misapprehension as to the maximum penalty does not vitiate the sentencing discretion.  In R v RJE,[2] Brooking JA considered a number of the authorities bearing upon this point and concluded that the question whether the error was material, and so fatal to the exercise of the discretion, depended upon the circumstances.[3] 

   [2][1999] VSCA 79.

   [3]See, also, R v Dennis [2000] VSCA 81; and R v Beary [2004] VSCA 229.

1. In its response to the appellant’s written case, the Crown submitted that the error made in relation to the eight charges of attempting to obtain property by deception should not lead to the re-opening of the sentencing discretion, on the basis that it was immaterial to the sentences actually imposed. 

1. However, during the course of oral submissions, senior counsel for the Crown very properly conceded before this Court that he could not maintain that submission in this case.  In substance, he acknowledged that there were too many charges affected by the error to enable that submission to be put.

1. However, he submitted that although the sentencing discretion was re-opened, the actual sentences imposed below were all individually appropriate and, if anything, lenient.  He invited this Court, when re-sentencing the appellant, to reimpose the same sentences and make the same orders for cumulation as had been made below. 

1. Turning to ground 2, the Crown submitted that despite a degree of uncertainty surrounding the basis upon which charge 11 had been laid, there was no element of double punishment in sentencing the appellant to 12 months’ imprisonment on that charge, and making three months of that sentence cumulative. 

1. In my view, the Crown’s submissions should be accepted in relation to ground 1, but rejected in relation to ground 2.

1. Putting charge 11 to one side for the moment, each of the individual sentences imposed on charges 1 to 10 and 12 to 20 were well within range.  The longest individual sentence imposed for the offence of attempting to obtain financial advantage by deception was 12 months’ imprisonment, a very modest sentence for an offence involving more than $1 million. In addition, the orders made for cumulation were, if anything, benevolent. 

1. The appellant’s offending was systematic and carefully planned.  It extended over a considerable period of time.  Her actions were difficult to detect because she took great care to conceal her offending. 

1. Although the amount actually defrauded by the appellant was not all that great (being of the order of $100,000), her moral culpability was high.  She set out to obtain far more than she actually did.  Her failure to accomplish her goal was not for want of trying.  As previously noted, she committed hundreds of separate criminal acts in carrying out her scheme.  She also abused the trust of people that she knew and caused them considerable inconvenience and worry. 

1. However, there is ground 2 to consider.[4]  The gist of charge 11 was that the appellant had arranged for any monies that might be obtained through some of the earlier offences, and in particular charges 1, 2 and 4, to find their way into the fictitious AMEX account that she had created, in part, in order to conceal her earlier offending. 

   [4]In his reply, during the course of argument, counsel for the appellant made it clear that despite the width of the language used in ground 2, the appellant did not rely on that ground in relation to charges 1, 2 and 4, but only in relation to charge 11.

1. In a formal sense, the elements of charge 11 (dealing with the proceeds of crime) are quite separate and distinct from the elements of attempting to obtain financial advantage by deception.  Accordingly, there was no reason why the appellant should not have been charged with that separate offence. 

1. Nonetheless, it is perhaps something of a curiosity in this case that, for the purposes of charges 1, 2 and 4, the Crown treated the transient presence of monies credited to the various persons in whose names the fictitious Bill Pay accounts had been created, as falling short of the obtaining of a financial advantage and therefore treated that offending as nothing more than an attempt to obtain such an advantage.  When it came to charge 11, however, the Crown characterised that transient presence as the ‘proceeds’ of crime, which were to be dealt with through the AMEX account. 

1. On any view, there was clearly a considerable overlap between the two forms of offending, namely attempting to obtain a financial advantage by deception, and concealing that offending conduct.  In my view, the degree of overlap was so great in the particular circumstances of this case as to make it inappropriate, having regard to the decision of the High Court in Pearcev The Queen[5] to make any part of the sentence imposed on charge 11 cumulative upon the sentences imposed in respect of charges 1, 2, and 4. 

   [5](1998) 184 CLR 610.

1. I would therefore allow the appeal on that limited basis only.  I would set aside the sentences imposed below, but re-impose each and every one of those sentences.  I would make the same orders for cumulation as were made below, save in respect of charge 11.  In my view, there should be no cumulation of any part of the 12 months’ imprisonment imposed on that charge on any other charge. 

1. In the result, the total effective sentence should therefore be a term of 41 months’ imprisonment.  I would fix a non-parole period of 2 years. 

1. I would state, for the purpose of S 6AAA of the Sentencing Act 1991, that but for the appellant’s plea of guilty, I would have imposed a total effective sentence of 4 years and nine months’ imprisonment with a non-parole period of two years and nine months.

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