Jackson v The Queen
[2010] VSCA 179
•5 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 0576 of 2009
| TERRANCE JACKSON | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | WEINBERG and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 July 2010 | |
DATE OF JUDGMENT: | 5 July 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 179 | |
JUDGMENT APPEALED FROM: | R v Jackson (Unreported, County Court of Victoria, Judge Jenkins, 2 April 2009) | |
---
CRIMINAL LAW – Sentencing – Fraud – 11 counts – Whether convictions and orders for cumulation amounted to double punishment – Whether sentencing judge failed to have proper regard to appellant’s psychiatric condition – Whether sentence manifestly excessive – Appeal allowed – Re-sentencing required.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T. Kassimatis | Theo Magazis & Associates |
| For the Crown | Mr B.L. Sonnet | Mr C. Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I shall ask Bongiorno JA to deliver the first judgment in this matter.
BONGIORNO JA:
On 13 March 2009 Terrance Jackson was arraigned before her Honour Judge Jenkins in the County Court at Melbourne on 11 counts of fraud and was also charged with two summary offences, removed to the County Court pursuant to s 359AA of the Crimes Act1958 (Vic). He pleaded guilty to all charges. On 2 April 2009 he was sentenced to a total effective sentence of five years nine months' imprisonment with a non-parole period of three years and six months in respect of the matters preferred on that presentment.
The Crown case was that Jackson had been recruited by another man, previously unknown to him, to take part in an elaborate fraud. The fraud involved obtaining a replacement duplicate certificate of title to a valuable property in Toorak and using that duplicate certificate of title to obtain a loan of $900,000, which it was intended would never be repaid. The true owner of the Toorak property, who at all times had possession of the original duplicate certificate of title, had no knowledge that his property was to be used in this way.
Jackson's part in this scheme was relatively minor, although crucial to its success. He had no part in its planning and he was not involved in the obtaining of the replacement certificate of title. The person who allegedly performed this part of the fraud, together with another or others, is facing charges which have not yet been finalised. Jackson's part in the fraud required him to impersonate the owner of the Toorak property so as to obtain the loan on the security of the Toorak property and to give the proceeds, in small amounts, to the man who recruited him.
Jackson met a finance broker on 14 December 2007 and at his request on about 19 December 2007 presented certain documents to the broker's solicitor in furtherance of the fraudulent loan application. These documents were a Victorian driving licence in the name of the true owner of the Toorak property, a Medicare card and an HSBC bank card also in his name. These documents were false, provided to Jackson by the man who had recruited him. The purpose of his giving them to the solicitor was to establish his identity for the purpose of the loan that the finance broker was in the process of arranging from a financier. The presentation of these documents constituted the subject matter of counts 1, 2 and 3 on the presentment, being counts of using a false document to the prejudice of another – the old common law offence of uttering a false document.
At the same time Jackson made a number of other false representations to the solicitor to procure the loan which was approved, and later paid by cheque to Jackson. He thus obtained a financial advantage by deception, the subject of count 4.
In the course of his meeting with the solicitor to finalise the loan application, Jackson told him the loan was needed to pay for building work at the Toorak property. He was accompanied at that meeting by an unknown female who gave the impression she was his wife; that is to say the wife of the owner of the property. The following day, 20 December 2007, Jackson obtained a cheque for the proceeds of the loan less certain deductions; namely about $870,000, which he deposited into an ANZ Bank account opened in the Toorak property owner’s name. Engaging in that process constituted count 5, dealing with the proceeds of crime.
On 22 December 2007 Jackson withdrew $20,000 from the ANZ account using the false driver's licence as identification. The use of that document and the receipt of that money constituted counts 6 and 7; using a false document and obtaining property by deception. On the same day at a different ANZ branch he repeated these offences and obtained another $20,000. These events were the subjects of counts 8 and 9; using a false document and obtaining property by deception.
Jackson gave both lots of $20,000 to the man who had recruited him. Two days later, on 24 December 2007, he went back to the first ANZ branch and, using the forged driver's licence, attempted to obtain $80,000 from the bank account. This withdrawal had been pre-booked with the bank by someone other than him. Staff at the bank were suspicious of the driver's licence and called the police who arrested Jackson. When asked who he was in the course of that arrest, he gave them the false name and address of the Toorak property owner. He maintained this pretence for some time before making a full disclosure of the fraud as far as he knew it. The provision of the false name and the false address to the police constituted the two summary offences to which Jackson also pleaded guilty.
Jackson was interviewed by police in a long record of interview. He said he had been approached by a Greek or Lebanese man about four or five weeks before, outside a Centrelink office to which he was going in respect of his disability pension. The man asked him whether he was interested in 'making a quid'. He was told he would have to activate bank accounts and withdraw money using false identification and that he would receive ten percent. He agreed, and this man later provided him with the forged documents that he subsequently used in executing the fraudulent scheme. He told police he did not know the man's name or phone number but met him regularly to receive instructions in a supermarket car park in Brunswick. He said he did not make the call to the ANZ bank to arrange the withdrawal of the $80,000 he was trying to obtain when he was arrested. He said he had earlier banked the original cheque for $869,375, the net proceeds of the loan from the financier which was arranged by the broker. He said his reason for being involved in the fraud was greed – a way of getting out of debt. He said he gave all of the proceeds of the two withdrawals from the ANZ Bank which succeeded to the man who had recruited him, retaining nothing for himself. That man gave him $300 and a mobile phone. They were his only profits from the scheme.
It appears that, upon arraignment before Judge Jenkins, no one involved in the proceeding - that is neither counsel nor the judge - recognised the considerable overlap in many of the offences charged. For example, the facts relied upon to support the Crown case on counts 1, 2 and 3, were also relied upon to support count 4. Some of the other counts were likewise affected. Her Honour accepted the appellant's guilty pleas and proceeded to construct a sentencing regime for the 11 counts on the presentment, which regime included considerable cumulation of sentences imposed on counts founded on the same facts.
On his plea, two medical reports concerning Jackson were tendered. The doctors who provided those reports were not cross-examined. Jackson himself gave no evidence and no other evidence was led. However, his counsel put an extensive biography before the Court in his address without demur by the Crown. In the circumstances her Honour was obliged to accept the medical evidence and counsel's biography as uncontested facts upon which she must act, unless she had good reason for not doing so. She expressed no reason as to why she should not accept such facts, although it is clear from her sentencing remarks that she did not accept all of them, or at least entertained scepticism in respect of some of them.
Counsel for Jackson told the sentencing judge that his client suffered from a number of debilitating conditions including severe chronic depression. He was 64 years of age with no prior convictions. After a childhood of living in an atmosphere of domestic violence of which he was one of his father's victims, he spent some time in orphanages. He undertook an apprenticeship and further education at Footscray Technical School. His early working life was uneventful, holding a job at Gordon & Gotch, the magazine publishers, for 13 years, and a job as a union building site supervisor for another ten.
A back injury was said to have ended his working life, putting him on a disability pension at about the age of 58. He also had a number of other physical ailments. He was married at 22 but that marriage did not endure and he divorced at 29. He has three adult children. In recent times he had been living an itinerant existence.
The report of a general practitioner, Dr Guarrella, of 15 October 2008 said Jackson had been a patient of his practice since 2006. He had previously been treated with surgery for a bilateral hernia and for bilateral tinnitus. He took an anti-depressant drug prescribed by a psychiatrist whom he had consulted over many years. Dr Guarrella referred him to another psychiatrist, Dr Kochar of North Fitzroy, and to a rheumatologist, Dr Stevens. He had varicose vein surgery in 2008 after these offences. Dr Guarrella, at the time of this report, considered Jackson to be suffering from depression, lumbar disc disease and a pulmonary embolism for which he took anti-coagulants. A report of Dr Kochar, the psychiatrist, referred to Jackson's 'harrowing experiences as a child' as the cause of his ongoing psychiatric condition, which he described as chronic severe dysthymic disorder, a condition which tends to be long lasting and is characterised by feelings of hopelessness, fatigue and similar symptoms, as well as depression. He has been treated with supportive psychotherapy and anti-depressant drugs. The condition is ongoing. According to Dr Kochar, he also remains vulnerable to being led into further 'legal trouble'.
In her sentencing remarks the judge noted the appellant's pleas of guilty and gave him some credit for them. She accepted that they indicated an acceptance of responsibility for what he had done. She noted his absence of prior convictions. However, her Honour did not accept that the appellant's moral culpability was in any sense diminished by his psychiatric condition, nor did she accept that imprisonment would weigh more heavily upon him. This was despite his psychiatric diagnosis which was not challenged, in any way, by the Crown. Her Honour regarded the offences themselves as being serious and emphasised deterrence, both general and specific, notwithstanding Jackson's lack of prior convictions and his age.
Her Honour accepted that Jackson had good prospects for rehabilitation but seemed to moderate that acceptance by expressing scepticism having regard to his psychiatrist's opinion that he could be led back into re-offending because of his ongoing psychiatric state. She referred to his failure to attend a psychiatric consultation with Dr Kochar as in some way militating against his case.
The sentencing judge selected count 5, the count of dealing with the proceeds of crime as the base count for sentencing purposes. She gave no reason for doing so, although she referred to the necessity for the Court to relate the sentences imposed to each other and referred to concurrency, cumulation, totality and proportionality. She sentenced Jackson as follows:
counts 1, 2, 3, 6, 8 and 10 – counts of using a false document – four months' imprisonment on each count;
count 4 – obtaining a financial advantage by deception – two years' imprisonment;
count 5 – dealing with the proceeds of crime – three years' imprisonment;
counts 7 and 9 – obtaining property by deception – one year imprisonment on each count; and
count 11 – attempting to obtain property by deception – six months’ imprisonment.
On the two summary offences before the Court the appellant was convicted and discharged.
Her Honour cumulated two months of each of the sentences on counts 1, 2 and 3, 12 months of the sentence on count 4, six months of each of the sentences on counts 7 and 9, and three months of the sentence on count 11, all on the three years imposed in respect of count 5, making a total effective sentence of five years and nine months’ imprisonment. There was no cumulation of the sentences imposed in respect of counts 6, 8 and 10. A non-parole period of three years and six months was fixed.
Jackson was granted leave to appeal his sentence by Nettle JA on 19 February 2010. The grounds of appeal were: a failure by the sentencing judge to give proper weight in the sentencing process to Jackson's psychiatric condition, inappropriate orders for cumulation, thus subjecting him to double punishment, and imposing a total effective sentence and non-parole period each of which was manifestly excessive.
Before the hearing of the appeal, the Crown conceded that by convicting and imprisoning the appellant on counts 1, 2, 3, 6, 8 and 10, the sentencing judge had subjected him to double punishment. Consequent on this concession, on the hearing of the appeal counsel for the appellant sought leave to lodge a late application for leave to appeal against conviction on the ground that he had been doubly punished. This application was unopposed by the Crown and granted by the Court. The Crown's concession extended to an agreement that the convictions entered against the appellant on counts 1, 2, 3, 6, 8 and 10 of the presentment should be set aside and verdicts of acquittal on those counts entered. It was expressly conceded by the Crown that these counts should never have been part of the presentment, particularly in the light of the fact that this was to be a plea, and not a trial. That concession reflected a fundamental principle of the common law, now enshrined in statute,[1] that a person must not be punished more than once for the same criminal conduct.
[1]Charter of Human Rights and Responsibilities, s 26; Interpretation of Legislation Act1984 (Vic), s 51.
The situation created by the presentment in this case might have been overcome in the sentencing court in a number of different ways, had it been recognised at that time. Questions may have arisen as to the Crown being put to an election as to the count or counts on which it would proceed, or as to whether appropriate stay orders should be made in respect of some counts. However the problem may have been able to be solved at that level, it is now sufficient for this Court to accept the Crown's concession, grant leave to the appellant to appeal against conviction in respect of counts 1, 2, 3, 6, 8 and 10, allow that appeal, set aside those convictions and enter verdicts of acquittal in respect of each of those counts.
As those orders will be made, it will be necessary for this Court to re-sentence Jackson on those counts for which his pleas of guilty will stand. I shall turn to that matter shortly. Before doing so, however, I should express an opinion on the two other grounds of appeal, namely, the failure of the trial judge to ameliorate Jackson's total sentence and non-parole period because of his psychiatric condition and the ground of manifest excess.
This appellant has an uncontradicted severe psychiatric condition of long standing in the nature of depression. Having regard to the circumstances in which he became involved in this fraud, his part in it and the illness to which I have referred, some amelioration of his sentence on R v Verdins[2] principles should have been applied to his head sentence and to his non-parole period. In failing to do so, the sentencing judge fell into error.
[2](2006) 16 VR 269.
Similarly, when one adds to those factors his plea of guilty, his age, his non-existent criminal record and his antecedents generally, a sentence of five years and nine months with a three and a half year minimum for his part in this fraud is a manifestly excessive sentence. His appeal should have succeeded on each of those grounds, even if the double punishment ground had not succeeded.
In approaching the sentencing task where a complex criminal transaction is involved and multiple counts have been laid, in determining the appropriate punishment, the sentencing judge should first identify the overall criminality alleged and proved by the Crown or admitted by a plea of guilty. Then, individual sentences should be constructed and appropriate cumulation and concurrence determined in the usual way. A total effective sentence and non-parole period should be arrived at to reflect that criminality and all other mitigating and aggravating factors. In a fraud case, criminality can be expressed by reference to the overall modus operandi, the end to which that modus operandi is directed and, if appropriate, the result of it.
Here Jackson proffered a number of forged documents and other fraudulent representations to effect the result of obtaining about $870,000. The number and extent of the fraudulent representations adds little to the overall criminality of the enterprise he engaged in. The essence of it was the obtaining of the loan by fraud. The presentment contains an appropriate count, count 4, which almost of itself describes the necessary criminality and particularises the modus operandi, at least in relation to the principal offence alleged. Count 5 adds little or nothing to count 4. Thus its sentence should be totally concurrent. Counts 7, 9 and 11 may be properly characterised as being related but separate criminal acts from that alleged in count 4. As such they should involve some degree of cumulation of sentence on that imposed on count 4.
On that basis the appellant should be re-sentenced as follows:
count 4 – two years' imprisonment;
count 5 – one year imprisonment;
count 7 – six months' imprisonment;
count 9 – six months' imprisonment; and
count 11 – four months' imprisonment.
On each of the two summary charges – convicted and discharged.
The sentence on count 5 should be totally concurrent with that on count 4. Two months of the sentences on each of counts 7 and 9 should be cumulative on each other and on that of count 4, and one month of the sentence on count 11 should be cumulative on those of counts 4, 7 and 9, making a total effective sentence of two years and five months’ imprisonment. The Court should fix a non-parole period of one year and five months.
For the avoidance of doubt, all other ancillary orders made in the Court below are affirmed.
For the purposes of s 6AAA of the Sentencing Act 1991 (Vic), the sentences which would have been imposed had the appellant not pleaded guilty as indicated would have been:
count 4 - three years’ imprisonment;
count 5 - 16 months’ imprisonment;
count 7 - eight months’ imprisonment;
count 9 - eight months’ imprisonment; and
count 11 - five months’ imprisonment.
Making, with appropriate cumulation, a total effective sentence of four years’ imprisonment, and a non-parole period of three years.
WEINBERG JA:
I agree for the reasons given by Bongiorno JA that this appeal should be allowed. I also agree with the orders proposed.
- - -
0