Kepkey v The Queen
[2021] VSCA 202
•23 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0039
| KYLE KEPKEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 23 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 202 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1156 (Judge Lacava) |
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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 – Appeal – Sentence – Three charges of obtaining property by deception – Three charges of obtaining financial advantage by deception – Total effective sentence 5 years’ imprisonment – Non-parole period 3 years – Whether judge failed to take into account family hardship – Principles relating to family hardship as a sentencing consideration – How principles to be applied where affected family member is victim of offending – Application for extension of time to file notice of application for leave to appeal – Ground of appeal not reasonably arguable – Application for extension of time refused – Sentencing Act 1991 s 5(2)(daa), (da), (db).
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
KYROU JA:
Introduction and summary
The applicant pleaded guilty on 13 July 2020 to the charges set out in the table below and, on 31 July 2020, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Kepkey [2020] VCC 1156 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Obtain property by deception [Crimes Act 1958 s 81] 10 years 1 year 6 months 2 Obtain financial advantage by deception [Crimes Act s 82] 10 years 2 years 1 year 3 Obtain property by deception 10 years 6 months Nil 4 Obtain financial advantage by deception 10 years 3 years Base 5 Obtain property by deception 10 years 3 months Nil 6 Obtain financial advantage by deception 10 years 1 year 6 months Total effective sentence: 5 years’ imprisonment Non-parole period: 3 years Pre-sentence detention declaration: 18 days Section 6AAA statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years
The applicant has sought leave to appeal against his sentence on the following ground:
The sentencing judge erred in failing to take into account family hardship, in particular:
(a)the findings by the sentencing judge that the Applicant’s father’s continued financial predicament had been brought about by the Applicant’s offending and not also because of the custodial sentence imposed on the Applicant, which failed to take into account the additional burden to the Applicant’s father as a result of the Applicant being imprisoned; and
(b)the findings by the sentencing judge about family hardship were made in circumstances in which the Applicant was not afforded procedural fairness.
The applicant also seeks an extension of time within which to file his notice of application for leave to appeal.
For the reasons that follow, the ground of appeal is not reasonably arguable. Accordingly, as it would be futile to grant the application for an extension of time, that application will be refused.
Circumstances of the offending
The victim of the applicant’s offending is his father. The applicant is the victim’s only child. Prior to 2017, the victim lived alone in his own home in Sydney while the applicant lived in Melbourne.
The victim held only one bank account with Westpac. He did not use internet banking and did not know how to use card-less cash withdrawals. He never requested an account balance from the ATM when he withdrew money because he feared that someone might see it and try to rob him.
In 2014, the applicant stole a letter from Westpac to the victim containing a bank statement. Using the information in that letter, the applicant registered the victim’s bank account for internet banking without the victim’s knowledge or permission. A protect SMS code was added to the online banking profile and linked to the victim’s mobile number. The applicant had an app on his phone that would send to his computer any SMS messages that the victim received. Two days later, the applicant registered his own bank account with the Bank of Melbourne as a ‘payee’ on the victim’s online banking profile to allow online payments from the victim’s account into the applicant’s account.
In late 2016, the victim sold his home in Sydney in order to move to Melbourne and live with the applicant. The sale price was more than $1.2 million. The victim intended to live off the money he received from the sale of his home. He was careful with his spending and maintained a frugal lifestyle. He thought that, if he kept his expenditure to about $70,000 a year, his money would last for some time.
On 13 October 2016, the applicant telephoned Westpac without the victim’s knowledge. He pretended to be the victim and reset the telephone password linked to the victim’s bank account.
On 9 November 2016, the victim received the sum of $60,762.22 into his bank account, which was a deposit for the sale of his home. Four days later, the applicant logged into the victim’s online banking profile without the victim’s knowledge and increased the online transaction limit from $750 to $5,000.
On 21 February 2017, the sale of the victim’s home settled and he received the sum of $1,181,792.02 into his bank account.
The victim moved to Melbourne in early 2017. He stayed in a serviced apartment before moving to a rental property in Maidstone with the applicant in April 2017. Around this time, the applicant turned off paper bank statements on the victim’s bank account.
Between 13 February and 27 December 2017, the applicant completed 56 unauthorised card-less cash withdrawals totalling $25,480 from the victim’s bank account (charge 1: obtaining property by deception). The amounts ranged from $80 to $500.
Between 13 February and 28 December 2017, the applicant transferred a total of $199,100 from the victim’s bank account into his own bank account. He made 83 unauthorised fraudulent transfers ranging from $500 to $4,000 (charge 2: obtaining financial advantage by deception).
On 30 September 2017, the applicant logged into the victim’s online banking profile without the victim’s knowledge and increased the online transaction limit from $5,000 to $10,000.
Between 1 January and 23 December 2018, the applicant completed 38 unauthorised card-less cash withdrawals totalling $15,350 from the victim’s bank account (charge 3: obtaining property by deception). The amounts ranged from $100 to $500.
Between 1 January and 28 December 2018, the applicant transferred a total of $713,000 from the victim’s bank account into his own bank account. He made 90 unauthorised fraudulent transfers ranging from $3,000 to $10,000 (charge 4: obtaining financial advantage by deception). From 25 June 2018, the applicant’s offending escalated and all transactions made were of $10,000.
Between 2 January and 22 February 2019, the applicant completed six unauthorised card-less cash withdrawals totalling $2,400 from the victim’s bank account (charge 5: obtaining property by deception). The amounts ranged from $150 to $500. CCTV footage depicts a person other than the applicant making the withdrawals from ATMs on 12 and 22 February 2019. The applicant told police that he had sent the Westpac transaction-specific SMS code for the two card-less cash withdrawals to his then drug dealer, thereby permitting that person to take the designated cash amounts from the ATM.
Between 2 January and 24 January 2019, the applicant transferred a total of $46,000 from the victim’s bank account into his own bank account. He made five unauthorised fraudulent transfers, four of which were of $10,000 (charge 6: obtaining financial advantage by deception).
In summary, over the two year period between 13 February 2017 and 22 February 2019, the applicant stole funds from the victim totalling $1,001,330. This sum comprised:
(a)100 card-less cash withdrawals totalling $43,230 from the victim’s Westpac bank account without the victim’s authority (charges 1, 3 and 5: obtaining property by deception); and
(b)transferred funds totalling $958,100 from the victim’s bank account into the applicant’s Bank of Melbourne account on 178 occasions without the victim’s authority (charges 2, 4 and 6: obtaining financial advantage by deception).
The six charges are rolled-up charges covering transactions between particular dates.
In March 2019, the applicant and the victim were shopping. The victim attempted to withdraw money from an ATM, but was unsuccessful due to insufficient funds. When they returned home, the applicant admitted that he had had a drug problem for a couple of years and had withdrawn some money from the victim’s bank account.
The victim subsequently approached Westpac and was advised that he had $19.34 left in his bank account. He made a report to the Westpac fraud department and was advised to report the matter to police.
On 19 March 2019, the applicant telephoned the Westpac fraud department pretending to be the victim and asked what he needed to do if someone had stolen money from him. He was told that the matter needed to be reported to police. On 27 March 2019, the applicant telephoned Westpac again pretending to be the victim and said that police would not do anything. He was told that a report had to be filed with the police.
The victim made a statement to police on 5 April 2019 and the applicant was interviewed on 23 April 2019. The applicant made full admissions and was released pending further investigation.
After an analysis of documents provided by Westpac and the applicant’s PayPal purchase history, police were able to account for approximately $977,996.32 of the total amount of $1,001,330 stolen by the applicant. He was interviewed again on 1 December 2019 and told police the following in relation to his expenditure of the victim’s money:
(a)The cash withdrawals were either made by himself or he would send the access code to other people, commonly drug dealers, to withdraw the money.
(b)He transferred $18,854 directly into the account of his then partner when she needed something or was going shopping.
(c)He transferred $10,000 to his former girlfriend after they broke up.
(d)He transferred over $12,000 to his best friend for his wedding.
(e)He paid rent for a friend.
(f)He spent approximately $26,000 modifying a Honda Civic car that the victim had bought for him.
(g)He spent $2,695 on Deliveroo food deliveries.
(h)He spent $15,000 on Uber rides.
(i)He spent $12,800 in Bunnings, buying tools.
(j)He spent $22,000 on online gaming and $14,700 in EB Games.
(k)He spent $22,000 on Amazon.
(l)He spent $7,000 in Coles and $6,000 in Woolworths.
(m)He spent $2,000 in 7-Eleven and $4,700 on 7-Eleven cash withdrawals.
(n)He spent $2,100 on Google Tinder.
(o)He spent $17,000 in JB Hi-Fi.
(p)He spent $9,000 on Red Spot Car Rentals.
(q)He spent $286,523 on ‘random’ purchases using PayPal.
(r)He withdrew $204,760 in cash from ATMs.
(s)The victim paid for a trip to Tokyo for him, but he spent another $14,000 of the victim’s money on that trip without his knowledge.
The applicant told police that ‘it was all just out of selfishness, it was all just putting [himself] first. Living the Rockefeller lifestyle on someone else’s dime.’
Applicant’s personal circumstances
The applicant was between 26 and 28 years of age during the period of offending. He was 30 at the time of sentencing.
The applicant was born in the Philippines to a Filipino mother and an Australian father (the victim). His mother died when he was 3 years old and he subsequently moved to Australia with the victim. He was raised in western Sydney by the victim with the assistance of his paternal grandparents.
The applicant felt out of place growing up due to his ethnicity and the area of Sydney where the family resided. He completed year 12 in a high school that was ‘notorious for violence’ and frequent police attendances.
The applicant maintained continual employment after finishing high school, save for a period of 12 months from March 2019 due to mental health issues. He worked first in labouring roles, then selling insurance in the banking and finance sector and more recently in IT roles. At the time of the plea hearing, he worked for Telstra as a casual data analyst.
The applicant was in a seven-year relationship, in which he was subjected to significant physical and emotional abuse. He moved to Melbourne in 2014 with his then partner, before the relationship ended in 2015. In mid-2018, the applicant commenced a relationship with a co-worker, Mathilda Foster, which lasted for two years.
As stated above, the applicant has lived with the victim in Melbourne from early 2017. In May 2019, their rental house was severely damaged by fire. Two days later, they moved into Ms Foster’s one-bedroom apartment. The victim slept on the couch. In June 2020, when their relationship ended, Ms Foster asked the applicant and the victim to vacate the apartment. After leaving her apartment, they stayed in emergency accommodation for six nights and then in a hotel from that time. Ms Foster remains supportive of the applicant.
At the age of 16, the applicant commenced abusing acid, ecstasy and crystal methylamphetamine. For two and a half years from the age of 18, he abused methylamphetamines on a daily basis. He abstained from drug abuse for four years of his own accord, without any therapy or pharmacological treatment. After the breakdown in 2015 of the abusive relationship referred to above, he recommenced abusing methylamphetamines. From that time until 2019, his drug abuse escalated significantly and his mental health deteriorated. He did not seek help for his drug abuse or mental health issues during that period. He ceased abusing drugs shortly after disclosing his offending to the victim in 2019. He has remained drug-free since that time without therapeutic assistance.
The applicant was diagnosed with anxiety and a depressive disorder in 2013 and took antidepressant medication for a short period. He has never engaged in psychological treatment or any other form of therapeutic mental health treatment. He has a history of self-harming during his abusive relationship and attempted suicide twice during the period of offending.
The applicant has not abused alcohol and has no criminal history.
Principles relating to family hardship as a sentencing consideration
In limited circumstances, hardship caused to an offender’s family as a result of his or her incarceration can be taken into account in the exercise of the sentencing discretion.
In Markovic v The Queen, this Court reaffirmed that family hardship can only be taken into account as a sentencing consideration where exceptional circumstances render the plea for mercy irresistible.[2] It summarised the applicable principles as follows:
1Reliance on family hardship — that is, hardship which imprisonment creates for persons other than the offender — is itself an appeal for mercy.
2Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.[3]
[2](2010) 30 VR 589, 591 [3], [5], 592 [7]; [2010] VSCA 105 (‘Markovic’).
[3]Markovic (2010) 30 VR 589, 591 [5]; [2010] VSCA 105 (emphasis in original).
The Court described the requirement of exceptional circumstances in the following terms:
Whether or not, in any particular case, family hardship gives rise to ‘exceptional circumstances’ must be a question of fact and degree. In answering that question, it is necessary to have regard to the admonition, often stated in the authorities, that such cases will be ‘rare’. A sentencing judge should also have regard to the many examples in the decided cases of undoubted hardship which have, none the less, been held by appellate courts to fall short of ‘exceptional circumstances’.[4]
[4]Markovic (2010) 30 VR 589, 603 [77]; [2010] VSCA 105 (citations omitted).
The ‘exceptional circumstances’ requirement was developed in response to several considerations. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants. Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less. Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust.[5]
[5]Markovic (2010) 30 VR 589, 591–2 [6]–[7]; [2010] VSCA 105.
In R v Wirth, Wells J stated as follows:
Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it … It seems to me that courts would often do less than their clear duty — especially, where the element of retribution, [deterrence], or protection of society is the predominant consideration — if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.[6]
[6](1976) 14 SASR 291, 296, approved in Markovic (2010) 30 VR 589, 593–4 [13]; [2010] VSCA 105.
In Rezai v The Queen, this Court recently held that it was open to the sentencing judge to conclude that the hardship in that case was not exceptional, in circumstances where the offender’s family — namely, his wife, his hospitalised mother and his young siblings and cousins — was completely reliant on income provided by him.[7]
[7][2020] VSCA 106, [18]–[22].
In most cases where family hardship is relied upon as a sentencing consideration, the victim of the offending is a third party, rather than the family member who will suffer hardship as a result of the offender’s sentence. As a matter of principle, family hardship is not excluded as a sentencing consideration simply because the victim of the offending is the family member who will suffer hardship as a result of the offender’s sentence.
However, where the victim of the offending is the family member who will suffer hardship as a result of the offender’s sentence, care must be taken to confine the sentencing consideration to hardship that results from the offender’s sentence. That is because any hardship to the family member in his or her capacity as a victim of the offending must be taken into account under s 5(2) of the Sentencing Act 1991, which relevantly provides as follows:
In sentencing an offender a court must have regard to—
…
(daa) the impact of the offence on any victim of the offence; and
(da) the personal circumstances of any victim of the offence; and
(db) any injury, loss or damage resulting directly from the offence; …
Usually, the impact of the offending on the victim is not regarded as a mitigating factor. That is because, ordinarily, the more severe the impact of the offending is on the victim, the more seriously the gravity of the offending is regarded.
Self-evidently, the exceptional circumstances requirement does not apply to paras (daa), (da) and (db) of s 5(2) of the Sentencing Act.
Plea hearing
At the plea hearing, the prosecutor tendered a victim impact statement from the applicant’s father.
Defence counsel submitted at the plea hearing that family hardship was a mitigating factor. He contended that the victim was in an extremely precarious financial position and housing situation, which was made ‘slightly better’ through financial support from the applicant. He argued that that financial support would evaporate upon the applicant being sentenced and it was uncertain where the victim would live following the applicant’s imprisonment. It was said that the victim did not have any immediate or extended family nor any close friends from whom he could seek assistance in either Melbourne or Sydney.
Defence counsel accepted that, ‘[o]n first blush’, it was somewhat perverse to assert that family hardship was enlivened when the fruits of the applicant’s criminality had put the victim in the position of hardship. However, he submitted that the applicant’s incarceration would result in truly exceptional hardship upon the victim and ought to be taken into account with respect to the type and quantum of sentence imposed.
The judge stated that he had not met a parent of an accused where there had not been a significant impact. He said that he did not know that the hardship in this case ‘gets over’ the exceptional circumstances test. He then stated that he was familiar with the principles set out in Markovic.
The following exchange then took place between defence counsel and the judge:
[DEFENCE COUNSEL]: [T]he Crown says it can’t be family hardship because the hardship if it exists has been done through the hand of the accused.
HIS HONOUR: Hardship’s hardship is hardship.
[DEFENCE COUNSEL]: Exactly. So in my submission, that must fall away. That can’t be correct.
HIS HONOUR: Well, isn’t that right? Hardship is hardship. That’s what you say.
[DEFENCE COUNSEL]: It is. … It’s simply a question of whether or not Your Honour is satisfied that it is exceptional …
Defence counsel acknowledged that financial hardship was but one factor that would be taken into account in sentencing if the judge ultimately found that exceptional circumstances had been demonstrated.
Defence counsel eschewed reliance on the principles in Verdins.[8] He conceded that the applicant’s moral culpability ‘must be high’.[9]
[8]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[9]Transcript of Proceedings (13 July 2020) 52.11.
Sentencing remarks
The judge described the applicant’s offending as very serious, opportunistic identity fraud. He stated that the offending was a ‘shocking breach of trust in the moral sense’ which ceased only when there was no money left to steal.[10] He said that the applicant accurately described his conduct to police as driven by selfishness and a desire to lead ‘the high life’ which he could not afford.[11] He stated that general deterrence and denunciation ‘loom[ed] large as sentencing principles’.[12]
[10]Sentencing remarks [25], [34].
[11]Sentencing remarks [32].
[12]Sentencing remarks [36].
The judge described the applicant’s prospects for rehabilitation as good and his risk of reoffending as low. He said that the applicant made full admissions to police and cooperated fully with the police investigation. He stated that he treated the applicant as having pleaded guilty at the earliest opportunity, which advanced the administration of justice and evidenced genuine remorse. He also stated that he was ‘very conscious’ that the restrictions imposed on prisons during the COVID-19 pandemic would make the applicant’s time in prison more burdensome than it ought to be.[13]
[13]Sentencing remarks [44].
The judge said the following with respect to family hardship:
[Defence counsel] submitted that because [the applicant] will be imprisoned, I should take into account the exceptional financial hardship that this will bring to bear upon [his] father. I do not accept that submission. In my judgement, [his] father’s continued financial predicament has been brought about by [the] offending, not because of the sentence that I will shortly pass. I am of the view that there are no exceptional circumstances here which should operate to reduce any sentence.[14]
[14]Sentencing remarks [61].
The judge decided that a term of imprisonment in combination with a community correction order would not properly achieve general deterrence and appropriate denunciation. That was because of the amount of money involved, the period of time over which the applicant offended and the fact that the offending involved the applicant stealing the victim’s identity.
The judge decided to impose a shorter than normal non-parole period because the applicant was still relatively young, it was his first time in prison, his work record was good, he was remorseful and his prospects for rehabilitation were good.
Parties’ submissions
The applicant submitted that, at the plea hearing, the judge made it clear to the parties that he accepted that family hardship could apply in this case, if the Court was satisfied that the hardship was exceptional.[15] He contended that the judge’s sentencing remarks set out at [56] above were inconsistent with the judge’s position at the plea hearing.
[15]See [51] above.
The applicant argued that the judge’s sentencing remarks were made in circumstances where he was denied procedural fairness. It was said that he ought to have been given the opportunity to be informed of the judge’s changed position and be invited to make further submissions. According to the applicant, there was an error in the sentence imposed by the judge and a different sentence should be imposed pursuant to s 281(1) of the Criminal Procedure Act 2009 (‘CPA’).
The Crown submitted that, to succeed on his proposed ground of appeal, the applicant must demonstrate that the judge’s failure to find exceptional circumstances and his refusal of the request for mercy was not open. It contended that there was a paucity of evidence upon which the judge could act. It was said that no submission was made, nor evidence led, about the specific amount of financial support provided by the applicant and the victim’s cost of living. The Crown argued that judge’s refusal of the applicant’s request for mercy was reasonably open.
According to the Crown, there was no inconsistency between the judge’s statements during the plea hearing and his sentencing remarks. This was said to be because:
(a)At the plea hearing, the judge was clearly of the view that he could take the additional burden to the victim caused by the applicant’s imprisonment into account, if he was satisfied that any such hardship was exceptional. In saying that ‘[h]ardship is hardship. That’s what you say’, the judge was indicating that he understood defence counsel’s submission, rather than that he accepted it.
(b)The gravamen of the judge’s sentencing remarks set out at [56] above was a finding that the victim’s hardship had essentially been caused by the offending and the additional hardship to the victim arising from the applicant’s imprisonment was not exceptional.
In any event, the Crown argued that the applicant was not denied procedural fairness. It was said that the applicant was provided with a reasonable opportunity to present his case.
Decision
In my opinion, the ground of appeal is not reasonably arguable.
Neither party has suggested that the judge did not take into account the impact of the offending on the victim as required by s 5(2) of the Sentencing Act.
In my opinion, there is no inconsistency between the judge’s exchange with defence counsel set out at [51] above and his sentencing remarks set out at [56] above. In his exchange with counsel, the judge indicated that hardship to the applicant’s father resulting from the applicant’s incarceration could qualify as a sentencing consideration even though the financial predicament of the applicant’s father originated from the applicant’s offending against him. In his sentencing remarks, after stating that the applicant’s offending brought about the victim’s ‘continued financial predicament’, the judge proceeded to consider the exceptional circumstances requirement. He concluded that the hardship to the victim resulting from the sentence to be imposed on the applicant did not satisfy that requirement. The approach adopted by the judge was not inconsistent with the principles set out at [37]–[46] above.
Even if it is accepted that there is some inconsistency between the judge’s exchange with defence counsel and his sentencing remarks, it was abundantly clear on the plea that, in order to qualify as a sentencing consideration, the hardship to the victim resulting from the applicant’s incarceration must satisfy the exceptional circumstances requirement. Defence counsel was aware that the judge needed persuasion in relation to that requirement, had ample opportunity to make submissions on it and did so. In these circumstances, the judge did not fail to afford the applicant procedural fairness.
The judge’s finding that the exceptional circumstances requirement was not satisfied was not only open to him, but was inevitable on the evidence before him. The evidence that was relevant to the hardship that the victim would suffer as a result of the applicant’s incarceration was limited to the following:
(a)The victim was 59 years of age. He was single and had no immediate family other than the applicant. He knew only two other people in Melbourne, being Ms Foster and another friend of the applicant.
(b)The victim had $19.34 left in his bank account as a result of the applicant’s offending.
(c)From March 2020, the victim was in receipt of JobSeeker payments of approximately $550 per week from Centrelink. The weekly amount of JobSeeker payments had been increased as a result of the COVID-19 pandemic and was expected to reduce to the base level at some point.
(d)The applicant was also in receipt of JobSeeker payments, as well as income from casual work for Telstra. The amount of his JobSeeker payment was reduced to some extent in weeks when his income from Telstra was above the relevant threshold.
(e)The victim was staying in a hotel with the applicant. He could not afford private rental accommodation on his own and was facing the prospect of homelessness without the applicant’s financial support.
(f)Most of the victim’s possessions were lost in the house fire in May 2019 and he had no assets.
(g)The applicant intended to give the victim $6,500 in cash, comprising cash at bank of $2,000, an expected tax refund of $2,500 and $2,000 from a pending early withdrawal of superannuation.
(h)The applicant’s only asset was his car, which was valued at $6,000 at worst. Because the victim could not drive, he was going to sell the applicant’s car once the applicant was remanded in custody.
(i)The victim was going to seek compensation from Westpac after the criminal proceedings had finalised. However, he could not afford to pursue litigation unless a firm of solicitors was willing to represent him on a ‘no win, no fee’ basis.
(j)The victim’s future was ‘emotionally bleak’, as the applicant was the only person to whom he was close and he relied upon the applicant for emotional support.
It is noteworthy that there was no evidence before the judge regarding the following matters:
(a)The victim’s cost of living, including living arrangements, food, utilities and transport.[16]
(b)The average weekly amount of financial support provided by the applicant to the victim before being remanded in custody.
(c)Whether the victim was eligible for social housing and, if so, any anticipated waiting period.
(d)The victim’s skills and employment history, including whether he was willing and able to seek suitable employment.
[16]With respect to transport, defence counsel submitted that the applicant and the victim endeavoured to keep transport to a minimum and used the applicant’s vehicle instead of public transport, taxis or rideshare services. However, no particular transport costs were provided. Further, it was said that the victim cannot drive, but his expected modes and costs of transport following the applicant’s imprisonment were not canvassed.
The principles set out at [37]–[46] above make it clear that the exceptional circumstances requirement is difficult to satisfy. The evidence regarding the hardship that the victim would suffer as a result of the incarceration of the applicant was not sufficient to demonstrate such exceptional circumstances as required the judge to be merciful in the exercise of his sentencing discretion.
I have reached this conclusion without taking into account the possibility that Westpac might pay the victim some compensation for identity fraud and thus ameliorate his financial hardship. The prospect of such a payment — which is absent in many other cases of family hardship — is difficult to assess and that is why I have disregarded it.
Conclusion
For the above reasons, I have concluded that the ground of appeal is not reasonably arguable.
Even if I had held that the ground was reasonably arguable, in the light of the very serious nature of the offending (as found by the judge) and the applicant’s high moral culpability (as conceded by defence counsel), I am of the opinion that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[17] I have formed that opinion after giving full weight to the mitigating circumstances upon which the applicant relied and the evidence before the judge regarding the hardship that the victim would suffer as a result of the applicant’s sentence. As I have already stated, that evidence is insufficient to satisfy the exceptional circumstances requirement.
[17]CPA s 280(1)(a).
Having regard to the above conclusions, it would be futile to grant the applicant’s application for an extension of time within which to file his notice of application for leave to appeal. Accordingly, the application for an extension of time will be refused.
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