Kumar v The Queen
[2012] VSCA 35
•2 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0237
| RAKESH KUMAR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG JA and HOLLINGWORTH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 February 2012 |
| DATE OF JUDGMENT | 2 March 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 35 |
| JUDGMENT APPEALED FROM | DPP v Kumar (Unreported, County Court of Victoria, Judge O’Neill, 5 September 2011) |
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CRIMINAL LAW – Sentence – Obtaining financial advantage by deception – Sentenced to two years and three months’ imprisonment with 14 months suspended – Judge accorded 50 per cent discount for assistance to authorities – Whether period of suspension reflected sufficient weight given for assistance – Parity with co-offenders – Appeal dismissed – No point of principle
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J K Oldis | Lewenberg & Lewenberg |
| For the Respondent | Ms D Karamicov | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
The appellant, Rakesh Kumar, pleaded guilty in the County Court at Melbourne, to one charge of having obtained a financial advantage by deception, contrary to s 82(1) of the Crimes Act 1958. The maximum penalty for that offence is 10 years’ imprisonment.
On 5 September 2011, the appellant was sentenced to two years and three months’ imprisonment, with 14 months of that term suspended for two years. That meant that he was required to serve an immediate term of 13 months’ imprisonment. He now appeals against that sentence, pursuant to leave having been granted on 23 November 2011.
Background
The circumstances surrounding the offending may be summarised briefly. The appellant had, for a number of years, been involved in the IT industry. At one point, he went into business with a man named Salil Ghag, a co-offender. The business was run through a company known as TMZ Group Pty Ltd, which traded as Leading Edge Telecoms.
The two men, together with Mandeep Singh Chawla, another co-offender, engaged in what the sentencing judge described as a ‘scam’. They arranged for orders to be placed with Telstra for mobile phones. These orders were placed in fraudulent names. The mobile phones were then sent to various addresses throughout Melbourne, all of which had been sourced through the website of a real estate agency. These addresses were, in fact, vacant properties. When a parcel was delivered, and no one was present to receive it, an ‘attempted delivery slip’ would be left in the letterbox. These slips were then picked up by various accomplices, and taken to the local post office. There, the parcels containing the mobile phones were collected.
In order to satisfy the identification requirements at these post offices, the appellant arranged for false drivers’ licences, and other fraudulent documentation, to be prepared. After collection, the packages were delivered to either the appellant or to Ghag, at their respective homes. The mobile phones were then sold to a retail outlet in Sydney.
The scale of the fraud was substantial. Between 16 June 2009 and 12 January 2010, a total of $763,938 was deposited into the appellant’s Westpac account by the Sydney retail outlet.
The appellant appears to have been the architect of the scheme. He was also its principal beneficiary. Of the $763,938 received, he retained about $350,000 as his share. His co-offenders, Ghag and Chawla, were paid $122,036 and $95,520 respectively.
There were three other co-offenders. They received the balance of about $172,000 between them. They were never apprehended, one at least having fled the jurisdiction.
The appellant used his share of the proceeds to acquire a share in a Telstra franchise, to set up a perfume retail outlet and to purchase a block of land upon which he subsequently built a house. The perfume business failed, and the money invested in it was lost. Once Telstra discovered the appellant’s offending, restrictions were placed on his capacity to operate the franchise business, and eventually it was sold without any return. As for the house that he had built, it had been sold by the time the plea was heard. The appellant retained some $30,000 from the proceeds of that sale, all of which he made available to Telstra by way of restitution.
In addition, on the plea, counsel for the appellant informed the sentencing judge that the appellant had agreed to pay a further sum of $50,000 over the next six months, provided he was at liberty, and therefore able, to do so. It was submitted that, despite the amount defrauded, the appellant had not led an extravagant lifestyle. The reason why he committed this offence was to establish himself in business, to become independent, and to be self-employed.
When the appellant was apprehended by the police, he initially sought to conceal his involvement in this offending. He admitted that he had attempted to hide various items that were incriminating, including a false driver’s licence, a number of SIM cards, and associated packaging. He declined to make any admissions. However, he soon decided that he should cooperate with the authorities, and did so.
In dealing with the appellant’s personal history, the judge first noted that he had been born in India in 1983, and was aged 28 at the time of sentence. He was educated in that country, and obtained a degree in engineering in the area of communications and technology.
The appellant had met his wife in India. She had defied an arranged marriage, and had chosen instead to marry him. This was said to have brought disgrace upon her family, and to have led to significant conflict between the appellant’s family, and that of his wife.
In July 2005, the appellant came to this country on a student visa. He commenced a Masters Degree in communications at La Trobe University. He qualified for that degree in July 2007. During the intervening two years, he could not, under the terms of his visa, engage in paid employment for more than 20 hours per week. Nonetheless, he took on a number of different jobs in order to support his wife and himself. He is now an Australian citizen.
Positive evidence of good character was led on the plea. That evidence suggested that the appellant was ambitious and hard-working, supportive of his wife, and remorseful. It was noted that as a result of his offending, he had lost virtually everything.
Importantly for present purposes, evidence was put before his Honour to the effect that the appellant had provided assistance to the authorities to aid them in their investigation into all of those involved in this offending and also, so it was said, other conduct of a fraudulent nature. The evidence in question took the form of a confidential letter prepared by the police. The judge, in his sentencing remarks, did not go into any detail regarding the contents of the letter. The Crown acknowledged that the level of assistance provided had been extensive, and important.
At the hearing of the appeal, this Court was shown the letter in question. It was singularly uninformative, being couched in the most general of terms. For my part, I would not have regarded a letter of that kind as warranting anything like the discount in the order of 50 per cent that the sentencing judge was prepared to accord it. However, that was a matter for his Honour. I must therefore proceed to consider this appeal on the basis that a discount in the order of 50 per cent was appropriate.
The appeal
Initially, the appellant sought leave to appeal on two grounds, manifest excess and parity. Redlich JA, in granting leave to appeal, rejected the proposed manifest excess ground in so far as it attacked the head sentence. However, his Honour granted leave on the basis that it was reasonably arguable that the sentencing judge had failed, when considering how much of the appellant’s sentence to suspend, to accord sufficient weight to the discount to be given for assistance to the authorities. His Honour also linked that point to the parity ground.
In considering the parties’ submissions, it is necessary understand the way in which the appellant’s co-offenders were dealt with for their role in the ‘scam’.
Some four months before the appellant was sentenced, the same judge had sentenced both Ghag and Chawla.[1] Ghag had pleaded guilty to one charge of obtaining financial advantage by deception, and Chawla had pleaded guilty to three such charges.
[1]DPP v Ghag (Unreported, County Court of Victoria, Judge O’Neill, 30 May 2011).
Ghag was sentenced to two years’ imprisonment, suspended as to 18 months, the effect being that he was to serve an immediate term of six months’ imprisonment. Chawla was sentenced to a total effective sentence of two years and two months’ imprisonment,[2] suspended as to 18 months, such that he was to serve an immediate term of eight months’ imprisonment.
[2]The individual sentences imposed being two years’ imprisonment on count 3, one year on charge 4 and one year on charge 5. The judge ordered that one month of each of the sentences imposed on charges 4 and 5 be served cumulatively upon each other and upon the sentence imposed on count 3.
In his sentencing remarks, the judge characterised Ghag and Chawla as ‘middle level participants’.[3] He noted that Ghag had made substantial restitution to Telstra, whereas Chawla had made none. He further noted that Ghag had given some assistance to the authorities by providing a forensic accountant’s report which traced the flow of money to various bank accounts. He noted that Chawla, too, had given some assistance to the authorities.
[3]DPP v Ghag (Unreported, County Court of Victoria, Judge O’Neill, 30 May 2011) [59].
Ghag and Chawla did not expressly receive any specified discount for the assistance they had provided to the authorities. The appellant, on the other hand, was told by the judge that he would be given a discount of the order of 50 per cent. Moreover, it was clear from the sentencing remarks that the judge treated that discount as separate from the discount that the appellant would receive for having pleaded guilty.
Before this Court, counsel for the appellant did not challenge the term of the actual sentence imposed on the appellant, conceding that it properly reflected the discount of 50 per cent that his Honour was prepared to give. The appellant’s complaint was directed specifically at the portion of his sentence which was ultimately suspended.
The appellant pointed to the fact that, after taking all matters into account (and applying the discount for assistance), the actual term of imprisonment of two years and three months’ imposed on the appellant was almost on par with the sentences imposed on each charge of obtaining financial advantage by deception in respect of Ghag and Chawla. Yet it was plain that the appellant must have received a much greater discount for assistance than either of them.
However, his Honour went on to suspend just less than half of the sentence imposed on the appellant. That was to be compared with the suspension of 75 per cent of Ghag’s term, and the suspension of nearly 75 per cent of Chawla’s term.
The ultimate outcome, therefore, was that in making the orders for suspension that the judge did, the appellant would actually serve an immediate term that was about twice that of his co-offenders. Counsel noted that his Honour gave no reason, when sentencing the co-offenders, for suspending such a high proportion of their sentences.
Counsel submitted that, even putting to one side any question of parity, the 13 month period ordered to be immediately served was excessive, because it did not properly reflect the discount provided for the appellant’s assistance.
Turning first to the parity argument, no one doubts the importance of the principle of parity in sentencing. However, that principle not only requires that like cases be treated alike, but also that different cases be treated differently.[4]
[4]Lowe v The Queen (1984) 154 CLR 606, 610-11 (Mason J). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
The appellant’s culpability in the present case was far greater than that of either of his co-offenders, Ghag and Chawla. It was the appellant’s scheme, devised by him, and operated under his close supervision. It was he who primarily benefited from the fraud.
Moreover, it cannot simply be assumed that neither Ghag nor Chawla received any discount, when sentenced for their involvement, for the assistance that they had proffered to the authorities. The fact that the judge referred specifically to that assistance when sentencing them suggests that they did, in fact, receive some discount for what they had done. All that is known in that regard is that the judge did not specify any percentage figure of discount in the way that he did for the appellant.
The fact that the judge suspended more than half of what was, in any event, a very light sentence for offending of this nature strongly suggests that his Honour did apply the appellant’s discount for assistance not merely to the head sentence, but also to the portion of that sentence that was suspended. That approach accords with the authorities.[5]
[5]R v Duncan [1998] 3 VR 208, 215 (Callaway JA).
The fact that only just over 50 per cent or so of the appellant’s sentence was suspended, whereas his co-offenders did better in that regard, does not seem to me to indicate error. Had the judge suspended any greater percentage of the two years and three months, the resulting sentence would have been utterly derisory. It would not have met any of the relevant requirements of the Sentencing Act 1991.
Percentages can, or course, be deceptive. Another way of looking at the various sentences imposed upon the appellant and his co-offenders, is that he received a term of immediate imprisonment of only seven months more than Ghag, and five months more than Chawla. Viewed from that perspective, the appellant can hardly say that he has a justifiable sense of grievance.
In any event, the principles in ss 5 and 27 of the Sentencing Act 1991 inform the exercise of the sentencing judge’s discretion to impose a period of suspension. The judge was required to take these matters into account. The period of suspension actually imposed reflects a term reasonably open to the sentencing judge, in the circumstances of this case, and with full regard being paid to the assistance provided to the authorities.
On any view, the sentence of two years and three months’ imprisonment, with only 13 months to serve, was extraordinarily merciful. That was so even if the appellant merited a substantial discount for assistance to the authorities.
Finally, I note that s 281 of the Criminal Procedure Act 2009 provides that on an appeal against sentence, this Court must allow the appeal if satisfied that (a) there is an error in the sentence first imposed, and (b) a different sentence should be imposed. In any other case, the Court is required to dismiss the appeal.
Even if I were satisfied that there was an error in the sentence imposed below (and I should emphasise that I am not so satisfied), I am by no means persuaded that a different sentence should be imposed.
It follows that I would dismiss the appeal.
HOLLINGWORTH AJA:
I agree with Weinberg JA.
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