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Mao v The King

Mao v The King

Case [2022] VSCA 211 30 September 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0050

SHANSHAN MAO	Applicant
v
THE KING	Respondent
S EAPCR 2022 0051

SHAOJING NIU	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2022
DATE OF JUDGMENT:	30 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 211
JUDGMENT APPEALED FROM:	[2022] VCC 526 (Judge Doyle)

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CRIMINAL LAW – Sentence – Applications for leave to appeal – Two applicants obtaining financial advantage by deception – Continuing criminal enterprise offenders – Fraudulent loan applications – Amount obtained in excess of $9 million – Aggregate sentences of 3 years with NPP of 18 months, and 2 years and 4 months with NPP of 1 year and 2 months – Whether sentences manifestly excessive – Whether parity principle infringed – Family hardship – Whether judge erred in failing to find exceptional circumstances – Whether insufficient sentencing discount given in respect of co-operation – Whether judge erred in assessing objective seriousness of offending or moral culpability – Proposed grounds of appeal not reasonably arguable – Applications for leave to appeal refused.

Crimes Act 1958, s 82(1); Sentencing Act 1991, ss 5(2AB), 6H, 6I and 9.

Markovic v The Queen (2010) 30 VR 589, Clarkson v The Queen (2011) 32 VR 361 and Collins v The Queen [2015] VSCA 106 applied; Totaan v The Queen [2022] NSWCCA 75 referred to.

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Counsel
Applicant, Ms Mao:		Mr R Nathwani
Applicant, Mr Niu:		Ms L Thies
Respondent:		Ms DI Piekusis KC
Solicitors
Applicants:	Papa Hughes Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

gfv

BEACH JA
T FORREST JA:

On 9 February 2022, Shanshan Mao and Shaojing Niu (collectively, ‘the applicants’) each pleaded guilty in the County Court to eight charges of obtaining a financial advantage by deception.[1] The charges related to fraudulent loan applications made by them to the ANZ, NAB and Westpac Banks. As a result of their fraudulent applications, the applicants obtained eight loans totalling in excess of $9 million.
[1]Contrary to s 82(1) of the Crimes Act 1958.
Having pleaded guilty to three or more continuing criminal enterprise offences,[2] the applicants fell to be sentenced as continuing criminal enterprise offenders within the meaning of s 6H(1) of the Sentencing Act 1991. As a result, the maximum term of imprisonment for each of the offences to which they pleaded guilty was 20 years.[3]
[2]Obtaining a financial advantage by deception where the value of the financial advantage obtained is $50,000 or more is a continuing criminal enterprise offence by the operation of s 6H(1) and Schedule 1A of the Sentencing Act 1991.
[3]See s 6I(1) of the Sentencing Act.
On 4 March 2022, Ms Mao was sentenced to an aggregate term of imprisonment[4] of 3 years, with a non-parole period of 18 months. On the same day, Mr Niu was sentenced to an aggregate term of imprisonment of 2 years and 4 months, with a non-parole period of 1 year and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mao v The King

Details

AGLC: Mao v The King [2022] VSCA 211
Case: [2022] VSCA 211
Decision Date: 30 September 2022

CaseChat Overview and Summary

In the case of Mao v The King, the applicants were convicted of obtaining financial advantage by deception, a scheme that resulted in a loss to victims of over $9 million. The matter came before the court for an appeal against their sentences and the refusal of leave to appeal. Both applicants were convicted of continuing criminal enterprise offences and fraudulent loan applications. The applicants' aggregate sentences were 3 years with a non-parole period of 18 months, and 2 years and 4 months with a non-parole period of 1 year and 2 months, respectively.

The applicants sought to argue that their sentences were manifestly excessive, that the parity principle was infringed, and that the judge had failed to find exceptional circumstances in their favour. They also argued that insufficient sentencing discount was given in respect of their cooperation and that the judge erred in assessing the objective seriousness of their offending or their moral culpability. The court considered the proposed grounds of appeal and whether they were reasonably arguable in light of the relevant case law.

The court held that the applicants' proposed grounds of appeal were not reasonably arguable, given the authorities on sentence appeals. The court found that the sentences were not manifestly excessive, that the parity principle was not infringed, and that the judge had not erred in failing to find exceptional circumstances. The court also held that the judge had appropriately assessed the objective seriousness of the offending and the applicants' moral culpability, and had given sufficient discount for cooperation. The applications for leave to appeal were refused.

The court's decision was based on a thorough analysis of the relevant case law and sentencing principles. The court found that the sentences were within the range of what was appropriate for the offending, and that the applicants had not demonstrated that the sentences were manifestly excessive. The court also held that the applicants' arguments about the parity principle and exceptional circumstances were not supported by the authorities. The court further found that the judge had appropriately considered the applicants' cooperation and had given sufficient discount for it. The court's decision was a thorough and reasoned one, and it is unlikely that the applicants will be successful in any further appeal.

Orders