Marannu v The Queen

[2011] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0153

MEGANITA MARANNU	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 April 2011
DATE OF JUDGMENT	14 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 105
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Wood, 7 May 2010)

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Criminal law – Sentence – Obtaining financial advantage by deception and attempting to obtain financial advantage by deception – Total effective sentence of 3 years’ imprisonment wholly suspended manifestly excessive – Circumstances of offending extraordinary – Youthful offender – No prior convictions – Prospects of rehabilitation excellent – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M Turner
For the Crown	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. The appellant, Meganita Marannu, a woman aged just 24, pleaded guilty to a charge of obtaining financial advantage by deception and a charge of attempting to obtain financial advantage by deception.  The offences were committed in November 2008, when she was aged just 21.  On 7 May 2010, she was sentenced in the County Court to 30 months’ imprisonment on the first charge and 15 months’ imprisonment on the second.  With cumulation, the total effective sentence was 36 months’ imprisonment.  The judge wholly suspended the sentence for three years.  He stated that, had the appellant been convicted after trial, he would have imposed a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and nine months. 

1. On 1 April this year, I granted the appellant leave to appeal on the ground that the sentence[1] was manifestly excessive taking into account the circumstance of the offence and the offender. 

   [1]She appears unrepresented, and I take her to be referring to the individual sentences and the order for cumulation.

Circumstances of the offending and the offender

1. It must be recognised that the home loan facility which the appellant actually obtained ($625,954) was quite large;  and the amount which she sought to obtain by her second loan application ($132,900), though much smaller, was not inconsequential.  Again, by her plea of guilty, notwithstanding the circumstances in which the applications were made, the appellant admitted dishonest intent.

1. But the circumstances in which the appellant falsely represented that particulars in an application which she made for the home loan facility were correct, and in which she attempted to obtain a second loan in reliance upon an application which was false in part, were quite extraordinary.  The appellant was prevailed upon by her husband, an older man whom she had married in May 2008, and who dominated her life, to buy his parents’ home, which was under threat of being lost because of mortgage default.  That is where the appellant and her husband, as well as his parents, were then living.  Money was needed.  She had no money.  Her husband  and an associate created false documents, which asserted that the appellant was employed in his solicitor’s practice.  Somebody other than the appellant – probably her husband - prepared loan applications.  The applications were faxed or emailed to the lending institutions.  The appellant never met the lenders, or had direct contact with them.  All this occurred against a background in which, unknown to her, her husband had been for several years under criminal investigation, apparently with respect to defrauding a client or clients; and in which, known to her, his parents’ home had been sprayed with bullets on one occasion, and on another occasion her husband had been bashed in a city street and an attempt had been made to abduct them both (the latter occurrence, it seems, was orchestrated by a ‘hit man’ whom her husband had allegedly engaged to deal with a defrauded client, but who had fallen out with the husband).

1. There were other circumstances strongly running in the appellant’s favour with respect to sentence. 

1. First, the informant effectively admitted, in evidence on the plea, that she was not the real target of the charges.  Rather, it was her husband.  It appears that, inappropriately, the appellant had been charged as a lever to persuade her husband to plead guilty to a charge or charges.

1. Second, the informant agreed, in evidence on the plea, that the appellant should be described as a ‘minor offender’ in relation to the charged offences. 

1. Third, there was convincing evidence that there were cultural reasons for the appellant, an Indonesian woman, being under the dominion of her older husband, a man of Italian extraction.

1. Fourth, the appellant’s state of mind, at the time when she made the false declarations, in view of events which had occurred and in which she had been peripherally involved, was extremely disturbed.  The evidence suggested that she then suffered from a diagnosable psychiatric condition.

1. Fifth, it can safely be inferred that the appellant had no intention of causing ultimate loss to the lender, a matter underlined by the circumstances that – (a) she made payments on the loan which was fraudulently obtained, (b) as at the date of sentence, the lending institution, knowing of the fraud, had suffered no loss and was apparently prepared to continue with the loan; and (c), the security which was provided well exceeded in value the amount of the loan.  I add that we were informed from the Bar Table, without objection, that the appellant has obtained work as a conveyancer and has continued to make payments on the loan, no amount being outstanding.

1. Sixth, the appellant pleaded guilty.  I infer that, but for her husband’s intervention,[2] she would have done so even earlier.

   [2]The appellant, accompanied by a solicitor of her husband’s choosing, initially made a ‘no comment’ record of interview.

1. Seventh, the appellant was a youthful offender, and was without prior convictions.

1. In all, the circumstances demanded a conclusion that the appellant had excellent prospects of rehabilitation.  That was so even without the informant giving evidence – which he did – that there was, in his view, a low risk of the appellant re-offending.

Disposition of the appeal

1. In the circumstances which I have described, I consider that the appeal should be allowed, and that the appellant should be re-sentenced.  The sentences imposed, and the order for cumulation which produced the total effective sentence, were in my view manifestly excessive.

1. There is, I consider, a real question whether, despite the amount of money which the appellant obtained and sought to obtain, the case is one in which, by reason of its very unusual circumstances, the appellant might have been released on conditions without a conviction being recorded, or a community based order might have been imposed.  But, on balance, I consider that a conviction  is warranted, and that a sentence, wholly suspended, should be imposed which has the effect – the sentence dating from the date of sentence in the court below[3] – that its burden is now ended. 

   [3]R v Jennings [1999] 1 VR 352, an authority often applied and cited. See, for instance, DPP (Cth) v Haunga (2001) 4 VR 285, 287 and 295 (Tadgell JA), R v Piacentino and Ahmad (2007) 15 VR 501, 525 [117], R v AB (No 2) (2008) 18 VR 391, 408 [63] and Fasciale v The Queen [2010] VSCA 337, n 6. The language of s 282(1)(a) of the Criminal Procedure Act 2009 is not identical to the language of s 568(4) of the Crimes Act 1958, the latter being in point in Jennings and the subsequent cases. But the Parliament gave no indication that it intended, by s 282 of the Criminal Procedure Act, to change the long-existing situation; and s 18(1) of the Sentencing Act1991 remains unchanged.  In the circumstances, and absent argument, I consider that Jennings should be understood to correctly state the present position.

1. I therefore propose that the appellant be re-sentenced to eight months’ imprisonment on count 1, and to four months’ imprisonment on count 2.  I propose that two months of the sentence on count 2 be cumulated on the sentence on count 1. The total effective sentence would be 10 months’ imprisonment.  I would order that the whole of the sentence be suspended for a period of 10 months.  The reasons why I would so order appear quite adequately from what I have already said about the offending and the offender.

1. For the avoidance of any doubt, the sentence which I propose must be taken to have commenced on 7 May 2010, the date of the appellant being sentenced below.

1. The making of a statement and entry of a record under 6AAA of the Sentencing Act1991 is a particularly artificial exercise in the present case.  But I am inclined to think that the appellant’s guilty plea was important.  Not only did it have utilitarian value and  imply remorse, I think that a jury might well have been very disinclined to convict the appellant in the circumstances which obtained.  Doing the best that I can, I indicate that if the appellant had been convicted after trial, I would have imposed a total effective sentence of 20 months’ imprisonment, wholly

suspended for 20 months.

WEINBERG JA:

1. I agree with Ashley JA.

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