POLICE v Wang - [2007] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WANG
[2007] SASC 228
Judgment of The Honourable Justice David
27 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FALSE PRETENCES AND OTHER FRAUDS AND IMPOSITIONS - OBTAINING CREDIT BY FALSE PRETENCE, PROMISE OR OTHER FRAUD
Criminal law - Magistrates Appeal - prosecution appeal - appeal against sentence - manifestly inadequate - fraud - false documents - bank loans - 11 counts - guilty plea - age - no prior convictions - 4 months imprisonment - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 140; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

POLICE v WANG
[2007] SASC 228
Magistrates Appeal

DAVID J. This is a prosecution appeal against a sentence imposed by a magistrate.
The respondent pleaded guilty to 11 counts of dishonestly dealing with documents, contrary to s 140 of the Criminal Law Consolidation Act 1935 (SA). Each offence carried a maximum penalty of 10 years imprisonment. All offences related to the respondent’s role in facilitating bank loans for 11 applicants. The respondent provided the applicants with false documentation in support of their applications for loans. The 11 applications sought a total of $200,340 from the bank. Ten of the applications were successful. The money provided by the bank amounted to $179,480. There was no dispute that the respondent was not the instigator or the major player in this scheme, but received an amount of between $10,000 and $15,000 for his role.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the sentencing magistrate identified a starting point of six months imprisonment for all offences. He then gave a discount of two months for the pleas of guilty and reduced the sentence by 61 days for the time the respondent had spent in custody. The resulting head sentence was two months imprisonment, although when taking into account time spent in custody, the actual sentence was four months. The magistrate refused to suspend that sentence in light of the seriousness of the respondent’s involvement.
The prosecution now appeals against that sentence and argues that it is manifestly inadequate.
The respondent has already served the sentence imposed by the magistrate.
The Offending
The offences to which the respondent pleaded guilty were part of a larger and systematic course of conduct to defraud the Commonwealth Bank. Unsecured loans were obtained by applicants using misleading information provided to the bank in circumstances where the applicant would not have qualified for a loan without that misleading information. The scheme had its origins in Melbourne and the core instigators have not been apprehended or charged. It was agreed that the respondent was not one of the organisers, but was introduced to them by a third party and was persuaded to take part in the scheme by sourcing loan applicants, facilitating the applications containing misleading information and collecting and distributing the proceeds. The majority of the applicants who were used by the organisers were people from the Middle East with temporary Australian visas. The scheme was that they would borrow amounts of around $20,000 from the Commonwealth Bank, using false documentation and information. The respondent was charged with being involved in 20 of those false transactions. The counts to which he has pleaded guilty took place from late November 2003 until January 2004. These counts involved loans ranging from $17,000 to $21,500, with the respondent supplying the applicants with false documents, preparing the applicants for their interview with the bank and generally providing the bank with false information to justify the loan. As part of the scheme, when the loan amount was paid to the applicant, cash in the order of 25% to 35% of the loan amount was paid to the respondent. The Commonwealth Bank was therefore in a position where it paid out loans to people who would not normally qualify. It was not known at the time of the submissions in the Magistrates Court whether the bank had actually lost money, but at the very least, they were put in serious jeopardy.
Personal Circumstances of the Respondent
At the time of the offending the respondent was 28 years old. He had no prior criminal convictions. After being arrested, he was interviewed on two occasions and made full and frank admissions. When sentenced he had spent 61 days in custody.
The respondent was born in Hong Kong and lived there until the age of 15, when he commenced boarding at Geelong Grammar School. His family was involved in a successful export business which, shortly before the offending, suffered financially and eventually went into receivership. The health of the respondent’s father also began to fail, and he died some months before the respondent was sentenced. There is no dispute that prior to the offending the respondent was under personal, emotional and financial pressure involving his father’s health and the disintegration of the family business. As a result, the respondent became involved with the scheme in order to assist the family’s situation. The respondent has served the sentence imposed upon him and is now enrolled in a university course.
The Magistrate’s Sentence and Reasons
The magistrate was asked to suspend the inevitable term of imprisonment that he was required to impose. The submissions put to the magistrate were related to the age and prior good record of the respondent and, of course, his co‑operation with the authorities. The magistrate refused to do suspend the sentence, citing the sophisticated nature of the offending and its seriousness. In relation to the term of imprisonment to be imposed the magistrate said:
Whilst mindful of the need for leniency and that Mr Wang has pleaded guilty and has already spent some time in custody, I find that I must now impose a further period of imprisonment and I do so in the following way.
I give the defendant credit for his pleas of guilty and a discount of one-third off the head sentence. I further discount the head sentence by the time already spent in custody and agreed at 61 days. I record convictions on all counts.
My head sentence is six months and with these discounts I impose pursuant to s 18A, a sentence of two months imprisonment.
Arguments on Appeal
The appellant argues quite simply that the term of imprisonment with a starting point of six months is far too lenient, bearing in mind the amount of money involved, the sophisticated nature of the operation and the need for general deterrence. It was conceded that in matters involving offences such as fraud, like cases are of limited use and it is difficult for courts to fix tariffs.
The respondent argues that these offences took place over a short period of only three months, that the respondent was not one of the instigators and emphasised the fact that the magistrate was dealing with a person of a relatively young age with no previous convictions. The respondent also argues and reminds me of the well‑known principles involving the proper approach to Crown appeals on sentence, in that they can only be justified in rare and exceptional circumstances.
Conclusion
Whilst there is merit in the appellant’s argument that the starting point of six months was manifestly inadequate, the magistrate carefully considered those matters personal to the respondent and the fact that the respondent was not one of the instigators of the scheme. Although his sentence is a merciful one, bearing in mind all of the material which was presented to him - including the respondent’s good record, his age, his family circumstances, his co‑operation with the authorities and his pleas of guilty - the sentence is not one with which this Court should interfere.
I dismiss the appeal.