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…

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 POLICE v Wang

Details

AGLC: POLICE v Wang [2007] SASC 228
Case: [2007] SASC 228
Decision Date: 27 June 2007

CaseChat Overview and Summary

The case of Police v Wang involves an appeal by the Attorney-General against the sentence given by the Magistrates Court to Wang for 11 counts of obtaining credit by false pretences. Wang had pleaded guilty to the charges, which involved the use of false documents to obtain bank loans. The Attorney-General argued that the sentence of four months imprisonment was manifestly inadequate. The court was required to determine whether the appeal against the sentence should be upheld, considering the nature of the offences, Wang's age, lack of prior convictions, and the principles governing Crown appeals on sentence.

The primary legal issue before the court was whether the sentence imposed by the magistrate was manifestly inadequate. The court had to consider the nature of the offences, Wang's age, his clean criminal record, and his cooperation with authorities, alongside the principles that govern Crown appeals on sentence. These principles include the rare and exceptional circumstances in which such appeals should be upheld. The court also needed to assess the magistrate's consideration of Wang's personal circumstances and the fact that he was not the instigator of the fraud scheme.

In considering the appeal, the court acknowledged that the starting point of six months imprisonment was indeed inadequate. However, the magistrate had carefully weighed Wang's personal circumstances, including his age, lack of prior convictions, family situation, and his cooperation with authorities. The court recognised that the magistrate's sentence, while lenient, took into account all the material presented. Consequently, the court determined that there was insufficient ground to interfere with the magistrate's decision. The appeal was dismissed, affirming the original sentence.

The court's final order was to dismiss the appeal brought by the Attorney-General against Wang's sentence. The reasoning was based on the magistrate's thorough consideration of Wang's personal circumstances, his age, lack of prior convictions, and his cooperation with authorities. The court found that the sentence, though lenient, was justified by the totality of the presented material.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

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.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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