R v Argiriou
[2000] VSCA 186
•27 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 307 of 1999
| THE QUEEN |
| v. |
| SAMMY SIMEON ARGIRIOU |
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JUDGES: | PHILLIPS, C.J., BATT and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 September 2000 | |
DATE OF JUDGMENT: | 27 September 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 186 | |
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Criminal law – Appeal against a largely suspended sentence for offence of dishonesty – R. v. O’Connor [1987] V.R. 496 considered – Despite detection of error in reasons for sentence, application dismissed on the ground that the Court did not think a different sentence should have been passed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mrs. C.M. Quin | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. M.J. Croucher | Leanne Warren & Assoc. |
PHILLIPS, C.J.:
The applicant, who is now aged 34, pleaded guilty in the County Court at Melbourne on 29 November last to a count of obtaining financial advantage by deception. This offence, which carried a maximum penalty of 10 years' imprisonment, was committed at Melbourne between 14 June 1996 and 16 March 1998. The applicant had previously pleaded guilty at the end of committal proceedings at the Melbourne Magistrates' Court on 18 August 1999.
The applicant had no prior convictions and after hearing a plea for leniency, in which the learned judge received character references, a curriculum vitae and reports from a forensic psychologist and a gambling counsellor, the applicant was sentenced to be imprisoned for two years. Twenty months of that sentence were suspended for two years and an order was made that the applicant pay compensation to the ANZ Banking Group Limited in the sum of $18,894.18.
The applicant later lodged notice of application for leave to appeal against sentence pleading the following grounds:
"1.The learned sentencing judge erred in the exercise of her sentencing discretion by imposing a sentence which was manifestly excessive in the circumstances.
2.The learned sentencing judge erred in determining that no sentence other than a sentence of immediate imprisonment was available in the circumstances.
3.The learned sentencing judge failed to give adequate weight to the personal circumstances of the applicant, and in particular:-
(a) his remorse;
(b)his rehabilitation and prospect for further rehabilitation as evidenced by his good character and present and future employment;
(c) his assistance to his mother during her illness;
(d) his offer to make full restitution; and
(e) the personal circumstances existing at the time of the offence.
4.The learned sentencing judge erred in finding that the circumstances of the offence allowed the conclusion that the applicant never intended to repay the money he obtained.
5.The learned sentencing judge erred in deciding that specific deterrence and protection of the community were warranted in this case.
6.If specific deterrence and protection of the community were warranted, the learned sentencing judge gave those matters too much weight and failed to properly balance those requirements against the interests of the community through the rehabilitation of the applicant."
Later, the learned Registrar allowed three additional grounds:
"7.The learned sentencing judge erred in concluding that specific deterrence and protection of the community could only be achieved by imposing: (a) a sentence of imprisonment; (b) a partly suspended sentence of imprisonment.
8.The learned sentencing judge erred in holding that "extraordinary matters" must be established in order that a custodial sentence be avoided for the offence of obtaining financial advantage by deception.
9.The learned sentencing judge erred in treating as an aggravating factor the applicant's failure to make restitution.
10.The learned sentencing judge gave insufficient weight to mitigating factors, including:
(a)the applicant's full admissions to his employers and the police;
(b)his early plea of guilty;
(c)the absence of prior convictions."
It is now necessary to set out in summary form the facts of this matter.
In this exercise, I have had resort to the summary of evidence supplied to the Court.
The applicant was employed by the ANZ Banking Group Limited as a Credit Analyst, working in a temporary capacity between May 1995 and 22 September 1996. Thereafter, the applicant was employed on a full-time basis. On commencing his duties with the ANZ Bank he was issued with an ANZ Global Card Operations System Logon Identification, which permitted access to the ANZ Global Card Operation system. As such, the ANZ authorities were able to audit the applicant's activities as a member of staff.
The applicant's duties included conducting assessments and reassessments of credit card applications and assessing applications to increase existing credit card account limits. The applicant had authority to approve limits or increase limits up to $10,000. In accordance with general staffing policy, the applicant was prohibited from actioning any credit accounts for himself or family members to avoid conflicts of interest.
On 1 June 1995, for use on a pending overseas trip, the applicant's father, John Argiriou, made an application for an ANZ Visa Premier Credit Card, with a limit of $8,000. Limonia Argiriou, the applicant's mother, was to be listed as a secondary cardholder. The application was approved on 7 July 1995, with a restriction on access to uncleared funds in place. On 13 July 1995, a further application was submitted by the applicant's father to add the applicant's name as an additional cardholder.
After the applicant's parents returned from overseas, they permitted the applicant to make sole use of the credit facility. Some time between 16 October and 14 November 1995, contrary to ANZ policy, the applicant changed the mailing address for the credit card account from his parents' address to a post office box number in his own name.
Between 14 June and 15 July 1996, contrary to the ANZ policy, the applicant increased the available credit limit on the account to $8,500 by using his logon identification to access the ANZ operations system. Between 14 October 1996 and 14 November 1996, the applicant further increased the available credit limit on the account to $9,500.
Having sent "arrears letters" to the applicant's address, on 17 September 1997, the ANZ bank closed the Visa Premier Club credit card facility due to what was termed "delinquency", the credit card account being in debit by $10,312.
On 30 September 1997, the credit card account was reopened by the applicant without the approval of his father, the primary cardholder, or appropriate ANZ authority. The applicant further increased the credit limit on the credit card account on five occasions, as follows:
1. Between 14 November 1997 and 11 December 1997 to $10,000.
2. On 11 December 1997 processed by a senior officer to $15,000.
3. On 18 February 1998 to $17,500.
4. On 12 March 1998, to $20,000; and
5. On 16 March 1998, to $25,000.
The applicant's father had not signed the documentation to support the credit increases made on 11 December 1997 and 16 March 1998. There was no documentation to support the other credit increases.
The applicant then removed the computerised restriction on access to uncleared funds attached to the credit card account, which enabled him to immediately access deposited funds rather than wait out the usual clearance period.
Between 19 February 1998 and the closure of the credit facility, the applicant deposited some ten cheques, drawn on his personal accounts, into the credit card account, with a total face value of $4,540. All of these cheques were ultimately dishonoured but they had the effect of enabling the applicant to avoid having this credit card account being identified by other officers of the ANZ Bank as being beyond the credit limit.
ANZ officials conducted a tape-recorded interview with the applicant, who admitted his unauthorised actions. He was immediately dismissed from service.
All the changes effected by the applicant to the credit card facility were done without the knowledge or authority of his father as the primary credit card holder. By 8 June 1998 the account was $26,894.18 in arrears against the credit limit of $25,000. The bank is seeking recovery of $8,000, being the initial credit limit issued, from the applicant's father Accordingly, the amount of unauthorised credit obtained by the applicant was $18,894.18.
The applicant participated in a tape-recorded interview with the police on 17 August 1998, admitting his offending. He stated that he committed the deception due to his gambling problem, which was precipitated by relationship problems and anxiety about his ill parents. He said that the majority of the funds he fraudulently obtained using the credit facility was used in gambling at the Casino. He estimated that he had lost between $30,000 and $40,000 through gambling.
I now turn to the arguments of counsel on this application. Mr Croucher for the applicant began his submissions by addressing grounds 2 and 8, which involved the custodial sentence and its immediate custodial component. He noted that the learned sentencing judge had referred in her reasons for sentence to R. v. O'Connor [1987] V.R.496. He submitted that that case was an entirely different one from that of the applicant in that the financial advantage obtained therein was some $200,000. Reference was then made to portion of the reasons for sentence at p.42 of the transcript, where her Honour had said:
"The court now turns to the purposes for which sentence should be imposed in your case and what is an appropriate sentence to be imposed. There are some sentencing principles that it is important to note. It should be stated at the outset that the courts have consistently taken the view that offences such as obtaining a financial advantage by deception are serious and deserving of imprisonment. In O'Connor [1987] V.R.496 at 498, the Full Court accepted the words of the trial judge:
'It seems to me that the substance of the crimes calls plainly for a custodial sentence in all but the most extraordinary case.'
There have not been any extraordinary matters brought to my attention which would bear upon this general proposition."
Mr Croucher submitted that there exists no principle that in cases like that of the applicant a custodial sentence will be imposed unless extraordinary matters are brought to the court's attention. The effect of her Honour believing that such a principle existed, so the argument went, was such as to produce an impairment to her process of instinctive synthesis in the composition of the applicant's sentence. Accordingly, the learned judge would have failed to consider other sentencing options such as a community-based order and in this connection counsel referred to a further statement of the judge at p.44:
"[t]here is no issue in this case that a sentence of imprisonment has to be imposed for this offence, having regard to the sentencing purposes to which I have referred."
It was submitted that this statement was tantamount to an acknowledgment that at least one earlier erroneous view of principle was involved in the composition of the applicant's sentence.
In the alternative, it was said, even if the judge did consider other options, she did so after having misdirected herself.
Finally, on this ground, Mr Croucher reminded the Court that on the plea counsel for the applicant had submitted that a community-based order was appropriate, which submission, he claimed, had not been gainsaid by the Crown Prosecutor. (I here interpolate that I think there is nothing in this point if some sort of waiver is alleged, for the Crown Prosecutor stated, and sustained his position, that all sentencing options were open to the learned judge.)
Mr Croucher then turned to grounds 5, 6 and 7, which raised the matters of specific deterrence and community protection and the judge's alleged unwarranted treatment of them. He pointed out that at pp.43 and 44 of the reasons for sentence, the judge had stated that she took the view that "the need for specific deterrence and protection of the community are also important sentencing purposes in the applicant's case". Her Honour had added "there is a responsibility upon the Court to endeavour to protect the community from further offending of this nature and that protection of course can be brought about if you [the applicant] are deterred from such conduct".
The learned judge had then continued:
"There is no issue in this case that a sentence of imprisonment has to be imposed for this offence, having regard to the sentencing purposes to which I have referred. The difficult issue for the court is whether the sentence needs to involve your immediate confinement to prison. The subject offending occurred over a relatively long time-frame and showed a deliberate and calculated course of criminal conduct in the context where you enjoyed a special position of trust with your employer. If there has been a genuine change in attitude to this type of behaviour, then indeed there is optimism for the future. There is a good chance that, despite your record of offending, you will not offend again in the way that you have done, and a lengthy term of imprisonment is not necessary to achieve specific deterrence. On the other hand, of course, if the position has not changed, the court has no alternative but to use imprisonment as a means to protect the community at least for the period that you are in prison.
In view of the mitigating factors to which I have referred, I have ultimately reached the conclusion that it is appropriate to suspend a substantial portion of the sentence which is otherwise appropriate to give you in order to reflect your total criminality in this matter. After you have served an immediate detention, you will have the opportunity during the period of suspension to demonstrate whether your change in behaviour is permanent and genuine. If it is, then the public will be protected in the future against your re-offending."
This was a case, however, argued counsel, where the applicant was aged 33 years at material times, he was without prior convictions; he had freely confessed his guilt to the bank authorities and police; had pleaded guilty at the first opportunity; and had committed his offence in circumstances of great personal difficulty. Further, Mr Croucher put, at the time of sentence his gambling problem had been "cured"; he had a new relationship with a woman, was re-employed, and the psychologist who saw him thought he was at minimal risk of re-offending. All these matters showed, so the argument went, that the judge's remarks cited above revealed that she had given undue weight to specific deterrence, which was, although relevant, only a minor matter in sentence composition, having regard to the whole of the evidence. As for community protection, it was submitted that no provision for it at all was necessary in the circumstances. Asked his response, in the above connection, to the applicant's statement to the interviewing police that he was not aware that what he was doing was against the law, counsel declared that this was a "throwaway line" which the applicant had shortly thereafter qualified.
Counsel allowed that s.5(1)(e) of the Sentencing Act 1991 did list community protection as one of the purposes for which sentences may be imposed. But, he said, that legislation was introduced for cases quite different to that of the applicant, and he cited the well known work of Fox and Freiberg on Sentencing in this connection. No more, I think, need be said as to this, for, in my view, this submission was plainly correct.
Mr Croucher submitted that the two-year sentence and the actual custodial element of four months were not open to the learned judge on the evidence. In the alternative, he contended, if the two-year sentence was open, the judge was bound to conclude that total suspension of it was necessary.
Counsel then turned to grounds 4 and 9, which related to the applicant's failure to make restitution.
He submitted that throughout the period of offending the applicant had made substantial payments off the debt (e.g. $10,400 in September 1997) and that the bank had rejected an offer made for the applicant in May 1998 that he repay the debt at a rate of $600 per month. The applicant, he pointed out, had declared to the police his intention past and present to make repayment. This material, it was said, was unchallenged, and, in so far as the applicant did make the offer and declaration, that would appear to be so.
Mr Croucher then referred to the judge's remarks on sentence relevant to this ground:
"Your counsel has sought to impress upon me that your course of offending conduct carried with it the ever-present intention to repay moneys outstanding, and that I should take as evidence of this proposition that you laid such a comprehensive audit trail to your door. I find this plea in mitigation to be completely ingenuine."
Later, her Honour said:
"I do not find there to be any reasonable basis for your failure to repay any part of your outstanding debt since May 1998, notwithstanding your claimed intent to do so. There is certainly nothing in the tendered correspondence between your financial planner and the ANZ, the last of which is dated 7 July 1998, which indicates other than recalcitrance on your part."
After sentence, the following exchange occurred between counsel then acting for the applicant (not Mr Croucher) and her Honour:
Counsel: "Your Honour mentioned in your reasons for sentence that there was nothing in the material from Mr Cohen in terms of offering to make a repayment which showed anything other than recalcitrance on the accused's part. As I recall it, ... was there not a specific mention by Mr Cohen offering at that stage to repay at least $600 per month?"
Her Honour: "The offer had been made in that letter, and nothing further occurred following that. And perhaps let me say this: the sentence does not depend upon that statement alone. It is a further observation that I have made."
I shall later return to this exchange between counsel and the judge.
These passages, it was argued, showed the judge treated the applicant's failure to make restitution as an aggravating matter, and thereby erred. It was further contended that the judge's term "recalcitrance" was quite unjustified, as was her description of part of the relevant plea as "completely ingenuine".
Finally, counsel argued that the sentence was manifestly excessive and he reiterated the various matters personal to the applicant which redounded to his credit and to which, he said, the judge had not given sufficient weight.
Mrs Quin, for the Crown, addressing ground 2, submitted that the judge did not err in determining that no sentence other than a sentence of immediate imprisonment was available in the circumstances. She argued that the judge was obviously aware of the relevant provisions of the Sentencing Act. She allowed that her Honour's reference to O'Connor might have been better expressed, but argued that in the composition of the applicant's sentence that consideration would not have been significant having regard to the number of other relevant matters which the judge addressed.
On the matters of specific deterrence and community protection, Mrs Quin submitted that her Honour was simply linking those two concepts in a general way and should not be taken to have expressed a concluded view on the applicant's prospects. She drew attention to the duration of the applicant's offending, the various deceits involved and the seriousness of his conduct, which was admitted by his counsel on the plea, together with the applicant's statement to the police that he was not aware that what he was doing was against the law.
As to the applicant's failure to make restitution, Mrs Quin submitted that no error in the judge had been shown. The payments made by the applicant into the account were for the purpose, she said, of avoiding detection, and actually had the effect of permitting further criminal conduct by him. Further, her Honour's words "completely ingenuine" should be seen as relating to the submission that the applicant had always intended to repay the money. Human experience strongly suggests that many people commit offences in circumstances where their guilt is easily demonstrable, but lack any intention to make amends at relevant times. "Recalcitrance", Mrs Quin submitted, related to the fact that, despite his various offers over quite a time, the applicant had in fact repaid nothing. Perhaps, she said, in this connection, the learned judge may have picked the wrong word, but the applicant's long-standing failure to repay was obvious, and efforts on his behalf to portray this matter as a mitigating factor were futile. As to grounds 1, 3 and 10, Mrs Quin submitted that the sentence was within range and that it was not to be supposed that the learned judge had failed to give sufficient weight to the matters pleaded therein.
I now turn to my conclusions. I will first address grounds 4 and 9.
Quite early in the plea, counsel for the applicant asked the judge to accept that "when the account was manipulated" the applicant was "hoping and did have the intention to ultimately repay the money that he had obtained". This was, if I may say so, clearly an attempt to establish a mitigating circumstance. Counsel called in aid the proposition that because the applicant "left his mark all over virtually everything", thus making his guilt demonstrable, it must be that he had the intention and hope claimed. (I would in this connection accept Mrs Quin's relevant submission.) Counsel also referred to the applicant's stated intention to the police in this connection and to an offer of repayment at $600 per month to which I have earlier made reference. This, counsel had said, was "not acceptable to the bank", and he proceeded to claim that it would seem to be what he called a "waste of time" for the applicant to send off a cheque to the bank. He went on to say that he was instructed to make an offer of $1,000 a month "subject to whatever the sentencing disposition obviously is". The judge then remarked, and counsel acknowledged, that the applicant had been in employment at that time for well over a year (see p.25).
It was in response to these submissions that the learned judge made the remarks already cited by Mr Croucher.
The term "ingenuine" is not one that I use, but according to the Oxford English Dictionary its meaning embraces "not genuine". In my opinion, that conclusion was plainly open to the judge, for the reason that I have already mentioned. Further, the applicant told the police that he lost some of his own money as well as the bank's money at the Casino (a "significant amount" according to his counsel - see p.28). He had been in employment by Vodaphone since May 1998, but he had repaid nothing pursuant to his various offers and declarations.
It was not to the point, in my view, that the bank had rejected the $600 a month offer. The applicant could easily have opened a savings account or paid money into his solicitor's trust account so that a sum was readily available at the plea to show to the court that his promises of restitution were backed by at least part performance. In my opinion, the conclusion was plainly open to the judge that the evidence showed that the applicant's declarations and offers were unaccompanied by any earnest and that there was no reasonable basis for his failure to at least partly repay.
After consideration, I think "recalcitrance" was an inappropriate choice by her Honour. It is much more likely, I think, that the applicant substantially underrated his punishment prospects. Thus his counsel made the very bold submission that the court should not even record a conviction, and the last-minute offer of $1,000 a month repayment was conditional, so it seems to me, on the applicant avoiding fine, or worse.
I am quite unpersuaded that the learned judge treated the failure to repay as an aggravating circumstance. There is nothing in her reasons, or on the face of the sentence, to indicate that. She was simply not prepared to accept particular submissions, and in my view it was plainly open to her to do that. These grounds fail.
I now turn to grounds 5, 6 and 7. In my opinion, the aspects of specific deterrence and community protection were relevant to the composition of the applicant's sentence. The nature of his offending (described by his own counsel on the plea as "serious" and involving a "breach of trust"); its duration of nearly two years; the various deceits involved; and the applicant's statement as to his state of mind at material times necessarily made this so. I do not accept the submission that the applicant's statement was a "throwaway line" and therefore of no consequence. I think it was a relevant matter in these connections.
Her Honour did refer to the above aspects as "important sentencing purposes" in the applicant's case, but she did not, to my mind, specifically say that she gave them significant weight. Mr Croucher properly accepted in argument that in examining alleged errors in the reasons for sentence it is necessary to constantly keep an eye on the sentence itself. Performing that process in connection with these grounds, I cannot see, on the face of the sentence, any reflection of excessive weight being given to these aspects.
I would not uphold these grounds.
Next, I turn to grounds 2 and 8. When I first read the reasons for sentence of the learned judge, which were delivered after an adjournment of some days, my impression was that a very considerable amount of effort had gone into their composition and that they reflected a deal of careful consideration. Even after their contents have now been subjected to detailed argument, I remain of that overall impression. But the thorough and sustained advocacy of Mr Croucher, which, if I may say so, is what I have come to expect from him, has persuaded me that, in one respect, they do admit of error.
This relates to her Honour's consideration of O'Connor's case. I would uphold the submission that the learned judge treated that authority as establishing a principle that in cases of obtaining a financial advantage by deception custodial sentences were warranted in the absence of the offender drawing to the attention of the court "extraordinary matters". With respect, that view, with its implication of an evidentiary burden, is an erroneous one.
As to ground 1, it is for the applicant to show that the sentence passed fell altogether outside the range of those properly available to the learned judge. Such a ground does not ordinarily admit of much argument. Once the material circumstances are identified, then the sentence either appears relevantly excessive or it does not. As the judge acknowledged the matters pleaded in grounds 3 and 10, the submission must be that, having indicated that she took these matters into account, her Honour failed to sufficiently do so. After consideration, I am unpersuaded that this sentence was outside range, or that her Honour did not sufficiently take into account the matters pleaded in these grounds. In concluding that the sentence is within range, I have taken into account, among the other relevant considerations, the admitted seriousness of the applicant's conduct, its duration and the various deceits involved, together with the maximum penalty prescribed by Parliament.
In accordance with my view of the sentence, and despite error having been identified in the way I have described, I would propose that this application be dismissed on the basis that I do not think a different sentence should have been passed.
I will not depart this matter without reference to an exchange between the judge and counsel who acted on the plea for the applicant. In the course of that exchange, counsel sought to renew a submission which had already been dealt with in the reasons and to state his impressions of aspects of them. This conduct is not to be encouraged. It is entirely appropriate, of course, for counsel to point out an obvious error in reasons for sentence, for example a misstatement of the maximum penalty available, but that is not this case.
I would propose that this application be dismissed.
BATT, J.A.:
I agree. I wish to associate myself with the Chief Justice's comments upon the care and detail of her Honour's sentencing remarks, apart from the error which his Honour has identified and one small blemish in expression, and also with the Chief Justice's comments upon the questioning of the judge by counsel in this case below.
I, too, do not think that a different sentence should have been passed for this protracted, calculated and disloyal offence of dishonesty. From that it will be apparent that I would hold that the applicant failed to show that the sentence of two years' imprisonment, of which all but four months was suspended, was manifestly excessive. I deal with only one aspect of that submission. In my view, it is unrealistic to suggest that, in exercising the discretion conferred peculiarly on the judge or court by s.27(1) of the Sentencing Act 1991, her Honour was bound, and this Court in re-sentencing is bound, to be satisfied that total suspension was or is desirable in the circumstances.
CHERNOV, J.A.:
In my view, notwithstanding her Honour's error as described by the learned Chief Justice, for the reasons given by him, the application should be dismissed.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence stands dismissed and the Court directs that the applicant surrender himself to the relevant authorities.
The Court declares that the period of seven days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that this declaration and its contents be entered in the records of the Court.
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