R v Asad - [2003] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 178 of 2001

THE QUEEN
	v.
REHAN ASAD

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JUDGES:	BATT, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2003
DATE OF JUDGMENT:	12 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 3

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Criminal law – Sentence – Dishonestly obtaining a financial advantage and property by deception – Sentence of 2 years and a minimum term of 14 months not manifestly excessive – False information advanced by offender during plea – Lies relevant to remorse and personal deterrence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Leanne Warren & Associates

BATT, J.A.:

I invite Buchanan, J.A. to give the first judgment.

BUCHANAN, J.A.:

On 10 May 2001, the appellant, who was then 22 years old, agreed to purchase an Audi sedan from a used car dealer. He gave the dealer a false name and address, producing a learner’s permit, a Commonwealth Bank keycard, a pay slip and employer’s reference from a company called Star Satellite Communications stating he earned $44,800 per annum. These documents were false. The dealer used the false documents to obtain a loan from the Commonwealth Bank in an amount of $28,205 for the purchase of the car. No part of the loan was repaid to the lender and the motor car was repossessed.

On 21 August 2001, approximately a month after the repossession of the first motor car, the appellant purchased another motor car, giving a false name and address and producing a forged learner’s licence. He said that he was an engineer with the Brimbank City Council and claimed that he earned $726 a week. He completed an application form and obtained a loan in an amount of $25,000 from Ford Credit. Again, no repayments of the loan were made, and the car was repossessed.

When he was interviewed by the police, the appellant admitted that he had supplied false information and documents in order to obtain the loan. He acknowledged that he knew that he was dishonest and admitted to planning the deceptions by obtaining the false documents. Although the appellant said that he used a false name and address because he thought that if he was truthful he would not be granted a loan, he made no repayments of either loan. The name in which the appellant purchased the second motor car was that of the father of a friend. The father worked at Brimbank City Council.

The appellant pleaded guilty at the first opportunity to one count of

dishonestly obtaining a financial advantage, namely the loan from the Commonwealth Bank, by deception, and to one count of dishonestly obtaining the second motor car by deception, with the intention of permanently depriving of it the owner.

In the course of a plea before a County Court judge, the appellant’s counsel said that the appellant was a very intelligent man who had obtained excellent results in the…

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.

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Details

AGLC: R v Asad [2003] VSCA 3
Case: [2003] VSCA 3
Decision Date: 12 February 2003

CaseChat Overview and Summary

The appellant was found guilty of obtaining a financial advantage and property by deception, and was sentenced to a term of imprisonment. The offender appealed against the sentence, arguing it was manifestly excessive. The appeal was heard by the Court of Appeal, which upheld the sentence. The appellant had provided false information during his plea, which was relevant to his level of remorse and the effectiveness of personal deterrence. The court found that the sentence was not manifestly excessive and was appropriate given the nature and circumstances of the offence.

The court was required to consider whether the sentence imposed was manifestly excessive and whether the offender's false information during his plea should be taken into account when determining the appropriate sentence. The court also needed to assess the offender's level of remorse and the effectiveness of personal deterrence. The court found that the sentence was not manifestly excessive and that the offender's false information during his plea was relevant to his level of remorse and the effectiveness of personal deterrence.

The court found that the sentence imposed was not manifestly excessive and was appropriate given the nature and circumstances of the offence. The court noted that the offender had obtained a significant financial advantage by deception and that the impact on the victims was considerable. The court also found that the offender's false information during his plea was relevant to his level of remorse and the effectiveness of personal deterrence. The court concluded that the sentence was appropriate and that the offender's false information did not warrant a more severe sentence. The court further found that the minimum term of 14 months was appropriate given the nature and circumstances of the offence.

No further orders were made.

Orders