R v Banh
[2006] VSCA 11
•8 February 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 169 of 2005 |
| v. | |
| ALEXANDER BANH |
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JUDGES: | CHARLES and VINCENT, JJ.A. and MANDIE, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 February 2006 | |
DATE OF JUDGMENT: | 8 February 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 11 | |
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CRIMINAL LAW – Sentence – Three material factual errors made by sentencing judge – Appeal allowed – Sentence not manifestly excessive – Appellant’s original sentences and orders for cumulation re-imposed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr M.E. Regan | Victoria Legal Aid |
CHARLES, J.A.:
I will invite Vincent, J.A. to deliver the first judgment.
VINCENT, J.A.:
The appellant pleaded guilty before the County Court at Melbourne, on 25 May 2005, to seven counts of obtaining financial advantage by deception (counts 2 to 8 on the presentment). Count 1 related to a similar offence committed by the appellant's wife.
He admitted 97 prior convictions from six court appearances between 11 May 1999 and 4 April 2002. With few exceptions they arose from offences of dishonesty and include convictions for theft, handling stolen goods, going equipped to steal, and a substantial number relating to the obtaining of financial advantage or property by deception and attempts to do so.
After hearing a plea in mitigation of penalty, the learned sentencing judge on that same day imposed the following terms of imprisonment upon him:
On count 2 - nine months;
On count 3 - 13 months;
On count 4 - nine months;
On count 5 - nine months;
On count 6 - nine months;
On count 7 - one month;
On count 8 - nine months.His Honour directed that six months of the sentence imposed on each of counts 2, 4, 5 and 6 and three months of the sentence imposed on count 8 be served cumulatively upon each other and upon the sentence imposed on count 3. This created a total effective sentence of three years and three months' imprisonment, in respect of which a non-parole period of two years and two months was fixed.
Having been granted leave to do so, the appellant has come before the Court appealing against those orders on a number of grounds, of which in the circumstances it became necessary to consider only three, namely:
1.The learned sentencing judge fell into factual error when considering the loss or damage resulting directly from the offences.
2.The learned sentencing judge fell into factual error when considering the circumstances of the appellant's offending and that his description of the appellant's course of conduct as being between November 2003 and the end of 2004 is not reflective of the total period of offending particularised in the presentment.
3.The learned sentencing judge fell into factual error when considering the amount of time that had transpired between the appellant's earlier release from prison and the start of his offending.
There is no need in the circumstances to recite the detail of the various offences involved. Shortly put, the appellant, using forged documents, secured credit facilities and a credit card from various providers of such services. Some of the offences involved the participation of his wife, who the learned sentencing judge found, acted substantially under his influence, but the majority were committed by the appellant alone and one offence involved his wife solely, that is, the offence encompassed by count 1 on the presentment. The total loss to the victims arising from the appellant's conduct was in the order of $22,000, although his Honour incorrectly included a further $12,000 related to the appellant's wife's offence.
It is conceded on behalf of the Crown that, as I have indicated, his Honour incorrectly included, in the monetary loss sustained by the various victims, the appellant's wife's offence, and that he did fall into error with respect to the period of offending, which he indicated was approximately nine months but was identified in the presentment as involving a period of approximately five months. It was also accepted that he fell into error in his finding that the appellant re-offended within six months of his release from prison, whereas fifteen months had in fact elapsed. These were all material errors and, in the circumstances, it was clear to the Court that the appeal should be allowed and the appellant re-sentenced. However, I should indicate that, having undertaken that exercise, I have arrived at the same result as that of the judge in the court below.
The appellant was at the time of these offences aged 30 years. He was born in Vietnam and, with his four siblings, was brought to Australia by his parents as a refugee when he was five years old. The family was obviously hard-working and was successful in this country, with all of the children completing tertiary education. Three are engineers and one a computer scientist. The appellant himself had obtained a Bachelor of Marketing degree in 1996. However, possibly through the development of a gambling problem, the appellant has pursued a somewhat different path to that of the rest of his family and has developed the significant criminal history earlier mentioned. I should add that although it appears that his initial behaviour may have been related to gambling, there is no suggestion that that was the case in respect of the offences with which we are here concerned. At the time of their commission he was experiencing no health, alcohol or drug related problems. It does appear that the appellant and his wife were experiencing some financial difficulties, but otherwise their situation seems to have been stable. He appears intelligent and there is no indication that he was suffering from any psychological problems, although I note that the psychologist, Mr Bernard Healey, refers in his report to a hypomanic trend and vulnerabilities of the appellant's personality. Against this background, the sentencing judge understandably said with respect to his motivation for committing the offences:
"It is difficult to escape the conclusion that whenever under financial stress you simply resort to stealing."
The type of systematic conduct in which the appellant engaged in, over a period of some five months, must be regarded very seriously. There is no need to elaborate on why this is so, because I would suggest that the potential damage to the operation of the system of credit upon which this community depends is obvious. His prior criminal history must be regarded as important in a determination of the appropriate sentences to be handed down in this case. In view of the appellant's evident recidivism, his level of culpability must be regarded as high and specific deterrence must assume importance as a sentencing consideration. I share the sentencing judge's view that, based on his history of repeated offending, the prospects of the appellant's rehabilitation, at least in the short term, do not appear to be good. It is also relevant in this context that, as the sentencing judge put it, he dragged his new wife into participating in this type of conduct.
The appellant committed seven quite separate criminal offences over a period of five months. True it was that he generally followed the same technique, but they were quite discrete. Each involved a number of separate activities and each merits the imposition of a significant sentence. The period of offending and the fact that different victims were involved, taken in conjunction with that consideration, requires in the proper exercise of sentencing discretion, in my view, that some orders for partial cumulation of the sentences be made.
In my view, and notwithstanding the matters advanced in mitigation on behalf of the appellant, the sentences imposed in the court below, the orders for cumulation made and, accordingly, the total effective sentence and the non-parole period were all quite appropriate, and I would re-impose them.
CHARLES, J.A.:
I agree.
MANDIE, A.J.A.:
I also agree.
CHARLES, J.A.:
The orders of the Court today consequently are as follows:
1. The appeal is allowed.
2.The individual sentences on counts 2 to 8 imposed in the court below are re-imposed today.
3.The orders for cumulation of sentence made in relation to counts 2, 4, 5, 6 and 8 are also re-imposed.
4.The total effective sentence remains three years and three months and the non-parole period fixed of two years and two months is also fixed.
5.The Court declares that as at this day the period served under this sentence is 260 days and orders that the making of this declaration and its details be noted in the records of the Court.
6.The Court also repeats the restitution order pursuant to s.84 of the Sentencing Act 1991 and the disposal order pursuant to s.78(1) of the Confiscation Act 1997 made in the court below on 25 May.
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