R v Barber
[2002] VSCA 90
•6 June 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 11 of 2002
| THE QUEEN |
| v. |
| JOHN LAWRENCE BARBER |
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JUDGES: | CALLAWAY and VINCENT, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 June 2002 | |
DATE OF JUDGMENT: | 6 June 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 90 | |
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Criminal law - Sentencing - Sentence of imprisonment partly suspended - Whether custodial component clearly, not just arguably, too severe - Sentencing Act 1991, s.5(3) - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. and Mr R. Gibson | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr A. Shwartz | Grubissa White |
CALLAWAY, J.A.:
The appellant, who is now aged 61, pleaded guilty in the County Court to one count of theft (count 1) and one count of obtaining property by deception (count 2). The maximum custodial penalty for each of those offences is 10 years' imprisonment. The appellant had no previous convictions. After hearing a plea for leniency on his behalf, the learned judge sentenced him to six months' imprisonment on count 1 and 18 months' imprisonment on count 2, making a total effective sentence of 18 months' imprisonment, of which it was ordered that six months be suspended for an operational period of three years. A declaration was made regarding 65 days' pre-sentence detention; any driver licences held by the appellant were cancelled; he was disqualified from obtaining such a licence for nine months; and a compensation order in the sum of $28,000 was made in favour of Mr Najib Mohamed, the victim of count 2.
Leave to appeal was granted on 5th April 2002, when it was foreshadowed that an application would be made to the Registrar to amend the grounds of appeal, but that was not done and the sole ground of appeal is that the sentence imposed was manifestly excessive.
Before turning to counsel's submissions I shall say something briefly about the way in which the offences were committed. Mr Mohamed immigrated to Australia in 1985. He worked in a factory in Port Melbourne, but the factory closed down in 1994. He received a redundancy payment of $34,000, which he placed in a bank account as a step towards saving for a home. He is married and has five children under the age of ten. At the end of 1999 he decided to invest the money he had been saving by buying a taxi. A friend of Mr Mohamed, one Abdul Rarem Kurtu, told him that he had recently met a taxi driver at Tullamarine Airport who was willing to sell a taxi and assign the lease of the taxi meter. The taxi driver was the appellant, who represented that a taxi in his possession was his own and that he was prepared to sell it and assign the lease for $33,000. In fact the taxi was owned by Mr Anthas Athanassiou, the victim of count 1.
Arrangements were made for Mr Mohamed and Mr Kurtu to attend at an office in Carlton on 3rd December 1999, where they met the appellant and the necessary paper work for the transfer of the taxi and assignment of the lease was purportedly completed subject to the sanction of the Taxi Directorate. The price was paid as to $28,000 in cash and as to the balance by cheque. Most of the $28,000 came from Mr and Mrs Mohamed's own resources but some was borrowed from a cousin and sister-in-law. The cheque represented a loan from a friend.
The three men then set off in the taxi towards the North Melbourne office of the Directorate. The judge described what occurred next. Addressing the appellant, his Honour said:
" On the way, you purported to make a call on your mobile phone to someone who you described as a friend at the Directorate and told the others that in fact he was not there, but he would be on Monday, and that the transfer could be completed at the Directorate on the Monday.
Kurtu and Mohamed accepted this explanation and there was further conversation between you and Kurtu about the sale of yet another taxi, which you had told them was at the taxi rank at Tullamarine Airport and you persuaded them to drive you there, so that further arrangements could be made in relation to this other cab.
On the way there you purported to have another conversation on your mobile phone to the effect that the cab had left the airport but, nevertheless, you prevailed upon the others to drive you there. Once there, you alighted from the cab. In fact, you had apparently made arrangements to fly to the Philippines immediately. You left that day for Manila. Later on that same afternoon, Mr Mohamed found that in fact the cab did not belong to you and he returned it to the owner, Mr Athanassiou."
His Honour went on to explain that the cheque for $5,000 was stopped, but that in any event the appellant had not tried to present it. The $28,000 was used by him to buy a house in Manila, where he lived for some ten months until he was diagnosed with cancer on the right side of his face and came back to Australia for surgery. Thereafter he lived with his son in Queensland. He was arrested in that State on 18th July 2001.
Mr Shwartz began his submissions by referring to the appellant's personal circumstances, beginning with his age and the fact that, at the time of pleading guilty, he had no previous convictions. Having left school at the age of 14, the appellant had failed to establish a stable lifestyle but had maintained regular employment within the taxi industry as a driver from about 1975 onwards. He had had four failed marriages and in 1997 was involved in a serious motor car accident that resulted in substantial financial loss. The effects of the accident on the appellant, combined with protracted unemployment, impecuniosity and a serious gambling habit, brought him to what counsel described as a near-derelict status. During the period leading up to the commission of the offences he was struggling to find employment, working part-time twelve-hour shifts as a taxi driver.
Turning to the offences themselves, Mr Shwartz conceded that they were not strictly opportunistic but submitted that they were nevertheless crude and ill-planned, in the sense that they would readily be discovered. More importantly, he said, they were indicative of desperation, as too was the appellant's return to Australia some ten months later. Although the loss suffered by Mr Mohamed could not be described as insignificant, the sum involved should not, counsel contended, have led to the sentence passed below. His ultimate submission was that more of that sentence should have been suspended, i.e., returning to the ground of appeal, that the term to be served immediately was manifestly excessive. He reminded us that the prosecutor on the plea had conceded that even a wholly suspended sentence would be within the range.
The Director began his submissions by pointing out that, although such a sentence would have been within the range, it did not follow that an immediate custodial sentence was outside it. The offending was, he said, particularly mean and aspects of personal and general deterrence and the need for just punishment warranted the sentence that had been imposed. On count 1 there were the circumstances of aggravation that the theft involved a breach of trust between the appellant and his employer, Mr Athanassiou, as well as the appropriation of the means used by the employer to earn his livelihood. Count 2, the Director continued, was devious and premeditated. Mr Kurtu's enquiry was some weeks prior to the date of the offences. The appellant had used the ruse of going to the Taxi Directorate to give the transaction an air of legitimacy and he had deceived the victim into taking him to the airport on the pretext of inspecting another taxi prior to leaving on a flight to Manila. It was submitted that his Honour had given appropriate weight to the severe impact, financial and emotional, on Mr Mohamed. (In reply, Mr Shwartz submitted that the effect on the victim was only one factor and should not be allowed to overshadow others. So much may be conceded, but the Director submitted only that the judge had given the matter proper weight.) There were no objective facts indicating remorse, he continued. None of the money had been repaid and the amount defrauded was a significant sum. The sentence, his submission concluded, was well within the range.
As I have already said, Mr Shwartz did not argue that the head sentence was outside the range. Plainly it is not. Rather he relied on the mitigatory factors to which he referred to show that there should have been a shorter term to be served immediately. That submission has sometimes, although not often, succeeded, as in R. v. Vosilaitis[1], where the majority of the Court considered that, in the circumstances of that case, to require the applicant to serve 15 months was clearly more severe than was necessary[2]. Sentences are not, however, precedents to be distinguished. The principle to be applied in a case like R. v. Vosilaitis and in the present case is that the custodial component of the sentence must be clearly, not just arguably, too severe[3]. That is basic to any ground that is a variant of manifest excess and the law has been settled in that sense for many years. In R. v. Taylor and O'Meally[4], for example, Lowe and Gavan Duffy, JJ. said that the sentence must be obviously, not merely arguably, too severe before the Court will interfere.
[1]Unreported, Court of Appeal, 15th June 1998.
[2]See s.5(3) Sentencing Act 1991.
[3]See also R. v. Licastro [1999] VSCA 104 at [18] per Hedigan, A.J.A.
[4][1958] V.R. 285 at 289.
In the present case I do not think that it was clearly too severe to require the appellant to serve 12 months of his sentence or, to put the matter another way, that his Honour was bound to select a shorter period. In my view the disposition he adopted was open to him. The circumstances of mitigation to which Mr Shwartz referred, or some of them, are entitled to weight. I do not overlook that counsel cited R. v. Vosilaitis also for its reference to the well-known passage in the judgment of Brennan, J. in Neal v. R.[5] These offences were not, however, committed on the spur of the moment. One of them involved a breach of trust and the other was a mean trick perpetrated against a trusting victim. The appellant may have been under emotional strain, but any compassion that that might attract is adequately reflected in the sentence that was imposed.
[5](1982) 149 C.L.R.305 at 324.
I would dismiss the appeal.
VINCENT, J.A.:
I agree that this appeal should be dismissed for the reasons advanced by the learned presiding judge.
I would add that, in my opinion, the behaviour in which the appellant engaged was extremely serious. Appreciating the opportunity to do so, he cynically and in a calculated fashion exploited the naivety of his victim. Notwithstanding the mitigatory features present in this case, the conduct of the appellant clearly merited the imposition of a sentence of the order imposed upon him.
O'BRYAN, A.J.A.:
I agree the appeal should be dismissed for the reasons given by the presiding judge and Vincent, J.A.
CALLAWAY, J.A.:
The order of the Court is:
Appeal dismissed.
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