R v C P
[2008] VSCA 272
•18 December 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 188 of 2007
| THE QUEEN |
| v |
| CP |
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JUDGES: | BUCHANAN, VINCENT JJA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 December 2008 | |
DATE OF JUDGMENT: | 18 December 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 272 | |
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CRIMINAL LAW – Appeal against sentence – Obtaining financial advantage by deception – Attempting to obtain financial advantage by deception – Theft – Trial judge erred in not considering assistance appellant had given police – Appellant police informer – Sentence onerous – Crown concession trial judge in error – Appellant sentenced as a continuing enterprise offender by trial judge – Sentencing discretion re-opened – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Ms S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr L C Carter | Melinda Walker |
BUCHANAN JA:
I agree with Vincent JA that the appeal should be allowed for the reasons stated by his Honour and the appellant re-sentenced as his Honour proposes.
VINCENT JA:
The appellant pleaded guilty in the County Court to a substantial number of offences of dishonesty encompassed by three presentments:
· No: P02387185 which contained three counts of obtaining financial advantage by deception;
· No: Q02682012 which contained one count of attempting to obtain financial advantage by deception; and
· No: C0303643 containing four counts of theft, 34 counts of obtaining financial advantage by deception, one count of obtaining property by deception and seven counts of attempting to obtain a financial advantage by deception.
He had prior convictions for offences of a similar nature and others relating to the possession of a drug of dependence (Cannabis L), driving a motor vehicle whilst licence suspended and trafficking a drug of dependence (Ecstasy).
After hearing a plea in mitigation of penalty, the appellant was sentenced on 15 June 2007 as follows:
·Counts 1–3 Presentment PO2387185 and Counts 3-6, 17-33, 36, 38, 42, 46 – aggregate sentence of 5 years imprisonment;
·Count 7 (Presentment CO303643) – 3 months’ imprisonment;
·Count 10 (Presentment CO303643) – 3 months’ imprisonment;
·Count 34 (Presentment CO303643) – 2 years 6 months’ imprisonment;
·Count 1 (Presentment QO2682012) and Counts 39, 41, 43 (Presentment CO303643) – aggregate sentence of 3 years’ imprisonment; and
·Counts 1, 2, 35, 37 (Presentment CO303643) – aggregate sentence of 18 months’ imprisonment[1]
[1]Crown Summary of Proceedings, 7.
His Honour then made orders for cumulation creating a total effective sentence of 6 years and 6 months’ imprisonment in respect of which a non-parole period of 4 years and 6 months was fixed.[2]
[2]Forfeiture and Disposal Orders under the Confiscation Act were also made. Sentence 63-73.
There were three co-offenders, SA, who pleaded guilty to seven counts of obtaining financial advantage by deception and three counts of attempting to obtain financial advantage by deception, was sentenced to 18 months’ imprisonment, the service of 12 months of which was suspended for 2 years. FB, who pleaded guilty to two counts of obtaining financial advantage by deception, was sentenced to 12 months’ imprisonment wholly suspended for 12 months. DR was found guilty of two counts of obtaining financial advantage by deception, and was fined amounts of $1800 and $2000.
Having been granted leave, the appellant appeals against the individual sentences, the total effective sentence and the non-parole period fixed by his Honour.
The background
The appellant was aged 29 and 33 years at the time of the offences which were committed between 28 October 1999 and 22 November 1999 and 11 November 2002 and 28 November 2002[3] and aged 37 at time of sentence.
[3]Sentence [63].
He had migrated to Australia with his family from Turkey when he was very young and was brought up in a supportive and tight-knit family. He performed satisfactorily at primary and secondary school. However he was obliged to leave when he was 14 years of age in order to assist his father as a die setter and to support the family. Later, he started the successful video store chain, Video Ezy, in Black Rock, and, at one stage, controlled or had an interest in 11 stores. He sold this business while still young. The appellant then started a building and construction business which was successful in its initial stages. He then became involved in the motor vehicle trade which, according to the sentencing judge,
seems to have coincided with the development of a drug habit which commenced in 1996 and continued until apprehension in 2005, or perhaps, when [the appellant] went into custody in 2006 …[4]
[4]Sentence [64].
Presentment P02387185 – three counts of obtaining financial advantage by deception
Count 1 involved the appellant arranging for a friend to make a fraudulent application for finance in order to purchase a car in October 1999. A loan of $23,230.99 was approved and obtained from a bank.
Count 2 related to the provision by the appellant of false documents to a woman, who wished to purchase a motor vehicle from him and on the basis of which a loan for $20,257.92 was approved. The proposed purchaser did not receive those funds or the car.
Similarly, count 3 concerned another loan application which was supported by false documentation. On this occasion, a loan of $20,212.71 was obtained.
Presentment Q02682012 – attempting to obtain a financial advantage by deception
The circumstances were described by the sentencing judge as follows:
In November 2002 [the appellant sought] a home loan with the Bank of Melbourne. The documents lodged in support of [that] application purported to provide particulars of [his] financial position … each of those particulars was false. The application was not approved.[5]
[5]Sentence [65].
Presentment C0303643
Again, it is sufficient to set out the circumstances as described by the sentencing judge:
…Count 1: in 1999 [the appellant] had an interest in a panel beating business. Counts 1 and 2 involve the theft of vehicles delivered to your business for repair. [the appellant] re-registered the vehicles and sold them. The losses to the [the victim] were $13,000 and $12,000 respectively. Count 3: in August 2000 [he] entered into an agreement with [a customer] to obtain a car loan from Esanda Finance Corporation Ltd. The loan application was supported by the false representations set out in the charge. They induced the company to lend $15,992 to [the customer]. Count 4 was a similar offence pursuant to which $28,472.70 was obtained from the company. Count 5 was a similar offence by which $18,680 was obtained. Count 6 was a similar offence by which $19,370.70 was obtained.
In Count 7, the vehicle obtained pursuant to the fraudulent loan application that is the basis of Count 5 was involved in an accident. It was fraudulently insured in the name of Gokaz. A fraudulent insurance claim was made on the RACV, which paid out $13,195.96. Count 8 was another fraudulent loan application by which $27,272.73 was obtained from CBFC Leasing. Count 9 was another fraudulent loan application supported by false documentation. The amount sought was $60,000 but the loan was not approved. In Count 10 a cheque for $45,000 was paid to a business associate, but [the appellant was] well aware that the cheque could not be met.
In Count 11, in the name of PB [the appellant] applied for a car loan of $30,180.70 to purchase a non-existing vehicle. Toyota Finance paid [the appellant] $30,000. In count 12, again using the name of PB [the appellant] applied for a $20,000 loan from Toyota Finance. [The appellant] received the proceeds of this fraudulent loan application. Count 13 was a similar offence, again using the name PB, by which $19,000 was obtained from Toyota Finance. Count 14 was a similar offence by which a loan application of $45,326.30 was approved. The proceeds were apparently shared between [the appellant] and A. Count 15 was a similar offence by which $35,000 was obtained from Toyota Finance.
Count 16: in November 2001 [the appellant] purchased a vehicle from a dealer for $11,900. Subsequently, [the appellant] made a fraudulent loan application in respect of this vehicle pursuant to which [the appellant] obtained $21,000. Count 17: in conjunction with another, [the appellant] made a fraudulent loan application to Toyota Finance in respect of a vehicle purchased by WH. The loan was approved in the sum of 24,500 which [he] received.
In Count 18 [he] assisted a customer to make a fraudulent loan application to enable him to purchase a vehicle. The only false representation was that the vehicle was a 1999 model when in fact it was a year older. Count 19 was another fraudulent loan application made to enable an unqualified borrower … to acquire a vehicle from [the appellant.] The loan was approved the money paid to [the appellant.] The customer received the motor vehicle.
Count 20 was a similar case in respect of which a loan application of $23,130.70 was approved. Counts 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 were all similar offences in which false representations were made to Toyota Finance to enable otherwise unqualified appellants to acquire vehicles. In each case the loan application was approved.
Count 33 was a similar offence pursuant to which $38,860 was obtained from Ford Credit. Count 34 involved what is known as a kite-flying operation whereby over a two-month period 66 cheques were paid into the account of CJ Financial Services. The aim was to inflate the balance to the credit of that company for the limited period available before which the bank became aware that the cheque would not be met. The cheques were drawn on various accounts to which [he] had access. The total value of the cheques was $6,279,582. You will know that each of these cheques was valueless. For reasons that I do not understand, when the operation was terminated the account into which the cheques was paid was some $333,000-odd deficit.
Count 35 involves the theft of a motor vehicle between March and May 2002. [The appellant] came into possession of the vehicle belonging to PB, with whom [he] were operation in business at the time. You used the vehicle for [his] own purposes. Count 36 was another fraudulently supported loan application pursuant to which $24,182 was obtained from Capital Finance. Count 37, in April 2002 [he] gained possession of a Mercedes-Benz to sell on consignment. The car was valued at $110,000. [He] fraudulently transferred the car’s registration to [his] own name. Count 38 was another car purchase financed by a fraudulent loan application.
Count 39, in July 2002 [he] sought home finance on behalf of [his] wife. The loan application was supported by false information. The amount sought was $500,000. The loan was not approved. Count 40 was a fraudulent motor vehicle finance application for $58,000 which was not approved. Count 41 was another home finance application supported by false documentation. $455,000 was sought from Liberty Finance but the application was not approved.
Count 42 was a motor vehicle loan application pursuant to which $45,255 was obtained from Esanda Finance Corporation Ltd. Count 43 was another fraudulent home loan application pursuant to which $480,000 was sought from Suncorp-Metway. The loan application was refused. Count 44 was a motor vehicle finance application or $21,500 which was not approved. Count 45 was a similar offence in respect of $26,280. Count 46 was another fraudulent motor vehicle loan pursuant to which $30,000 was obtained from the National Australia Bank.[6]
[6]Sentence 64–68.
His Honour found that
Most of the offences … were committed in the course of ordinary motor car transactions that for one reason or other could not be completed legitimately. [The appellant was] prepared to resort to acts of dishonesty to bring about a transaction that would otherwise not take place. Some of the offences were, however, more blatant frauds.
…
… there is no doubt that this offending that I have described represents systematic, fraudulent, commercial activity at a very high level.
…
… the worst of these offences can only be described as serious and sustained commercial frauds committed by a person who was commercially aware and was able to, and did, exploit remarkable laxity on the part of the financial institutions that were the victims of these fraudulent claims. The fact that this offending was as a result of financial pressures in turn caused by [his] expensive drug habit is in no sense a mitigating feature.
…
The most dramatic feature of this offending is, however, the blatant and substantial nature of the false representations [he] made in support of a large number of fraudulent loan applications. The finance companies were persuaded to hand over a substantial amount of money because of those false representations.[7]
[7]Sentence 64-70.
The appeal
Although a number of arguments were advanced by counsel appearing on behalf of the appellant before us, the central focus of his submissions was placed upon the total absence in the sentencing judge’s remarks of any reference to the considerable assistance that his client had given to the authorities in relation to some very serious criminal activities. It was also pointed out that the appellant had, as a result of publicity, been identified as a police informer and was exposed to genuine and significant physical risk. In consequence, he was required to serve his sentence in more onerous conditions.
Counsel for the Crown conceded that his Honour had fallen into error in this respect and, accepted that ‘it is difficult to see how any of those matters were the subject of appropriate considerations by his Honour, given the complete absence of any reference to them in his sentencing reasons.’
As we indicated to counsel in the course of the hearing, when regard is had to the total effective sentence in particular, this concession was, in our view, appropriately made. The sentencing discretion of the Court has accordingly been regarded as re-opened and submissions have been made on that basis.
However one ground to which reference must be made concerns the approach adopted by his Honour with respect to counts 27, 34 and 37 on Presentment No: CO303643. His Honour accepted the prosecutor’s submissions that the maximum penalty applicable to each of these offences was doubled as, in relation to each of them, the appellant fell to be sentenced as a continuing enterprise offender within s 61 of the Sentencing Act. This approach was inconsistent with the view of the majority in R v Grossi, as the Crown conceded in this Court. There was, however, no indication in the sentences themselves that the penalties imposed upon the appellant had been increased in consequence. The separate sentences were clearly available in the circumstances.
Allowing for all of the matters advanced in mitigation, including the appellant’s plea of guilty, his personal circumstances, his supportive family and his cessation of drug use, were it not for the extent of his provision of assistance to the authorities both the separate sentences, and the total effective sentence would clearly have been appropriate in the proper exercise of sentencing discretion. When that assistance is taken into account however, it becomes apparent that a shorter period of imprisonment should have been imposed.
In order to provide that recognition and still indicate the seriousness of the appellant’s conduct, we consider that the appropriate course is to substitute for the aggregate sentence of five years’ imprisonment on the 39 counts of obtaining or attempting to obtain property by deception one of four years and six months’ imprisonment, to reimpose the other sentences, direct that they be served concurrently and fix a non-parole period of two years and nine months.
ROBSON AJA:
I agree with Vincent JA that the appeal should be allowed for the reasons given by his Honour and the appellant be re-sentenced as proposed.
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