R v Fisher
[2009] VSCA 100
•18 May 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 777 of 2008
| THE QUEEN |
| v |
| STEVEN KING FISHER |
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JUDGES: | REDLICH and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 May 2009 | |
DATE OF JUDGMENT: | 18 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 100 | |
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PRACTICE AND PROCEDURE – Natural justice – Out of court communications with Judge’s Associate via emails – Associate responding by email – Emails containing information bearing upon substantive issues – Disclosure to other party – No reasonable apprehension of bias.
PROCEDURAL UNFAIRNESS – Denial of opportunity to address unanticipated findings – Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 applied.
CRIMINAL LAW – Sentence – Relevance of misleading conduct on the plea to the question of remorse – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for OPP |
For the Appellant | Mr T E Wraight | Victoria Legal Aid |
REDLICH JA
DODDS-STREETON JA:
The appellant was convicted in the County Court on four counts of obtaining financial advantage by deception, seven counts of attempting to obtain a financial advantage by deception and three counts of theft. Sentences of between one and six months were imposed on each count and orders of cumulation were made on all but one count producing a total effective sentence of two years’ imprisonment. A minimum non-parole period of 15 months was fixed. An order requiring compensation in the amount of $10,000 was also made.
The Appeal
The appellant now appeals against that sentence, on the grounds that that the learned sentencing judge received out of court communications from the prosecution concerning a matter material to the plea, namely the whereabouts of the appellant’s daughter for whom he had claimed to have sole care and responsibility, that he was denied procedural fairness as he was not permitted to explain the current arrangements regarding the care of his daughter, that insufficient weight was attached to his plea of guilty because of the view that he had misrepresented his daughter’s circumstances, that unjustified findings were made as to his use of the money he obtained, and that the total effective sentence and non-parole period were manifestly excessive.
The Offences
It is unnecessary to set out the full details of the appellant’s offending. In summary the appellant submitted 11 fraudulent applications to the National Australia bank seeking loans and credit cards. The appellant did so using eight different identities including former relationship partners and associates. False documentation including false details as to assets, liabilities, income, expenses, false PAYG payment summaries, false ATO documentation, false addresses, telephone numbers and a false drivers licence were used. Each of the applications was made either without the knowledge of those whose names they were made in, or on the basis of false representations to those persons as to the purpose for which their identity was being utilised. The appellant dishonestly obtained $120,000 and attempted to obtain a further $160,000 via applications that were refused. The appellant further obtained personal bank account details of his former partner Ming Lee, withdrawing $10,000. The sophisticated deceptions spanned a twelve month period and were carefully planned and implemented. They were described by the learned sentencing judge as ‘determined, deliberate, protracted and involving a great deal of manipulation’.
The Proceedings
The appellant pleaded guilty to all counts. In the course of the appellant’s plea in mitigation on 30 May 2008, it was submitted that the appellant was the ‘sole carer’ of his daughter Katie. Following submissions, the sentencing judge adjourned the plea, to allow for the appellant to be assessed for an Intensive Correction Order and granted the appellant bail. It was later discovered by the Informant that representations made on the plea relating to care of the child may not have been correct. An email was consequentially sent by the Office of Public Prosecution (OPP) to the associate to the sentencing judge informing her of the fact. A series of emails was then exchanged, with the associate to the sentencing judge asking the OPP whether they wished to bring the matter on for mention to revoke bail. A contested mention was subsequently heard, where the bail of the appellant was revoked. He was then sentenced to imprisonment.
Receipt out of court communication
Under cover of ground 2 the appellant submits that the sentencing judge erred in receiving out of court communications from the OPP, relating to the appellant’s care and responsibility for his five year old daughter, Katie.
Evidence relating to the care of the child
Counsel for the appellant said the following on the plea:
... and he has a daughter, Katie, who’s four, who resides with my client, and he’s the sole carer for her
Her Honour: Where’s her mother?
[Counsel for appellant]: Sorry where’s her mother?
Her Honour: Where’s her mother?
[Counsel for appellant] : China. You’ll see in the report from Mr Crewdson that the date of birth of Katie is 11 November 2003. Apparently this is a bad date in the Chinese numerology and the situation was that the mother has effectively abandoned the child to Mr Fisher. She resides in China, the mother resides in China. Katie resides with my client, and my client has never taken Katie back to China and the only other family member who is still alive from my client’s perspective is his mother, who’s in her early seventies, I think 72, who’s also living in China.
Later in the plea a submission was made that suggested that his role in caring for the child was sufficiently time consuming that he was unable to find work:
Her Honour: But that doesn’t stop you from getting work.
[Counsel for appellant]: Well, not knowing whether you’re going to be able to continue that work or not and also having a now five year old daughter who he’s the primary carer for has caused difficulties.
Her Honour: Plenty of single mothers around working, [counsel]
[Counsel for appellant]: I’m certainly aware of that your Honour …
Later, counsel for the appellant again referred to the fact of him being:
“a single father being a sole carer with a five year old child”.
Finally, the following exchange occurred:
… your client would have been given some advice, wouldn’t he, [counsel], about the chance of going to gaol today?
[Counsel for appellant]: Yes, Your Honour.
Her Honour: Has he made any arrangements in relation to Katie?
[Counsel for appellant]: Certainly I’ve told him to, but I confirm that he has. No your Honour, arrangements haven’t been made.
Her Honour: Where is Katie now? Is she at school if you could just find out where she is.
[Counsel for appellant]: Yes, I understand that, Your Honour. In the care of a friend for today, your Honour.
Electronic correspondence between the OPP and the sentencing judge’s associate containing prejudicial information.
In summary the email correspondence sent between the Crown and the associate to the sentencing judge is as follows. First, by email, the solicitor from the OPP sent to the associate to the sentencing judge an email on 18 June 2008 at 12:27pm. It said:
I have new information from the Informant in this matter, DSC Marc Callegaro, that some of the information put to the Court by the Accused may not have been correct in a significant manner. The Detective has forwarded information to me from the Department of Immigration suggesting that the Accused’s four year old daughter has not been in Australia since January 2008. The Accused said in Court that he had not made any arrangements for the care of his daughter, who was being looked after by a friend. This may have been an important factor for her Honour in allowing the Accused to be at liberty pending sentence, and may have been a factor in the decision to have him assessed for an ICO.
I wanted to bring this to the Court’s attention, and seek your advice as to whether I should have the matter listed for mention prior to the sentence date?
I will request a copy of the plea transcript, and will contact [counsel], who appeared for Mr Fisher.
That same day, the associate to the sentencing judge then replied to the OPP at 2:06 pm, without notifying the appellant:
I discussed this issue with her Honour who wishes to know whether the crown would like the matter listed for a mention to make an application for bail to be revoked.
On 20 June 2008 at 9:040 am a reply email sent from the OPP to the associate to the sentencing judge, the OPP said:
I have now been in contact with [counsel], who both appeared in this matter. We all agree that it will need to be listed for mention.
At 9:55 am the associate to the sentencing judge then replied to the OPP, (still not copying to representatives to the appellant):
I have read both your emails. I don’t believe that the informant’s attendance is vital if evidence of Mr Fisher’s daughter’s whereabouts can be led another way. We will be hearing a trial next week so the mention could proceed on any day at 9:30 am in Geelong. If this is unsuitable then let me know and we will work out another time. Due to HH taking leave in July and the urgency of this matter, different counsel may be briefed for the Crown.
From this point on counsel for the appellant was included in the correspondence which fixed a further hearing on 27 June 2008. On the further hearing he took no objection to the course that had been followed and on instructions told the learned sentencing judge that the information that had been provided to her was correct.
Was the sentencing judge misled?
The sentencing judge sentenced the appellant on the basis that he had been dishonest on the plea by misrepresenting his daughter’s circumstances. On appeal counsel disputed that there had been any attempt to deceive the court. As this question of fact was central to the appeal we should at the outset express our view of what occurred on the plea. It was submitted that the evidence was only consistent with the appellant having an ongoing interest in the welfare and care of his daughter. That might well be so but there is no substance in the appellant’s submission that the sentencing judge was not intentionally deceived. The representations made on his behalf on the plea were to the effect that the child was currently in the sole care of the appellant; no arrangements had been made in case the appellant was given a custodial sentence; the child was simply in the care of a ‘friend’, ‘for today‘, on the date of the plea; the appellant’s ‘sole carer‘ obligations made it difficult for him to find the time for work; the appellant had never taken the child to China; and the child’s mother had ‘effectively abandoned‘ her.
Even if the court was to accept as correct the appellant’s account of the true situation regarding care of the child, his account is inconsistent with the submissions that were made on his behalf on the plea. The suggestion that the child was in the ‘sole care‘ of the appellant was made in the context of submissions intended to give the overall impression that there was no person who could assume care of the child in the event of a custodial sentence.
That the child was residing with the appellant’s mother in China puts an entirely different complexion on the evidence. It suggests that arrangements were available for her care in the event of a custodial sentence. The role of the child’s biological mother in taking the child back to China also raised the question of the extent of her abandonment of the child, and her willingness to be involved in the care of the child in the event of a custodial sentence. Whatever the true state of these affairs, the appellant’s deception was designed to curtail any exploration of these matters on the plea. We further observe that the express submission made on behalf of the appellant that he had never taken the child to China was materially misleading, if not strictly incorrect, as it was in the context of a broader submission that the appellant’s extended family was in China, and implied that no relative was available to assist in the care and custody of the child.
We are satisfied, as the learned sentencing judge was, that the submissions made relating to the care of the child were calculated to maximise the appellant’s chances of receiving a non-custodial sentence and were materially misleading in a number of important aspects.
The Relevant Principles
The appellant submits that the communication sent to the judge by the OPP amounts to a fundamental procedural irregularity. That error was compounded, it was said, by the reply from the judge’s associate that might be said to indicate that the judge had formed a particular view as to the question of revoking the appellant’s bail (and the urgency of the matter). The appellant emphasises that the communication with the judge occurred prior to any consultation with the appellant or his representatives.
It is an undoubted principle that ajudge ’s decision should be made on the basis of the evidence and arguments in the case, and not on the basis of information or knowledge which is acquired out of court. In Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd[1] Mason CJ and Brennan, Deane, Dawson and Gaudron JJ, described it as an aspect of ‘the rule againstbias‘. Their Honours said that this aspect of the rule is similar to the rule of procedural fairness, but not identical because the question is whether in the circumstances, the parties or the public ‘might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision‘.
[1](1994) 119 ALR 206, 210.
In dealing with this ground we must ask whether the trialjudge’s decision - which we treat for this purpose as either the revocation of bail or the sentence - fails the now well established test of whether ‘a fair-minded lay observer might reasonably apprehend that thejudge might not bring an impartial mind to the resolution of the question thejudgewas required to decide‘.[2]
[2]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6]; Johnson v Johnson (2000) 201 CLR 488 [11]; Antoun v The Queen (2006) 224 ALR 51 [1], [51], [82]; Concrete Pty Ltd v Parramatta Design & Development Pty Ltd; (2006) 229 CLR 577 [110].
The appellant referred the Court to R v Wise.[3] There the offender had been released on a community based order after pleading guilty to attempted armed robbery. He was subsequently brought before a different judge of the County Court on breach of that order. At the re-sentencing hearing only the re-sentencing judge had a copy of the original sentencing remarks. The judge referred to parts of this original sentence in his own remarks. It was held that the failure to disclose the contents of the original sentencing remarks constituted a breach of procedural fairness. There the Court held:
The critical matter here, therefore, is whether in fact procedural fairness was or was not afforded the applicant because the learned re-sentencing judge acted upon, and appeared to act upon, the basis of and in reliance on material not available to counsel for the present applicant (and indeed largely unknown to him). It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel: R v Carlstrom. As was emphasised by Kaye J in R v Licata and Regan referred to in an addendum to Carlstrom at 368, the withholding of material “is repugnant to basic concepts of fairness and justice”.[4]
[3](2000) 2 VR 287.
[4]Ibid [20] (citations omitted).
It was conceded by the appellant that this is not a case like R v Wise, as the material submitted to the judge via the email was fully disclosed to counsel for the appellant. We are not satisfied that the email communications give rise to a procedural irregularity of the kind described in Wise. That case is concerned with a breach of the hearing rule. In the present case the fact of the emails was fully disclosed to the appellant and the appellant was given an opportunity to comment at the contested mention (see discussion below).
The appellant did, however, seek support further from that passage in R v Wise where the Court said:
Likewise a sentence should not be imposed if it is founded wholly or partly on material which has not come before the sentencing judge in open court: see R v Tait and Bartley. If any relevant material is gathered or obtained by the judge from private sources or sources not available to the parties, which is capable of being used adversely to the offender, then, unless that course is specifically agreed to by counsel for the offender, the sentence will ordinarily be set aside.[5]
[5]Ibid [21].
That passage suggests that there may be a rule, independent of the hearing rule, whereby an out of court communication, even if disclosed, might constitute error. The leading case on the issue of representations being made to the judge in the absence of the affected person is Re JRL; Ex parte CJL.[6]
[6](1986) 161 CLR 342.
In that case the High Court considered a Family Court counsellor who approached a Family Court judge in chambers to complain about the intended adjournment of a children’s case and gave her views as to the appropriate order to be made in a custody application before the judge in the absence of counsel from either party. The High Court (Wilson and Dawson JJ dissenting) held that this conduct gave rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the matter.
In Re JRL, Gibbs CJ stated that:
It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v Government of Malaya. McInerney J stated the practice as it is generally understood in the profession in Reg v Magistrates' Court at Lilydale; Ex parte Ciccone as follows:
“The sound instinct of the legal profession -- judges and practitioners alike -- has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined”.[7]
[7]Ibid 346 (citations omitted).
Mason J stated on this point that:
It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide ... In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice: In re Dyce Sombre per Lord Cottenham LC.[8]
[8]Ibid 350 (citations omitted).
His Honour further observed:
… the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge.[9]
[9]Ibid 351.
The principles espoused by the majority of the High Court in Re JRL were applied in the context of emails in the recent case of Carbotech-Australia Pty Ltd v Yates.[10] In Carbotech a order was made by consent to refer a question (namely whether two products were similar) in the proceedings to a Referee. The Referee concluded that the products were ‘very similar in composition’.
[10][2008] NSWSC 540.
The plaintiffs moved for adoption of the Referee’s report, but the Associate Judge dismissed the motion for adoption, holding that by reason of some 13 email communications that passed between the Referee and the plaintiff’s solicitors, to the exclusion of solicitors for the defendants, there was a reasonable apprehension of bias on the part of the Referee such as to require the report to be rejected.
Relevantly, his Honour held that it was the fact of the apparently routine passage of emails between the Referee and the solicitors for only one party, and not the content of the emails as such (as they related only to procedural/administrative matters) that constitutes the ground for apprehended bias in the mind of an objective observer or disinterested bystander.’[11]
[11] Carbotech-Australia Pty Ltd v Yates [2007] NSWSC 1304, [27].
The plaintiffs appealed from his decision to the Supreme Court of New South Wales on the basis that, inter alia, his Honour erred in holding that the communications gave rise to a reasonable apprehension of bias.
On appeal Brereton J, in considering the applicable principles, stated that:
The “twin pillars” of the rules of natural justice are the hearing rule (audi alteram partem) and the bias rule (nemo debet judex esse sua in propria causa). However … they may overlap: a persistent failure to hear one party might establish an apparent lack of impartiality as well as a breach of the hearing rule.[12]
[12] Carbotech Australia Pty Ltd v Yates [2008] NSWSC 540, [46].
After making reference to Re JRL, Brereton J stated the applicable law in the following terms:
The passages to which I have referred in JRL establish that while the (mere) fact that an ex parte communication takes place is an important one, it is not decisive, and closer examination may show that the informed reasonable lay observer might not form an apprehension of bias despite such communications. It will depend on the facts of each case whether communications between a judicial officer and one party to the exclusion of the other give rise to a reasonable apprehension of bias, and one must look to the whole of what happened to establish whether such an apprehension should be inferred.[13]
[13]Ibid [52].
His Honour then distinguished the case before him from one in which a judge has received an ex parte communication. He considered that where a judge is concerned, the mere fact of an ex parte communication is of importance, though not decisive, because it is such an obvious departure from the norms of behaviour understood by judges and the legal profession alike. The same cannot be said of a Referee who is not a lawyer let alone a judicial officer, who is not required to conduct the proceedings as if he were a judge, and who may be quite unfamiliar with the practices and protocols of lawyers.[14] His Honour therefore stated that it was necessary, given the case before him involved a Referee, to consider the contents of the ex parte communications and to consider ‘whether the reasonable informed bystander would apprehend bias, knowing of their contents’,[15] and ultimately held that no reasonable apprehension of bias arose.
[14]Ibid [53] (emphasis added).
[15]Ibid.
The present case is unlike Carbotech-Australia Pty Ltd v Yates, as it involved email communications with, and from, an associate acting on behalf of a judicial officer. But there is no inflexible rule that any communication between the judge and a party will necessarily disqualify the judge from making a decision.
It is ‘important to bear in mind the characteristics of modern litigation‘ as Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design & Development Pty Ltd.[16] It is common-place forjudges, whether in the course of case management or otherwise, to be provided with bundles of materials, documents for tender, affidavits, and emails not all of which will be tendered or read. But in all such cases the party providing them is bound to simultaneously provide them to the other side. The circumstances in which direct communications may be made to the judge’s associate are subject to important qualifications. Written communications between a party to litigation and the judge’s associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party’s express agreement (save in an exceptional case warranted for example by an ex parte application).
[16](2006) 229 CLR 577, [111].
Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation.[17] In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges’ chambers, presents potential risks of the errors demonstrated in the present case.
[17]See for example ALRC Report 89: Managing Justice: “A Review Of The Federal Justice System - 8”; Buljubasic & Buljubasic [1999] (1999) FLC 92-865, 86,221 (Lindenmayer J).
A failure to strictly comply with such procedures threatens the integrity of the proceedings and gives rise to the risk of an allegation of at least a perception of bias. In Ebner v Official Trustee in Bankruptcy[18] Gleeson CJ, McHugh, Gummow and Hayne JJ said in their joint judgment that ‘the apprehension ofbiasprinciple admits of the possibility of human frailty‘ and requires two steps -
First, it requires the identification of what it is said might lead ajudge(or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
[18](2000) 205 CLR 337, [8]. See also Smits v Roach (2006) 227 CLR 423 [53], [56],
With these principles in mind we turn to the present case. It is necessary to consider whether the fact of, and the nature of the communications, would introduce a perception of bias in the mind of an observer. Certainly, the process of emailing the judge’s associate without copying in the other party was a serious impropriety. The associate’s reply, and the following emails, which occurred without copying in the other party, were also ill-advised and involved a one-sided substantive communication with the judge containing the unsolicited invitation to the Crown to apply to revoke the appellant’s bail.
Counsel for the respondent drew attention to the tentative way in which the officer from the OPP had referred to the new facts and had stated in the initial correspondence that she would notify Counsel for the appellant. It is true that there was no significant lapse of time between the communications and the provision of copies of the material to representatives of the appellant nor was there any suggestion of any oral communications. The respondent also relied upon the fact that matters communicated to the judge were not disputed at the subsequent hearing which proceeded on the basis that the sentencing judge had been accurately informed of the circumstances. Thus it was submitted that there was no basis upon which it could reasonably be apprehended that the sentencing judge may have been improperly influenced by the out of court emails that were received.
No application was made that the judge disqualify herself. Counsel for the appellant raised no objection to the sentencing judge continuing to hear the matter having been fully informed of the communications between the Crown and the associate to the sentencing judge. He was content to allow her Honour to act upon such information in the knowledge that it could place the continued liberty of the appellant in jeopardy.
While out of court communications between one party and the judge may give rise to a breach of natural justice, the absence of any objection is indicative that Counsel saw no unfairness in the sentencing judge continuing after the out of court communication had been disclosed. In this court, counsel for the appellant submitted that the sentencing judge was plainly incensed by the attempt to mislead her, and on calm reflection should have appreciated that she needed to hear further from the appellant about his proposed arrangements for his daughter. Ultimately counsel for the appellant, though maintaining that the conduct of the officer from the OPP and the judge’s associate was improper, and should not have occurred, did not press the argument that a reasonable perception of bias existed. He conceded that the prompt disclosure to the respondent’s advisers would have cured the impropriety of their exchange, but maintained that they had influenced the subsequent approach adopted by the sentencing judge, which was procedurally unfair and which tainted her findings of fact and reasons for sentence.
Denial of procedural fairness and failure to give full effect to plea of guilty
It is convenient to consider these grounds together. What occurred at the revocation of bail hearing on 27 June 2008 and the subsequent sentencing remarks on 5August 2008 are relevant to these grounds.
According to the email sent by her Honour’s associate to the OPP, it was her Honour who first raised the question of revocation of bail. The email from the OPP had sought only to bring facts to the attention of the judge that might bear upon sentence. No further reference to revocation of bail is made in any of the correspondence.
It is convenient to now refer to the hearing on 27 June 2008. After very brief submissions the learned sentencing judge gave reasons and revoked the appellant’s bail. The following is the relevant portion of that hearing:
Her Honour: Thank you [Counsel for the Director]. [ Counsel for appellant], do you want to hear from the informant, what would you like the scenario to be?
[Counsel for appellant]: No. The situation is that that material has been provided to me Your Honour. I’ve also provided – certainly my instructions are that that is correct. That that bit of information has been provided and prior to that material being provided to me – all knowledge of any of the communications between the prosecution and your associate – and travel arrangements had been made for my client’s daughter to return to Australia. That was done on 17 June.
Her Honour: Yes.
[Counsel for appellant]: An arrival date of 16 July is being made. A copy of the ticket from China Airlines is being provided to the prosecution in respect of that. It’s a situation where my client has instructed me that he still is the primary carer of that child and that the child has been living with his mother in China subject to what happened on (indistinct).
Her Honour: But it’s quite clear, and I’m sorry to put you in a difficult position [counsel for appellant] but you were not given forthright instructions in relation to your plea.
[Counsel for appellant]: But in fairness to my client also it can also be …
Her Honour: Can you answer my question please [counsel for appellant]?
[Counsel for appellant]: Sorry, Your Honour?
Her Honour: Can you answer my question please. The instructions I had were that – or the instructions you had that he had care of Katie and I asked where she was for that day and he said – and you were told, with friends, there was no indication given to me whatsoever that she had been for the past six months in China.
Counsel for appellant]: No, certainly I have no knowledge of that Your Honour.
Her Honour: Yes. Do you have anything more that you wish to say?
[Counsel for appellant]: No, Your Honour.
The trial judge then ruled as follows:
Thank you. I am not satisfied that Mr Fisher wishes to be the sole carer of his daughter, Katie for any other reason other than to avoid a custodial sentence. [counsel for appellant] could only act on his instructions but I am perfectly satisfied that those instructions were in fact false and designed to mislead the court. The only reason that I even considered having Mr Fisher assessed for an Intensive Corrections order was because I was concerned as to the plight of his daughter, Katie, were he to be incarcerated and that included for the period of adjournment whilst he was so assessed. I had no idea that Katie was not in his care at all and I note that arrangements for her return appear to have been made subsequent to the hearing.
In the circumstances I intend to revoke bail. Mr Fisher is remanded in custody. Arrangements can be made to cancel Katie’s return to Australia. I will proceed to sentence him on the previously adjourned date. Thank you.
Immediately after the giving of those reasons the following occurred:
[Counsel for appellant] : Thank you Your Honour. Your Honour my client has asked if he can make a statement as to why he didn’t tell the Court about Katie?
Her Honour: No. Its totally inappropriate. He has – not only did he not – not that he didn’t make a statement, he gave you instructions which were positively misleading and I am not prepared to hear him make statements and I have made my ruling.
It is necessary to also refer to those parts of her Honour’s reasons for sentence that were concerned with the appellant’s daughter’s circumstances. In those reasons, her Honour observed that on the plea it had been submitted that the appellant was the full time care of Katie as her mother had abandoned her as a baby. Her Honour repeated what she said on revoking bail that it was only because of her concern for Katie that she had released the appellant on bail following the plea. Her Honour then said:
However during the bail period the informant made inquiries and it emerged that Katie had in fact been in China for the past six months with the mother who had supposedly abandoned her.
After referring to the fact that the psychologist, whose report was tendered on the plea by the appellant, had also been given the impression that the appellant was the sole carer of Katie, her Honour continued:
In my view you are an unscrupulous person who demonstrated wide ranking and entrenched dishonesty in your offending. I am satisfied that you lied to this court by giving false instructions to your counsel about your daughter’s whereabouts in order to avoid the consequences of your actions.
It was perfectly obvious on the plea that I placed a great deal of emphasis on Katie’s situation and believed it brought into play legal principles relating to exceptional circumstances insofar as hardship on the children of parents to be gaoled is concerned. Nevertheless you continued with this misrepresentation and would have, I am satisfied, continued with it had it not been for the efforts of the informant. … You in fact told the Office of Corrections that you were concerned about your two daughters, ‘one of which has been returned to reside with her mother in China until he is released from custody’.
Your plea of guilty has limited weight particularly in the light of your misrepresentation as to your daughter’s circumstances.
Her Honour again referred to the impression she had been left with during the plea that there was no one else to care for Katie who had been abandoned by her mother:
… when all the time she was in China and had been taken there by the mother[19] who had supposedly deserted her. These actions by you have affected my view of your remorse for your actions which ended only because they were discovered. I regard you as thoroughly dishonest and I do not hold out any great hopes for your rehabilitation despite your lack of previous offending.
[19]This conclusion was drawn from the immigration records that Katie and her mother departed Australia on 27 January 2008.
After announcing the sentence Her Honour said for the purpose of compliance with s 6AAA of the Sentencing Act 1991:
I do not regard, as I have said, your plea as indicative of remorse. The case against you was strong, you conducted a ‘no comment’ record of interview with police as was, of course, your perfect right, but it was not a course indicative of itself of remorse, then you sought to mislead this court. Any discount for a plea will be a response purely to the utilitarian and practical aspects of entering a plea and the time and money saved by such a course taken on your part. Had you entered a plea of not guilty you would have received a sentence of 30 months and I would have ordered a minimum term of 22 months.
Finally we should refer to the passage from the affidavit filed by the solicitor for the appellant in which she deposed:
He sent his four year old daughter Katty [sic] to stay in China with his 72 year old mother, Katty’s [sic] grandmother, as he didn’t know what was going to happen with his matter on 30 May 2008 and whether he would be remanded in custody.
Under these related grounds the appellant submits that the learned sentencing judge erred in refusing to allow counsel for the appellant, and subsequently the appellant in person, to explain to the court the arrangements regarding the care of his daughter.
At the hearing on 27 June 2008 counsel for the appellant made submissions that the child was in the care of the appellant’s mother, and that travel arrangements had been made for the child to return to Australia. The appellant submits that his counsel was prevented from continuing with this explanation. The appellant referred the Court to R v Alexandridis[20] in which it was said:
It is uncontroversial that an ingredient of the Court’s duty to accord procedural fairness involves the giving of a fair opportunity to a party to adduce evidence or make submissions rebutting potential adverse findings. Procedural fairness must be upheld for its own sake, as well as for its consequences. The experience of the common law is that out of fair and lawful procedures will emerge fair and lawful outcomes.[21]
[20][2008] VSCA 126.
[21]Ibid [16].
The appellant sought to draw an analogy with that case, on the basis that the sentencing judge should have invited the appellant to give evidence. Alexandridis involved a self-represented person. A significant issue was whether the appellant had been provoked before assaulting the victim and whether he should be allowed to rely upon that fact, if proved, in mitigation. Without evidence from the appellant there was insufficient evidence upon which the judge could have made a finding in the appellant’s favour. By not inviting him to make sworn evidence it was held that the appellant had been deprived of an opportunity to prove those mitigatory circumstances.
The appellant also relied upon R v Li.[22] That case involved sentencing for drug offences. There the judge in his sentencing judge made observations drawing upon his experience at the Youth Parole Board, relating to the increased supply of heroin and increased usage. On appeal, it was submitted that this was a finding of an aggravating fact that the appellant had not been given an opportunity to respond to. Although the Court found it unnecessary to decide whether the judge had relied on this as an aggravating factor, the Court said:
… it is none the less desirable to restate the principle (to which Charles JA adverted in R v Quach that it is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise. Procedural fairness requires no less. (Citations omitted).
[22][1998] 1 VR 637.
Both Alexandridis and Li are an expression of the hearing rule, that is, that an accused must be given an opportunity to respond to factors that may be used by the sentencing judge against him. The present case is unlike Alexandridis. The appellant was represented by counsel and the circumstances of the hearing made it quite clear that the appellant’s truthfulness at the plea was a central issue at the mention. Arrangements relating to the care of the child were quite obviously central to the resolution of that issue. Unlike the facts in Li, counsel would have been well aware that any evidence that bore on whether bail should be revoked should have been put before the Court. Instead, counsel for the appellant declined an opportunity to hear from the Informant and contest any aspect of his evidence as presented by the Crown. At the conclusion of his submissions he was expressly asked by the sentencing judge ‘Do you have anything more that you wish to say?’, and he declined. In those circumstances, it is simply incorrect to assert that counsel was prevented from making submissions as to the state of affairs relating to the child, or was unaware that he was at risk of an adverse finding as to bail arising out of those affairs. There has been no denial of procedural fairness in this regard.
A further breach of procedural fairness was said to arise when, following the ruling revoking bail, the appellant through his counsel, sought leave to address the court. We were told that he had wished to explain why he did not inform the court of the arrangements he had made concerning care of his daughter.
On the question of bail, the learned judge was under no obligation to hear further from the appellant after giving her reasons and making her order, particularly where the appellant was represented. Any submission and evidence, whether given from the bar table or otherwise relating to the revocation of bail, should have been advanced before her reasons were given and a ruling made. We do not stay to consider whether actual refusal to hear from the appellant constituted a denial of natural justice, as the course followed at the special mention contributed to a denial of procedural unfairness in the sentencing process.
The hearing had been brought on through the irregular exchange of emails. Her Honour at some stage formed the clear view that she had been deceived by the appellant. Particular care was thereafter called for to ensure that, despite such a view, there was no departure from procedural fairness. The purpose of the hearing should have been articulated. It was never stated. As it transpired, the information was not only relevant to the question of bail but bore upon the question of sentence. The failure to clearly state the purposes of the hearing contributed to the errors that followed. It would have served to remind the learned sentencing judge that as the evidence was relevant to the question of sentence, the appellant had to be afforded an opportunity to explain or deal with the further facts that had emerged, before he was sentenced. Instead, her Honour, having refused to hear from the appellant, indicated that she did not expect any further material to be furnished prior to sentence. Neither party at any time drew these considerations to her Honour’s attention. It may be that counsel for the appellant understood her Honour’s final remarks at the bail hearing as foreclosing the right to make any further submissions. The appellant’s counsel should have drawn the need for further submissions to her Honour’s attention, regardless of his perception of how the sentencing judge might have reacted to any further submissions to that effect.
The real gravamen of the appellant’s complaint as it emerged in oral argument is two fold. First, that the sentencing judge gave the appellant no forewarning that, as a consequence of the information provided at the special mention, she was contemplating making certain findings of fact that could not reasonably have been anticipated. Thus it was submitted that her Honour was obliged to afford the appellant an opportunity to make submissions and adduce evidence as to those matters. Second, the appellant was sentenced on the basis of incorrect inferences that her Honour drew from the facts placed before her at the special mention.
It was contended that her Honour made the following erroneous findings on sentence. First that the child was in the care of its mother in China (as opposed to the appellant’s mother). This conclusion seems to be based upon information from the Office of Corrections. It is not evident from the material provided to this court that counsel for the appellant had any forewarning that the sentencing judge had such information and was intending to rely upon it. Second ,that the appellant had no ongoing role or interest in caring for his child and had misled the court solely to avoid a custodial sentence. Thirdly that his misrepresentation as to the child’s circumstances showed that he had no remorse for his offending conduct. It was said that these errors were in part a consequence of the sentencing judge’s refusal to hear from the appellant and his counsel.
In Ucar v Nylex Industrial Products Pty Ltd[23] this Court referred to the obligation of a judge to provide a party with an opportunity to be heard in the following circumstance:
Where the risk of an adverse finding being made does not necessarily inhere in the issues to be decided or where the facts or the inference which the judge contemplates drawing from the facts and which gives rise to such a risk is unknown to the party, the fundamental rule of fairness requires the decision-maker in some way to draw attention to the existence of that risk.[24]
[23](2007) 17 VR 492.
[24]Ibid [43].
The respondent has rightly conceded that the sentencing judge erred in not raising these potential findings with counsel. They could not have reasonably been anticipated. As to the finding that the appellant had no interest in the raising of his child other than for the purpose of avoiding a custodial sentence, no such submission was advanced by the Crown. It was not supported by any evidence and was contrary to the evidence, accepted by the Crown, that the appellant had been the primary or sole carer of the child up to and during the period of his offending. There was no evidence to suggest that the appellant did not care for his child or that he did not intend to continue to care for her as soon as he regained his liberty. The fact that he misled the Court, by suggesting that no one else could care for his daughter in an attempt to avoid custody, did not permit such inferences to be drawn.
Second, the conclusion that the child was with her biological mother in China, rather than her grandmother, had no evidential foundation. Although the biological mother took the child to China, the Crown appeared to accept that the child was with her grandmother in China as the appellant alleged. The fact that the appellant, at very short notice, was able to arrange for the child to be returned to Australia supported the conclusion that he remained responsible as the child’s primary carer. We shall later deal with the finding that the appellant had no remorse.
The failure of the sentencing judge to afford the appellant an opportunity to deal with the adverse findings that she contemplated making constituted a denial of procedural fairness. As the rule of natural justice is concerned with the fairness of the procedure adopted, rather than with the fairness of the outcome,[25] it is not necessary for the appellant to show that had he been afforded an opportunity to address these issues the outcome would have been different. In any event, in this case it plainly cannot be said that it would have made no difference had the appellant been given an opportunity to address these issues.[26] Those errors conceded by the respondent, would probably have been avoided, had her Honour raised her potential findings with counsel.
[25]Ibid [57].
[26]Ibid [85]-[97].
It is evident from the sentencing remarks that these findings were central to her Honour’s reasoning in revoking bail and in subsequently imposing a custodial sentence. The sentencing judge was undoubtedly substantially influenced by her conclusion that the appellant had no interest in caring for his daughter as well as her conclusion that he had only raised his responsibility to care for the child because he sought to avoid imprisonment. As we have said, these findings went beyond that which the evidence permitted. To the extent to which the conclusion that the appellant, despite his plea of guilty, had no remorse at all, was based on the impugned findings, it was also in error.
Finding of fact relating to use of money
It was submitted that the sentencing judge erred in her findings concerning how the money obtained by the appellant had been used. Counsel for the appellant referred the Court to that part of her Honour’s sentencing remarks where her Honour found that the appellant had used the money obtained to make payments on two cars, to maintain an office and to gamble substantial sums.
It was said that the Crown conceded that the material was consistent with some of the persons in whose names fraudulent applications had been made having co-operated with the frauds. Consequentially, Counsel submitted that it was not open to find on the requisite standard that the appellant had exclusively used the money for his own benefit.
The relevant passage in her Honour’s reasons is at paragraph [17] where her Honour said:
There was clear evidence of enrichment by your [sic] from your activities. During the 12 months of this offending you received Centrelink payments, at the same time you made mortgage repayments on the apartment where you live and also rented a Docklands apartment, you purchased a BMW and a Mercedes Benz on a hire purchase and you lost about $90,000 gambling. I am not satisfied that it was the pressure of debt that led you into this offending in the first place, but was motivated by greed on your part.
These words do not support the submissions made on behalf of appellant. Her Honour did not conclude that the appellant had exclusively used the money for his own benefit. There was simply a finding that the appellant had been motivated by greed. That finding was plainly open on the facts.
Re-sentencing the appellant
The maximum penalty for attempting to obtain a financial advantage by deception, contrary to 321P of the Crimes Act 1958 is five years’ imprisonment. Obtaining financial advantage by deception contrary to s 82(1) of the Crimes Act 1958 is ten years’ imprisonment. Theft, contrary to s 74(1) of the Crimes Act 1958 is ten years’ imprisonment.
The appellant was born on 13 March 1963 and was 42 to 43 years of age at the time of the offences. The appellant was aged 45 years at the time of sentence. The appellant had one prior conviction, for a breach of the Migration Act relating to practicing as a migration agent before being properly qualified.
The appellant was born in China, and after suffering re-education and public humiliation for rebelling against the Communist Party, emigrated to Australia in 1987. Following some study, and a period working as a political activist in support of students staging a process in Tiananmen Square, the appellant then engaged in different employment including working as a tool sharpener, as an employee of a migration service and later as a migration agent. Over the period 1995 to 2002 the appellant started three unsuccessful business, involving exporting long life milk to China, importing white goods from China and foreign exchange.
The appellant has two children. The first, Annie, was 14 years at the time of sentencing and is largely supported by her mother and her husband. Apparently there is some conflict between Annie and her mother and she is supported by the appellant at these times, spending large periods of time residing with the appellant in the past. The second is Katie, whose care was the matter of the controversy before the sentencing judge.
The appellant referred the Court to a number of factors that, it was said, should lead to the imposition of a lighter sentence. These were the plea of guilty, the appellant’s lack of prior criminal history, the fact that the appellant was the carer of his younger daughter, and the appellant’s prospects of rehabilitation.
Misleading conduct on the plea- relevance to remorse
It was in anticipation of the conclusion that her Honour had been misled, that the appellant submitted that this Court should not find that such deception was a matter that went to the remorse of the appellant. We do not agree. Her Honour was entitled to reduce the discount to be given for a guilty plea, on the basis that the appellant’s deception indicated some lack of remorse.
A guilty plea may indicate full remorse, where it demonstrates a willingness on the part of the convicted person to accept the punishment that is justly warranted for the offence. Where an attempt is made to deceive the Court for the purpose of obtaining a lesser sentence than that which justice requires, it cannot be said that there has been an unqualified desire to submit to just punishment for the offence. It is not uncommon that a sentencing judge may conclude that the offender has been misleading as to or has exaggerated some mitigatory circumstance relied upon. The case of R v Rogers[27] is a recent illustration of such circumstances. There, the appellant had advanced explanations for his offending conduct during the course of the plea which the sentencing judge found to be false and which led the judge to conclude that he had no remorse despite his plea of guilty. Ashley JA with whom Maxwell ACJ and Lasry AJA agreed, whilst recognising that the issue ‘was not clear cut’ and that it was certainly arguable that ‘it went too far to use them as a basis for a finding of absence of all remorse,’ said that the false exculpatory accounts for his offending told quite powerfully against the appellant being remorseful. He considered it open to the sentencing judge to have concluded that the immediacy of the false explanations were contra indicative of the inference of remorse to be drawn from the plea of guilty.[28]
[27][2008] VSCA 114.
[28]Ibid [48]-[52].
In the present case the deception did not relate to any aspect of the offending but to one aspect of the personal circumstances of the applicant. We doubt that the deception supported the inference that the appellant had no remorse at all. Rather, the discount for a plea of guilty was to be reduced to reflect the extent to which the offender’s remorse was qualified by such conduct. And that part of the discount for the guilty plea that was to be afforded on utilitarian grounds, was not to be reduced.[29]
[29]R v Pajic [2009] VSCA 53.
An attempt to mislead the Court may also demonstrate that the offender has not fully recognised the moral wrong of his conduct. It will be relevant to the offender’s prospects of rehabilitation and have a particular significance in the case of sentencing for offences of dishonesty. It may also bear upon the need for greater special deterrence.
Although the sentencing discretion has been reopened we are not satisfied that a different sentence should be passed. The frauds committed by the appellant were carefully and cleverly conducted over a sustained period of time, and involved a number of innocent persons. The amounts of money involved were not small. These were objectively serious offences. The applicant had access to personal information of numerous persons which he used, or attempted to use, for fraudulent purposes. He was what may be described as a proficient fraudster[30] who had armed himself with an array of false documents which revealed such a degree of planning and sophistication as to bespeak a high level of objective criminality. Insentencing for offences of this nature general deterrence is an important factor. Specific deterrence is also an important consideration where there is a pattern of fraudulent activity using falsely created documents over an extended period.
[30]R v Tadrosse (2005) 65 NSWLR 740.
We are satisfied that the frauds and attempts were committed for selfish purposes. Like the sentencing judge we take into account that there was a further attempt to deceive following the plea of guilty. This reflected the fact that the appellant was not fully remorseful for his conduct. It also detracted from a more positive conclusion about his prospects for rehabilitation. In our view, the individual sentences imposed were very lenient and led to both a total effective sentence and non parole period, which we consider to be merciful and towards the lower end of the appropriate range of sentences available.
The appeal must be dismissed.
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