R v Hou
[2010] VSCA 36
•23 February 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 911 of 2009
| THE QUEEN |
| v |
| JIAN HOU |
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JUDGES: | REDLICH, HARPER JJA and HABERSBERGER AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 & 23 February 2010 | |
DATE OF JUDGMENT: | 23 February 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 36 | |
JUDGMENT APPEALED FROM: | R v Jian Hou, Unreported 12 November 2009, County Court of Victoria (Judge Punshon) | |
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CRIMINAL LAW – Sentencing - Providing false or misleading information and documents to a reporting entity - Possession of a false document - Obtaining property by deception - Providing a false foreign travel document - Possessing a forged document - Using a forged document - Procuring the use of a motor vehicle through fraud - Possessing a prohibited weapon – Sentenced to a total effective sentence of 2 years and 3 months’ imprisonment – Whether sentence imposed on all counts was manifestly excessive – Parity – Effect of a lesser sentence passed on another participant in the applicant’s criminality but charged under different legislation – Absence of evidence about the basis for sentencing the other participant – Whether double punishment – Application for leave to appeal against sentence dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr D Gurvich | Commonwealth Director of Public Prosecutions |
| For the Applicant | In person |
REDLICH JA:
HARPER JA:
HABERSBERGER AJA:
(The Court’s reasons for judgment were delivered by Harper JA.)
The applicant, Jian Hou, was on 24 September 2009 arraigned and entered pleas of guilty to 21 counts on a presentment dated 22 September 2009. He was remanded in custody to appear in the County Court on 26 October 2009 for a plea hearing. On 27 October 2009, following argument about whether some of the counts were bad for duplicity, the respondent filed over a new 19-count presentment. The applicant was then re-arraigned and pleaded guilty to all 19.
Of these, 15 counts alleged offences against the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth). They in turn were further divided. Five alleged the provision by the applicant of false or misleading information to a reporting entity, contrary to s 136(1) of the Act; nine alleged the provision of false or misleading documents to a reporting entity, contrary to s 137(1); and one alleged the possession by the applicant of a false document, contrary to s 138(3).
The remaining four counts were more disparate. One alleged that the applicant obtained property by deception, contrary to s 81(1) of the Crimes Act 1958 (Vic); one alleged that he provided a false foreign travel document, contrary to s 22(1) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth); and there was one count of possessing a forged document, contrary to s 145.2 of the Criminal Code (Cth), and one of using a forged document, contrary to ss 145.5 of that Code.
The respondent also sought to have five summary charges determined pursuant to s 359AA of the Victorian Crimes Act. These included three charges of providing false or misleading documents, contrary to s 137.2 of the Criminal Code; one charge of procuring the use of a motor vehicle through fraud, contrary to s 69(a) of the Road Safety Act 1986 (Vic); and one charge of possessing a prohibited weapon, contrary to s 5(1)(e) of the Control of Weapons Act 1990 (Vic).
The charge of using a forged document contrary to s 145.5 of the Criminal Code carries a maximum penalty of 7 years’ imprisonment. The maximum sentence of imprisonment which may be imposed in relation to each of the remaining 18 counts is 10 years. The summary charge of possessing a prohibited weapon carries a maximum penalty of 2 years’ imprisonment; the charges of providing false or misleading documents carry a maximum penalty of 12 months’ imprisonment; and the charge of procuring the use of a motor vehicle through fraud carries a maximum penalty of 2 months’ imprisonment.
Sentence was pronounced on 12 November 2009. On count 1 (a rolled up count of providing false or misleading information) the applicant was sentenced to 10 months’ imprisonment to commence immediately. On count 2 (a rolled up count of providing false or misleading documents) the applicant was sentenced to 12 months’ imprisonment to commence immediately. On count 3 (a rolled up count of providing false or misleading information) the applicant was sentenced to 12 months’ imprisonment to commence in three months’ time. On count 4 (another rolled up count of providing false or misleading documents) the applicant was also sentenced to 12 months’ imprisonment to commence in three months’ time. On count 5 (a rolled up count of providing false or misleading information) the applicant was sentenced to 12 months’ imprisonment to commence in six months’ time. On count 6 ( a rolled up count of providing false or misleading documents) the applicant was also sentenced to 12 months’ imprisonment to commence in six months’ time. Count 7, a single transaction count of providing false or misleading documents, resulted in a sentence of 6 months’ imprisonment to commence immediately. Count 8 alleged another single transaction, this time resulting in a count of providing false or misleading information. The applicant was sentenced to 6 months’ imprisonment to commence immediately. Count 9 was another single transaction count, this time of providing false or misleading documentation. It too resulted in a sentence of 6 months’ imprisonment to commence immediately. On count 10 (a rolled up count of providing false or misleading documents) the applicant was sentenced to12 months’ imprisonment to commence in nine months’ time. On count 11 (a rolled up count of providing false or misleading information) the applicant was sentenced to 12 months’ imprisonment to commence in 12 months’ time. Count 12 was a single transaction count of providing false or misleading documents. The applicant was on this count sentenced to 6 months’ imprisonment to commence immediately. Count 13 was another single transaction count of providing false or misleading documents. It resulted in a sentence of 6 months’ imprisonment to commence immediately. Count 14, another single transaction count of providing false or misleading documents, resulted in a sentence of 6 months’ imprisonment to commence in 21 months’ time.
Count 15 alleged an offence against the Crimes Act 1958 (Vic). The applicant was, on that count, sentenced to 12 months’ imprisonment. The effect of State law was that it commenced immediately. Count 16 (a rolled up count of providing false foreign travel documents, contrary to the Foreign Passports (Law Enforcement and Security) Act) resulted in a sentence of 12 months’ imprisonment to commence immediately. Count 17 alleged the use of a forged document, contrary to the Criminal Code. The applicant was on this count sentenced to 3 months’ imprisonment to commence immediately. On count 18, that of possessing two forged documents, contrary to the Code, the applicant was sentenced to 8 months’ imprisonment to commence immediately. Finally, on count 19 (that of possessing four false documents, contrary to the Anti-Money Laundering and Counter Terrorism Financing Act 2006, the applicant was – as with count 18 - sentenced to 8 months’ imprisonment to commence immediately.
On each of the three summary charges of providing a false or misleading document the applicant was sentenced to 2 months’ imprisonment to commence immediately. On the summary charge of procuring the use of a motor vehicle he was sentenced to 14 days’ imprisonment to commence immediately; and on the summary charge of possessing a prohibited weapon he was fined $200.
As the learned sentencing judge noted in his sentencing remarks, there is a considerable degree of artificiality in structuring the total effective sentence from such a conglomeration of disparate sentences. His Honour continued:
There is a need for orders for effective accumulation, but I have tried to focus on the fact that your offending essentially involves a course of conduct over a considerable period. The total effective sentence is intended to reflect your criminal culpability over this period, paying regard to your personal circumstances.
The sentences and the structure employed makes for a total effective sentence of 2 years and 3 months’ imprisonment. I order that you be released after serving a period of 18 months’ imprisonment on your entering into a recognisance in the sum of $3,000 to be of good behaviour until your sentence has been completed, which will be nine months after your release.[1]
His Honour noted that, had the applicant not pleaded guilty, he would have imposed a total effective sentence of ‘about 33 months’ imprisonment’; and he ‘possibly would have ordered your release on recognisance after serving about 2 years’ imprisonment’.[2]
[1]Sentencing remarks paras [69] and [70].
[2]Ibid, para.[73].
According to his notice of application for leave to appeal against sentence, the applicant relies on the single ground that the sentence imposed on all counts was manifestly excessive. The relevant notice of application for leave to appeal against sentence was filed on 25 November 2009 by solicitors then acting for the applicant. They no longer act, and the applicant appeared in person on the hearing of the application. He did not file an outline of submissions. It became clear, however, that he wished to argue two points: first, that the total effective sentence passed upon him was so much greater than that passed on another participant in the applicant’s criminality, a man known as Steven Wong, as to warrant the applicant being given a lesser sentence; and, secondly, that the sentence was manifestly excessive.
Although the points were narrow ones, the applicant told the Court that he had only received the appeal book a few days beforehand, leaving him with insufficient time to absorb its contents. He sought further time before putting his full submissions to us. The Court accordingly adjourned from Thursday 11 February until Tuesday 23 February this year to enable him to do that. Having now heard all that the applicant wishes to put to us, we are in a position to deliver judgment on the application.
The applicant, a Chinese citizen, arrived in Australia on 18 December 2005, holding a valid student visa. That, and a bridging visa with which he was subsequently issued, have since expired. He thereafter remained in Australia illegally. That, however, is not a fact that is relevant to the offences currently before the Court.
The prosecution prepared, for the purposes of a plea, a summary of the applicant’s offending. His Honour adopted that summary in his sentencing remarks. We likewise adopt it. It was to the effect that the applicant engaged in a sophisticated and carefully planned course of conduct that required significant effort over considerable time. During that period, the applicant assumed four false identities. The starting point was the possession of counterfeit Chinese passports, which were used to obtain false Victorian driver’s licences. These primary identification documents together with counterfeit Medicare cards were then used to apply for and open bank accounts and obtain credit with seven different financial institutions, as well as applying for motor vehicle finance. To make these false identities appear legitimate, and satisfy the employment and income requirements of various financial institutions concerning credit, the applicant used a series of employers, with genuine addresses. Fraudulent payslips were also used. In addition, the applicant provided false residential details, including genuine locations, to further the deceit. He relied, too, on mail redirecton services to post boxes set up with fictitious identities, and employed fraudulently altered telephone bills to verify false addresses. The false identities were assigned various mobile telephone numbers subscribed to under the applicant’s real name, under aliases, and under other fictitious names.
In all, the applicant, using false identities, made 26 applications for financial accommodation of one kind or another. The result was the opening of 19 accounts in false names. By these means, the applicant obtained credit totalling $23,500. He also obtained motor vehicle finance with which he purchased a vehicle valued at slightly more than $30,000. In addition, he opened two TAB accounts after submitting to Tabcorp Holdings applications which to his knowledge contained false personal and employment particulars.
The plea hearing was spread over four days. In the course of it, the respondent made submissions about the appropriate sentencing range in respect of each count, and submitted that a total effective sentence of between 4 and 6 years’ imprisonment would be appropriate, with a non-parole period or its equivalent of between 2 and 3½ years.
The sentencing remarks of the learned sentencing judge were thorough and carefully considered. His Honour took into account all relevant mitigatory circumstances, including the applicant’s guilty plea and his admissions, his absence of prior convictions, his prospects of rehabilitation and his relative youth. These, however, were to be balanced against the need for general deterrence and the need to impose a sentence which was just and appropriate having regard to the offending as a whole. In this context, it is appropriate to note that his Honour’s remarks were consistent with a passage in the judgment of this Court in The Queen v Raad:[3]
Importantly, criminal conduct of this kind strikes at the heart of the way in which ordinary commercial transactions are now conducted. When it is carefully planned and engaged in on a large number of occasions, it often requires stern punishment in which general deterrence plays a large part.
[3](2006) 15 VR 338, [34].
Other relevant matters were also taken into account by his Honour. He correctly observed that nine of the 19 counts were rolled up counts involving multiple allegations, each of which might have been charged separately. His Honour also took into account that the offending involved a ‘sophisticated and carefully planned course of conduct that required significant effort over considerable time’ – a period of almost two years from December 2006 to October 2008. Nevertheless, although the applicant’s conduct was ‘serious, repetitive and sustained over a considerable period, … the objective was principally financial and the sums obtained not great’.
In our opinion, his Honour took into account all relevant matters and was correct in concluding that a sentence of immediate imprisonment was required. Moreover, the total effective sentence of 2 years and 3 months’ imprisonment was in our opinion merciful.
As we have indicated, the principal argument put up by the applicant was that a person known as Steven Wong, who was part of the same network with which the applicant was involved. He was charged under State legislation with different but analogous offences. He was then prosecuted in the Magistrates’ Court. The applicant relies on the fact that Mr Wong was sentenced to only 12 months’ imprisonment.
Mr Wong’s position was raised with his Honour during the course of the applicant’s plea. At pages 167 to 169 of the plea transcript, his Honour summarised the discussion concerning Mr Wong’s position in the following terms:
You [counsel for the applicant] relied upon penalties imposed on Steven Wong, who was dealt with in the Magistrates’ Court and I was told that Mr Wong was part of the same network … that Mr Hou was involved in, there was some overlap in the offending. However, you did not tender any documents … [and] the information I was given did not enable me, it seemed, to make any real assessment of what this network, as it was described, consisted of or precisely where Mr Hou might fit into it.
Much of the offending concerning that with which Mr Wong was dealt was similar to the current matter. However, Mr Wong obviously was charged with different offences. The offending was similar but the offences are different and obviously dealt with under a different sentencing regime and, although I would pay regard to the penalty imposed upon him, that is, 12 months’ imprisonment, my current thinking is that I would accept the prosecution’s submission that he is not to be regarded as a co-offender activating strict parity considerations, and therefore I would need to be very guarded about drawing some sort of comparison between what Mr Wong was involved in and what [the applicant] was involved in. So if there was going to be some parity argument pursued, it would need to be fleshed out much more than it has been.
I think you were really putting the submission to me on the basis that I should pay regard to what happened to Mr Wong but I do not think you are making any submission about parity of treatment as such, so we can come back to that.
Perhaps I should just sum up what I think my position is, with respect to Mr Wong, and that is that the submission made by you [counsel for the applicant] seems to acknowledge that Mr Hou and Mr Wong were, in some way, part of some network. Now that is probably an irresistible inference on the material in any event, but the critical thing, from my perspective, is [that] … on the material before me, I would find it impossible to draw any safe conclusions about the extent or precise nature of the network or Mr Hou’s position in any hierarchy, if one existed, or his precise role in any network; so it is all of pretty limited significance, it seems to me.
Having made those remarks, his Honour left the bench so that counsel for the applicant could speak to his client. After a short adjournment, counsel addressed his Honour on a number of matters, and then turned to Mr Wong. The following exchange occurred:
Counsel:In relation to Mr Wong, now I thought Your Honour was given a summary but in any event, Your Honour took note he was a direct co-offender in relation to one aspect of one of the counts against my client.
His Honour: Yes, there was an email that you pointed out to me, a text message or something … that showed (you argue) that they had been active together in one of the crimes.
Counsel:Yes, but … the text message was from Mr Wong to my client and contained a detail of a false identity which was then used by my client.
His Honour: Anyway … if Mr Wong was dealt with for that offending in the County Court, you would not expect that he would be subject of the same penalty; and we have the complication of Mr Wong receiving a straight sentence.
Counsel:Well, that is right.
His Honour: So even if he was a co-accused, which he is not in the strict sense even though there is some overlap, I am not bound by the sentence that was imposed upon Mr Wong and I do not understand you to be suggesting that I should impose 12 months’ imprisonment here. Your submission was that I should impose a period of imprisonment and fix or make an order that results in your client’s release either immediately or not too long to the future.
Counsel:Precisely, Your Honour.[4]
[4]Plea transcript, pp.174-175
Although counsel did not say so in terms, he in effect conceded that in this case principles of parity were not applicable. Given that the applicant’s counsel accepted that a sentence of imprisonment should be imposed, but that it should result in the applicant being released either immediately or not too long in the future, the result was one which accepted that submission.
The sentence his Honour imposed on 12 November 2009 will, assuming no new circumstances arise between now and next April, result in the applicant being released in that month on his entering into the necessary recognisance.
In our opinion, the applicant was afforded an appropriate opportunity by his Honour to clarify the position of Mr Wong. We nevertheless allowed the applicant today to address us further on any points he wished to make.
We were first taken to a document which was an exhibit before his Honour on the plea. It is headed ‘Police against Steve Wong: Statement of Material Facts’. After a caveat that it ‘is provided only as an aid to the prosecutor and does not form any part of the evidence of the hand up brief’, and an introduction setting out what was to be alleged against Mr Wong – together with something of his background – the document details the 68 charges then current against him. One of these in particular – charge number 52 – was relied upon by the applicant because it was common ground at the hearing of his plea that the alleged offence was one in respect of which the applicant was also charged, and to which he pleaded guilty. The description of Mr Wong’s part included the statement that Mr Wong ‘orchestrated’ the offending conduct. This demonstrated, the applicant submitted, that Mr Wong was in that instance more culpable than was the applicant. It also, he said, added weight to the proposition that Mr Wong was generally a more significant participant in the conduct and activities of the ‘network’ (to adopt a phrase employed by his Honour), and a more sophisticated criminal than was the applicant. Yet the applicant was punished more severely.
We do not understand why a sentence of 1 year’s imprisonment was imposed upon Mr Wong. In the light of the Statement of Material Facts which the police prepared at some point in his prosecution, the sentence does call for some explanation. But there may be such an explanation. We do not know how many (if any) of the charges referred to in the Statement of Material Facts were prosecuted in the Magistrates’ Court, let alone how many (if any) were found to have been proved. We do not know what was put to the magistrate by way of mitigating circumstances. In short, we have no means by which we can adequately assess the relevance of Mr Wong’s punishment to that imposed upon the applicant. Still less are we in a position to use his sentence as a touchstone for assessing the adequacy or otherwise of that to which the applicant has been subjected. We can say that, looked at in the light of the facts directly relevant to the applicant’s punishment, it was by no means manifestly excessive. And we can also say that his Honour gave the applicant, through his counsel, both a very fair hearing and every reasonable opportunity to put before his Honour all that the applicant wished to put to the Court.
The applicant further submitted that he may have been subjected to double punishment because the sentencing judge may have been misled, particularly in relation to count 19, into thinking that the applicant had pleaded guilty not only to possessing but also to using false documents. An examination of the transcript of the plea hearing, and of his Honour’s sentencing remarks, leaves us in no doubt that no element of double punishment was involved.
A somewhat similar submission was put in relation to the TAB accounts opened by the applicant. He submitted that his Honour may not have appreciated that the applicant merely opened those accounts. He did not subsequently put funds in or draw funds out of either of them. We are satisfied, however, that his Honour proceeded on the basis that that was so, and sentenced accordingly. We are also satisfied that his Honour did not sentence on the basis that in opening the accounts the applicant intended that they be used for money laundering purposes.
The applicant finally submitted that, given that he had no prior convictions, the sentences imposed upon him were manifestly excessive. We feel compelled to disagree. In our opinion, the sentences imposed were entirely appropriate.
In these circumstances, there is in our opinion no reason to think that his Honour’s sentencing discretion miscarried. It follows that the application for leave to appeal must be refused.
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