R v Hou - [2010] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 911 of 2009

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hou

Details

AGLC: R v Jian Hou [2010] VSCA 36
Case: [2010] VSCA 36
Decision Date: 23 February 2010

CaseChat Overview and Summary

The case of R v Hou involved the defendant, who was convicted of multiple offences including providing false information and documents to a reporting entity, possessing false documents, 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, and possessing a prohibited weapon. The defendant was sentenced to a total effective term of imprisonment of 2 years and 3 months. The defendant appealed against the sentence, arguing it was manifestly excessive, and claimed parity with another participant in the criminality, who received a lesser sentence. The defendant argued the absence of evidence about the basis for sentencing the other participant made it difficult to assess the disparity.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether there was a parity issue with another participant. The court was also required to consider if the sentence constituted double punishment. The court examined the nature and seriousness of the offences, the need for general and specific deterrence, and the principles of parity and double punishment. The court noted that the sentencing judge had carefully considered the defendant's offending and imposed a sentence within the appropriate range. The court concluded that the sentence was not manifestly excessive and there was no parity issue because the other participant was charged under different legislation and the reasons for the different sentences were not before the court.

The court found that the defendant's sentence was appropriate given the circumstances and the need for general and specific deterrence. The court held that the absence of evidence about the basis for sentencing the other participant did not render the sentence unfair or constitute double punishment. The court dismissed the defendant's appeal against the sentence. The reasoning of the court was that the sentencing judge had appropriately exercised their discretion and that there was no basis to interfere with the sentence imposed. The court's decision was based on the particular facts and circumstances of the case, and the principles of sentencing and appeals law.

Orders