R v Monahan
[2001] VSCA 69
•8 May 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 217 of 2000
| THE QUEEN |
| v. |
| REX ANTHONY MONAHAN |
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JUDGES: | PHILLIPS, BATT and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 May 2001 | |
DATE OF JUDGMENT: | 8 May 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 69 | |
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Sentencing – “White collar” crime – Obtaining financial advantage by deception, etc. and failing to disclose bankruptcy – Use of fictitious director and forged power of attorney – Conduct extending over a period – Preliminary steps taken in anticipation of bankruptcy - Sentence of 18 months suspended as to 14 months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | Solicitor for Public Prosecutions |
For the Applicant | Mr. C. Dane, Q.C. | Michael J. Gleeson & Associates |
PHILLIPS, J.A.:
This is an application for leave to appeal against sentence imposed in the County Court on 11 August 2000. The applicant, who was 50 years of age at the time of the offending now in question, had no previous convictions. He was presented in the County Court on two counts of making a false document (counts 1 and 7) and one of using a false document (count 2), one count of obtaining property by deception (count 3), one of obtaining financial advantage by deception (count 4), one count of obtaining credit while a bankrupt without disclosing the bankruptcy (count 5) and one count of carrying on business while a bankrupt under an assumed name and without disclosing the bankruptcy (count 6). After a trial lasting some nine days, during which the applicant did not give any evidence or call any evidence, the applicant was acquitted by direction on counts 1 and 2, that is, on one count of making a false document and the count of using a false document, but was found guilty on counts 3 to 7. The maximum penalty for the offences of which the applicant was convicted was ten years' imprisonment, save for the two bankruptcy offences. They carried a maximum term of three years' imprisonment.
A plea in mitigation was made on behalf of the applicant by counsel. A psychiatrist's report dated 24 July 2000 was put in evidence, as were three testimonials as to his character. Viva voce evidence was called from one Bradfield, the racecourse manager for the Victoria Racing Club at Flemington. Some days after the plea, the applicant was sentenced as follows: on each of the two counts of obtaining property by deception and obtaining financial advantage by deception, to 14 months' imprisonment; for obtaining credit while a bankrupt without disclosing bankruptcy, to one month's imprisonment; for carrying on a business while bankrupt under an assumed name and without disclosing bankruptcy, to four months' imprisonment; and for making a false document, to eight months' imprisonment. All sentences were ordered to be served concurrently save that four months of the sentence of eight months was to be served cumulatively, making a total effective sentence of 18 months' imprisonment. Of that, however, the judge directed that 14 months should be suspended for a period of three years. There was pre-sentence detention declared of 14 days. Save for those 14 days the applicant had been on bail awaiting trial.
It is from those sentences that the applicant now seeks leave to appeal. The circumstances of the offending are set out in detail in the summary of evidence with which we have been supplied by the Solicitor for Public Prosecutions for the purpose of this application. The judge, of course, was well alive to the evidence, having sat through nine days of trial. If the circumstances of the offending were now to be described within reasonable compass I would simply be repeating what the sentencing judge said in his careful and comprehensive sentencing remarks, and I refer in particular to pages 30-33 of the transcript of 11 August 2000. In those sentencing remarks the judge set out, too, the personal circumstances of the applicant relative to his sentencing task, and again it would be a waste of time simply to repeat what was set out so satisfactorily there.
In his notice of application the applicant set out seven grounds of appeal, two of which are no longer argued. For the rest, grounds 1, 4 and 6 complain that the judge did not give sufficient weight to the applicant's age and previous good character, that the judge gave undue weight to the need for specific deterrence, and that the judge gave undue weight to the applicant's background and commercial experience. All these factors were considered by the judge in his sentencing remarks and so each of these three grounds is, in effect, a particular of ground 7, that the sentences imposed were manifestly excessive.
Ground 2 is in different case. It complains that the judge erred in finding "that the applicant's problems with alcohol and depression had no causal effect on his offending". In argument this morning, counsel explained that this meant not that the alcohol and depression were the immediate cause of the offending but that they had led to the bankruptcy, which in turn had led to the applicant's offending. The crux of the offending, said Mr Dane, was that the applicant, knowing that he could not obtain credit because he was bankrupt, set out to circumvent the law by illegal means. In that sense the bankruptcy was a cause of the offending, just as alcohol and depression were causes of the bankruptcy.
In my view the sentencing judge made no specific error in this regard. His Honour said:
"Given the nature of your offending I conclude that these personal difficulties are not likely to have had a substantial causal effect on your wrongdoing. I conclude that it was the failure of your business enterprises and your inability to maintain the lifestyle previously associated with them that led you into crime."
With respect, this was plainly right. The applicant set out, before bankruptcy, to set up a company with a non-existent or fictitious director (named Thompson) and his then companion Ms Hartman as the other director, in order to establish a means of circumventing the consequences of his bankruptcy, which was then anticipated, should such a means be needed. That was in 1994. In April 1996 he put into effect the deception by which he obtained $30,000 on credit by leasing back a car he first sold to a finance company. In November 1996 he used the false power of attorney from the fictitious Thompson to support his bona fides with the credit provider. As the judge said, the cause was the applicant's desire to maintain a lifestyle despite his bankruptcy.
In its submission on this application the respondent described the offending shortly in this way. The applicant committed the offences because he knew he was bankrupt. His creating of Thompson, recruiting Ms Hartman as a director of the company, entering into the arrangement with the finance company having prepared documentation that the applicant knew contained false information and forged signatures, the creation of a fictitious power of attorney and use of it nine months after its creation, demonstrated specific conduct by the applicant over a period of time. In my opinion, that conduct amply justified this comment by the judge when sentencing: "Your offending was detailed, carefully planned and executed with some skill." The cause was not bankruptcy; bankruptcy was but the occasion for the offending. As the judge said, it was no more the cause than was the alcohol or the depression which, as counsel put it, led to the bankruptcy. In my opinion the specific error asserted in ground 2 cannot be established.
There being no specific ground of error, the question remains whether the sentences were manifestly excessive. Here, Mr Dane made a valiant attempt, in his usual forthright manner, to persuade us to the conclusion that they were, but in my opinion, the submission should be rejected. Mr Dane stressed the age, the unblemished record of the applicant, the difficulties that led him to bankruptcy and his repaying the money lent save for $8,000 (however that sum was finally calculated) - all of them matters considered by the sentencing judge. At the end of the day, this Court has power to intervene on the ground of manifest excess only if we consider that the sentences imposed below lay outside the range of sentences reasonably open to the sentencing judge in the proper exercise of the sentencing discretion. Accepting that, Mr Dane submitted that for such a sum as $8,000 an immediate custodial sentence was simply not open but I am not persuaded; all of the circumstances must be regarded. I do not say that the judge must have sentenced the applicant as he did, but in my opinion it was clearly open to him. Indeed, I consider that in some respects his Honour was merciful. After all, there were five counts on which the applicant was convicted, involving conduct over a significant period of time, and, as the judge said, “[the] offending was detailed, carefully planned and executed with some skill”. Mr. Dane did not make submissions in respect of the individual sentences imposed; he focussed rather on the end result. But in my opinion a sentence of 18 months' imprisonment which was then suspended as to all but four months was not outside the range properly open.
When first I read the sentencing remarks below it seemed to me, if I may say so with respect, that they were unexceptionable. Despite Mr Dane's able arguments, I remain of that view.
In my opinion the grounds of appeal are without merit and I would refuse the application for leave to appeal accordingly.
BATT, J.A.:
I agree.
CHERNOV, J.A.:
I also agree.
PHILLIPS, J.A.:
The order of the Court is:
The application is dismissed.
(Discussion ensued as to time served.)
PHILLIPS, J.A.:
Does the Crown agree that a further 26 days has been served?
MS PULLEN:
We do agree that those 26 days have been done.
PHILLIPS, J.A.:
Can I ask you, Ms Pullen, to see that he gets credit for the 26 days?
MS PULLEN:
We will notify Corrections, Your Honour.
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