R v Zarrinkafsh
[2005] VSCA 22
•3 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 136 of 2004
| THE QUEEN |
| v. |
| ALI REZA ZARRINKAFSH |
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JUDGES: | VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 February 2005 | |
DATE OF JUDGMENT: | 3 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 22 | |
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Criminal law – Sentence – Using a false document – Obtaining property by deception – Obtaining financial advantage by deception – Whether total effective and individual sentences were manifestly excessive – Whether sentencing judge erred in imposing a suspended sentence rather than a parole period – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Carlin | K.Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Victoria Legal Aid |
VINCENT, J.A.:
The appellant pleaded guilty in the County Court, on 28 May 2004, to six counts of using a false document, being counts 1, 2, 3, 4, 6 and 9 on the presentment; three counts of obtaining property by deception, counts 5, 10 and 11; and two counts of attempting to obtain financial advantage by deception, counts 7 and 8.
After hearing a plea in mitigation of penalty the learned sentencing judge, on 4 June 2004, imposed the following sentences:
On each of Counts 1, 2, 3, 4, 6 and 9 - imprisonment for nine months.
On each of Counts 5, 10 and 11 - imprisonment for 15 months.
On each of Counts 7 and 8 - imprisonment for 12 months.
His Honour further directed that the period of one month of sentence imposed on each of counts 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 be served cumulatively upon each other and upon the sentence imposed on count 5. This created a total effective sentence of 25 months' imprisonment. He further ordered that the service of 12 months of that term be suspended for an operative period of three years. In addition to the standard declaration with respect to pre-sentence detention, his Honour directed that pursuant to s.5(2AB) of the Sentencing Act 1991, it be noted in the records of the court that the appellant had given an undertaking to assist the authorities. Finally he made an order pursuant to s.86 of the Sentencing Act in favour of the Australian and New Zealand Banking Group Limited in the sum of $27,500, and in favour of the Commonwealth Bank in the sum of $35,200.
Having been granted leave to do so the appellant now appeals against the sentences imposed upon him on the grounds that:
(1)The individual sentences, total effective sentence, the custodial portion of the sentence, and the operational period of the suspended sentence are all manifestly excessive in the light of:
(a)the appellant's youth and immaturity,
(b)his plea of guilty,
(c)his subordinate role in the offending,
(d)his co-operation and undertaking to give evidence for the prosecution,
(e)the delay between the commission of the offences and the appellant being sentenced.
(2)The learned sentencing judge erred in cumulating part of the sentences imposed on Counts 1, 2, 3, 4, 6 and 9.
(3)The learned judge erred in imposing the suspended sentence rather than a period of parole.
The circumstances of the offence
Count 1
On 2 November 2000, the appellant used a false Iraqi birth certificate in the name of Nazem Amir Al Abboudi to obtain a Victorian Driver’s licence in that name.
Count 2
Using the same name and birth certificate and the driver’s licence, the appellant then opened an account at the Bank of Melbourne on 23 November 2000.
Count 3
Using the same name and documents he opened an account at the St George Bank on 19 January 2001.
Count 4
Another bank account was opened in the same fashion at the Commonwealth Bank on 19 January 2001.
Count 5
The appellant then applied for a personal loan over the Internet for the purchase of a motor vehicle. The purchase price of the vehicle was $22,000 and the loan sought was in the amount of $19,500. As part of the processing of this application he attended at the Camberwell branch of the Commonwealth Bank, on 9 February 2001, and produced two false pay slips, a false Australian and New Zealand Banking Group statement, a false letter of introduction from an employer, and provided the false name of Jenny Davey as his nearest relative or friend. His application for a loan was accepted and the account that he had opened in the name of Al Abboudi at the bank was, on 9 February 2001, credited with $19,401. On the same day he made three withdrawals from that account totalling $19,200.
Count 6
Using the false birth certificate and Victorian driver’s licence earlier mentioned, on 8 March 2001, the appellant opened an account at the TAB in the name of Al Abboudi.
Count 7
Between 5 March 2001 and 7 March 2001 a National Australia Bank cheque book was issued to a restaurant business in Camberwell from which it was stolen. On 7 March 2001, a cheque from that book was deposited into the Al Abboudi account at the St George Bank in the sum of $24,000. However negotiation of the instrument was stopped when the bank realised that the book had been stolen. The appellant's fingerprints were identified on the deposit slip.
Count 8
On 21 March 2001 four cheque forms were stolen from a business known as Prime Electronics in Queensland. On 26 March 2001, one of them was deposited into the Al Abboudi St George bank account. The amount of this cheque was $42,630.55. However, it was dishonoured before the funds were withdrawn. Again the appellant's fingerprints were discovered on the bank deposit slip.
Count 9
On 5 April 2001, the appellant, using the false Iraqi birth certificate and Victorian driver's licence employed on earlier occasions, opened an account at the ANZ bank in the name of Al Abboudi. He produced bank cards that he had obtained from the Commonwealth and St George Banks as proof of identity.
Count 10
On 1 May 2001, a National Australia Bank cheque book was issued to an entity called Metro Span Developments. Subsequently, several cheques were reported to the bank as having been stolen. On 2 May 2001, a cheque was written on one of those forms for an amount of $32,500. This sum was deposited into the Al Abboudi account at the ANZ bank. The sum of $27,500 was subsequently withdrawn on 3 May 2001 through a total of six transactions at ANZ automatic teller machines and bank branches. Eleven thousand dollars of the sum so secured was transferred to the TAB account set up by the appellant, the subject of Count 6.
Count 11
On 4 May 2001, a further cheque was falsely written on Metro Span Developments Account in the sum of $36,000. This amount was deposited into the Commonwealth Bank account in the name of Al Abboudi. On 10 May 2001, $35,000 was transferred to the TAB account earlier mentioned. The total of $38,000, in that account, was withdrawn on 10 May 2001 in a series of nine transactions. The last of these withdrawals was undertaken at Crown Casino where the respondent tried to negotiate $16,000 in cash.
The Appeal
In support of the contention that the sentence imposed upon the appellant was manifestly excessive, both in its total effect and the individual sentences of which it was constructed, reliance was placed by his counsel upon a number of considerations.
First, it was submitted that his youth, immaturity, lack of prior convictions, and the fact that he had not previously been imprisoned required that particular care be taken to avoid diminishing the prospects of his rehabilitation by undue exposure to the corrupting influences of prison life.
Second, it was pointed out, that there was a gap of three years between the time of the offending and the imposition of sentence in this case. This, counsel contended, represented a significant part of the appellant's young adulthood and was highly relevant in the circumstances.
Next, it was submitted that the assistance the appellant had provided to the authorities, in relation to other persons involved in these activities, was not given appropriate weight by the sentencing judge.
Other mitigating factors of importance, counsel submitted, were the appellant's plea of guilty, his subordinate role in the offending, his lack of prior convictions and his significant prospects for successful rehabilitation. These, he argued, were undervalued by his Honour.
It was pointed out that although the prosecutor in the court below had submitted that a custodial sentence should be imposed, he did not in his submission suggest that the service of any such sentence could not be wholly suspended.
In conclusion counsel contended that when regard is had to the totality of the circumstances, including the matters to which I have adverted, it is apparent that the sentences imposed, and in particular those relating to the counts of using false documents were excessive in the circumstances.
With respect to ground 2, it was submitted that the learned sentencing judge fell into error in making orders for partial cumulation on the counts of using false documents when these were acts done at the behest of the principal and organiser of the scheme in which the appellant was involved, and they were steps preliminary to the commission of what were referred to by counsel as the substantive offences.
In support of the complaint set out in ground 3, the argument was advanced that the evidence established that the appellant was an immature young man who would benefit from guidance and supervision that would not be provided by a suspended sentence, and to so order was singularly inappropriate in the circumstances. The proper course to have adopted, if a sentence of actual imprisonment had to be served, would have been to impose a sentence which allowed for the possible release of the appellant on parole.
Responding to these arguments, counsel appearing for the Crown in this court submitted that it had to be born in mind that the judge found that the offending was calculated and well planned. It spanned a period of approximately six months and involved a substantial number of separate criminal acts and the creation and use of a number of false documents. The appellant's activities resulted in the obtaining, by him, of a total amount of $62,700, none of which was ever recovered. He further attempted to obtain an additional $66,000. Notwithstanding his claim that he was a minor player and received only a small amount of money for his activities, his role in the scheme was obviously vital and required a good deal of brazen conduct, counsel contended.
Both the effective sentence and the individual sentences by which it was constituted could, he submitted, be properly described as relatively lenient. And it was apparent, he continued, from the learned sentencing judge’s remarks, that he carefully addressed each of the factors upon which reliance has been placed by the appellant in this proceeding.
The question of delay was, it was pointed out, discussed in the course of the proceeding in the court below and, although submitting that it was a mitigating factor to be taken into account, counsel then appearing for the appellant conceded before the sentencing judge that this consideration could not be regarded as possessing great weight in the circumstances. This was not a case, counsel submitted, where delay could operate in any significant way in the appellant's favour. The last of the offences was committed in May 2001. It took some time before identity of the offender became known. The appellant was charged very shortly after that identification, in July 2002. He was committed for trial, in July 2003, but did not indicate his plea of guilty until April 2004, by which stage the matter had been set down for trial. A very substantial part of any delay in the sentencing process, it was said, arose from the appellant's own conduct and decisions. This was not, counsel submitted, a situation in which the appellant could be seen to have demonstrated some commitment to rehabilitation in the intervening period. In fact, he had offended on three separate occasions during the period of delay.
Unfortunately, the type of conduct in which the appellant engaged is being encountered with increasing frequency in the courts, with the adoption of a variety of sometimes sophisticated techniques to manipulate the systems of banking and credit upon which the community depends in order to conduct its ordinary affairs. This type of crime is, by its nature, difficult to investigate as the perpetrators seek to maintain anonymity. The costs to the general community arising from the commission of such offences and the various systems which have to be put in place in order to guard against them and attempt to reduce their incidence are obviously of importance.
Considered against that background, it is apparent that general deterrence has an important part to play as a sentencing consideration when perpetrators do appear before the courts. In the present case, in view of the number of distinct unlawful acts performed by the appellant, the length of the period of offending and his subsequent criminal history, significance also had to be attributed by the sentencing judge to his specific deterrence.
Although “not entirely convinced” by the explanation given to the police by the appellant for his involvement in these activities, the sentencing judge accepted that his role in the commission of the offences may not have been as the principal offender. His Honour went on to say:
"Accordingly, I propose to sentence you as a co-offender rather than as the principal sole offender. The court accepts that your role, whilst a most important role, indeed a vital role in the commission of these offences, was played at the direction of the Iraqi male who organised these scams. Having said that, I have no doubt whatever that when you committed these offences you knew quite well what you were doing was wrong and you went along with the offending, no doubt motivated by greed."[1]
[1]Sentence T48.
His Honour addressed each of the matters advanced in mitigation on behalf of the appellant, specifically directing attention to his youth, role in the offences and prospects of rehabilitation. He gave specific attention to the assistance provided by the appellant to investigating authorities. I should add at this point that with regard to this last matter, I am unable to detect any error in his Honour's approach, nor is the contention that his Honour may have misunderstood the remarks of the prosecutor, made during the hearing, as indicating that the Crown submitted that a period of actual incarceration was called for in this case, sustainable. There is simply nothing in his Honour's remarks that could sensibly provide a foundation for even suspecting that he may have misinterpreted what the prosecution had said. Even if he had, there can be no doubt from those same remarks that his Honour was well aware of the sentencing options that were available to him. In my view, the individual sentences imposed upon the appellant were clearly within the range open in the circumstances.
With respect to the period of time that had elapsed between the commission of the offences and the imposition of sentence, as earlier mentioned, this was the subject of a submission by counsel for the appellant in the course of the hearing. The sentencing judge did not deal with it directly in his sentencing remarks but he did make reference to the appellant’s conduct in the interim. He would certainly have been justified in attributing little or no wait to delay as a sentencing consideration in the circumstances for the reasons advanced by counsel for the Crown in this court. Understandably counsel appearing for the appellant in the court below did not attempt to place much stress upon delay or suggest that substantial weight should be given to it, presumably for those same reasons.
With respect to the complaint advanced in ground 2, concerning the orders for cumulation made by his Honour, it must be borne in mind that the appellant engaged in a large number of quite separate criminal acts perpetrated against several victims. His activities involved different locations and days and extended over a matter of months. These features had to be reflected in the making of appropriate orders for cumulation. True it was, as counsel for the appellant argued, that some offences were committed as preliminary steps for the commission of other crimes, but it does not follow that they must or even should be treated as therefore having merged into what counsel referred to as the substantive offences. The various bank accounts which were opened were, of course, used in the commission of other offences, but they had an independent existence and could, of course, be employed for a variety of quite separate purposes. In my view, the making of orders for cumulation was quite appropriate in the circumstances, and the orders themselves do not bespeak error.
Having arrived at an effective sentence with which, in my opinion, this court would not be justified in interfering, the learned sentencing judge suspended the service of almost half of it. This clearly reflected the attribution by him of proper weight to the considerations upon which Mr Croucher has placed considerable reliance in this court, namely the youth of the appellant, his unfortunate background, immaturity, absence of prior convictions, his role in the offences and the assistance proffered to the authorities. The operative period of three years could not be described as excessive in the circumstances when regard is had to the appellant's repeated offending over a lengthy period of time.
I now turn to ground three. In my opinion, it cannot be said that the proper exercise of the sentencing discretion in this case required a judge, who had determined that a period of actual incarceration was necessary, to then structure a sentence so as to admit the possibility of release on parole. It would certainly have been open to him to do so, but I am far from persuaded that error has been demonstrated by the adoption of a different course.
In summary, I do not consider that any error of principle has been
demonstrated or can be inferred from the learned sentencing judge's remarks when handing down sentence in this case, from the approach adopted by him in the course of the hearing or from the dispositions at which he arrived.
I would dismiss this appeal.
NETTLE,J.A.:
I am in agreement with the reasons for judgment of the learned presiding judge and with the disposition of the appeal that he proposes.
CUMMINS, A.J.A.:
I, likewise, agree.
VINCENT, J.A..:
This appeal is dismissed.
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