Sakipon v The King
[2025] VSCA 93
•6 May 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0196 |
| BUNSIE SAKIPON | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | BEACH and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 May 2025 |
| DATE OF JUDGMENT: | 6 May 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 93 |
| JUDGMENT APPEALED FROM: | [2024] VCC 1278 (Judge Dalziel) |
---
CRIMINAL LAW – Sentence – Appeal – Obtaining financial advantage by deception (7 charges) and obtaining property by deception (4 charges) – Offending over 16 months, involving 10 victims – Total obtained, $110, 610 – Relevant criminal history – Pleas of guilty having significant utilitarian value – TES of 7 years and 7 months, with NPP of 6 years – Whether judge erred in concluding that applicant’s prospects of rehabilitation were poor – Manifest excess – Whether sentence manifestly excessive – No error in judge’s conclusion of poor prospects of rehabilitation – Sentence not manifestly excessive – Appeal dismissed.
---
| Counsel | |||
| Applicant: | Mr P Kounnas | ||
| Respondent: | Ms E Ramsay | ||
Solicitors | |||
| Applicant: | Giorgianni & Liang | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
KAYE JA:
On 9 August 2024, the applicant pleaded guilty in the County Court to seven charges of obtaining a financial advantage by deception[1] and four charges of obtaining property by deception.[2] On 21 August 2024, he was sentenced as follows:
[1]Contrary to s 82(1) of the Crimes Act 1958.
[2]Contrary to s 81(1) of the Crimes Act 1958.
| Charge | Offence | Amount obtained | Maximum | Sentence | Cumulation |
| 1 | Obtain financial advantage by deception | $14,720 | 10 years | 3 years | 1 year |
| 2 | Obtain property by deception | $16,000 | 10 years | 3 years | 1 year |
| 3 | Obtain financial advantage by deception | $47,400 | 10 years | 4 years | Base |
| 4 | Obtain financial advantage by deception | $3,200 | 10 years | 1 year | 3 months |
| 5 | Obtain financial advantage by deception | $850 | 10 years | 6 months | 1 month |
| 6 | Obtain financial advantage by deception | $7,670 | 10 years | 2 years | 4 months |
| 7 | Obtain property by deception | $3,170 | 10 years | 1 year | 2 months |
| 8 | Obtain property by deception | $900 | 10 years | 6 months | 1 month |
| 9 | Obtain property by deception | $8,000 | 10 years | 2 years | 3 months |
| 10 | Obtain financial advantage by deception | $3,700 | 10 years | 1 year | 2 months |
| 11 | Obtain financial advantage by deception | $5,000 | 10 years | 18 months | 3 months |
Total Effective Sentence: | 7 years and 7 months | ||||
Non-Parole Period: | 6 years | ||||
Pre-sentence detention declared: | 292 days | ||||
6AAA Declaration | 9 years, with non-parole period of 7 years and 6 months | ||||
The applicant now seeks leave to appeal against his sentence. His proposed grounds of appeal are as follows:
1.The judge erred by finding that the applicant’s prospects for rehabilitation are ‘poor’.
2.In all the circumstances, the individual sentences and orders for cumulation were productive of a total effective sentence and non-parole period that are manifestly excessive.
Circumstances of the offending
On 8 March 2011, the applicant was sentenced by Judge Chettle in the County Court to a term of imprisonment of 7 years, with a non-parole period of 5 years,[3] in relation to 32 counts of obtaining property by deception and 17 counts of obtaining a financial advantage by deception. In all, the applicant defrauded nine victims of a total of $292,100.[4] Judge Chettle summarised the offending for which he sentenced the applicant as follows:
You repeatedly asserted that you were able to make money from fighting competitions in Asia and when you induced the victims to invest in such non-existent fights, you thereafter manufactured false stories to explain why funds were not forthcoming and in order to obtain further funds. You manufactured false documents and displayed false cheques for inflated amounts to embroider your deceptions and offered manufactured false stories about the need to pay fines, corrupt police officers and other individuals in order to get more money from your victims. You enlisted the aids of associates to pretend to be people such as judges and bank officers, and to make fictions you created appear more credible. In summary, you repeatedly told gross lies, manufactured elaborate stories and repeatedly deceived people who you persuaded to trust you.[5]
[3]His Honour declared that 208 days of this sentence had already been served by the applicant by way of pre-sentence detention.
[4]DPP v Sakipon (unreported, County Court of Victoria, 8 March 2011, Judge Chettle), [1]–[2], [23]–[25] (‘Judge Chettle’s Reasons’).
[5]Ibid [4].
On 12 August 2015, having served the non-parole period of Judge Chettle’s sentence, the applicant was released on parole, with some two years of his head sentence remaining. The applicant was then aged 46. He found work as a personal trainer and, in 2016, he was working at Zap Fitness, in Richmond, under the name Tyson Kosakul.
Between 30 September 2016 and 8 February 2018, the applicant offended against ten victims, defrauding them of a total of $110,610. Each of the victims was a client of the applicant’s in his work as a personal trainer. In each case, the applicant either obtained property (namely, cash) or a financial advantage (namely, bank credits) by deception, with the deception being a false representation by the applicant that the amount paid by the victim would be refunded in full.
Charge 1
Charge 1 was a rolled-up charge, involving ten instances of obtaining a financial advantage, namely bank credits, in the sum of $14,720, by deception. The offending occurred between 30 September 2016 and 8 February 2018. The victim of the offending was Stanley Chua.
The amounts paid by Mr Chua were requested by the applicant, variously for ‘insurance’, ‘accounting purposes’, and other specific purposes identified by the applicant. The deception consisted of the applicant falsely representing to Mr Chua that the sums paid by him would be refunded in full. The details of each payment were as follows:
Transaction
Date
Amount
1
30 September 2016
$500
2
13 October 2016
$3,000
3
28 October 2016
$3,000
4
31 October 2016
$3,000
5
6 November 2016
$2,500
6
11 December 2017
$500
7
20 December 2017
$500
8
24 January 2018
$980
9
29 January 2018
$540
10
8 February 2018
$200
Following transaction number 10, the applicant contacted Mr Chua again to seek further transfers of money, but Mr Chua did not comply.
Despite numerous promises to make repayments, and receiving money from Mr Chua on the basis that he would be repaid that sum or a larger sum, the only repayment made by the applicant to Mr Chua was $3,500 in December 2016.
Charges 2 and 3
Charges 2 and 3 were rolled-up charges, involving five instances of obtaining property, namely $16,000 cash, by deception; and five instances of obtaining a financial advantage, namely bank credits totalling $47,400, by deception. The offending occurred between 1 December 2016 and 28 February 2017. The victim of the offending was Haoyin Tang. In 2017, Mr Tang was a year 12 student.
The amounts paid by Mr Tang were requested by the applicant, variously for training, to obtain discounts, and for business and other specific purposes identified by the applicant. The deception consisted of the applicant falsely representing to Mr Tang that the sums paid by him would be refunded in full. The details of each payment were as follows:
Charge
Transaction
Date
Amount
2
1
December 2016
$3,500
2
2
December 2016
$1,500
3
1
28 December 2016
$5,500
3
2
30 December 2016
$2,000
3
3
30 December 2016
$3,500
3
4
January 2017
$35,000
3
5
7 February 2017
$1,400
2
3
13 February 2017
$6,500
2
4
20 February 2017
$3,000
2
5
10 May 2017
$1,500
The $5,500 paid on 28 December 2016 (transaction 1 of charge 3) was paid by Mr Tang after the applicant showed him a photo of a cheque in the sum of $81,000, saying he would repay Mr Tang out of the funds from that cheque.[6]
[6]Compare Judge Chettle’s description of the applicant ‘display[ing] false cheques’ to the victims of the offending for which Judge Chettle sentenced the applicant: Judge Chettle’s Reasons, [4] – reproduced at paragraph [3] above.
The $35,000 paid in January 2017 (transaction 4 of charge 3) was paid by Mr Tang in respect of a purported contract for the purchase of a business interest (the applicant having previously offered to let Mr Tang become his business partner for the price of ‘a further $50,000’). Mr Tang was shown a copy of the purported contract, but was never actually given a copy of the document.
In June 2017, Mr Tang’s parents confronted the applicant about the money their son had paid to him. The applicant promised to pay it back, but never did so.
Charge 4
The offending constituting charge 4 occurred on 3 May 2017. On that day, the victim, Dia Mukerjee, paid the applicant $4,000 on the basis that he would refund that amount in full. The applicant requested the payment because he said that he ‘needed to show that [he] had a client on [his] books for 12 months of training’.
Between May and November 2017, Ms Mukerjee continually reminded the applicant about his promise to refund her money. However, the applicant did not repay her until, in May 2018, he repaid $800. Charge 4 was put on the basis that, when Ms Mukerjee transferred the $4,000 to the applicant, the applicant did not in fact intend to repay her. Nevertheless, the amount of the charge was reduced by the $800 which he in fact did later repay.
Charge 5
The offending constituting charge 5 occurred on 30 May 2017. The victim of this offending was Danielle Zammit.
On 11 April 2017, Ms Zammit transferred the sum of $1,600 to the applicant, on the basis that he would train her three times a week for eight weeks.
In late May 2017, the applicant told Ms Zammit that he was transferring to another gym. He offered to train her there. She did not want to change gyms, and the applicant agreed that he would refund the balance of her payment, being $1,040. The applicant later negotiated this repayment down to $850.
Charge 5 was put on the basis that, while the applicant offered to refund Ms Zammit, he did not intend to repay her the $850 that he owed.
Charges 6 and 7
The victims of charges 6 and 7 were, respectively, Mark Krygger and his partner, Lyndell Goldspink. They met the applicant in February 2017 and engaged him as their personal trainer.
Charge 6 was a rolled-up charge, encompassing three transactions occurring between 14 June 2017 and 1 August 2017. The offending constituting charge 7 occurred on 1 August 2017. The circumstances of charges 6 and 7 may be summarised as follows:
(1)On 14 June 2017, the applicant told Mr Krygger that he was fighting in a boxing match in Japan and encouraged him to bet $2,000 on the fight. He told Mr Krygger that it was ‘a sure thing’, and he would get a payout of $14,000. Based on those representations, Mr Krygger transferred $2,000 to the applicant (charge 6, transaction 1).
(2)The next day, the applicant told Mr Krygger that his opponent had had to pull out of the fight due to injury, but that if he (the applicant) travelled to Japan and signed a contract stating he had won the fight, it would be paid out as a win. Based on these representations, Mr Krygger transferred a further $2,500 to the applicant (charge 6, transaction 2).[7]
(3)On 1 August 2017, the applicant offered to train Mr Krygger and Ms Goldspink, free of charge. The applicant told them that if they each transferred $3,170 to him, he would refund that amount to them in full. The applicant attended Ms Goldspink’s workplace, where she paid him $3,170 in cash (charge 7). On 2 August 2017, Mr Krygger transferred $3,170 to the applicant (charge 6, transaction 3).
[7]Compare Judge Chettle’s description of the applicant telling his victims that he was able to make money from fighting competitions in Asia, and inducing them (his victims) to invest ‘in such non-existent fights’: Judge Chettle’s Reasons, [4] – reproduced at paragraph [3] above.
The basis of charge 6 was the two payments made by Mr Krygger for the purported boxing match bet, and the later payment for training — paid on the basis that the applicant would refund the $3,170. When Mr Krygger asked the applicant to give him the $4,500 back, the applicant made various excuses and then ceased to communicate with him. The basis of charge 7 was Ms Goldspink’s payment of $3,170.
Charge 8
The offending constituting charge 8 occurred on 8 August 2017. The victim of the offending was Samantha Olsen.
In May 2017, Ms Olsen, joined Anytime Fitness in Richmond. In July 2017, Ms Olsen met the applicant, who offered her personal training for three sessions per week over eight weeks for $550. Ms Olsen agreed, and paid the applicant that amount.
On 8 August 2017, the applicant told Ms Olsen that if she paid a further $1,900 upfront, the full amount would be refunded, and the applicant would provide training until the end of January 2018. The applicant explained that the payment ‘was for tax purposes’. The applicant provided Ms Olsen with a contract to sign, but then did not give her a copy. In reliance upon these representations, Ms Olsen transferred the sum of $1,900 to the applicant.
Despite numerous requests, the applicant failed to refund the $1,900. Eventually, when Ms Olsen told him that she needed money to live and pay her car insurance, the applicant refunded $1,000. The applicant told Ms Olsen that she would only get the balance, $900, if she did not report him to the police.
Charge 9
Charge 9 was a rolled-up charge, involving two instances of obtaining property, namely, $8,000 cash, by deception. The offending occurred between 8 and 22 August 2017. The victim of the offending was Susie Dawson.
The applicant offered Ms Dawson three months’ training at no cost, on the basis that she would transfer $2,500 to him, and he would fully refund that amount once his tax had been processed. On 11 August 2017, in reliance on those representations, Ms Dawson transferred $2,500 to the applicant (transaction 1). As with Ms Olsen, the applicant provided a contract for Ms Dawson to sign, but did not give her a copy.
Ten days later, on 21 August 2017, the applicant told Ms Dawson that she was a special client, and offered to train her at no cost for a year. He asked her to pay $5,500, on the basis that he would fully refund that amount once he had received his tax return. On 22 August 2017, relying upon these representations, Ms Dawson transferred a further $5,500 to the applicant’s bank account (transaction 2).
The applicant never repaid Ms Dawson any part of the $8,000 paid by her — he having had no intention of doing so on each occasion when he obtained funds from her.
Charge 10
Charge 10 was a rolled-up charge, involving two instances of obtaining a financial advantage, namely bank credits, in the sum of $3,700, by deception. The offending occurred between 27 September 2017 and 12 October 2017. The victim of the offending was Melanie Hendrata.
Ms Hendrata started training with the applicant in August 2017, paying $250 per session for herself and a friend. After three or four sessions, the applicant told her that he would continue to train her at no cost, but that he needed to show the gym that he had clients on his books. He asked her to transfer $1,900 to him, and told her that he would refund that amount immediately. Acting on those representations, on 27 September 2017, Ms Hendrata transferred $1,900 to the applicant’s bank account (transaction 1).
The applicant then asked Ms Hendrata to pay a further $1,800, again telling her that it would be fully repaid. Acting on those representations, on 12 October 2017, Ms Hendrata transferred a further $1,800 into the applicant’s account (transaction 2).
Thereafter, the applicant repeatedly cancelled training sessions and never provided Ms Hendrata with the refund of $3,700 promised by him.
Charge 11
The offending constituting charge 11 occurred on 8 November 2017. The victim of the offending was Penny Kasemkittichot.
Ms Kasemkittichot joined Anytime Fitness in May 2017. The applicant offered to provide personal training to her, but she declined. They got to know each other and became friends.
On 8 November 2017, the applicant told Ms Kasemkittichot that he had an opportunity for her to make some money. He said he was arranging a bet on a UFC fight and that nine other people had already put in $10,000 each. The applicant told Ms Kasemkittichot that if she invested $10,000, she would be guaranteed to get at least 110 per cent back.[8]
[8]See n 7 and paragraph [3] above.
Ms Kasemkittichot told the applicant that she was opposed to gambling. The applicant then changed his pitch, saying that what he was offering was a share in a group of people funding the fight itself. When Ms Kasemkittichot said that she did not have $10,000, the applicant offered a share at the rate of $5,000. He told her that the return on her $5,000 would be $30,000. Based on these representations, Ms Kasemkittichot transferred $5,000 to the applicant’s account.
The next day, Ms Kasemkittichot had second thoughts. She asked the applicant to refund her money. He told her that he could not do this, as it had already ‘gone to the USA’. The applicant promised to return Ms Kasemkittichot’s money, but said that it would have to be after the fight. Ms Kasemkittichot contacted the applicant again, trying to get her money. He did not respond to her until 15 November 2017, when he admitted the money had not gone into the fight and promised to repay her. None of Ms Kasemkittichot’s money was ever repaid to her.
Applicant’s personal circumstances
The applicant was born in Thailand in 1969. He was 47 when he commenced the offending, 49 on the last day of the offending[9] and 55 at the time of sentencing. His parents separated when he was young, and his relationship with his biological father has been limited. In 1980, the applicant, his mother and stepfather came to Australia. The applicant was then 12 years of age. It appears that the applicant became an Australian citizen in 1982, although the judge recorded that the Certificate of Australian Citizenship in the depositions was in the name of Aroon Fees.[10]
[9]Transaction 10 of charge 1 occurring on 8 February 2018, the applicant’s 49th birthday.
[10]DPP v Sakipon [2024] VCC 1278, [67] (‘Reasons’).
The applicant completed Year 12, and went on to complete an economics degree at Monash University. As a teenager, he joined a gym, developing an interest in fitness. He worked in the fitness industry in his 20s as a fitness instructor. It is not, however, clear whether the applicant possesses any qualifications in fitness or first aid — the certificates from Fitness Australia and St John’s Australia, which the applicant provided to Anytime Fitness, having been forged.[11]
[11]Reasons, [69].
The applicant had four full brothers and four full sisters, as well as a half-brother, although one of his sisters passed away in 2014. His mother passed away in the same year, while he was then in custody serving Judge Chettle’s sentence. However, he was given permission to attend his mother’s funeral.
At the time of sentencing, the applicant had been in a relationship for two years with a woman who lives in Sydney. On the plea, the judge was told that this person was the applicant’s only support in the community, the applicant’s other friends and family members having ceased contact with him due to his repeated offending.
The applicant also has a son from a previous relationship who, at the time of sentencing, was 28 years of age. At the time of sentencing, the applicant had not had any contact with his son for approximately eight years.
Previous criminal history
On 2 November 1998, under the name Bunsie Kosakul, the applicant was fined $200 without conviction for breaching an intervention order.
On 14 December 2000, under the name Bunsie Payne Gosakool, the applicant was sentenced to an aggregate fine of $500, without conviction, on charges of stalking and theft of a motor vehicle.
On 13 September 2001, the applicant was sentenced by Judge Cullity on one count of obtaining property by deception, one count of blackmail and one count of theft. At the same time, his Honour dealt with the applicant’s plea of guilty to the offence of possessing the proceeds of crime.
Judge Cullity sentenced the applicant to a total effective sentence of 4 years, with a non-parole period of 2 years and 9 months. In sentencing the applicant, his Honour said that he gave weight to the applicant’s ‘stated determination to seek employment on [his] release, and in that respect … [accepted that the applicant had] the ability to engage in lawful pursuits, if [he] so chose’.[12]
[12]R v Sakipon (unreported, County Court of Victoria, 13 September 2001, Judge Cullity, p 6) (‘Judge Cullity’s Reasons’).
On 10 October 2001, the applicant was sentenced in the Magistrates’ Court to a total effective sentence of 8 months on three charges of obtaining property by deception and two charges of making a false document.
As we have already said,[13] on 8 March 2011, the applicant was sentenced by Judge Chettle to a term of imprisonment of 7 years, with a non-parole period of 5 years for 32 counts of obtaining property by deception and 17 counts of obtaining a financial advantage by deception. In sentencing the applicant, Judge Chettle said, among other things:
The evidence in the case before me and your prior history makes you a completely unreliable historian. This Court will not act on unsupported assertions by people who commit criminal offences involving dishonesty. Your claims that gambling led to your offending, prompted by the need to repay loan sharks, may or may not be true. It appears from Judge Cullity’s reasons for sentence that you offered a similar explanation for your offending in that case.[14] …
I take into account the fact that you have not offended since this offending. You have spent over two years on bail and it is to your credit that you were both fully employed and offence free during that period of time.[15]
…
Finally, I take into account your guarded prospects of rehabilitation, given the fact that you have only started offending at a relatively late age and that you were able to remain offence free for some time after you were released on parole.[16]
[13]See paragraph [3] above.
[14]Judge Chettle’s Reasons, [8].
[15]Ibid [15].
[16]Ibid [16].
Procedural history
The relevant procedural history so far as the current offending is concerned may be summarised as follows:
•12 August 2015: applicant released on parole, having served the non-parole period imposed by Judge Chettle.
•30 September 2016: offending the subject of the present sentence commenced.
•11 August 2017: end of Judge Chettle’s sentence.
•12 September 2017: applicant arrested, search warrant executed and first record of interview conducted.
•8 February 2018: last day of applicant’s current offending.[17]
•27 February 2018: applicant re-arrested and second record of interview conducted.
•2 August 2018: charges filed.
•7 November 2023: applicant arrested, and filing hearing conducted.
•17 April 2024: applicant accepted prosecution plea offer made on 11 April 2024.
•18 April 2024: applicant pleaded guilty to current charges at third committal mention.
•9 August 2024: plea hearing before Judge Dalziel.
•21 August 2024: applicant sentenced by Judge Dalziel.
[17]Transaction 10 of charge 1.
Applicant’s submissions on the plea
Proposed ground 1 makes complaint about the judge’s finding that the applicant’s prospects for rehabilitation were poor. In support of that contention, and in support of his complaint of manifest excess (proposed ground 2), the applicant places considerable reliance upon two periods of delay he identifies as having occurred between February 2018 (when he was re-arrested and a second record of interview was conducted) and August 2024 (when he was sentenced). In the circumstances, it is necessary to examine the submissions made on behalf of the applicant on the plea on the issues of delay and the applicant’s prospects for rehabilitation.
In written submissions relied upon by the applicant on the plea, no mention is made of the issue of delay, and nothing is said about the applicant’s prospects of rehabilitation. While the written submissions refer to the nature and gravity of the offending, the applicant’s personal circumstances and a chronology, the only matter in mitigation identified in them is the applicant’s plea of guilty.
On the hearing of the plea, the applicant’s plea counsel made the following submissions to the judge on the issues of delay and prospects for rehabilitation:
After he is interviewed by the police and perhaps, I’ll clarify this issue of what’s happened since 2018 to now. He instructs that he moved to Queensland to be with his then-partner, and then moved to Sydney in late 2020 for work that was available for him in that State, and because he had an absence of support here in Melbourne, he’s fallen out with his family, and other friends.
He was living in a rental in Sydney, working in cafés and in a gym and then he’s arrested in November 1 2023. The last statement on the brief is that of the informant dated in 2018.
There is no evidence on the brief as to what efforts were made to locate him and there is certainly no evidence that he has fled the jurisdiction. He had to get away or be living under some sort of false name, or anything of the sort. His instructions, in my submission, can’t be – ought to be accepted by Your Honour that he’s moved interstate. Of course, I’ll make some submissions in a moment about delay, but that is why he’s residing there.
A little later in the plea hearing, the applicant’s counsel returned to the issue of delay, making the following submissions about that issue and the applicant’s prospects for rehabilitation:
The delay between interview and charge is relevant in my submission not for the usual two limbs of unfairness or rehabilitation. I can’t make a submission that it’s been each, the prospect of being charged has been hanging over his head in the usual sense and has caused him great distress because I don’t have that evidence, but I say it’s significant and I should add, I don’t say it’s relevant to rehabilitation, other than this: he is now in a different situation than he was in when he left prison on parole in 2015. He has the support of someone. It has been over six years since the end of this offending. There are no pending matters and that is clearly relevant to his prospects of rehabilitation.
To be clear, his prospects, I think at best could be described as guarded, and Your Honour might rightly form a more cynical view as to how – how positive one could be about his prospects beyond this period of imprisonment, but I do say it’s significant that there are six years here where he has been – well, apart from the most recent period on remand – living in the community and there are no pending matters.[18]
[18]Emphasis added.
Nothing further was said by the applicant’s counsel on the plea in relation to the issues of delay and prospects of rehabilitation.
Reasons for sentence
The judge commenced her reasons for sentence by noting that the applicant had pleaded guilty to the 11 charges for which she was to sentence him.[19] Her Honour then summarised the circumstances of the applicant’s offending,[20] before turning to the applicant’s personal circumstances.[21]
[19]Reasons, [1].
[20]Ibid [2]–[63].
[21]Ibid [64]–[73].
In dealing with the applicant’s personal circumstances, in addition to noting that the applicant’s Certificate of Australian Citizenship was in the name Aroon Fees, the judge observed that the applicant, when interviewed by police, gave his name as Tyson Bunsie Sakipon Kosakul. Her Honour also observed that the material provided to her showed that the applicant had used other names, including Bunsie Sakipon, Bunsie Gosakool, Bunsie Kendres, Bunsie Kosakul, Bunsie Aroon, Tyson Kosakul and Tyson Nakajima.[22] The judge also observed that, in 2011, the applicant told Mr Cummins[23] that he used false names when dealing with victims, ‘in order to deceive them’.[24]
[22]Ibid [67].
[23]A consulting, clinical and forensic psychologist, who examined the applicant on 22 January 2011 at the request of his then solicitors (presumably for the purposes of the plea hearing later to be conducted before Judge Chettle).
[24]Reasons, [67].
Next, the judge referred to the 2011 report of Mr Cummins to which we have just referred, and a second report completed by Mr Cummins in 2024.[25] The judge noted that, in his most recent report,[26] Mr Cummins expressed the opinion that the applicant suffered from Borderline Personality Disorder, which was characterised by ‘a pervasive pattern of instability of interpersonal relationships, self-image and affects, and marked impulsivity, beginning by early adulthood and present in a variety of contexts’.[27] The judge also noted the opinion of Mr Cummins that the applicant presented with some narcissistic traits, but that he did not meet the criteria for a diagnosis of Narcissistic Personality Disorder.[28]
[25]Ibid [74]–[77].
[26]Dated 24 July 2024, and completed after an assessment of the applicant conducted on 5 July 2024 ‘via video conference’.
[27]Reasons, [77].
[28]Ibid.
The judge referred to the applicant’s prior convictions and the procedural history of the charges for which the applicant fell to be sentenced by her, and to which we have already referred.[29] In the course of doing so, her Honour referred to what Judge Chettle said, at paragraph [4] of Judge Chettle’s Reasons, when his Honour sentenced the applicant in 2011.[30]
[29]Ibid [78]–[81].
[30]Extracted at paragraph [3] above.
The judge referred to the applicant’s plea of guilty, noting that the matter had resolved ‘at an early stage’. The judge said that the applicant was ‘entitled to a reduction in [his] sentence due to the significant utilitarian value of [his] pleas’.[31] The judge, however, did not accept that the applicant’s pleas were an indication of any real contrition.[32] She referred to the applicant’s explanations to Mr Cummins as traversing the applicant’s pleas, before noting that the applicant had made no effort to repay any of his victims.[33] On the issue of remorse, the judge said that she did not accept that the applicant had any ‘real appreciation of or regret about the harm that [he] caused [his] victims, nor any desire to atone’.[34]
[31]Reasons, [82].
[32]Ibid [83].
[33]Ibid [84].
[34]Ibid [86].
The judge referred to the various explanations the applicant had given for his offending when being sentenced by Judge Cullity in 2001 and by Judge Chettle in 2011, contrasting those explanations with the explanation the applicant gave for the offending for which he fell to be sentenced by her Honour.[35] The judge noted that an explanation given by the applicant, that he used the funds from his current offending to pay people who had provided assistance to him, was not mitigating — before saying, ‘It is clear from your history that you habitually turn to deceiving and defrauding others as a way to make money’.[36]
[35]Ibid [87]–[92].
[36]Ibid.
On the issue of the applicant’s prospects of rehabilitation (the subject of proposed ground 1), the judge said:
In view of your history of offending, even after serving significant sentences of imprisonment, your lack of empathy, insight and remorse, I consider your prospects for rehabilitation are poor.
Whilst no further offending has been alleged to have occurred, since February 2018, given the attitudes you expressed to Mr Cummins, I do not take the lack of other offending in that period as evidence that you are a reformed man.[37]
[37]Ibid [93]–[94].
Under the heading ‘Gravity of Offending’, the judge noted the applicant’s plea counsel accepted that the applicant’s offending was serious, involving ‘repeated and flagrant lies told to persons who placed their trust in [the applicant]’.[38]
[38]Ibid [95]. See also [96]–[97].
After referring to two victim impact statements,[39] the judge observed that all of the applicant’s victims ‘would have experienced shock, disbelief and then distress … as well as financial damage’ as a result of the offending.[40]
[39]Ibid [98].
[40]Ibid [99].
Next, the judge dealt with the issue of totality.[41] The judge said that, when considering orders for cumulation or concurrency, it was necessary to appreciate the totality of the applicant’s offending, so as to ensure that the total effective sentence and non-parole period adequately reflected the entirety of the offending. The judge then broke down the applicant’s offending by reference to the months in which his offences were committed, before noting that the total benefit obtained by the applicant over 17 months was $110,610 — with more than half of the total sum being obtained from ‘the young victim of charges 2 and 3’.[42]
[41]Ibid [100]–[104].
[42]Ibid [104].
The judge noted that all of the charges, save for charges 9, 10 and 11, and part of charge 1, were committed while the applicant was on parole for the sentence imposed by Judge Chettle; and that s 16(1A)(d) of the Sentencing Act 1991 provided that, in those circumstances, ‘the usual presumption of concurrency [did] not apply’.[43] The judge noted the applicant’s plea counsel’s acceptance of the proposition that being on parole was an aggravating factor for the applicant’s offences.[44]
[43]Ibid [105].
[44]Ibid [106].
Finally, the judge observed that general deterrence, just punishment and denunciation all carried significant force in sentencing the applicant, before concluding that, in view of the applicant’s ‘dim prospects for rehabilitation’, specific deterrence and protection of the community were ‘factors of considerable weight’.[45]
[45]Ibid [107].
Applicant’s submissions in this Court
Under proposed ground 1, the applicant took issue with the judge’s finding that his prospects for rehabilitation were ‘poor’,[46] as well as her Honour’s failure to accept that the applicant was a ‘reformed man’.[47] The applicant contended that, ‘Put simply, those findings were not open to her Honour’.
[46]Ibid [93].
[47]Ibid [94].
In support of that contention, the applicant submitted that the judge erred in giving ‘excessive weight’ to the applicant’s criminal history, as well as erring in having ‘insufficient regard’ to the fact that there had been no further offending after February 2018. The applicant submitted that, at the time of sentencing, almost five years and nine months had elapsed since the offending and, critically, it was neither alleged nor suggested on the plea that the applicant had offended during that period; and that this was a very significant matter which ‘must impact upon an assessment of the applicant’s prospects of rehabilitation’.
Under proposed ground 2, the applicant contended that the individual sentences and orders for cumulation were productive of a sentence that is wholly outside the range available in the sound exercise of the sentencing discretion. In support of that contention, the applicant referred to his plea of guilty; the delay between his second interview in February 2018 and the filing of charges in August 2018, and his eventual arrest in November 2023; and sentences in other cases which were said to be relevantly comparable.
In relation to his plea of guilty, the applicant submitted that this was a ‘powerful and significant matter in mitigation’; and that, while her Honour referred to the matter having resolved early upon a plea of guilty which had significant utilitarian value, her Honour imposed a sentence which did not properly reflect those matters.
In relation to delay, the applicant made the following submissions:
(1)The reason for the six month delay between the applicant’s second arrest and interview, and the filing of charges was ‘entirely unexplained’.
(2)While at the time of his arrest in 2023, the applicant was living in Sydney, it was never contended by the prosecution that he had moved from Melbourne to avoid service of the charges or otherwise avoid apprehension, and the more than five years between the filing of the charges and his arrest was also ‘entirely unexplained’.
(3)The judge was required to take the delay referred to in sub-paras (1) and (2) above (‘the period of delay’) into account in sentencing the applicant.
(4)The absence of further offending during the period of delay ‘must bear positively on the applicant’s prospects of rehabilitation’.
In relation to comparable cases, the applicant relied upon the decisions of Director of Public Prosecutions v Wilson,[48] Kenyeres v The King,[49] and Apted v The Queen.[50]
[48][2024] VSCA 48 (‘Wilson’).
[49][2023] VSCA 25 (‘Kenyeres’).
[50][2021] VSCA 151 (‘Apted’).
In relation to Wilson, the applicant observed that the offender pleaded guilty to nine charges of obtaining a financial advantage by deception and two charges of obtaining property by deception; the offending occurred over a little more than ten months and involved a single victim who was elderly; and the amount obtained by the offender from the victim was in excess of $1.9 million.[51] On a successful Director’s appeal, the offender was sentenced by this Court to a total effective sentence of 8 years, with a non-parole period of 5 years and 8 months.[52]
[51]Wilson [2024] VSCA 48, [10]. For completeness, we note that after ‘deducting monies returned’, this Court said that the victim’s net loss ‘was in the range of $1.6 million’: Wilson, [8].
[52]Wilson [2024] VSCA 48, [33].
In relation to Kenyeres, the applicant observed that the offender pleaded guilty to ten charges of obtaining a financial advantage by deception and five charges of obtaining property by deception. The offending occurred over a 17 month period and involved seven victims, and the total quantum of the fraud was in excess of $1.6 million. The applicant was sentenced in the County Court to a total effective sentence of 7 years and 6 months, with a non-parole period of 5 years. On an appeal by the offender, the total effective sentence and non-parole period were reduced as a result of a failure by the sentencing judge to take into account time that the applicant had spent in immigration detention. The applicant noted that, but for that error, Mr Kenyeres’ application for leave to appeal against sentence would have been refused.[53]
[53]Kenyeres [2023] VSCA 25, [68], [69], [72].
In relation to Apted, the applicant observed that the offender had pleaded guilty to five charges of obtaining a financial advantage by deception; the offender was the office manager of the victim; the offending occurred over a period of five years and involved 201 individual transactions; and the offender obtained an amount in excess of $970,000 from her employer. While the applicant conceded that Ms Apted had no prior criminal history, he noted that she succeeded on an appeal against sentence and was sentenced by this Court to a total effective sentence of 3 years and 9 months, with a non-parole period of 2 years and 3 months.[54]
[54]Apted [2021] VSCA 151, [41].
The applicant submitted that Wilson, Kenyeres and Apted ‘show significantly more serious examples of offending’ than that committed by the applicant. In the result, the applicant submitted that, when one properly considered the circumstances of the applicant’s case, in the light of this Court’s decisions in Wilson, Kenyeres and Apted, it was plain that the individual sentences and orders for cumulation in this case had been productive of a total effective sentence and non-parole period that was manifestly excessive.
As a fall-back, the applicant contended that if this Court accepted that the sentence imposed on charge 3 was manifestly excessive then, as a consequence of that sentence being the base sentence, the orders for cumulation, total effective sentence and non-parole period all fell to be considered afresh by this Court.
Proposed ground 1: Did the judge err in finding that the applicants prospects for rehabilitation were poor?
The judge determined that the applicant’s prospects for rehabilitation were poor because of:
(a)the applicant’s history of offending, even after serving significant sentences of imprisonment;[55] and
(b)the applicant’s lack of empathy, insight and remorse.[56]
[55]Reasons, [93].
[56]Ibid.
In so concluding, the judge acknowledged that no further offending had been alleged to have occurred since February 2018. In taking that matter into account, the judge said, however, that given the ‘attitudes’ the applicant had expressed to Mr Cummins, she did not take the lack of offending between 2018 and 2024 as evidence that the applicant was ‘a reformed man’.[57]
[57]Ibid [94].
In referring to the ‘attitudes’ expressed by the applicant to Mr Cummins, the judge was referencing those parts of Mr Cummins’ second report in which Mr Cummins recorded the applicant’s statements to him, ‘It was always my intention to pay the money back to my personal training clients’, ‘I never intended to not repay the moneys’, and ‘I did intend to repay the money’.
As the judge put it, the applicant’s explanations to Mr Cummins traversed his pleas of guilty.[58] These facts alone were a sufficient basis for not accepting that the applicant was now a ‘reformed man’.
[58]Ibid [84].
More particularly, however, on the issue of the applicant’s prospects of rehabilitation, it is noteworthy to observe Mr Cummins’ opinion as to the applicant’s risk of reoffending. Specifically, Mr Cummins said:
Given his apparent level of difficulty in coming to terms with his offending as evidenced at interview on 5/7/2024, it is my opinion that he is at risk of reoffending unless he received (sic) intensive offence specific treatment.
In order to succeed under proposed ground 1, it is necessary for the applicant to show that it was not open for her Honour to come to the conclusion that the applicant’s prospects of rehabilitation were poor. Having considered all of the evidence for ourselves, we think that, contrary to the applicant’s submissions, the judge’s conclusion on this issue was not only open, but plainly correct.
First and foremost, the applicant not only had a history of committing offences of dishonesty, but, significantly, he had an established record of recidivism, after twice receiving substantial sentences of imprisonment for such offending. In that respect, it is of particular concern that he committed some eight of the eleven offences in the present case while on parole in respect of the sentence imposed on him in the Melbourne County Court on 8 March 2011.
Further, the offending in the present case was premeditated and calculated. It involved 32 separate transactions and took place over a period of some 16 months, during which the applicant targeted ten unsuspecting victims. His modus operandi in that offending bespoke the mentality of a person who could not appreciate, or recognise, the egregious degree of dishonesty that was involved in the offending. As Mr Cummins said, the applicant displayed minimal victim empathy, his offending involving him establishing a rapport with his clients as a pathway to dishonestly financially exploiting them.
Secondly, the period of time during which the applicant is said to have remained offence free following the commission of the present offences, is not the first such period of time. As Judge Chettle observed when sentencing the applicant in 2011, the applicant had then been offence free while on bail for over two years awaiting the resolution of the matters for which he was sentenced by Judge Chettle.[59] The parallel in this case with those circumstances is significant to say the least.
[59]Judge Chettle’s Reasons, [15].
Thirdly, it is clear, from his interview with Mr Cummins, that the applicant not only has failed to express or demonstrate any genuine remorse for his offending, but, in addition, he has failed to acknowledge that his offending was wrongful. Such an acknowledgment is necessarily a pre-condition to at least the commencement of any meaningful process towards rehabilitation and away from recidivism.
It was for those reasons, no doubt, that the applicant’s plea counsel realistically conceded that, at best, the applicant’s prospects of rehabilitation could be described as ‘guarded’.
For the reasons given above, the judge was plainly correct when she concluded that, in view of the applicant’s history of offending (and, in particular, after serving significant sentences of imprisonment imposed on him by Judges Cullity and Chettle), and his lack of empathy, insight and remorse, his prospects for rehabilitation were poor. In our view, no other conclusion was open to the judge in the circumstances.
Accordingly, ground 1 must be rejected.
Proposed ground 2: Was the sentence manifestly excessive?
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[60] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[61]
[60]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[61]Ibid.
While the applicant asserted in this Court that the judge was required to take into account the delay between February 2018 and August 2024 in sentencing the applicant, it is to be remembered that, on the plea, the applicant relied on the issue of delay only to a limited extent. Specifically, the applicant’s plea counsel eschewed any reliance upon delay in relation to ‘the usual two limbs of unfairness or rehabilitation’. We take the applicant’s plea counsel’s reference to the ‘usual two limbs of unfairness or rehabilitation’ to be a reference to the usual ways delay has been regarded as mitigatory in sentencing an offender. Those ways were summarised by Chernov JA (with whom Winneke P and Buchanan JA agreed) in Cockerell v The Queen,[62] as follows:
First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.[63]
[62](2001) 126 A Crim R 444; [2001] VSCA 239.
[63]Ibid 447 [10]. See also R v Merrett (2007) 14 VR 392, 400 [35]–[36].
Plainly, the first ‘usual’ way in which delay is taken into account had no application in this case. Similarly, the second ‘usual’ way in which delay is taken into account also had no application in this case – there being no evidence (and no suggestion of) the elapse of time between 2018 and 2024 having had any effect on the applicant.
The offences to which the applicant pleaded guilty were serious examples of serious offences. He fell to be sentenced as a recidivist whose prospects of rehabilitation were poor for the reasons given by the judge.
Of course, as has been said before, no principle of sentencing requires that more severe sentences be passed on those who persist in their criminal behaviour.[64] However, as has also been said before, an adverse criminal record may impact on the sentencing process in a number of ways: for example, as indicators of the offender’s moral culpability, his or her prospects of rehabilitation, the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of previous sentences to deter the offender.[65]
[64]R v O’Brien [1997] 2 VR 714, 718 (Charles JA, with whom Winneke P and Southwell AJA agreed); Wilson v The Queen [2022] VSCA 2, [20] (Priest and Niall JJA).
[65]Ibid.
That said, while the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the offending. To do so, would be to impose a fresh penalty for past offences.[66]
[66]Veen v The Queen (No 2) (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ).
In making his complaints of manifest excess, the applicant pointed to sentencing decisions (including this Court’s decisions in Wilson, Kenyeres and Apted, to which we have already referred) where sentences of the same (or lesser) magnitude have been given for offending involving significantly larger amounts of money than the total amount obtained by the applicant in this case. In relation to the applicant’s submissions about these decisions, the following points may be made.
First, in proscribing the offences of obtaining property by deception and obtaining a financial advantage by deception, the Parliament did not select any specific factor, much less the amount obtained, as the chief or predominant factor to be taken into account in sentencing. Even in cases where the Parliament has given statutory significance for sentencing purposes to a particular fact (for example, in drug trafficking offences where the weight of the narcotic has such a statutory significance), it is an error of principle to select that fact as the chief factor to be taken into account in sentencing for such an offence.[67] The amount obtained by an offender who obtains property or a financial advantage by deception is merely one of a myriad of relevant matters that need to be taken into account in sentencing such an offender.
[67]See Wong v The Queen (2001) 207 CLR 584, 609 [67]–[70] (Gaudron, Gummow and Hayne JJ).
Secondly, as has been said before, there are well-recognised limitations on the use that can be made of cases which are said to be comparable. In Lieu v The Queen,[68] this Court summarised the relevant principles relating to the use of comparable cases as follows:[69]
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[70]
[68](2016) 263 A Crim R 173; [2016] VSCA 277 (Redlich, Beach and Kaye JJA) (‘Lieu’).
[69]Beach and Kaye JJA, Redlich JA agreeing.
[70]Lieu (2016) 263 A Crim R 173, 186 [46]. See also DPP (Cth) v MHK (a pseudonym) (No 1) (2017) 52 VR 272, 293 [71] (Warren CJ, Weinberg and Kaye JJA).
Having made those points, it is necessary to return to the circumstances of the applicant and his offending. In our view, there is no basis for any suggestion that any of the individual sentences imposed in this case were manifestly excessive. It may be accepted that, given the total quantum of the applicant’s offending (some $110,000), the total effective sentence produced by the orders for cumulation is somewhat stern. That said, other than the significant utilitarian benefit from the applicant’s pleas of guilty, there was little the applicant could rely upon by way of mitigation in this case.
Although the amounts involved in the individual offences were not, in the main, substantial, nevertheless, the offending itself was objectively serious, and the applicant’s subjective culpability for that offending was high. The offending was premeditated and predatory. The applicant preyed on the vulnerability and trust of his innocent victims, in some cases repeatedly beguiling them with his deliberately false representations. In particular, his conduct in exploiting the naivety and inexperience of the young victim of charges 2 and 3 was particularly egregious. Moreover, as already discussed, the applicant has evinced no remorse for, or recognition of, the wrongfulness of his actions.
In those circumstances, the sentencing purposes of general deterrence, denunciation and specific deterrence were of particular importance in this case. It is important that other persons, who might be minded to engage in the kind of dishonesty practised by the applicant, must understand that, upon apprehension, they will lose their right to remain at liberty and within our society for a substantial period of time. In addition, it is particularly important that the sentences imposed in cases such as this appropriately denounce the criminality of the offending, and make plain that the kind of dishonestly practised by the applicant is entirely alien to the most fundamental values of our society. Finally, in view of the applicant’s recidivism, and his lack of remorse, the sentencing purpose of specific deterrence was of paramount importance, to drive home to the applicant that any further such offending will be met with a lengthy period of imprisonment.
Synthesising for ourselves the circumstances of the applicant and his offending, and giving full mitigatory effect to the circumstances and utilitarian value of his pleas of guilty, we are unable to accept that the total effective sentence imposed by the judge was wholly outside the permissible range of sentencing options available to her. The fact that the sentence might be described as somewhat stern in all the circumstances is not sufficient to establish that it was manifestly excessive.
In the circumstances, while the total effective sentence is such as to justify a grant of leave to appeal on proposed ground 2, ultimately the appeal must be dismissed.
Conclusion
We will make orders refusing leave to appeal on proposed ground 1, granting leave to appeal on proposed ground 2, but dismissing that appeal.
---
0
15
0