Schneider v The Queen
[2016] VSCA 76
•19 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0164
| DAN SCHNEIDER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, COGHLAN and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 April 2016 |
| DATE OF JUDGMENT: | 19 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 76 |
| JUDGMENT APPEALED FROM: | DPP v Schneider (Unreported, County Court of Victoria, Judge Stuart, 5 August 2015) |
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CRIMINAL LAW — Sentence — Appeal — Conspiracy to cheat and defraud — Mitigating factors — Risk of deportation — Whether judge failed to take into account changes to Migration Act 1958 (Cth) — Whether judge failed properly to take into account risk of deportation — Whether sentencing judge mistook nature of prior conviction — Whether sentence manifestly excessive — Appeal dismissed — DPP v Zhuang [2015] VSCA 96, Konamala v The Queen [2016] VSCA 48, Da Costa v The Queen [2016] VSCA 49 — Migration Act 1958 (Cth), ss 501(3A), 501CA.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Melasecca (Solicitor) | Melasecca, Kelly & Zayler |
| For the Crown | Mr B Sonnett | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
Pursuant to leave granted by a judge of this Court, Dan Schneider has appealed against a sentence of five and a half years’ imprisonment, with a non-parole period of three and a half years, imposed upon him in the County Court following his plea of guilty to a charge of conspiracy to cheat and defraud.[1]
[1]Conspiracy to cheat and defraud is a crime at common law punishable by imprisonment for 15 years: Crimes Act 1958, s 320. Spelling, grammar and syntax is as in the Notice of Application for Leave to Appeal..
Leave was granted on three grounds as follows:[2]
[2]For convenience, I have renumbered the grounds. Spelling, grammar and syntax from the Notice of Application for Leave to Appeal has been preserved.
1. The Learned Sentencing Judge gave insufficient consideration to the [appellant’s] prospect of deportation.
2. The sentencing exercise is vitiated by factual errors in that … [the] Learned Sentencing Judge erred in finding that the [appellant] was involved in prior card skimming activities.
3. The sentence is manifestly excessive having regard to:
(a)The availability of a sentence which combines imprisonment with a community correction order;
(b)The Learned Sentencing Judge’s acceptance that the sentence should be moderated having regards to the Applicant’s mental condition at the time of sentencing;
(c)The Learned Sentencing Judge’s acceptance that imprisonment would weigh heavily upon the Applicant having regards to the fact that he could not be there to support his loved ones;
(d)The effect of a possible deportation;
(e)The Learned Sentencing Judge’s acceptance of the valuable plea of guilty in this particular case;
(f)The Learned Sentencing Judge’s acceptance of the lesser role of the offending of the Applicant;
(g)Comparable sentences that have been applied by this Honourable court and other court’s in similar matters.
For the reasons that follow, the appeal should be dismissed.
Circumstances of the offending
Card skimming involves a device being attached to the outside of an automatic teller machine (‘ATM’) which, by means of a hidden camera, secretly records a cardholder’s Personal Identification Number (‘PIN’). Bogus cards are then created and the PIN is used to access the genuine cardholder’s funds.
In March 2014, police commenced Operation Sprintless, which investigated allegations of card skimming at bank ATMs.
Over a period of about two months, between 20 March 2014 and 18 May 2014, the appellant and Janos Ursu, were captured by CCTV footage attending ATMs for the purpose of attaching card skimming devices, or withdrawing cash using information obtained from skimming devices attached either by themselves or by others unknown.
During the two month period, the total amount withdrawn by the appellant, Ursu and other co-offenders was $249,404.80. There were also attempted withdrawals to the tune of $245,857.40.
Ursu left Australia on 18 May 2014.
About a week and a half before Ursu’s departure, on 7 May 2014, Gheorghe Oltean arrived in Australia from England.
Between 18 May 2014 and 25 June 2014, the appellant and Oltean were captured on CCTV footage attending ATMs for the purpose of attaching card skimming devices, or withdrawing cash using information obtained from skimming devices attached either by themselves or by other unknown persons.
The total amount withdrawn by the appellant, Oltean and other co-offenders during that period was $82,382.50. Attempted withdrawals amounted to $22,508.00.
On 25 June 2014, police went to the ANZ Bank at Rowville and spoke to Oltean and the appellant’s son, also named Dan Schneider. Following confirmation of his identity, the appellant’s son was permitted to leave, but Oltean was arrested and taken to the Fraud Squad offices. At the time of his arrest, Oltean was found in possession of a number of gift cards which contained skimmed ATM customer information. Oltean participated in a tape record of interview on 26 June 2014, in which he made a confessional statement and described the involvement of the appellant in the offending.
The appellant’s son left Australia on 8 July 2014. He has not returned and his whereabouts are unknown.
On 24 July 2014, the appellant was arrested and interviewed. In the main he gave ‘no comment’ answers to questions asked of him by police.
The basis upon which the appellant pleaded guilty was formalised in a document, Exhibit DS8, which the judge read into his reasons for sentence. So far as relevant, it contained the following:[3]
[3]Some minor alterations have been made to syntax.
… [The appellant] does not accept and the Crown does not allege:
- that he conceived of, planned or organised to conduct card skimming operations in the Melbourne area prior to the arrival of Mr Ursu from overseas;
- that he recruited Mr Ursu or Mr Oltean from overseas for participation in the scheme;
- that he directed the activities of either Mr Ursu or Mr Oltean in the course of the scheme;
- that he sourced the electronic equipment used to skim data;
- that he was in communication with or responsible for remitting stolen funds back to the syndicate in the UK.
This plea offer is put on the basis that [the appellant’s] role included:
- attending at ATMs with Ursu between 20 March and 1 May, shielding Mr Ursu from view with his body and/or assisting Mr Ursu place and remove skimming devices;
- making withdrawals with Mr Ursu between 30 March and 13 May;
- placing and removing skimmers with Mr Oltean between 20 and 29 May;
- making withdrawals with Mr Oltean on 24 May and 17 June; and
- on occasion, driving Mr Ursu and later Mr Oltean.
The risk of deportation
Given that the appellant is not an Australian citizen, as a result of the commission of the present offence, he faces deportation.
The first ground of appeal — which simply asserts that the sentencing judge ‘gave insufficient consideration to the [appellant’s] prospect of deportation’ — lacks precision. In support of the ground, however, the appellant’s counsel placed substantial reliance on changes to the Migration Act 1958 (Cth) (‘the Act’) recently adverted to by this Court in Zhuang,[4] Konamala[5] and Da Costa.[6] It was contended that, because of his visa status, the appellant will not be able to undertake parole in the community. That factor, it was submitted, is a matter going in mitigation. Furthermore, it was submitted that, due to changes in the Act, it is likely that the appellant will be deported once he has completed the sentence of imprisonment imposed upon him. That was a matter that should also be regarded as going in mitigation.
[4]DPP v Zhuang [2015] VSCA 96 (Redlich, Priest and Beach JJA) (‘Zhuang’).
[5]Konamala v The Queen [2016] VSCA 48 (Maxwell P, Redlich and Priest JJA) (‘Konamala’).
[6]Da Costa v The Queen [2016] VSCA 49 (Maxwell P, Redlich and Priest JJA) (‘Da Costa’).
Counsel submitted that, when sentencing the appellant, the judge made no mention of recent changes to the Act, or to this Court’s decision of in Zhuang. Further, counsel drew attention to Konamala and Da Costa, delivered subsequently to sentence being imposed in this case. It was argued that, as a consequence of s 501E of the Act, the appellant will no longer have a visa at the time that his non-parole period expires, and he will be prohibited from applying for any bridging visa pending the outcome of the Minister’s decision whether to revoke the mandatory cancellation of his visa. Counsel submitted that in a case like the appellant’s, the decision to cancel a visa is usually made at the time that the non-parole period expires. Hence, being without a visa at that time, the appellant would ordinarily be transferred to an immigration detention centre. A decision whether to revoke cancellation of the visa might then take in excess of a year to resolve. Since it is possible to predict with certainty that the appellant will not be able to undertake parole in the community, this factor should be viewed as mitigatory, and should result in a sentence ‘that does not involve a significant period being spent in the de facto prison environment of an immigration detention centre’. Furthermore, it was submitted that the fact that the appellant had been subject to a prior warning that further criminal offending would likely lead to his deportation, renders as high the prospect of deportation, particularly since the burden of persuading the Minister to revoke cancellation of the visa now will fall to the appellant.
I pause to note that, prior to committing the present offences, the appellant had been warned that he faced deportation if he continued to offend. In a letter from the Department of Immigration and Citizenship, dated 5 November 2010, the appellant was advised that an application he had made for Australian citizenship had been refused. (At that time, he was in custody pursuant to a sentence of imprisonment imposed on 3 September 2010 for supplying a prohibited drug.) By a further letter from the Department of Immigration and Citizenship, dated 22 December 2010, the appellant was warned that the Minister was considering cancelling the appellant’s visa. Fortunately for the appellant at that time, however, the decision was made not to then cancel his visa, but he was warned of the possible repercussions of committing further offences. Thus, by a further letter from the Department of Immigration and Citizenship, dated 3 August 2011, the appellant was advised:[7]
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class BB subclass 115 (Five Year Resident Return) visa will continue to provide you with permission to remain in Australia. However, the delegate has decided that you be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise the breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[7]Underlining and emphasis in original.
On 13 December 2013, the appellant had completed a community correction order imposed for deception offences. Yet, within approximately four months of the conclusion of that community correction order period — and despite the warnings he had been given — in March 2014 he commenced the present offending.
In his reasons for sentence, the judge said:[8]
It was submitted to me by [counsel] that I ought take into account your prospect of deportation. I refuse to do so. It would be impossible and entirely speculative for me to engage in a consideration of whether the Minister would, in the end, revoke your visa and deport you. Nonetheless, this is a matter that weighs upon you, as does the plight of your wife, who is isolated in this community and you have concerns for her. I am satisfied that in the circumstances of this case, for a combination of reasons that I have endeavoured to advert to, your period of imprisonment has been and will be more burdensome than others in similar circumstances in custody. Therefore, I intend to moderate the sentence that I would otherwise have imposed upon you.
[8]Emphasis added.
In my view, the appellant’s submissions under cover of the first ground should be rejected.
The head term of a sentence of imprisonment represents the period which, in the estimation of the judge, justice in accordance with law prescribes for the particular offence and the particular offender. A non-parole period or minimum term is the period before the expiration of which release of the offender would, in the estimation of the sentencing judge, be in violation of justice according to law.[9] The purpose of a minimum term is to provide for the possible mitigation of punishment through conditional freedom (when appropriate) once the prisoner has served the minimum time that a sentencing judge determines justice requires that he or she must serve having regard to all the circumstances of the offence.[10] The fact that a prisoner faces possible deportation is not a reason for denying him or her the fixing of a non-parole period.[11] But a sentencing court is not entitled to predict whether a person will (or will not) be granted parole; or, if granted parole, the conditions of such parole.[12] Thus, in accordance with authority, this Court is not entitled to predict whether the appellant will be granted parole, and, if he is, the conditions under which it will be undertaken.
[9]R v Morgan (1980) 7 A Crim R 146, 154.
[10]Power v The Queen (1974) 131 CLR 623, 629.
[11]R v Shrestha (1991) 173 CLR 48. See also R v Binder [1990] VR 563.
[12]R v Bruce [1971] VR 656, 657. See also R v Douglas [1959] VR 182; R v Governor of Her Majesty's Gaol at Pentridge; Ex parte Cusmano [1966] VR 583, 587; R v Yates [1985] VR 41, 44. See further Sentencing Act 1991, s 5(2AA)(a).
In my opinion, the judge took into account the appellant’s possible deportation in the only manner in which he was entitled. Hence, his Honour took into account that the appellant’s period of imprisonment had been, and would be, ‘more burdensome than for others in similar circumstances’, and moderated the sentence that he would otherwise have imposed.
Prior to the amendments to the Act upon which the appellant placed reliance, the relevant principles concerning the risk of deportation were spelled out in Guden.[13] More recently, the principles to be applied following the changes to the Act were analysed in Konamala and Da Costa (both cases having been heard by a similarly constituted Court on the same day). I need not repeat that analysis in detail. But I note that in Konamala it was said:[14]
Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.
In Guden, it was recognised that — subject always to the state of the evidence before the sentencing judge — the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant’s position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so.[15]
For the reasons given in Lima Da Costa Jnr v The Queen,[16] the amendments do not require any change to the approach in sentencing. What was said in Guden[17] still applies. It is apparent that the judge directed herself correctly in considering the significance of the risk of deportation.
As already mentioned, the judge said that she considered that ‘there is the possibility that [the applicant] may lose the opportunity of settling permanently in Australia’, and that there ‘is a degree of risk that [his] concern and fear of being deported upon serving [his] sentence will make [his] imprisonment more burdensome than it would have otherwise’. The sentencing judge said specifically that she had ‘taken these factors into account’.
[13]Guden v The Queen (2010) 28 VR 288, 294–5 [25]–[27].
[14]Konamala, [34]–[37] (Priest JA).
[15]See, for example, R v Binder [1990] VR 563, 569–70 (Crockett and Marks JJ).
[16]Lima Da Costa Jnr v The Queen [2016] VSCA 49.
[17](2010) 28 VR 288.
The changes to the Act relied upon by the appellant are of no moment, since in light of Guden, Konamala and Da Costa, the sentencing judge took into account the appellant’s risk of deportation in the manner permitted.
The first ground cannot be upheld.
Whether the judge mistook the nature of a prior conviction
There is nothing in the second ground, which asserts that the sentencing judge erred in finding that the appellant was involved in prior card skimming activities.
In his reasons for sentence, the judge said:[18]
… you have on two occasions, one in 1986 and a more recent time 2010, been sentenced to lengthy periods of imprisonment. However, the matter does not end there. For in your most recent court appearance in the Melbourne Magistrates’ Court on 13 December 2012, you pleaded guilty to ten charges of obtaining property by deception. That offending, I am told, involved you using card skimming devices on five ATMs to obtain $8,200. You were released on a 12 month community corrections order on that date. The order would have concluded on 13 December 2013.
Within approximately four months of the conclusion of that community corrections order period, you commenced this offending in March 2014. …
[18]Emphasis added.
Counsel for the appellant submitted that the appellant’s prior offending did not involve his use of a card skimming device. Hence, the judge made a factual error, and that factual error vitiates the exercise of the judge’s sentencing discretion.
In assessing the submissions by the appellant’s counsel, it is necessary to examine the manner in which the prior offending was dealt with on the plea. In the course of the plea, the judge referred to the fact that, despite having been warned that the commission of further offences might result in his deportation, the appellant continued to commit further offences. The discussion about the appellant’s prior convictions then continued:[19]
[19]Emphasis added.
HIS HONOUR: … One, the theft in Dandenong Magistrates’ Court, December 2011, a matter of little moment I add, fined $200. Two, his appearance in the Magistrates’ Court at Melbourne on 13 December 2012 in relation to 12 counts of obtaining property by deception, card skimming.
[COUNSEL]: No
HIS HONOUR: A matter of moment. No let’s just ---
[COUNSEL]: No, no, not card skimming. Obtaining property – it might have arisen out of card skimming is ---
HIS HONOUR: Obtaining property by deception via card skimming.
[COUNSEL]: Well no, via taking the money. Not card skimming. The card skimming is how the cards would have come into origin. His crime that he pleaded guilty to was obtaining the money by utilising a card.
HIS HONOUR: From a card which was – had been skimmed.
[COUNSEL]: Yes.
HIS HONOUR: Well I’m not interested in – I’m interested in what he did. He had a card which had been falsely created via card skimming in order to obtain ---
[COUNSEL]: Falsely – it was a false card.
HIS HONOUR: Yes.
[COUNSEL]: False in some way.
HIS HONOUR: Yes.
[COUNSEL]: As to what his knowledge was is not determined, Your Honour.
HIS HONOUR: Obtaining $8000 plus dollars.
[COUNSEL]: Yes from a false card. From false cards, yes.
HIS HONOUR: Yes. He gets a CBO [scil., CCO] which expires on 13 December 2013 and he commences his involvement in this conspiracy a year and a quarter later.
[COUNSEL]: Yes.
HIS HONOUR: It’s conspiracy of very considerable size. …
Having regard to this exchange, it is wholly unrealistic to contend that the judge could have misapprehended the nature of the appellant’s earlier conduct. The judge must have understood that the appellant had obtained money from the use of a false card which contained details which had been skimmed. At worst, the judge’s reference to the appellant ‘using card skimming devices … to obtain $8,200’ was an innocuous verbal slip. But even could the sentencing remarks be said to betray a misunderstanding on the judge’s part as to the precise nature of the conduct establishing the prior offending, such misunderstanding was of a trivial, non-material nature. It could not unravel the exercise of the sentencing discretion.
The second ground cannot be upheld.
Manifest excess
I am not persuaded that the sentence imposed is manifestly excessive.
So far as the appellant’s personal circumstances are concerned, the appellant was born in Romania on 25 May 1956, and is now aged 59 years. He came to Australia as a refugee in 1980, when aged 24 years. When he married, the appellant was aged 44 years, and his wife was aged 31. His wife did not migrate to Australia until 2008, when their son was aged 14 years.
It seems that the appellant was physically abused as a child by his father, and he was placed into protection at the age of eight when his parents separated. His intellect is estimated to be in the ‘low-borderline range’.[20] He is virtually uneducated, having completed only four years of primary school. At age eight, in 1965, the appellant attracted a diagnosis of ‘infant neurosis’, which, according to evidence given by a consultant psychiatrist, Dr Adam Deakin, in contemporary terminology would equate to ‘some form of anxiety disorder’. The appellant commenced military service in June 1977, but, on 23 May 1978, shortly before turning 22 years of age, he was found unfit for combat because of what was probably a ‘polymorphous psychotic disorder’,[21] a precursor to schizophrenia. Following a sentence of imprisonment which was imposed upon him in 2010, the appellant developed florid schizophrenia. As a result of experiencing psychotic symptoms (such as hearing voices and delusions) the appellant was placed on a pension. At the time of the offending, the appellant had been using prescribed anti-psychotic medications, but these had not been effective.
[20]Exhibits DS1 and DS2, reports of Dr Adam Deacon, Consultant Psychiatrist, dated 16 August 2014 and 18 April 2015.
[21]Exhibit DS4 was a translation of a medical certificate from the Constanta Medical Hospital, which suggested that the appellant was diagnosed with ‘Polymorphous psychopathic condition’. In his evidence on the plea, however, Dr Deacon suggested that the translation should be probably be ‘Polymorphous psychotic disorder’.
The sentencing judge accepted that the sentence should be moderated having regard to the appellant’s mental condition.[22] It is important to understand, however, that the burden of the available psychiatric opinion was that the appellant’s psychiatric condition did not appear to have directly contributed to the appellant’s offending. Dr Deacon, in a report dated 18 April 2015, offered the opinions that:[23]
[The appellant] was still actively psychotic during the period of offending in 2014, as his symptoms had not resolved with medication, but his psychotic illness does not appear to have directly contributed to his involvement in the offending conduct.
…
… It is difficult to determine whether [the appellant’s] mental problems reduced his capacity to exercise reasonable judgement in regards to electing to engage in the offences.
…[The appellant] can be considered a vulnerable man in prison due to his age, low intellect, anxious disposition and ongoing mental problems. He will likely experience prison as more onerous and stressful than prisoners without his mental profile. Despite his mental difficulties he has been able to competently complete a number of prison courses, suggesting he has a reasonably preserved level of mental functioning.
[22]R v Verdins (2007) 16 VR 269.
[23]Emphasis added.
And in evidence on the plea, Dr Deacon said:[24]
… I think firstly [the appellant] is a man of modest intellect. He seems to be quite an unsophisticated man. He certainly has, sort of, impoverished background and as we’ve mentioned his education history is very limited. Secondarily he does have an illness. That’s irrefutable that he is – he has schizophrenia and that illness was active at the time of the offences. It appears that the active symptoms, that being delusions and hallucinations, did not have a relationship to the offending as such. There doesn’t appear to be a nexus between those symptoms and the actual offending. … Now whether [his] modest intellect combined with some of the cognitive problems associated with schizophrenia impaired his judgement, it’s possible to some degree I think.
[24]Emphasis added.
Having weighed the psychiatric opinion, the judge did not accept that the appellant’s mental condition affected his capacity to reason such that his moral culpability was lessened. The appellant ‘knew precisely what [he was] doing’. He engaged in criminal activity ‘over a lengthy period of time and did so enthusiastically’. In my view, these finding were open to the judge. It was also open to the judge to find (as he did) that the appellant’s schizophrenia in custody made him ‘a less suitable vehicle for general deterrence’, leading the judge to moderate the sentence.
The sentencing judge also accepted that, because of the appellant’s fear of deportation and his concerns for his wife, ‘imprisonment has been and will be more burdensome than [for] others in similar circumstances in custody’. He therefore moderated the sentence that he would otherwise have imposed.
With respect to the plea of guilty, the judge observed that ‘the prosecution would have been a difficult one’, the ‘investigation was necessarily a laborious one’, and the trial would necessarily have been lengthy and complex. The plea of guilty obviated the need for such a trial, and the utility of the plea was ‘considerable’. Not only did the plea avoid a lengthy trial, but it also avoided lengthy committal proceedings. The utility of the plea, and the fact that it was ‘offered at the earliest reasonable opportunity’, was ‘a significant mitigatory factor’ that the judge took into account.
Subjoined to the third ground of appeal — which asserts that the sentence is manifestly excessive — are several ‘particulars’. In my view, however, it is unnecessary to attempt to analyse each particular in detail, since, to make good the essential complaint embodied in the ground, the appellant must demonstrate that, having regard to all factors relevant to the exercise of the sentencing discretion, the sentence is outside the range of those open in the proper exercise of the sentencing discretion. As has been said many times previously, manifest excess is a conclusion which does not depend upon attribution of identified specific error. It is a conclusion that ordinarily does not admit of much in the way of argument or elaboration.[25] Excess is, or is not, plainly apparent; and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[26]
[25]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[26]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
In my opinion, as I have said, the sentence under challenge is not manifestly excessive. The appellant’s offending was serious and persistent. Although he may have played a lesser role in the offending than others, his role was still important. His offending occurred soon after he had completed a sentence for other offences of dishonesty, and in circumstances where, as I will shortly discuss, he had a serious criminal history. His conduct was worthy of strong denunciation, and required stern punishment. The appellant’s moral culpability was not lessened by his psychiatric condition, so that specific deterrence remained important. Moreover, although the judge thought that general deterrence ought to be moderated, in my opinion it did not altogether cease to be a relevant factor, and, indeed, continued to be a significant factor animating the exercise of the sentencing discretion.
As an aspect of the contention that the sentence was manifestly excessive, it was put on the appellant’s behalf that a sentence combining imprisonment with a community correction order (‘CCO’) was appropriate. I reject that submission. A CCO could only have been coupled to a sentence of imprisonment of two years or less (after deduction of 405 days presentence detention already served).[27] In my view, a sentence of imprisonment coupled with a CCO would not have been sufficiently punitive to satisfy the need to punish the appellant in a manner which, in all of the circumstances, was just.[28] Offending of the kind perpetrated by the appellant is a serious problem, costing banks a great deal of money and impairing confidence in the integrity of the ATM system. The sentencing judge was correct to describe the offending as ‘grave’, given its size and duration, and given the amounts obtained (and sought to be obtained). As the judge said, ‘the persistence of the offending is noteworthy in itself’. The offending ‘doubtless would have continued but for police intervention’, it not being a case of the appellant having ‘voluntarily desisted’.
[27]Sentencing Act 1991, s 44(1).
[28]Hutchinson v The Queen (2015) 71 MVR 8, 13 [17].
Further, the appellant’s prior convictions did not make him a candidate for leniency. Although he was not to be again punished for his prior offences, his criminal history meant that he could not attract the leniency that a first time offender might. Moreover, his prior convictions cast light on his moral culpability, criminal propensities and poor prospects of rehabilitation, and underscored a need for a measure of specific deterrence so as to protect the community.[29]
[29]R v O’Brien & Gloster [1997] 2 VR 714, 718.
As the judge observed, the appellant has ‘a considerable criminal record’. He had been before criminal courts ‘on no less than 11 other occasions’. At age 23, in 1981, the appellant was dealt with for stealing in New South Wales. Thereafter, he has amassed some 23 convictions for offences of dishonesty between 1981 and 13 December 2012. He has also been sentenced to lengthy periods of imprisonment for the supply of prohibited drugs. Thus, in August 1986, when aged 28 years, he was sentenced to seven years and six months’ imprisonment with a non-parole period of three years in the District Court of New South Wales. On 3 September 2010, he was again dealt with by the District Court in relation to supply of a prohibited drug (the offence having been committed many years before, in 1988). He was sentenced to three years’ imprisonment, with a non-parole period of 18 months. In a recent appearance in the Melbourne Magistrates’ Court on 13 December 2012, he pleaded guilty to ten charges of obtaining property by deception, and was released on a CCO of 12 months’ duration. That order concluded on 13 December 2013, but, within about four months of its conclusion, the appellant commenced the present offending. Given this history, I would assess the appellant’s prospects of rehabilitation as bleak.
Finally, I reject the submission that the sentence can be seen to be manifestly excessive when regard is had to ‘comparable sentences’. The use to be made of comparable cases (so-called), was recently discussed in Zhuang.[30] As part of a detailed analysis of the use of comparable sentencing cases, the Court said:[31]
It should be emphasised that whilst like cases provide some insight as to the relevant current sentencing practice, as we have said, sentences passed in other like cases are not precedents which must be followed unless they are capable of being distinguished. The question whether a sentence is manifestly excessive or inadequate cannot be answered by a numerical comparison with other sentences imposed in other cases.[32] As the High Court explained in Munda,[33] past sentencing decisions do not define the limits of the sentencing discretion. Every case must turn on its own facts — including the particular features of aggravation and mitigation, and the individual circumstances of the offender and the offence — and be the product of the intuitive synthesis of those facts. …
[30]Zhuang, [29]–[37].
[31]Ibid [36]. See also R v Pham (2015) 325 ALR 400, 406 [28].
[32]Hili, 358-9 [59].
[33]Munda v Western Australia (2013) 249 CLR 600, 631 [95].
In an endeavour to demonstrate that the sentence imposed in the present case was out of step with sentences passed in similar cases, counsel for the appellant drew attention to other sentencing appeals involving card skimming, including Zamfirescu,[34] Camara[35] and Georges.[36]I do not find it necessary to examine the circumstances of those cases in detail. It is enough to observe that they confirm the impression that I have that the present sentence is in conformity with current sentencing practice, and that the sentence passed on the appellant is within the range of sentences passed in other cases for similar offending.
[34]Zamfirescu v The Queen [2012] VSCA 157.
[35]Camara v The Queen [2015] VSCA 20.
[36]Georges v The Queen [2015] VSCA 82.
Conclusion
For the foregoing reasons, none of the grounds can be upheld. The appeal must be dismissed.
COGHLAN JA:
I agree.
KYROU JA:
I also agree.
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