Shivraj Gandhok v The Queen
[2018] VSCA 29
•20 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0270
| SHIVRAJ GANDHOK | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 February 2018 |
| DATE OF JUDGMENT: | 20 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 29 |
| JUDGMENT APPEALED FROM: | DPP v Gandhok (Unreported, County Court of Victoria, Judge Cotterell, 1 December 2017) |
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CRIMINAL LAW — Sentence — Appeal — Attempting to pervert the course of justice and attempting to obtain financial advantage by deception — Sentenced to 7 months’ imprisonment with CCO of 30 months’ duration — Whether disparity with sentence imposed on co-offender — Whether plea of guilty given too little weight — Whether sentence manifestly excessive —Sentence Manifestly Excessive— Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Georgiou SC with Mr P Smallwood | Vernon Da Gama & Associates |
| For the Crown | Mr B Sonnett | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
The applicant is aged 22 years.[1]
[1]His date of birth is 3 December 1995.
On 10 November 2017 he pleaded guilty in the County Court to one charge of attempting to pervert the course of justice[2] and one charge of attempting to obtain a financial advantage by deception.[3] Following a plea on, 1 December 2017 the judge sentenced him to be imprisoned for seven months, to be followed by a community correction order (‘CCO’) of 30 months’ duration, with a condition that he perform 200 hours community work. The sentence is reflected in the following table:
[2]Attempting to pervert the course of justice is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, ss 82 and 321M. The maximum penalty is 25 years’ imprisonment.
Charge Offence Sentence Cumulation 1 Attempt to pervert the course of justice 6 months Base 2 Attempt to obtain financial advantage 3 months 1 month Total Effective Sentence: 7 months’ imprisonment with 30 month CCO Non-Parole Period: Nil Pre-sentence Detention: Nil 6AAA Statement: Imprisonment for 3 years with 1 year 9 month non-parole
A co-offender and friend of the applicant, George Taleck, aged 26,[4] pleaded guilty to one charge of attempting to pervert the course of justice and was fined $4,000.
[4]His date of birth is 5 May 1991.
The applicant seeks leave to appeal against sentence, relying on three grounds which assert that the sentence is manifestly excessive; that there is disparity between his and Taleck’s sentences; and that the judge wrongly reduced the weight given to his plea of guilty. As formulated, the grounds are as follows:
1. The sentences imposed by the sentencing judge were manifestly excessive.
Particulars:
(a)The sentences imposed on both charges 1 and 2 were manifestly too long.
(b)The wrong type of sentence was imposed; a community correction order alone ought to have been imposed.
(c)Her Honour gave manifestly insufficient weight to the applicant’s youth, his immaturity, his early guilty plea and admissions, rehabilitation, his diagnosed depressive disorder, his otherwise good character, his shame and his remorse.
(d)The sentences imposed were more severe than that which were necessary to achieve the purposes for which the sentence was imposed.
2. The sentencing judge erred by imposing a sentence on charge 1 that, when considered in light of the sentence subsequently imposed upon his co-offender George Taleck (who was sentenced on 5 December 2017 to a $4,000 fine), gives rise to a justifiable sense of grievance.
3. The sentencing judge erred by reducing the weight to be given in mitigation to the applicant’s plea because it ‘came very late in proceedings when the lengthy investigation … revealed the futility in persisting with any other option’.
Particulars:
(a)The applicant’s pleas were early pleas, entered at committal mention, and they were accompanied by admissions and remorse. He was entitled to the full benefit of those pleas.
In our view, there is no substance in grounds 2 and 3. For reasons that follow, however, we would grant leave to appeal on ground 1, allow the appeal and resentence the applicant in the manner later set out.
The offending
The applicant resided with his family in Wantirna South. Taleck, his friend, resided in Cranbourne.
Guruchan Gandhok, the applicant’s father, was the registered owner of a
2014 BMW 435i coupe, registration number VSSG. He had purchased the vehicle on 1 March 2016 for $79,800, and had insured it with RACV for an agreed value of $100,000. The vehicle was kept at the family home.
On 29 November 2016, the vehicle was found extensively damaged in Casey Fields, Cranbourne. All of its panels were damaged, glass was broken, the interior was damaged and the word ‘Apex’ was sprayed on the outside. The applicant was the one who had driven the vehicle to Casey Fields and caused the damage.
On the day the vehicle was discovered, the applicant telephoned RACV insurance to lodge a claim. He pretended to be his father — doing so on his father’s instructions — and told a series of lies to the investigator to back up the insurance claim. Thus, he told the insurer that: the vehicle had been left overnight outside the family home in Wantirna South; the vehicle was stolen by unknown persons at an unknown time on the night of 28 November 2016; the applicant had last seen the vehicle the evening before it was stolen and had not noticed it missing the following morning; and he had two keys to the vehicle.
The applicant also reported the theft and vandalism of the vehicle to the police.
On 11 January 2017, the applicant was interviewed by an insurance investigator. He falsely told the investigator that: he did not drive the car regularly as he was not permitted to by his father until his 21st birthday; on the afternoon of
28 November 2016, he had driven the car only a very short distance, just to wash it in the street; he had been at home all evening on the night of 28 November 2016 and had not heard anything; he had not noticed the BMW missing when he went to work in the morning; he first knew the car was missing when his father called from overseas; one of the car keys had been stolen when his father was in Greece; and the remaining key was at home when the vehicle was alleged to have been stolen.
When re-interviewed by the insurance investigator on 23 January 2017, he gave a different version. He told the investigator that: he had been out with Taleck, the night of the alleged theft; the BMW was still parked at the front of the house when he returned home at 12.45 am on 29 November 2016; he did not drive the BMW that afternoon but instead had been driving his father’s other car, a Nissan Navara utility, before being collected by Taleck in his car; he had not been honest when he had originally spoken to the insurance investigator, as he had claimed that he had been home all night on the night of the alleged theft; he denied that he had anything to do with the alleged theft; and he admitted that he had made the initial claim to the insurance company, pretending to be his father. Taleck, who was also interviewed by the investigator, confirmed the applicant’s account.
Police interviewed the applicant on 26 January 2017. He told them that: he had been out with Taleck, the night of the alleged theft; the BMW was still parked at the front of the house when he returned home at 12.45 am on 29 November 2016; he did not drive the BMW that afternoon but instead had been driving his father’s other car, a Nissan Navara utility, before being collected by Taleck in his car; he had not been honest when he had originally spoken to the insurance investigator, as he had claimed that he had been home all night on the night of the alleged theft; and he denied that he had anything to do with the alleged theft.
Forensic investigations of the vehicle revealed, however, that:
· the vehicle had been driven 50 to 57 kilometres between 27 and 29 November 2016;
· due to the in-built security system and immobiliser the vehicle was almost impossible to move without the use of a key;
· the vehicle did not show the hallmarks of a stolen vehicle and was most likely to have been last driven using the assigned BMW key; and
· at approximately 9.30 pm on 28 November 2016, the applicant had made a telephone call via the vehicle’s media system.
When interviewed by police on 11 April 2017, Taleck was confronted with evidence from telephone records that the applicant had called his girlfriend from the vehicle at 9.30 pm on 28 November 2016. Taleck then confessed that his account had been false. He said that lied because he was scared and wanted to help his friend. Later, Taleck told police that on the night of 28 to 29 November 2016, the applicant drove the BMW whilst he followed in his car; the applicant turned off the road for no reason; Taleck saw the applicant a short time later damaging the BMW; and they exchanged text messages on the night to give the applicant an alibi.
On 13 April 2017, the applicant attended at the Knox police station without an appointment. He told police that he had damaged the BMW, making a full confession. At a further interview on 7 May 2017, the applicant again made a full confession to damaging the BMW; making a false report to the insurer in order to make a claim for the insured value of the vehicle; lying to the insurance investigator; making a false report to the police; and attempting to pervert the course of justice.
The applicant’s explanation for the offending
Carla Lechner, a clinical psychologist, assessed the applicant. Her report, dated 27 October 2017, was tendered on the plea (Exhibit 2). The applicant described the offending, and his reasons for it, as follows:
[The applicant] acknowledges his role in the above offences. He stated ‘the car was originally purchased for my 21st. birthday … dad and I discussed it and I said what I really wanted … we found a car of good value and went halves on it … I was over-the moon’. [The applicant] paid $10,000 that he had saved and took out a loan for $30,000. He obtained the car in March 2016 and was allowed to drive it occasionally (until he turned 21 years of age). He stated ‘everything was fine … the car was legally too powerful for a P-plater … then dad found that out and discussed it with me, saying ‘I may have to give it to your sister’ … it was the first thing I ever got … I didn’t want her to have it … it really got to me, I was paying the loan, doing everything I could … it me it was a symbol of their affection, it was more than a car, it was their way of showing their love and value of me … it was the first time I’d experienced it’.
[The applicant] stated that he constantly ruminated on his father’s perceived threat to give the car to his sister – ‘my emotions exploded, I didn’t ever tell anyone about how I felt about my sister … I had a bad breakdown on the day I was arrested’. [The applicant] admits that he took to the vehicle with a tyre-iron ‘because I didn’t want her to have it, I didn’t think of any ramifications … I reported it stolen because I didn’t know how else to explain it … I feared that people would call me weak for feeling jealous’. [The applicant] stated ‘immediately afterwards (trashing the car) I felt relieved, like a pressure relieved … but next day it became reality … I was too scared to say I did it, I thought they would hate me and dad would think I was stupid … I felt ashamed of myself’.
After his friend [Taleck] was arrested, [the applicant] stated ‘I couldn’t do it anymore’ and he informed his mother of his actions and shortly thereafter, the police. He stated ‘I should never have done it, should have told my parents how I felt … taking my anger out on a car is not acceptable and I shouldn’t have lied’.
[The applicant] stated that since the truth of the matter has come out ‘I talk more to my girlfriend a lot more, I talk to my sister but she doesn’t want to … I am more calm in my judgements, think more before acting … I talk to my dad a lot more, keep myself busy’.
The plea hearing
In the course of the plea, counsel for the applicant submitted that the applicant made an impulsive decision to damage the vehicle after the prospect of it being given to the applicant’s sister was raised by their father. The applicant said in his record of interview that his sister was ‘sort of the favourite child’ and that he ‘didn’t want her to have something that was destined to be’ his. He said, ‘if I can’t have it, then no one can, so I thought I’d get rid of it’.
The applicant wrote ‘Apex’ on the vehicle in an unsophisticated attempt to mislead police. It was submitted that Taleck was not involved in destroying the vehicle, but drove the applicant home from where the vehicle had been left.
Police telephoned the applicant’s father, who was in Greece at the time, and told him that the car had been damaged. He then called RACV. It is then that the applicant’s lies began and the offending began to spiral out of control. Eventually, however, the applicant made full admissions to police.
Counsel told the judge that, due to a finance agreement with respect to the vehicle, the applicant was still repaying $580 per month even though the vehicle had been destroyed. Further, the insurance company was to make a compensation application against the applicant for a minimum of approximately $40,000.[5]
[5]Senior counsel informed us in the course of the hearing that RACV is pursuing the applicant for the costs associated with the investigation, that sum approximating $43,000.
The applicant was educated to Year 12 at Haileybury College. In October 2017 he graduated from Monash University with a Bachelor of Business (Marketing). The applicant worked four days per week at Westpac Bank as a personal banker and one shift a week at a catering company.[6]
[6]In the course of the hearing in this Court, counsel for the applicant confirmed that the applicant had lost his employment with Westpac as a result of his involvement in the instant offending.
The applicant was supported in Court by his parents, his girlfriend and his girlfriend’s mother, who each provided a character reference. A reference was also provided by the leader of the Sikh temple that the applicant and his family attend.
Counsel submitted that the applicant had felt for some time that his sister was favoured by his parents and that was the immature reason behind the offending. Since he had been charged, the applicant was able to discuss these matters with his parents and his relationship with them had improved as a result. He had been seeing psychologists Dr Randolph Montero and Dr Eddie Kleinhaus to help repair that relationship.
In her report, Ms Lechner expressed the opinion that the applicant presented with symptoms of depression and anxiety, stemming largely from his experiences at school. The applicant was from a Sikh family and used to wear a turban to school. After bullying stemming from wearing the turban became too severe, the applicant cut his hair and removed his turban. This caused turmoil within the family, but enabled him to fit in better at school. In Ms Lechner’s opinion, the applicant’s anxiety and depression had stayed with him to an extent, but he was also suffering from reactive depression due to his current predicament. The applicant self-reported binge drinking and some suicidal ideation. He was medicated on antidepressants. Mr Lechner thought that the applicant’s actions were reflective of ‘immense emotional immaturity and unresolved trauma associated with his formative years and inherently antisocial attitudes and behaviours’.
The applicant had turned 21 during the period of offending. His age, counsel argued, was relevant to the applicant’s moral culpability as his immaturity contributed to his offending. It was essentially an act of jealous rage to destroy the car. Moreover, the applicant’s emotional immaturity would make him extremely vulnerable in custody.
Counsel submitted that the applicant entered an early plea of guilty at committal mention. The applicant had no prior convictions and had never spent a day in custody. He had repeatedly expressed remorse and was deeply ashamed of what he had done. The applicant was unlikely to re-offend. It was submitted that the community would be better served if the applicant was not imprisoned. He has good prospects of rehabilitation, and had been volunteering at temple events feeding a number of people daily. The applicant was a community contributor and had the capacity to continue to be if a community correction order was imposed.
A psychological report of Mr Randolph Montero, dated 18 November 2017, was also tendered. In his report, Mr Montero provided examples of how the applicant felt that his sister had been favoured by their parents. Mr Montero thought that part of the applicant’s depression was a reaction to his legal predicament, although the applicant’s symptoms also represented ‘the residual impacts of a chronic major depressive disorder that he has suffered since his childhood’. The applicant’s major depressive disorder would make a term of imprisonment significantly harder for him than for someone not suffering his conditions. He would continue to benefit from ongoing mental health treatment.
Finally, the applicant’s counsel submitted that a ‘straight’ community correction order would meet all the relevant sentencing considerations ‘given [the applicant’s] youth, the impact of his youth on his moral culpability, his absence of prior convictions, his very good prospects of rehabilitation, and his current major depressive disorder’.
The prosecutor accepted that the plea was early. A trial would have been involved, given the amount of forensic evidence and the size of the brief. Based on the applicant’s youth, and the absence of prior or subsequent convictions, the applicant probably did have good prospects for rehabilitation. The prosecutor submitted that attempting to pervert the course of justice required condemnation of the court and general deterrence; and, given the seriousness of this matter, a ‘combination’ sentence would be appropriate.
Ground 3 — Weight given to plea of guilty
It is convenient to turn first to ground 3, which asserts that the judge ‘erred by reducing the weight to be given in mitigation to the applicant’s plea’.
In her sentencing remarks, the judge observed:
I also take into account your plea of guilty in so far as it has saved the community the expense of a trial. Your plea is acknowledgment that you accept responsibility for your criminal behaviour. However, it came very late in proceedings when the lengthy investigation by police revealed the futility of persisting with any other option.
In the written case, it was submitted that the applicant’s guilty pleas were early, entered at committal mention. They had utilitarian value, and were accompanied by evidence of remorse and deep shame. The pleas followed the applicant’s voluntary attendance upon police on 13 April 2017 and his subsequent confessions, and reflected his acceptance of responsibility and his ultimate willingness to facilitate the course of justice. Notwithstanding those circumstances, the sentencing judge concluded that they ‘came very late in proceedings when the lengthy investigation by police revealed the futility in persisting with any other option’. So much, it was submitted, was factually wrong.
The applicant’s attendance on police on 13 April 2017 was two days after Taleck confessed, and, so we were informed by the applicant’s counsel, the day after the applicant’s father was charged in relation to the matter.[7] Up until that point, however, the applicant consistently had continued in his endeavours to deceive the insurers and police. In those circumstances, we think it is accurate to say, as did the judge, that the applicant’s acknowledgment of responsibility for his criminal behaviour came very late in proceedings when the lengthy investigation by police revealed the futility of persisting with any other option.
[7]We were informed that the charges against the applicant’s father were later withdrawn.
Ground 3 is without substance.
Ground 2 — Disparity
It is convenient next to consider ground 2, which asserts in effect that there is unacceptable disparity between the sentences imposed on the applicant and Taleck.
Taleck pleaded guilty to attempting to pervert the course of justice, limited to a false statement that he made to police on 11 April 2017. In that false statement, Taleck said that he had picked the applicant up from his home on the night of 28 November 2016 and that the BMW was still outside the house when they returned after midnight. Taleck was, as I have said, fined $4,000, against the background that he had spent two days in custody.
As a matter of principle, equal justice requires identity of outcome in cases that are relevantly identical, but requires different outcomes in cases that are different in some relevant respect.[8] Where there are relevant differences between the cases of co-offenders, a sentencing judge has the task of identifying the relevant differences in justification of disparate sentences. Appellate intervention is not warranted in the case of co-offenders where disparity is justified by differences in age, background, criminal history, general character or the part each has played in the relevant criminal conduct or enterprise.[9]
[8]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Keiffel JJ).
[9]Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs J); Green v The Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ).
The different treatment of Taleck when compared to the applicant is readily — and satisfactorily — explained. Taleck’s offending was limited to one day, and consisted of making a false statement to help a friend, whereas the applicant’s deceit continued over several months, during which he actively persisted in his fraudulent conduct. The applicant lied to the insurer and police, and made false reports to both, requiring investigations which continued over months, at considerable cost to the insurer and the public purse. Moreover, part of the object of the applicant’s offending was fraudulently to secure compensation for the damage to the BMW, an aspect of the offending that did not apply to Taleck. Thus, the applicant’s offending objectively was far more serious than Taleck’s. So much justified their different treatment.
Ground 2 cannot be upheld.
Ground 1 — Manifestly excessive sentence?
Under cover of the first ground, the applicant’s counsel submitted that the applicant ‘should not have been sent to gaol’. There was, it was submitted, ‘a clear alternative to imprisonment open’. The applicant had no prior convictions, and his offending bore all the hallmarks of immaturity. Although the applicant had lied to avoid the consequences of damaging the car, ‘he fell to be given significant credit for ultimately confessing and taking responsibility for his conduct’. The applicant, who suffered from a major depressive disorder, had pleaded guilty, his pleas being accompanied by remorse. Counsel submitted that the applicant was aged 20 when he damaged the car, so that his youth and the absence of a criminal record were primary sentencing considerations. Rehabilitation was far more important than general deterrence, and, having regard to the principle of parsimony,[10] a CCO without a term of imprisonment ought to have been imposed.
[10]Sentencing Act 1991 , ss 5(3) and 5(4C).
Orally, counsel relied on 12 ‘points’. In summary, they were:
· first, the applicant’s youth (he being 20 when the offending commenced);
· second, the applicant has no prior convictions and was previously of good character;
· third, the plea of guilty was at the earliest opportunity, and had utilitarian benefit;
· fourth, the applicant had excellent prospects of rehabilitation;
· fifth, there was ample material, from a variety of sources, demonstrating the applicant’s true remorse;
· sixth, the applicant had voluntarily sought psychological counselling, and had developing insight;
· seventh, the offending was ‘unsophisticated’;
· eighth, the applicant voluntarily attended the police and confessed;
· ninth, the applicant had suffered severe extra-curial punishment, including the fact that it is unlikely that he will ever work in finance, his chosen career and one for which he has obtained tertiary qualifications;[11]
[11]Indeed, as a result of his offending the applicant lost his employment in the finance industry with Westpac. Additionally the applicant is now being sued by the insurer of the BMW for its costs of investigating the fraudulent claim made by the applicant (some $40,000).
· tenth, the psychological reports establish the applicant’s severe depression and sibling rivalry;
· eleventh, the applicant lied to cover up the fact that he had caused the damage to the vehicle; and
· twelfth, the applicant’s moral culpability is reduced because of his youth and immaturity.
In a conspicuously fair submission, counsel for the respondent conceded that, at the least, the sentence of seven months’ imprisonment, coupled with a CCO of 30 months, is a ‘very stern sentence’.
We are persuaded that the sentence imposed on the applicant was outside the range of those properly open in the sound exercise of the sentencing discretion. It cannot be denied that the applicant damaged the BMW for no better reason than jealousy. That tends to underscore, however, that to a large extent the applicant’s later criminal conduct was borne of immaturity.
Furthermore, we do not ignore the reality that, having made a false report to police, the applicant brazenly persisted over a period of months in a course designed to conceal his criminal conduct.[12] He lied to the insurers, and sought to maintain his deception so as to have RACV pay for the damaged car.[13] His conduct resulted in considerable time being wasted, and cost being incurred, by both the insurance investigators and police. Furthermore, the applicant’s remorse was late-coming, the applicant only admitting his criminal behaviour to police upon his father being charged (and once Taleck had himself confessed).
[12]Charge 1 on the indictment was that the applicant ‘at Melbourne in Victoria between the 29th day of November 2016 and the 11th day of April 2017 with intent to pervert the course of public justice did acts which had the tendency to pervert the course of public justice in that he provided knowingly false statements and gave a false account to police into the circumstances of the reported theft and damage of motor vehicle BMW coupe registration number VSSG’.
[13]Charge 2 was that the applicant ‘at Melbourne in Victoria between the 29th day of November 2016 and the 11th day of April 2017 attempted to dishonestly obtain for himself or another a financial advantage namely $100,000.00 by deception namely by falsely reporting that motor vehicle BMW coupe registration number VSSG was stolen and damaged by persons unknown and lodging a claim to the insurer RACV Insurance Services Pty Ltd’.
Notwithstanding those matters, however, the applicant was able to call in aid his youth and his pleas of guilty. Although both general deterrence and denunciation needed adequately to be reflected in the sentence imposed, having regard to the applicant’s youth, previous good character and prospects of rehabilitation, specific deterrence was of reduced importance. Moreover, the applicant’s youth — particularly when considered in light of his antecedents — dictated that prominence be given to rehabilitation in the exercise of the sentencing discretion.
Whether a sentence is or is not manifestly excessive does not admit of much argument.[14] The task of a sentencing judge requires him or her to synthesise instinctively all relevant factors and arrive at a sentence which he or she thinks to be appropriate. Members of appellate courts approach the task of assessing whether a sentence is manifestly — as opposed to merely arguably — excessive in much the same way. Thus, in determining whether a sentence is or is not excessive, the members of the appellate court synthesise for themselves all relevant factors. Even should the appellate court regard the impugned sentence as stern, or even if the members of the court would not themselves have passed the same sentence, appellate intervention is not warranted unless the sentence is outside the range of those open in the sound exercise of discretion.[15]
[14]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v The Queen (2013) 36 VR 565, 573 [51]–[52]. See too Dinsdale v The Queen (2000) 202 CLR 321, 325-6 [6].
[15]Lowndes v The Queen (1999) 195 CLR 665, 671–672, [15].
Having regard in particular to the applicant’s youth and his prospects of rehabilitation, we are of the view that the sentence imposed on the applicant is more than stern. The applicant has satisfied us that the sentence imposed is manifestly excessive. In our view, the sentence of imprisonment, coupled with a 30 month CCO (with a community work component of 200 hours), is manifestly excessive.
We would thus set aside the sentence of imprisonment first imposed, and sentence the applicant to be imprisoned for 81 days, that period representing the time that he has served in custody since first being sentenced. Otherwise, we would confirm all other orders made by the County Court, including the CCO and its terms.
Conclusion
Leave to appeal against sentence is granted and the appeal allowed. The appellant will be resentenced as indicated above.
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