Tran v The Queen
[2014] VSCA 85
•14 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0029 | |
| NHAT LUONG TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and PRIEST JJA |
WHERE HELD: | MELBOURNE |
DATES OF HEARING: | 14 April 2014 (Determined on the papers) and 29 April 2014 |
DATE OF ORDER: | 29 April 2014 |
MEDIAN NEUTRAL CITATION: | [2014] VSCA 85 |
JUDGMENT APPEALED FROM: | DPP v Tran (Unreported, County Court of Victoria, Judge Lacava, 31 January and 6 February 2013) |
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CRIMINAL LAW – Sentencing – One charge of receiving a secret commission – 16 charges of receiving a financial advantage by deception – Whether total effective sentence of two and a half years with a non-parole period of 18 months manifestly excessive – Pre-sentence report sought pursuant to s 37(b) of Sentencing Act 1991 – Applicant re-sentenced to a two year Community Corrections Order with conditions for performance of 300 hours unpaid community work and supervision by Secretary.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich | Michael J Gleeson & Associates |
| For the Crown | Ms F L Dalziel | Mr Craig Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an application for leave to appeal against a total effective sentence of two and a half years' imprisonment with a non-parole period of 18 months imposed on the applicant on pleading guilty to one charge of receiving a secret commission (Charge 1) and 16 charges of obtaining a financial advantage by deception (Charges 2 to 17).
For reasons which I published on 14 April 2014, (copy of which is annexed) I reached the view on the papers that it was sufficiently arguable the aggregate sentence of two and a half years' imprisonment imposed on Charges 2 to 17 was manifestly excessive to warrant referring the application to a court constituted of two judges of appeal of which I am one.
Having now heard argument from counsel for the applicant and counsel for the Crown, and after receiving a presentence report pursuant to s 37(b) of the Sentencing Act 1991 — that the applicant has been assessed as suitable for a Community Corrections order on conditions that he perform unpaid community work and be supervised, monitored and managed as directed by the Secretary to the Department of Justice — I am confirmed in the view that the sentence imposed on Charges 2 to 17 is manifestly excessive.
Counsel for the Crown submitted that, because of the need for general deterrence, the sentence which was imposed, although stern, was not beyond the bounds of the available range. She also submitted that, if it were considered the sentence is excessive, and it was contemplated imposing a Community Corrections Order coupled with a sentence of imprisonment, a sentence of not less than three months’ imprisonment plus the time already served would be required in order to meet the requirements of general deterrence and denunciation. I am not persuaded that is so.
In the course of his submissions, counsel for the applicant referred to the
sentence passed by Dixon J in R v Huynh,[1] which counsel acknowledged was in some respects similar to this case. Dixon J imposed a total effective sentence of four years' imprisonment with a non-parole period of two years. As was accepted in the course of argument, however, there are significant differences between the facts of that case and those here, not the least of which is that in this case the applicant, once taxed with some of the facts which were alleged, almost immediately made a full breast of everything which he could. That included facts of which the police would not have otherwise known and the offer of such assistance as might be needed in prosecuting other persons involved in the offences.
[1][2014] VSC 53.
When that is coupled with the fact that, in this case, the applicant did not benefit to any significant extent, whereas in Huynh the offender not only received commissions on the business she wrote but also demanded and received further payments from the clients concerned, there is a fundamental distinction between the two cases.
In the result I would allow the application and appeal, set aside the sentence imposed on Charges 2 to 17 and, in lieu thereof, resentence the applicant on those charges to a Community Corrections Order of two years' duration with conditions that he perform 300 hours unpaid community work and be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
PRIEST JA:
I agree.
NETTLE JA:
Mr Gurvich, the order must provide for the address at which the applicant is to live. Are you able to confirm that 32 Fontana Close, Sunshine is the place at which he will reside?
MR GURVICH: I confirm that, Your Honour, yes.
NETTLE JA:
Then the orders of the court will be that the application for leave to appeal is allowed. The appeal is treated as instituted and heard instanter and is allowed.
The sentence passed below on Charges 2 to 17 inclusive is set aside, and in lieu thereof the applicant is resentenced on those charges to a Community Corrections Order of two years' duration with conditions that he perform 300 hours unpaid community work and be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
The sentence on three months' imprisonment imposed on Charge 1 is confirmed.
Mr Tran, would you stand up, please? The effect of the order proposed to be made is that you would be required to complete the three months' imprisonment imposed on Charge 1 and would then be subject to a Community Corrections Order which would require you to perform 300 hours unpaid community work and be subject to the supervision and directions of the Secretary to the Department of Justice. Are you prepared to enter into that?
OFFENDER: (Inaudible).
NETTLE JA:
You may be seated.
COUNSEL:Your Honour, I wonder if the court has to declare the presentence detention on Charge 1 which has been confirmed.
NETTLE JA:
Yes, thank you.
For the purposes of s 6AAA of the Sentencing Act1991 it is declared that, but for the applicant's plea of guilty, the sentence which would have been imposed is the sentence which the judge declared would have been imposed but for the plea of guilty.
Are you able to confirm, Mr Gurvich, that the presentence detention is 88 days as of this day?
MR GURVICH: Yes.
NETTLE JA:
It is further declared for the purposes of s 18 of the Sentencing Act 1991 that the number of days already served under the sentence is 88 days including this day.
COUNSEL: May it please the court.
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ANNEXURE
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0029 | |
| NHAT LUONG TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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JUDGE: | NETTLE JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | Delivered in advance of hearing |
DATE OF JUDGMENT: | 14 April 2014 |
JUDGMENT APPEALED FROM: | DPP v Tran (Unreported, County Court of Victoria, Judge Lacava, 31 January and 6 February 2013) |
DETERMINED ON THE PAPERS
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr D D Gurvich | Matthew White & Associates |
For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an application for leave to appeal against a total effective sentence of two and a half years’ imprisonment with a non-parole period of 18 months imposed on the applicant on pleading guilty to 16 charges of obtaining financial advantage by deception and one charge of receiving a secret commission. The individual sentences, orders for cumulation and s 6AAA declaration are as follows:
Charge
Offence
Max penalty
Sentence
Cumulation
1.
Receiving a secret commission contrary to s 176 of Crimes Act 1958
20 years’ imprisonment
3 months’ imprisonment
Concurrent
2-17.
Obtain financial advantage by deception contrary to s 82 of Crimes Act 1958
20 years’ imprisonment (Continuing Criminal Enterprise Offences)
Aggregate sentence of 2 ½ years’ imprisonment with non-parole period of 18 months
Base
Total Effective Sentence
2 ½ years
Non-parole period
18 months
S 6AAA declaration
Six years’ imprisonment with non-parole period of four years
Facts of the offending
In brief, the facts of the offending were that, between May 2011 and August 2012, the applicant was employed as a mobile banker at Bankwest and, in the course of his work, received and processed home loan applications from mortgage brokers which he knew to overstate the income and of the putative mortgagors.
There were 16 such applications covering total borrowings of $4,292,084.23 but, at the time of sentencing, there had been no default under any of those loans and no moneys otherwise lost. The offending extended over a period of 15 months. Those are the facts which comprised Charges 2 to 16.
Charge 1 related to four sums of $250 received by the applicant from mortgage brokers for assisting in obtaining loans for their clients. The moneys were paid to the applicant on four separate occasions over the 15 months.
On 25 September 2012, police approached the applicant concerning the loan the subject of Charge 3. He denied any wrongdoing. The next day, however, he was interviewed again and confessed to Charge 3 and to other offences. He named the loan brokers involved and provided police with full details.
On 27 September 2012, he supplied police with an Excel spread-sheet listing the details of all fraudulent loans. The list included loans about which the police had no knowledge. On 7 December 2012, he was interviewed once more. He again made admissions and, on 10 December 2012, he signed a detailed police statement.
Personal circumstances
As appears from the report of consultant psychiatrist, Jeffrey Cummins, which was before the judge, the applicant was born in Vietnam 1981 and came to Australia as a child with his parents in 1998. They live in Adelaide and, evidently, are hardworking decent people. The applicant was a reasonable scholar and, while still in his early 20’s, graduated from the University of South Australia with a degree in international business. Thereafter, he worked in a range of fields before joining the Commonwealth Bank as a junior bank officer. Later, he moved to the ANZ Bank for three years and then to the Westpac Bank, to what I infer was a better rewarded position. Finally, in 2011 he moved to Bankwest, as a mobile banker on a salary of $75,000 plus bonuses. He is married to a young woman of Vietnamese extraction who is a successful bank manager.
Despite an unblemished and in many respects impressive record, the applicant committed the subject offences as a result of being overwhelmed and stressed about the need to meet Bankwest performance targets. As appears from Mr Cummins’ report, the applicant was required to write between $6 million and $9 million of new loan business every three months. In order to do so, and thus to maintain his employment as a mobile banker, he allowed the applications containing false details of mortgagors’ incomes to be submitted on behalf of his mortgage broker clients. In effect, he made his own assessment of the prospective borrowers’ abilities to repay and then put forward the false documents in order to gain Bankwest approval.
Although the applicant eschewed reliance on Verdins principles, Mr Cummins considered that, at the time of the offending, the applicant was suffering from a work induced Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-5 Code 309.28), which was triggered by work related stress, and it was that which ultimately led the applicant to a compromised perception and judgment of what was permissible behaviour in his role as a mobile banker. Mr Cummins added that, since the offending, the applicant had seen the error of his ways and was severely embarrassed and ashamed of his actions. As Mr Cummins also observed, the offending was situationally motivated and, therefore, it was not to be expected that the applicant will offend again.
Grounds of appeal
It is contended on behalf of the applicant that the individual sentences and total effective sentence are manifestly excessive as a result of the judge failing to given any or sufficient weight to the following considerations:
a) Bankwest did not sustain any loss as a result of the offences and, because the loans were fully secured by mortgage, there was never any risk of loss.
b) After an initial denial of criminality, the applicant almost straight away made full and frank admissions in the course of two lengthy interviews.
c) The applicant pleaded guilty at the first available opportunity and the plea was found to be indicative of true remorse.
d) The Crown case was weak and, consequently, the plea was of more than usual utilitarian value.
e) The applicant further demonstrated true remorse by disclosing the commission of offences which would not otherwise have been discovered.
f) The applicant was well educated, had a good employment record, was married, enjoyed the support of his wife and was hard working. He had no criminal antecedents and no subsequent matters.
g) The risk of re-offending was low.
h) The applicant was an excellent candidate for rehabilitation and since the offending, he had worked hard to rehabilitate himself. He had obtained night-shift work at a fruit and vegetable market and taken on employment as a sales consultant at a much reduced scale of pay.
i) The level of the applicant’s assistance to the authorities was high. It included both his disclosure of offences which would not otherwise have been discovered and his undertaking to give evidence for the Crown in future prosecutions of others involved in those offences.
j) The applicant had already suffered very significantly as the consequence of his offending, in that he had lost his position with Bankwest and his chosen career as a retail banker, and had suffered a very substantial reduction in income.
The applicant accepts as he must that the judge referred to each of those considerations, and the applicant accepts, as indeed the judge stated, that in matters of this kind general deterrence must be given considerable weight. But it is submitted for the applicant that, given the powerful mitigating considerations which applied, the purposes of general deterrence and other relevant sentencing considerations could have been achieved, without the applicant’s confinement, by imposition of a Community Corrections Order or a suspended sentence of imprisonment. In those circumstances, it is said, the principle of parsimony (as enshrined in s 5(3) of the Sentencing Act 1991) dictates that the sentence is excessive.
Crown’s response
The Crown opposes the application. It submits that the judge gave appropriate weight to the matters relied on in mitigation of penalty. It contends that the breach of trust which the offending entailed, the period of offending, the total value of advances made on the basis of the false documents, and the fact that the applicant received an indirect benefit from introducing the loans concerned, warranted a substantial penalty. As the Crown would have it, this was a serious example of offending of its kind. Although the bank has not yet suffered any loss as a result of it, and may not, it exposed the bank to a risk loss and the applicant’s disregard of it added to his culpability. As a consequence, general deterrence and denunciation were significant sentencing considerations and, consequently, the purposes of sentencing could not be achieved without a period of confinement.
According to the Crown, the sentence imposed also accords with current sentencing practices, as demonstrated by comparison with the following cases:
1) R v Rollo[2] which involved thefts totalling $366,745.76 (for which full restitution had been made), the offender was suffering from depression found to engage Verdins principles and was sentenced to three years’ imprisonment with a non-parole period of 18 months.
[2][2006] VSCA 154.
2) R v Elias,[3] which involved thefts totalling $176,692.93 (for which the offender had started to make restitution), the offender suffered from battered wife syndrome which was held to engage Verdins principles and was sentenced to 20 months imprisonment with a non-parole period of 12 months.
3) Keane v R,[4] which involved thefts totalling $433,000 (for which the offender had made partial restitution), the offender suffered from depression and anxiety held to engage Verdins principles and was sentence to two years and six months’ imprisonment with a non-parole period of 18 months
4) Akkala v R,[5] which involved deceptions totalling $312,471.07 (for which the offender had made partial restitution), the offender was sentenced to three years and six months imprisonment with a non-parole period of one year and nine months.
[3][2007] VSCA 125.
[4][2011] VSCA 156.
[5]` [2012] VSCA 29.
The Crown emphasises that none of those cases involved a continuing criminal enterprise and arguably, therefore, a significantly greater sentence was warranted in this case.
Analysis
Despite the force of the Crown’s submissions, I think that, given the nature and gravity of the offending, the applicant’s otherwise exemplary character, his early plea of guilty, his apparent genuine remorse, his prospects of rehabilitation and the large degree of unconditional assistance he has afforded the authorities, it is reasonably arguable the that total effective sentence and non-parole are excessive.
The matter can perhaps be tested by asking what sentence and non-parole period would have been appropriate if the applicant had not had pleaded guilty at the first opportunity and given unqualified assistance to the authorities. As at present advised, I find it difficult to suppose that the sentence in those circumstances would have been as much as, say, five or six years’ imprisonment with a non- parole period of three to four years. Yet, it seems to me to be reasonably arguable that that is what would result from adding back to the sentence and non-parole period in fact imposed the sort of discounts for an early plea of guilty and high degree of co-operation to which the applicant was entitled.
Perhaps, the fact that he was sentenced as a continuing criminal enterprise offender on each of Charges 2 to 17 was sufficient to warrant a sentence of the duration given. But if so, it still remains to consider why the sentencing objectives might not have been achieved by a significantly reduced period of imprisonment[6] coupled with a substantial Community Corrections Order[7]
[6]DPP v Bulfin [1998] 4 VR 114, 131–2 (Winneke P).
[7]DPP v Edwards [2012] VSCA 293, 242 [2].
Leastways, I am persuaded there is sufficient in each of those points to warrant referring this application, pursuant to Rule 2.07(2)(b) of the Supreme Court (Criminal Procedure) Rules 2008, for determination by the court constituted by two Judges of Appeal of which I shall be one. I also propose to request the preparation of a pre-sentence report, pursuant to ss 8A(2) and 37(b) of the Sentencing Act 1991, in anticipation of the hearing of the application.
Needless to say, I have not yet reached a concluded view as to the appropriate disposition of the matter, and it may well be that after further argument the application is dismissed.
Conclusion
For the time being, however, I shall make orders referring the application to a hearing before two judges of appeal and I shall a request a pre-sentence report for the purposes stated.
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