Wilson v POLICE
[2005] SASC 468
•12 December 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILSON v POLICE
Judgment of The Honourable Justice Anderson
12 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
Appeal against sentence - appellant pleaded guilty to one count of deception - deception involved providing false documents in support of a personal loan application - appellant received a loan for $19,200 - sentencing Magistrate imposed a sentence of 16 months with a non-parole period of 10 months and suspended the sentence - maximum sentence of two years - appellant had no relevant prior offences - whether the sentence was manifestly excessive - Held: appeal allowed - sentence of eight months imposed - sentence to be suspended.
Criminal Law Consolidation Act 1935 s139; Migration Act (Cth) s501, referred to.
R v Harris; R v Simmonds (1992) 59 SASR 300; Nixon (1993) 66 A Crim R 83; R v Place (2002) 81 SASR 395, considered.
WILSON v POLICE
[2005] SASC 468Magistrates Appeal
ANDERSON J In this matter the appellant appeals against the penalty imposed upon him following his plea of guilty to an offence of deception contrary to the provisions of s 139 of the Criminal Law Consolidation Act1935.
The Information states:
On or about 31st December 2003 at ADELAIDE or another place in the said State deceived an employee of the Commonwealth Bank of Australia by submitting an application and supporting documentation for a personal loan in the amount of $19,200 which contained false information as to his employment and financial status and by doing so dishonestly benefited himself and or another person.
Section 139 of the Criminal Law Consolidation Act, 1935.
This is a Minor Indictable Offence.
As indicated, the circumstances of the offence involved the appellant obtaining a personal loan by deceitfully using false documents and information to benefit himself.
The appellant made use of a service provided by persons based in the eastern States illegally offering assistance to persons wishing to make fraudulent loan applications by providing those persons with various false documentation including fake references.
As a result, the defendant, who knew that the process involved illegality, obtained from the Commonwealth Bank a loan in the sum of $19,200. Out of this amount he paid a large proportion, approximately $6,000, for fees for the various false documentation produced for him.
The appeal was lodged out of time. The delay was explained as being caused by the time taken up in obtaining funding for the appeal including an appeal against the original decision not to grant aid. The respondent took no point, and accordingly I grant an extension of time.
The learned Magistrate sets out the background and history of the appellant in paragraph 2 of his reasons. He says:
Mr Wilson is 38 years old and he was born in Iraq. His family were opponents of the Hussein regime and were treated very harshly by it. Mr Wilson came to Australia as a refugee and was lucky to survive the journey. His suffering continued on his arrival in Australia when he was incarcerated in hostile conditions for a period of nine months. In 2003 criminals based in eastern states were offering assistance to those who wished to make fraudulent loan applications by providing false supporting documents and fake referees. The defendant made use of this service. At first he thought that an offer of assistance made to him to obtain a loan to assist family members in Iraq was a genuine one but when fake supporting documents were sent to him the illegality of the process that was being facilitated by those documents became clear to him. He proceeded with that process nevertheless and was successful in obtaining a loan from the Commonwealth bank in the amount of $19,200 by using false documents relating to employment and income in support of his application. It appears that the fake referee service was also provided. When a predictably extortionate fee for the service had been paid the balance of the money went to family members at home.
The Magistrate later described the offence in the following terms:
The offence is self evidently serious. This is deceit in its purest form premeditated, calculated and unmitigated. The deterrent priority of punishment is, I venture to say, self-evidence. Sadly, Mr Wilson has on this occasion betrayed the trust of this community. Time will tell whether he has forfeited it altogether.
The Magistrate recorded a conviction, imprisoned the appellant for 16 months with a non-parole period of 10 months, but suspended that sentence upon the appellant entering into a bond to be of good behaviour for a period of three years and requiring him to perform 300 hours of community service.
It is not possible to accurately determine from the brief reasons of the Magistrate what discount he allowed for the plea of guilty which was entered by the appellant. It is clear that the Magistrate allowed some discount. He says in his remarks:
The mitigating effect of the plea is I think somewhat diluted by the fact that the matter was set for trial this morning [8 November 2005] after a journey through the list that commenced on 28 May 2004.
Although it is impossible to be precise, I think that something between 18 and 20 months was the starting point for the head sentence which then was reduced for the guilty plea.
The learned Magistrate, although not in error in not indicating what reduction he was making for the plea of guilty, should nevertheless have done so. See R v Harris; R v Simmonds (1992) 59 SASR 300 per King CJ at 302, and see also Nixon (1993) 66 A Crim R 83 per Matheson J at 89. The topic was more recently dealt with in R v Place (2002) 81 SASR 395 at 413.
It is my view that a head sentence of 20 months for this offence was manifestly excessive. Even 18 months was manifestly excessive. The maximum penalty for this minor indictable offence was 24 months.
Mr Heffernan, who appeared for the respondent, conceded in both his written outline, and more particularly before me in oral argument, that the head sentence was, as he put it, at the very upper end of an appropriate range. He also quite properly drew to my attention two relevant decisions on penalty imposed on persons involved in falsifying documents using the same method and involved with the same people promoting the scam.
The first matter was a matter of Kha Tien Ngo who was sentenced on 24 March 2005 in the Adelaide Magistrates Court. The defendant pleaded guilty to one count of deception and one of dishonestly dealing with documents. He was imprisoned for six months and the imprisonment was suspended. The amount involved was $18,500 and again the Commonwealth Bank was the victim.
The second matter was that of Abdelkhalik Kitan Hamed who appeared in the same court but before a different Magistrate on 6 July 2005 and pleaded guilty to dishonest dealings with documents. He was imprisoned for four months which term was suspended.
The results of those two matters whilst not setting any tariff are relevant in showing how this sentence was manifestly excessive.
Mr Heffernan concedes that this was a “one-off” offence and not part of a course of conduct. Furthermore, the appellant was making repayments and servicing the loan with the bank until the bank discovered the deception.
Mr Heffernan, in a significant and proper concession, accepted that if a sentence of six months had been imposed it could not have been successfully appealed. He, of course, could not make a concession that the appeal should succeed but properly referred the court to all the matters which were relevant if the appeal was to succeed.
Mr Deegan, for the appellant, said that with a maximum sentence of 24 months, and having regard to the background and personal circumstances of the appellant, the sentence was way out of a reasonable range.
Mr Deegan also pointed to the potential adverse affect on the appellant by virtue of s 501 of the Migration Act 1958 (Cth) if a term of imprisonment of more than 12 months remains. Section 501 (2) provides:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Section 501 (6) in turn then provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or…
Then s 501 (7) dictates that a person has a substantial criminal record if:
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or…
I was informed by counsel that this factor was mentioned in submissions to the Magistrate, although at that time the appellant was the holder of a temporary protection visa. It is nevertheless relevant as to what might happen in the future, and should be taken into account in assessing the whole of the personal circumstances of the appellant.
The appellant also complains that the Magistrate failed to place sufficient weight on the absence of any relevant previous criminal history. The fact is that the sentence was suspended but the absence of any criminal history is a relevant factor in looking at the sentence.
Likewise, the appellant complains that the Magistrate failed to take into account the appellant’s personal circumstances and placed too much weight on the principle of public deterrence. Again the personal circumstances of the appellant were taken into account by the imposition of the suspended sentence but in the circumstances of the offence, in my view, not sufficient regard was had to these matters for the purpose of fixing the sentence.
It is my view that the 16 month head sentence imposed by the Magistrate is manifestly excessive. In my view there should be substituted a head sentence of eight months after making a reduction for the guilty plea.
I therefore allow the appeal, set aside the sentence of imprisonment as suspended by the Magistrate and in lieu thereof impose a sentence of eight months imprisonment to be suspended on the appellant entering into a bond. In all other respects the orders of the learned Magistrate are to stand.
I will hear counsel as to the appropriate terms of the bond.