Zhou v The Queen
[2014] VSCA 123
•20 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0207 | |
| QI ZHOU | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and BEACH JJA and ALMOND AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 June 2014 | |
DATE OF JUDGMENT: | 20 June 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 123 | |
JUDGMENT APPEALED FROM: | R v Zhou (Unreported, Judge Sexton, 1 October 2013) | |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Conspiracy to dishonestly influence a Commonwealth public official – Having custody and control of material designed for making a false document – Serious offending – Delay – Exceptional hardship – Whether sentence manifestly excessive – Sentence and orders not manifestly excessive – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Theo Magazis & Associates |
| For the Respondent | Mr D J Lane | Solicitor for the Commonwealth Director of Public Prosecutions |
NETTLE JA
BEACH JA
ALMOND AJA:
Introduction
On 8 November 2012, the applicant pleaded guilty to two charges: one of conspiracy to dishonestly influence a Commonwealth public official, contrary to sub-s 135.4(7) of the Criminal Code (Cth); and the other of having custody and control of material designed for making a false document contrary to sub-s 83A(5A) of the Crimes Act 1958 (Vic). A plea was heard on 26 and 28 August 2013. On 1 October 2013, Judge Sexton sentenced the applicant to 4 years’ imprisonment on the Commonwealth charge and 10 months’ imprisonment on the State charge. The sentence on the State charge was ordered to start on 1 October 2013, and the sentence on the Commonwealth charge was ordered to start seven months after the commencement of the State sentence. In addition, the judge ordered the applicant to be released after serving 2 years’ imprisonment upon giving security of $1,000 to be of good behaviour for the balance of the Commonwealth sentence. This made a total effective sentence of 4 years and 7 months’ imprisonment with release on recognizance after serving a total of 2 years’ imprisonment, the recognizance period being 2 years and 7 months.
The applicant seeks leave to appeal against the sentence he received. The proposed grounds are:
1 The sentencing judge erred by:
(a)finding, and proceeding to sentence on the basis, that the ‘overall period of delay’ in the Applicant’s proceeding was not ‘extraordinary and inordinate’; and
(b)failing properly or at all to reflect in the sentences she imposed:
(i)the (almost) five-year delay between the Applicant’s first interview with police and his sentence; and
(ii) the Applicant’s co-operation with police.
2The sentencing judge erred by failing properly or at all to reflect in the sentences she imposed:
(a)the ‘exceptional hardship’ experienced by his elderly and ill mother; and
(b)the additional hardship of the Applicant’s incarceration as a result of his elderly mother’s ill health and his inability to care for her.
3In all the circumstances:
(a)the individual sentence imposed on Charge 1;
(b)the total effective sentence; and
(c)the minimum term fixed
are manifestly excessive.
4The sentencing discretion miscarried as a result of its having been materially informed by the prosecution submission as to ‘sentencing range’ as that phrase was understood in the period between this Court’s decision in R v MacNeil-Brown (2008) 20 VR 677 and the High Court’s decision in Barbaro v R (2014) 305 ALR 323.
Proposed ground 4 did not form part of the applicant’s original notice of application for leave to appeal against sentence. Leave was sought to add proposed ground 4 following the handing down of the High Court’s decision in Barbaro v The Queen on 12 February 2014.[1] The Crown did not object to leave being granted and, the ground not having been available until the High Court handed down its decision in Barbaro, leave to rely upon proposed ground 4 should be granted.
[1](2014) 305 ALR 323.
The offending
During the period between 2006 and 2009, the applicant was the principal, owner and proprietor of Hong Yun International Pty Ltd (‘HYI’). HYI was a business that was advertised and promoted as a professional migration, legal and financial services consultancy, offering clients, generally overseas students from China, a range of options that would enable them to obtain visas or permanent residency in order to remain lawfully in Australia.
Between 2008 and 2009, a joint investigation was undertaken by the Australian Federal Police and the Commonwealth Department of Immigration and Citizenship. This investigation identified a number of people engaged in a range of ‘migration fraud’ activities operating primarily under the auspices of HYI. These activities included acting as migration agents and unlawfully collecting fees while not registered to do so; large scale production of false documents, and the submission of these to government agencies; and the arrangement of contrived marriages and de facto relationships, all for fraudulent Australian immigration purposes.
The Commonwealth charge concerned a multi-faceted scheme whereby the applicant, and others working for and with him, advised clients as to the means by which they might obtain an appropriate visa to remain in Australia, often with a view to seeking permanent residency, and then assisting those clients to obtain those visas by preparing and submitting false information and applications to Commonwealth government agencies and departments, in return for payment by those clients of substantial cash fees. The ultimate unlawful object of the enterprise was to obtain visas for HYI clients by dishonestly influencing Commonwealth public officials to grant or approve fraudulent applications. The creation, submission and verification of the false information and applications and false documents by the applicant and his co-conspirators, in a manner that gave the appearance that the clients satisfied the relevant eligibility criteria, formed the basis for the dishonest means by which the applicant and his co-conspirators sought to influence the decision to be made by the relevant Commonwealth public officials. The fraudulent migration activities of the applicant and HYI were intended to dishonestly manipulate the visa system through the submission of the false documents to which we have referred.
The State charge concerned a number of false document templates that the applicant had custody and control of which were to be used by him and other staff at HYI to create false university qualifications for clients in return for payment by them of a fee. These templates were not used to create false documents as part of the criminal enterprise the subject of the Commonwealth charge. They were used in a different, albeit fraudulent, manner.
The evidence put before the sentencing judge satisfied her Honour that the applicant was a principal of the scheme to perpetrate the migration fraud which we have just described. Further, the judge was satisfied beyond reasonable doubt that the applicant was the main instigator of the scheme, and the person who, above all, directed and controlled the operation of the scheme. Those findings were well open to her Honour, and no attack was made upon them in this application. Similarly, the evidence disclosed, and no issue was taken with the judge’s conclusion, that the applicant personally received substantial fees for the fraudulent services he provided.
The judge concluded that the facts in respect of both charges were very serious. No issue was taken by the applicant on the hearing of this application. Indeed, as the applicant’s counsel put it in argument before this Court, ‘This is serious offending’.
Notwithstanding the concessions made on behalf of the applicant as to the seriousness of the applicant’s offending, it was submitted to the judge that the sentence to be imposed should be moderated by reference to the applicant’s plea of guilty, the delay between the offending and the hearing of the plea, the applicant’s good prospects of rehabilitation (said to have been demonstrated by, amongst other things, the absence of further offending between 2009 and 2013), the applicant’s remorse, the applicant’s relatively insignificant previous criminal history, the applicant’s eventual co-operation with the authorities, the applicant’s undertaking to provide further assistance to the authorities in respect of co-conspirators, and circumstances of exceptional hardship brought about by reason of the applicant’s mother’s advanced age and ill health.
With the exception of prospects of rehabilitation, before this Court, the applicant maintained his reliance upon all of these mitigatory factors as showing that the sentence imposed by the judge was manifestly excessive. However, the applicant’s principal focus before us was on the issues of delay and exceptional hardship. The question of the applicant’s prospects of rehabilitation was largely abandoned by the applicant because of evidence that came to light following the sentencing of the applicant. It now appears that the judge was misled into sentencing the applicant on the basis that there was a lack of subsequent offending (which was said to demonstrate good prospects of rehabilitation). In fact, some three months after the applicant was sentenced by the judge, the applicant pleaded guilty to one charge of attempting to obtain property by deception. The offence to which the applicant pleaded guilty occurred during the period between 15 October 2010 and 22 November 2010. The offence related to the use of a credit card on 18 occasions, and involved the sum of $14,260.
Delay
The relevant chronology is as follows:
(a) On 18 December 2008, search warrants were executed by the Australian Federal Police and the Department of Immigration and Citizenship at the office of HYI.
(b) On 23 December 2008, the applicant gave a ‘no comment’ record of interview.
(c) On 23 and 26 October 2009, further search warrants were executed.
(d) On 15 January 2010 a 16 volume brief of evidence was provided to the Commonwealth DPP with respect to a co-conspirator, Kelly Huang.
(e) On 6 July 2010, Huang first offered to provide assistance to the authorities.
(f) Between July and October 2010, Huang participated in various interviews with the police outlining her involvement and that of co-offenders. During this time, Huang made various statements to police implicating, amongst others, the applicant.
(g) In October 2010, the AFP attempted to arrest the applicant, but was unable to locate him.
(h) On 17 November 2010, Huang made a further statement to the AFP.
(i) On 17 March 2011, Huang pleaded guilty in the County Court. She was sentenced on 1 April 2011.
(j) On 11 May 2011, Huang made a further statement to the AFP.
(k) On 18 October 2011, charges and a warrant were issued relating to the applicant.
(l) On 31 October 2011, the applicant was arrested. A filing hearing took place at the Melbourne Magistrates’ Court that day. On the same day, the applicant participated in another ‘no comment’ record of interview.
(m) On 19 January 2012, a hand-up brief was served on the applicant’s solicitors.
(n) On 5 March 2012, there was a committal mention. At the committal mention, the applicant sought an adjournment to a further committal mention so as to give further time to consider the hand-up brief.
(o) On 21 May 2012, there was a committal mention. The matter was adjourned to a three week contested committal hearing. Thirty eight witnesses were required for cross-examination.
(p) On 22 October 2012, the applicant’s solicitors advised that they did not wish to proceed with a contested committal and a plea of guilty by the applicant was likely. The matter was adjourned to 8 November 2012.
(q) On 8 November 2012, the committal proceeded by way of a straight hand-up brief. The applicant entered a plea of guilty.
(r) On 13 and 14 March 2013, the applicant was interviewed again. While the applicant did not give full and frank answers on 13 March, the position was different on the second day.
(s) On 26 August 2013, the plea hearing in the County Court commenced.
(t) On 1 October 2013, the judge sentenced the applicant.
The Crown conceded that, and the judge sentenced the applicant on the basis that, the plea of guilty was made at the earliest opportunity. As to delay, the Crown’s position was that only delay after 2011 was capable of being regarded as mitigatory. The Crown pointed to the large volume of material (much of which was not in English) which was required to be gone through and analysed so that the scheme could be understood and appropriate charges laid. This was no simple trial.
In respect of delay, the judge said:
It seems reasonable that no charges were laid against you, in the first months after the searches. There is no doubt that the prosecution case against you was strengthened from July 2010, when Ms Huang began making statements implicating you – a fact of which you were aware because of your continued relationship with her. Although there has been no reason given for the delay in charging you until October 2011, followed by further charges in January and May 2012, I do not find that the overall period of delay is extraordinary and inordinate.
However, I am satisfied that the period over which you had this prosecution hanging over your head was longer than it should have been, and that the delay was no fault of yours. I therefore take into account in mitigation the whole period from the first search when the offending ceased to sentence being passed today, as you have remained in the jurisdiction for this entire period even though knowing that inevitably you would be charged, and you have taken some steps towards your rehabilitation by ceasing gambling, and have not reoffended in that time. I accept that you have lived for that time with uncertainty as to your fate, and I treat the delay and its effect on you as a mitigating factor which will lead to a sentence more lenient than might otherwise have been imposed.[2]
[2]DPP v Zhou (Unreported, Judge Sexton, 1 October 2013) (‘Reasons’) [76]-[77].
The first point to be noted is, as we have said, that it is now known that the applicant had reoffended during the period between the execution of the initial search warrants and the plea hearing. The applicant’s prospects for rehabilitation (found by the judge to be ‘reasonably good’) were, and have been, thus diminished.
At one level it might be contended (as it was by the applicant) that a delay of four to five years should ordinarily be characterised as ‘extraordinary and inordinate’. In any event, in this case, the applicant contends that, in failing to find that the overall period of delay found by the judge was extraordinary and inordinate, the judge erred. If this had been a straightforward case not involving the mass of documentation and complexity to which we have referred, then it might well be thought that a delay of four to five years, which was not attributable to the applicant, should be regarded as extraordinary and inordinate. However, that is not this case.
On one view, some of the judge’s findings about delay might be said to have been expressed in terms that were too generous to the applicant, having regard to the actual chronology as disclosed by the evidence produced on the plea, and not contested by the applicant’s counsel at the plea hearing. In our view, properly understood, her Honour’s findings about delay were that, while the applicant was not to be criticised for the elapse of time that had occurred, the circumstances of the case were such that the elapse of time should not be found to satisfy the label ‘extraordinary and inordinate’. That said, and in any event, her Honour took into account the elapse of time as a mitigating factor in sentencing the applicant. There was no error in this approach. In our view, the applicant’s complaints about the judge’s treatment of the issue of delay fall more properly to be considered as a particular of the applicant’s proposed manifest excess ground (proposed ground 3).
Exceptional hardship
On the plea hearing, the prosecution conceded that the age of the applicant’s mother and the applicant’s mother’s circumstances were sufficient to meet the exceptional level required for the judge to take them into account as a mitigating factor.[3] In her reasons, the judge set out in some detail the circumstances of the applicant’s mother, before noting that the applicant was, at the time of sentencing, ‘fully involved in all aspects of her care other than showering … [and that the applicant’s mother was] almost wholly dependent on [the applicant].’[4] In sentencing the applicant, the judge said:
I return now to the hardship to your mother if you are to be imprisoned today. It was submitted that the hardship she will endure if you are imprisoned, together with the mitigating effect of the delay by the prosecuting authorities, gives rise to the consideration of mercy being accorded in your case, so that a sentence might be imposed that does not lead to your immediate imprisonment.
I agree with your counsel that hardship mitigates against both the head sentence and the minimum period to serve.[5]
[3]Markovic v R (2010) 30 VR 589, 591 [3] and 603 [77].
[4]Reasons [60].
[5]Reasons [90]-[91].
Like the issue of delay, we see no error in the judge’s treatment of the issue of exceptional hardship. Her Honour’s reasons disclose that her Honour took the conceded exceptional hardship circumstances into account when imposing sentence. As with the issue of delay, it seems to us that the issue of exceptional hardship falls to be determined as a particular of the applicant’s proposed manifest excess ground.
Was the sentence manifestly excessive?
In proposed ground 3, the applicant makes complaint that the individual sentence imposed on the Commonwealth charge, the total effective sentence and the minimum term fixed were all manifestly excessive. We reject this submission. This was serious, prolonged and sophisticated criminal conduct. The conduct comprising the Commonwealth offence was conduct of the most serious kind. In our view, far from the sentences and orders being manifestly excessive, the judge’s sentences and orders were, having regard to the objective seriousness of the criminal conduct engaged in by the applicant, well open to her Honour. Further, and in any event, we are not persuaded that any different sentence or sentences should have been imposed by her Honour. It follows that, for this additional reason, an appeal against sentence would enjoy no reasonable prospects of success, and would have to be dismissed.[6]
[6]See ss 280(1) and 281(1) and (2) of the Criminal Procedure Act 2009 (Vic).
While delay and exceptional circumstances were matters properly to be taken into account in sentencing the applicant, nothing in the evidence or her Honour’s reasons leads us to conclude that her Honour made any relevant error in her Honour’s consideration and synthesis of these two factors (or indeed any of the other factors relied upon by the applicant).
So far as delay is concerned, it is to be remembered that there is no automatic discount in every case of asserted delay. The reasons and circumstances surrounding any delay need to be examined in each case.[7] In the present case, the complexity of the case, the volume of material and the chronology to which we have referred well justified the judge’s conclusion that the overall period of delay was not extraordinary and inordinate.[8] That said, the judge, in any event, appropriately took into account the elapse of time between the execution of the initial search warrant and the imposition of sentence upon the applicant.
[7]See generally R v Nikodjevic (2007) 14 VR 392, 400 [34]; Day v The Queen [2011] VSCA 243 [19]-[21]; Arthars v The Queen [2013] VSCA 258 [29]-[30].
[8]Reasons [76].
The MacNeil-Brown submission
The plea was conducted before the High Court handed down its decision in Barbaro v The Queen.[9] Accordingly, the judge received a submission from the prosecution as to the appropriate range of sentence. The judge’s reasons make plain that her Honour had regard to the MacNeil-Brown[10] submission.
[9](2014) 305 ALR 323.
[10]R v MacNeil-Brown (2008) 20 VR 667.
However, the applicant’s complaint about this can be disposed of in short compass. For the reasons already given, we are not persuaded that any different sentence or sentences should have been imposed by the judge. In the circumstances, any appeal must fail notwithstanding any regard having been given to the prosecution’s MacNeil-Brown submission.[11]
[11]Criminal Procedure Act 2009, s 281(2).
Conclusion
The application for leave to appeal must be dismissed.
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