Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Luong v R [2014] NSWCCA 129 Hearing dates: 4 July 2014 Decision date: 14 July 2014 Before: Hoeben CJ at CL [1] Price J at [2] Fullerton J at [53] Decision: 1. Leave to appeal granted 2. Appeal dismissed Catchwords: CRIMINAL LAW - sentencing - existing sentence - delay in charging - whether error in accumulation - whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 178BA Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Majid v R [2010] NSWCCA 121 Markarian v R (2005) 228 CLR 357 Mill v R (1988) 166 CLR 59 Category: Principal judgment Parties: Duc Minh Luong (Appellant) Crown (Respondent) Representation: Craig Smith (Appellant) Sally Dowling SC (Respondent) S. O'Connor (Appellant) J. Michie (Respondent) File Number(s): 2012/331501 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-08-29 00:00:00 Before: Syme DCJ File Number(s): 2012/331501 Judgment 1Hoeben CJ at CL: I agree with Price J. 2Price J: Duc Minh Luong, the applicant, seeks leave to appeal against the sentence imposed upon him by Syme DCJ in the District Court at Campbelltown on 29 August 2013. 3The applicant pleaded guilty in the Local Court to a single count of obtaining money by deception between 6 April 2007 and 12 January 2010 in that he dishonestly obtained $730,000 contrary to s 178BA(1) of the Crimes Act 1900 (NSW). He adhered to his plea in the District Court. The maximum penalty for an offence contrary to s 178BA(1) is 5 years imprisonment. 4The Judge discounted the sentence by 25 per cent for the utilitarian value of the plea of guilty. Her Honour found special circumstances. 5The applicant was sentenced by the Judge to a term of imprisonment of 3 years 6 months with a non-parole period of 1 year 6 months to commence on 3 August 2014. 6The sentence was accumulated upon the expiration of the non-parole period of a sentence that the applicant was serving for importing a marketable quantity of a border controlled drug, namely heroin, on 4 August 2010 contrary to s 307.1 Criminal Code Act 1995 (Cth). This was a Federal offence for which he had been sentenced in the District Court at Sydney on 15 July 2011 to imprisonment for 6 years commencing on 4 August 2010 with a non-parole period of 4 years concluding on 3 August 2014. 7As a result of the accumulation, the total effective sentence was 7 years 6 months with a non-parole period of 5 years 6 months. The earliest date that the applicant will be eligible to be released on parole is 2 February 2016. 8For the sake of convenience, I will refer to the s 178BA(1) offence as "the fraud offence" and the Federal offence as "the drug offence". 9It is appropriate to observe that although the fraud offence was committed before the drug offence, the applicant was not charged with the fraud offence until 2012. 10The notice of appeal identifies two grounds: 1. The sentencing Judge erred in fully accumulating the sentence upon the non-parole period of the earlier sentence. 2. The sentence is manifestly excessive. Facts 11An agreed statement of facts was tendered which her Honour summarised in her remarks on sentence (ROS 1-2): "In brief summary, it appears that prior to 2003 the offender was a licensed real estate agent. In about 2004 he sold his business to a third party. In 2006 the offender approached an acquaintance, a Mr Khan and fraudulently told him that he was able to sell him a property in Prestons for about 1.2 million dollars. In fact the offender had no such authority to sell the property and as far as the facts disclose the property was not on the market. Between April 2007 and January 2010 the offender prepared false documents including contract of sale, letters purporting to be from a conveyancer and other documents in order to continue to defraud Mr Khan in relation to the purported sale of the property. The offender maintained regular contact with Mr Khan giving the appearance the property sale was legitimate. On approximately 16 separate occasions the offender contacted Mr Khan and obtained further money from him by way of deposit, partial payment or other contractual obligations pursuant to the property and gave him documents purporting to be from conveyancers during that time. During the course of the offence Mr Khan was exploited and encouraged to make additional payments in order to get the property at a cheaper price. Mr Khan finally realised that the offender was not being frank with him in 2010 and after further investigations made a complaint. For unexplained reasons the offender was not spoken to or charged until 2012 but as disclosed in the facts on many separate occasions, on numerous occasions the offender extracted large sums of money from Mr Khan between $30,000 and over $100,000, the total of which, during the course of time was $730,000." Personal Circumstances 12The applicant gave evidence before the Judge and a report from Kathryn Wakely, a forensic psychologist, dated 8 February 2011 was tendered. 13The applicant was born in Vietnam on 18 February 1976 and was 37 years old when sentenced. He was the youngest of nine siblings. In 1988 he migrated to Australia with his family and lived generally in the outer suburbs of Sydney. He attended High School until year 12 and was an average student. After school, he attended TAFE to study accounting but left after six months. He completed a 12 month training course in management at Woolworths and was employed as a manager for about 3 years. 14He began working in real estate in 2000 and was employed with Richardson and Wrench until 2002 whereupon he became a part owner of a real estate business. In 2004 he sold his share of the business but remained working there until 2006. Around this time he began to gamble and was experiencing associated financial difficulties. Since 2006, the applicant had not worked consistently but worked in casual positions. 15Ms Wakely's report was prepared for the drug offence sentencing hearing. Ms Wakely reported that the applicant suffered from Pathological Gambling. She stated that his decision to participate in the drug offence was to assist him to clear a large gambling debt. Ms Wakely considered that the applicant was able to appreciate his previous gambling was highly problematic and reported a willingness to participate in treatment. 16The applicant married in 1999 and there was one child of the marriage who was born in 2005. The applicant and his wife separated in 2010. Ms Wakely reported that the applicant said that his relationship with his wife had improved and he hoped to resume their marital relationship when he is released. 17The applicant gave evidence before the Judge that the offences were committed so that he could pay off gambling debts owed to a loan shark. He said that if Mr Khan was present, he would say sorry to him. He told the Judge that he did not know whether his relationship with his wife would be restored upon release. The applicant said that he had completed the SMART drug and alcohol program while in custody. He said that this would assist him to overcome his gambling problem as it helped him to control his emotions. Whilst in custody, he also worked as a chef and commenced a hospitality course. 18In answering questions from the Judge, the applicant said that he initially owed $30,000 to the loan shark but that he took $120,000 from Mr Khan. He said that he used this money to repay the loan shark and continued to gamble with the $90,000 he had left. He continued to defraud Mr Khan, losing $730,000 by gambling over three years. He said that there were probably no prospects of Mr Khan ever getting his money back. Some findings by the Judge 19During her sentencing remarks, the Judge noted that "[the applicant] did not disclose this serious fraud offence" to the psychologist and the report was "somewhat deficient" (ROS 5). Her Honour found that the only connection between the fraud offence and the drug offence was the applicant's perceived need for funds to gamble. 20The Judge said that the applicant had expressed little insight into the effect that the offence may have had on the complainant. Notwithstanding the applicant's expression of remorse during his oral evidence, her Honour said that it was difficult to accept his remorse as genuine. 21Her Honour noted that at the time of committing the offence, the applicant was a person of prior good character but the length of time over which the offence was committed ameliorated this finding considerably. 22Her Honour said that the applicant's "fraudulent behaviour amounted to such serious criminal offending over a long period of time, that it is hard to see [his gambling] as an explanation..." (ROS 7). 23The Judge found that this was an offence of greed. Her Honour said that it was impossible to predict whether the applicant would fall into his gambling behaviour on release and it was "therefore impossible to predict whether he will indulge in further offending behaviour or not" (ROS 7). 24Her Honour observed that his prospects of rehabilitation "will be dependent upon a number of issues including the support of his family and friends and the knowledge that his family and friends have in relation to his gambling addiction and the preparedness they have to support him". However, her Honour said that she had no information on any of these issues (ROS 7). Ground 1: The sentencing Judge erred in fully accumulating the sentence upon the non-parole period of the earlier sentence. Argument 25The applicant complained that the sentence for the fraud offence had been fully accumulated upon the non-parole period of the drug offence. As a result, the total effective sentence is 7 years 6 months with a non-parole period of 5 years 6 months with a slight adjustment to the normal statutory ratio. The applicant pointed to the non-parole period representing approximately 73 per cent of the total effective sentence. 26The applicant argued that the Judge had erred in the exercise of her discretion when the subjective circumstances of the applicant, and especially his gambling, were inherently related to both offences. 27In oral address, Ms Manuell SC for the applicant, submitted that the appeal essentially turned on the principle stated in Mill v R (1988) 166 CLR 59 at 63. Ms Manuell said that the applicant had committed two offences in the same context of his gambling addiction and had incurred a very large debt that he had no means of repaying. At the time he committed both offences, Ms Manuell said that the applicant was obviously under considerable pressure to pay the rates of interest demanded of him. Although the fraud offence was discovered in May 2010, Mr Manuell said that for some unknown reason the applicant was not charged with this offence until October 2012. 28Ms Manuell accepted that the Judge had correctly asked what would have happened if the applicant had been sentenced for both offences at the same time. Ms Manuell submitted that the High Court in Mill goes on to say what is the effect of the delay and what was included in that was the impact on the applicant of the nearly 3 years he had spent in custody. Ms Manuell said that the applicant had lost money, had damaged his family relationship and suffered by going to gaol. Ms Manuell pointed out that the applicant had undertaken courses in hospitality and cooking and the Getting Smart program for gambling addiction. Ms Manuell contended that the Judge had no regard to those factors at all. Ms Manuell submitted that the proper approach for the Judge was to impose both a total sentence and non-parole period which was adjusted downwards to reflect the delay. 29The Crown submitted that her Honour's discretion when imposing the sentence for the fraud offence did not miscarry and her application of the totality principle was correct. The Crown contended that the sentence for the drug offence could not comprehend and reflect the criminality of the fraud offence. The Crown pointed out that the non-parole period for the fraud offence was 42.9 per cent of the head sentence which represented a substantial departure from the usual proportion prescribed by s 44 Crimes (Sentencing Procedure) Act 1999 (NSW). This in turn, the Crown said resulted in the total non-parole period being 73.3 per cent of the total sentence. In order to achieve this, her Honour found special circumstances in view of the need for a 2 year period of supervision and the fact that she was required to set an effective non-parole period for more than one offence. The Crown argued that for this reason, the applicant's submission that the sentence for the fraud offence should have been lowered below that which would otherwise be appropriate, should be rejected. Consideration 30When sentencing an offender serving an existing sentence, the overall sentence must be "just and appropriate" to the totality of the offending behaviour. A court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences: Mill at 63. 31As was said by the High Court in Mill at 63: "Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." 32Questions of accumulation are, subject to the application of established principle, discretionary: R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38. There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. If the sentence for the one offence can comprehend and reflect the criminality of the other, then the sentence should be concurrent. If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. 33As in the present case where an offender is serving an existing sentence, the proper approach is to ask what would be likely to have been the effective head sentence and non-parole period if the offender had been sentenced at one time: Mill at 66-67. 34The Judge was clearly aware of these sentencing principles. The Judge referred to "the issue of totality with respect to both sentences" (ROS 6). Her Honour found that the only connection between the offences was the applicant's perceived need for funds to gamble. She observed that if the fraud offence had been sentenced at the same time as the drug offence, "a total term of sentence would have been something approaching eight years" (ROS 8). Her Honour was mindful of what was perceived to be the ratio under Commonwealth legislation between the non-parole and parole periods. The Judge said (ROS 8): "In attempting to replicate that position in my view the appropriate way to deal with this matter is to commence the date for sentence from the conclusion of the previous non-parole period and to add a further expanded supervision period to reflect the total time that he will spend in custody and the total time that he will spend under other forms of sentence, that is supervision with the community." 35It is argued that her Honour failed properly to take into account 'delay'. Mr Khan reported the fraud offence to police in about May 2010 and the applicant was not charged until October 2012. The delay in charging the applicant was not explained. 36During the proceedings on sentence, Ms Robinson who appeared for the applicant told the Judge that the effect of the delay in charging the applicant was that "he is now not eligible for work release". The Judge responded by asking: "Well, if he was sentenced a year ago, he still wouldn't be eligible for work release, would he?" 37Her Honour said that when being interviewed by Ms Wakely for the drug offence the applicant "could have come clean then." Ms Robinson contended that the delay was important "because had this matter been investigated in May of 2010, it could have been dealt with by the court at the same time he was to be sentenced for the importation." Her Honour said: "I don't think there is any disadvantage [in] sentencing now because there is still a year to go before he is eligible for parole. ... So I think rather than that being a mitigating matter, perhaps it is better - better or more practical - to address me on the issue of accumulation..." 38Ms Robinson submitted that there ought not to be full accumulation of the fraud offence and the sentence could start from that day. The Judge said that the fraud offence was: "...not that old in terms of when it was - when it came to light because he kept Mr Khan on a string for a really long time." 39In her remarks on sentence her Honour was mindful of the delay in the prosecution of the fraud offence noting that there was no explanation for it. Whilst she referred to the submission that the delay may have caused hardship because of the applicant's inability to access custody work programs and there was uncertainty with respect to his sentence, her Honour was of the opinion that the delay was not a matter of such importance to ameliorate the sentence. She observed that the applicant could have admitted his part in the fraud offence at anytime and had not disclosed the offence to Ms Wakely. Her Honour was circumspect about the offender's remorse and the prospects of his rehabilitation. 40Substantial unexplained delay in the charging of an offence may entitle an offender to a significant added element of leniency: Mill at 64-66; R v Todd [1982] 2 NSWLR 517 at 519; R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 (applying Todd at 306). In Blanco, Wood CJ at CL said at [16]: "The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach." 41However, the demonstration of substantial delay does not necessarily entitle an offender to leniency. As Wood J (as his Honour then was) said in R v V (1998) 99 A Crim R 297 at 300 (Gleeson CJ and Barr J agreeing): "As was pointed out in Thompson each case depends on its own circumstances. In some instances the delay can operate to the offender's advantage so far as it provides an opportunity, for example, for the offender to establish a new life and to positively demonstrate his rehabilitation. In other instances the period of the delay may lead to some constraint upon the offender's lifestyle or involve other detriment which may justify a degree of leniency." 42In my view, it was open to the Judge to find that the delay was not such that it ameliorated the sentence. Should the applicant have been sentenced for the two offences at the same time, a longer sentence would have been imposed. The applicant would not have been eligible for release on parole on 3 August 2014 or for work release at an earlier time. The applicant did not give evidence of any uncertain suspense or strain suffered as a result of the delay. This was not a stale offence but one that had been discovered by the victim after the applicant had defrauded him for over two and a half years. If the applicant had any concerns about delay in the prosecution of the fraud offence, it was always open to him to bring his offending to the attention of the police. The Judge was entitled to express her reservations about the applicant's remorse and prospects of rehabilitation. I am not persuaded that the applicant suffered detriment by the delay that entitled him to an element of leniency. 43I do not detect any error in the approach taken by the Judge in sentencing the applicant. It was open to her Honour as an appropriate exercise of her sentencing discretion to accumulate the sentence for the fraud offence upon the expiration of the non-parole period of the drug offence. This resulted in a non-parole period of 1 year 6 months for the fraud offence which might be considered generous to the applicant. The total effective sentence was well within her Honour's sentencing discretion. In my opinion, the total effective sentence was just and appropriate to the totality of the applicant's criminal behaviour. I would reject Ground 1. Ground 2: The sentence is manifestly excessive. Argument 44The applicant submitted that the notional starting point of the sentence for the fraud offence of 4 years 8 months against a maximum penalty of 5 years represented a starting point for an offence in the worst category. Whilst accepting that the offence was undoubtedly serious, the applicant contended it was not in the worst category. The applicant argued that the Judge erred in giving too much significance to the objective seriousness of the offence and inadequate weight to the applicant's subjective case. It was submitted that the total effective sentence both as to the non-parole period and parole period is manifestly excessive. 45The Crown pointed out that as the notional starting point for the fraud offence was close to the maximum penalty, it could be seen that her Honour did not impose the maximum penalty. As to the applicant's submission that the Judge gave inadequate weight to his subjective case and too much significance to the objective seriousness of the offence, the Crown said that matters of weight are classically within the discretion of a sentencing Judge. 46The Crown submitted that in view of the non-parole period previously imposed for the drug offence (4 years) and the total non-parole period imposed by her Honour when the sentence for the fraud offence is accumulated (5 years 6 months), it could be seen that the applicant will serve only 18 months of the total minimum term for the fraud offence. Consideration 47To establish this ground of appeal, the applicant must demonstrate that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357. 48The amount of money, namely $730,000, that the applicant dishonestly obtained is undoubtedly an important matter in determining the objective seriousness of the offence but it is not the only matter: R v Hawkins (1989) 45 A Crim R 430 at 435. The fraud was committed over a long period of time, it was planned and sophisticated. The applicant's offending included the preparation of false contracts of sale, false letters from a conveyancer and the use of old receipts from the applicant's business. All of these matters justified her Honour's finding that the offence represented a high degree of criminality and "would have attracted something approaching the maximum penalty" but for the discount for the plea of guilty (ROS 3). 49The imposition of the maximum penalty for an offence is reserved for cases falling within the worst category, which her Honour plainly recognised. The undiscounted starting point of 4 years 8 months was less than the maximum of 5 years. In my view, the undiscounted starting point was within the legitimate exercise of her Honour's sentencing discretion. 50As to the complaint that the Judge failed to attribute sufficient weight to the applicant's subjective case, it is well established that the circumstances in which matters of weight will justify intervention by this court are narrowly confined: Majid v R [2010] NSWCCA 121. In any event, I am not persuaded that the Judge did not carefully consider and give appropriate weight to the applicant's subjective case. 51The sentence imposed by the Judge for the fraud offence and the total effective sentence is not manifestly excessive. I would reject this ground of appeal. 52Accordingly, the orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed. 53Fullerton J: I agree with Price J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2014