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Court of Criminal Appeal 11 October 2000

R v VASIL

[2000] NSWCCA 421

Fraud & dishonesty

Citation: R v Vasil [2000] NSWCCA 421
Court: NSW Court of Criminal Appeal
Date: 11 October 2000
Judge(s): Hulme J; Barr J

Background

The appellant, Stephen Vasil, was convicted in the District Court before Twigg DCJ on 21 charges of using a false instrument under s 300(2) of the Crimes Act, after pleading guilty. The instruments included bank loan applications, a birth certificate, and a driver's licence. A large number of further offences were also taken into account on a Form 1 (a formal document listing additional offences admitted by the offender for the sentencing court to consider).

The offending spanned from late 1996 to May 1998 and involved a systematic scheme to defraud banks using false identities, fabricated employment records, and false documentation connected to real estate transactions. The total loss to the banks was approximately $4 million, with the appellant personally gaining around $1.45 million, much of which was dissipated through gambling or transferred overseas.

Twigg DCJ imposed a sentence of six years' imprisonment on the principal charge, comprising a minimum term of three years and an additional term of three years, with concurrent fixed terms of two years on the remaining 20 charges. The appellant sought leave to appeal, arguing the sentence was excessive and should be reduced to three years and six months with an 18-month non-parole period.

  • Whether the sentencing judge gave sufficient weight to the appellant's early guilty plea and cooperation with authorities
  • Whether the sentencing judge failed to comply with s 5 of the Sentencing Act 1989 by not properly specifying minimum and additional terms
  • Whether the sentencing judge failed to give reasons for any discount applied in relation to the guilty plea
  • Whether the head sentence of six years (60% of the ten-year maximum) for a first offender demonstrated an absence of meaningful discount
  • Whether the sentence failed to account for eight days spent in pre-sentence custody
  • Whether, taken together, the alleged errors in the sentencing process rendered the sentence excessive and warranted a reduction

Decision

Hulme J rejected the contention that the sentence was excessive, stating that the proposition needed only to be stated to be dismissed. He went further, recording his own view that the sentence was "woefully insufficient" recognition of the principles of general deterrence and retribution, given the scale and benefit of the criminality involved.

Hulme J identified the governing statutory constraint under s 6(3) of the Criminal Appeal Act, which obliges the Court of Criminal Appeal to dismiss an appeal against sentence unless it is of the opinion that some other sentence, whether more or less severe, is warranted in law. Applying that provision, Hulme J stated that even if every procedural criticism of the sentencing process were accepted, he would not contemplate reducing the sentence downward.

Given that conclusion, Hulme J declined to address each of the individual grounds of appeal separately, characterising many as "carping and of no significance." Barr J agreed, adding that in his opinion a minimum term of three years was entirely inadequate for criminality of this magnitude, and that the appeal should be dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal must dismiss a sentence appeal unless a different sentence, whether higher or lower, is warranted in law. This provision operates as an independent threshold that can defeat an appeal even where procedural errors in sentencing are established.
  • In dismissing the appeal, the Court of Criminal Appeal observed that a sentence already inadequate on grounds of general deterrence and retribution cannot be reduced, regardless of the merit of individual procedural criticisms.
  • Procedural complaints about sentencing reasons (such as failure to articulate discount methodology for a guilty plea) do not automatically produce a successful appeal. The ultimate question is whether the sentence actually imposed is outside the range warranted in law.
  • Large-scale, systematic fraud involving false identities and causing losses in the millions will attract significant weight on general deterrence and retributive considerations, which may counteract mitigating factors such as a guilty plea and absence of prior convictions.
  • Both judges expressed the view that the three-year minimum term was inadequate for criminality of this scale, though the absence of a Crown appeal meant the sentence was not increased.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BB, 300(1), 300(2), 302
- Financial Transaction Reports Act, s 24(1)
- Sentencing Act 1989 (NSW), s 5
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Regina v Gallagher (1991) 23 NSWLR 220
- Regina v Carroll [1999] NSWCCA 237