and Allan Rae Dalton v The Queen
[2015] VSCA 189
•22 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0084 | |
| ALLAN RAE DALTON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 July 2015 |
| DATE OF JUDGMENT: | 22 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 189 |
| JUDGMENT APPEALED FROM: | DPP v Dalton (Unreported, County Court of Victoria, Judge Tinney, 10 December 2014) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Theft – Using a false document – Sentenced to total effective sentence of 2 years' imprisonment (12 months to be served cumulatively upon a previous sentence of 2 years and 3 months) with previously ordered non-parole period extended by 8 months – Delay – Consequences of delay – Totality – Whether totality principle infringed – Whether order for cumulation infringed totality principle – Alleged errors not reasonably arguable – No reasonable prospect that less severe sentence or orders would be imposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr R Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
BEACH JA:
Introduction
On 9 December 2014, the applicant pleaded guilty in the County Court to one charge of theft and two charges of using a false document. At the time he pleaded guilty, the applicant was then serving a sentence of 2 years and 3 months’ imprisonment with a non-parole period of 1 year and 2 months, imposed on 10 September 2014, following his conviction by a jury in respect of three other charges of theft. On 10 December 2014, the applicant was sentenced in respect of the offences to which he had pleaded guilty as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1. Theft [s 74(1) of the Crimes Act 1958] 10 years [s 74(1) of the Crimes Act 1958] 18 months Base 2. Using a false document [s 83A(2) of the Crimes Act 1958] 10 years [s 83A(2) of the Crimes Act 1958] 9 months 3 months 3. Using a false document [s 83A(2) of the Crimes Act 1958] 10 years [s 83A(2) of the Crimes Act 1958] 9 months 3 months Total Effective Sentence: 2 years (12 months to be served cumulatively upon the sentence imposed on 14 September 2014) New Non-parole period: 1 year 7 months Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: Nil 6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed if the Applicant had been convicted of these offences after a trial would have been 3 years and 3 months’ imprisonment (1 year and 7 months to be served cumulatively upon the sentence the Applicant was presently undergoing), with the Applicant becoming eligible for parole after serving 2 years and 6 months of that sentence. Other relevant orders: Compensation Order to Heather Oliver in the sum of $73,087.50
Notwithstanding the submissions made by the applicant this morning as to the uncertainty of what the judge ordered, it is plain that the effect of the sentence and orders, made by the sentencing judge on 10 December 2014, was to increase the term of imprisonment the applicant was then serving by 12 months, and to increase the period during which the applicant would not be eligible for parole by eight months.
The applicant now seeks leave to appeal in respect of the sentence imposed on 10 December 2014. The applicant’s proposed ground is as follows:
The learned sentencing judge erred in his application of the totality principle — in that the order for cumulation upon the sentence the applicant was presently [scil, then] undergoing infringed that principle.[1]
[1]While in oral submissions the applicant attempted to argue that the judge’s sentence did not accord with the judge’s stated intention that the applicant would be ‘credited for every day [the applicant had] served to that point’, there is no substance in that argument. The pre-sentence detention declaration made on 14 September 2014 had and has operative effect, and there was no pre-sentence detention in respect of the offences for which the applicant was sentenced on 10 December 2014.
Circumstances of the offending
The applicant and the complainant commenced a de facto relationship in about 1996. Sometime in the early 2000s, they decided to redevelop adjacent properties owned by each of them in Hawthorn. The redevelopment ran into financial difficulties, resulting in a finance company taking possession of, and selling, the two Hawthorn properties.
In addition to the property the complainant had owned in Hawthorn, the complainant also owned a property in Mt Edgerton. As part of a strategy to attempt to protect the Mt Edgerton property from the financier, a decision was made to set up a company, Abba Dabba Nominees Pty Ltd. It was intended that the Mt Edgerton property would be transferred into that company’s name and, as a further protection, a mortgage would be taken out. The funds advanced by way of mortgage to Abba Dabba Nominees were then intended to be placed in an interest bearing account which would be used to offset the mortgage repayments.
On 1 October 2004, the applicant registered Abba Dabba Nominees. On 1 December 2004, the applicant signed mortgage documents in respect of the Mt Edgerton property on behalf of Abba Dabba Nominees. On 6 December 2004, Collins & Collins, solicitors who were facilitating the mortgage, withdrew the sum of $73,807.50 advanced pursuant to the mortgage. The solicitors, acting on the applicant’s instructions, then provided a bank cheque in this amount, payable to Down to Earth Developments Pty Ltd, to the applicant. The next day, the applicant opened a bank account in the name of Down to Earth Developments, and deposited the cheque. The bank account was one to which the applicant had sole access. Over the next two years, the money ($73,807.50) was then used by the applicant for his own personal expenditure. These circumstances constituted the fact of the theft charge (charge 1).
Charges 2 and 3 were constituted by the applicant, in May 2005 and June 2006, creating and sending to the complainant letters, purporting to be from Collins & Collins, stating that the funds derived from the mortgage were being held in the solicitors trust account earning interest and being used to make regular mortgage payments. The applicant used these letters to cover up his theft of the complainant’s funds. The judge described the circumstances of these charges as follows:
You sought to cover up your dishonest appropriation by the use of the two false documents purporting to be from a firm of solicitors assuring her of the existence of the sums held in trust earning a healthy interest. Those letters assured [the complainant] of the existence of the funds in trust and the fact of the mortgage payments being made regularly from the funds in trust. There were of course no sums held in trust. You were just spending them without her having any knowledge at all. The second letter provided advice purportedly from a lawyer suggesting a consideration of the arrangement in about a year’s time, subject to [the financier] not having ‘done anything’. So a pretty skilled letter, raising the potential spectre of the financial institution and suggesting maintaining the satisfactory status quo for another year from June 2006. A status quo where the interest was being applied to cover the mortgage. A status quo that you knew was totally non-existent. The money had gone by then.[2]
[2]DPP v Dalton (Unreported, County Court of Victoria, Judge Tinney, 10 December 2014) (‘Reasons’) [8].
The applicant’s background
At the time he was sentenced by the judge, the applicant was 60 years of age and suffered from a number of significant health problems. He had a prior criminal history going back to 1994 in Victoria and 1993 in Queensland. His prior convictions included convictions for burglary, theft, obtaining property by deception, obtaining a financial advantage by deception and false pretences.
The three charges of theft for which the applicant was sentenced on 10 September 2014 related to offending that occurred, subsequent to the present offending, in 2011. That offending involved a total amount of $144,000.
The judge’s reasons
The judge commenced his reasons for sentence with a description of the applicant’s offending.[3] The judge then described the victim impact statements, noting that the complainant was 72 years of age and had been significantly affected by the applicant’s crimes.[4]
[3]Ibid [2]–[8].
[4]Ibid [9]–[10].
In the course of his reasons, the judge dealt with the applicant’s plea of guilty in the following terms:
You have pleaded guilty. I take that into account. As late as the plea is, it is still of value and spared witnesses from attending this court. The community has been spared the cost and effort associated with the actual running of the trial. A committal was run. Witnesses including [the complainant] were called and cross examined. That was your right. Your plea is, though, a very late one; offered on the Friday before the start of the trial. And though there have been some charges withdrawn and some reshaping of the main charge, the fact is you had always asserted a lack of dishonesty and asserted [the complainant’s] knowledge of what you were doing. You denied creation or use of the false documents. Ultimately, you concede by your plea of guilty to these three charges, that which you had not to that point conceded: your dishonest conduct; your act of theft; your use of the false documents. Anyway, I still must reward you for your plea. It must be rewarded with a discount in sentence. But it is a very late plea and I am required to take into account the stage of the plea.[5]
[5]Ibid [17].
As to remorse, the judge said:
Your counsel specifically disavowed any suggestion of remorse and nor do I find any. I see no evidence of any remorse for your crimes. I hasten to add that is not a matter in aggravation.[6]
[6]Ibid [18].
As to the issue of delay, the judge said:
These crimes occurred in 2004, 2005 and 2006. The latter two crimes of using the false documents were committed to avoid detection of the theft, and to an extent, explain why the theft went undetected for as long as it did. [The complainant] made statements in 2008 and you were not interviewed until March 2012. The informant said at the committal that your whereabouts were unknown. Upon interview, you were not frank. It was your right not to be. No doubt if you had been frank or told something even resembling the truth, the matter could have been swiftly investigated and finalised years ago. You were not charged for six months after the interview date and then there was a large gap between the summons issue date and the filing hearing. I am obviously sentencing you very many years after the event and with those significant delays, even after your alleged crimes came to light, and then delays even after you were charged.
[Your counsel] relied upon the staleness of the crime. I accept they are very old and that there is a staleness to these crimes. I do have regard to the principles associated with sentencing for stale crimes to which I was taken. There can be a considerable measure of understanding and flexibility of approach, and what might otherwise be viewed as undue leniency can, on occasions, be extended courtesy of the delay between offence and sentence. Each case will depend on its own facts.
On the seriousness of the crime, the length of delay, the reasons for delay, the response of the offender in the meantime and a host of other factors including considerations of fairness. Unfortunately since committing these offences in 2004, 2005 and 2006, you have continued to commit a number of other dishonesty offences. As to the delay, [your counsel] relied upon the anxiety caused by the delay spanning the period from September 2012 when the charges were laid and the filing hearing in June 2013 when the decision had been made by the prosecution to proceed to a committal stream. It was that nine month period which was relied upon in the sense of uncertainty created in your mind. I will have regard to that in the way suggested, but it is of very little moment here. It is of little mitigatory benefit, and as your counsel made plain, it was impossible to point to any process of rehabilitation here. I make plain I do not lose sight of the age of the offending for which I must pass sentence.[7]
[7]Ibid [21]–[23].
Next, the judge dealt in some detail with the objective seriousness of the applicant’s offending.[8] The judge noted that the applicant’s counsel conceded the seriousness of the theft offence and the protracted nature of the applicant’s dishonesty, involving the use of the two false documents so as to avoid the detection of the applicant’s theft of the complainant’s money. The judge said:
This theft was a serious crime, targeting your own intimate partner, by a man well versed in dishonest conduct and with a dishonest pedigree, stretching forward to this day.[9]
[8]Ibid [24]–[27].
[9]Ibid [27].
The judge dealt with the issue of totality in some detail. He said:
I must pay regard to totality of sentence in considering the extent of cumulation to be imposed as between the individual sentences imposed by this court. There is obviously a relationship between the second and third charge and the charge of theft, with the latter two offences being committed to avoid the detection of the theft. Still, they are separate crimes, committed at a different time. Quite deliberate. Quite calculated with a false document being employed to give your own partner complete comfort. [Your counsel] conceded the need for at least some cumulation given the different offences, differing elements, the timing and the nature of the criminal conduct.
I also have to consider the sentence you are currently undergoing and the extent to which there is any extension of that sentence, and again, the principle of totality is very important in that consideration. It is important in making judgments as to the extent of cumulation. It is also important when fixing a new single non-parole period. When fixing a new single non-parole period, I am to have regard to the total effective sentence, being the combination of all sentences which you are required to serve (and have been serving) including that which is about to be imposed. I must have regard to totality of the offending. The new single non-parole period is fixed in relation to that total or global sentence. I have engaged in a last look at the overall effect of the sentences I will shortly pronounce in endeavouring to avoid the imposition of a sentence that might be crushing upon you, and to ensure that the overall effect is consistent with your overall criminality. I sentence consistent with the observations made by Redlich JA in [Azzopardi v The Queen[10]] the case to which I was referred.[11]
[10](2011) 35 VR 43 (‘Azzopardi’).
[11]Reasons [28]–[29].
Finally, the judge said:
You stand to be punished for your crimes, justly and proportionately. This court must denounce your conduct. Your conduct in committing the theft was seriously wrong. [The complainant] trusted you. It was a pretty miserable and low act to do what you did, and has left her very much in the lurch, even a decade later. Your conduct in hiding your dishonest conduct by the use of false documents was quite calculated and criminal conduct.
Protection of the community from you is a matter I must pay some regard to, given the nature of your crimes and the criminal chronology. That is so despite the passage of time.
Despite the age of the crimes, an examination of your past, current and subsequent matters paints a picture of a person who acts dishonestly across a number of domains; business and personal. So despite the age of the crimes I must sentence you for, I still believe that specific deterrence has some importance. You must be dissuaded from committing dishonest crimes. Courts have tried in the past with very limited success. The message is not getting through to you. This court must also seek to deter others who might be minded to commit this type of offence. That purpose, known as general deterrence, is still a relevant purpose of sentencing, though I judge it to be of lesser importance, given the passage of time.[12]
[12]Ibid [32]–[34].
Applicant’s submissions
The applicant’s submissions centred on the issues of delay and totality. In respect of delay, the applicant noted that the complainant had made her two statements to the police in April and June 2008; the applicant was not interviewed until March 2012; he was not charged until September 2012; and he was not sentenced until December 2014.
While it was accepted by the applicant that the judge ‘clearly had regard to the principle of totality’,[13] the applicant contended that in the particular circumstances of the present case (including the issue of delay):
The starting point in favour of concurrency should have run much further and … the ultimate orders as to cumulation and the new non-parole period have infringed the principle of totality.[14]
[13]Applicant’s written case [40].
[14]Ibid.
The respondent’s submissions
The respondent submitted that the judge appropriately took into account the issues of delay and totality and, in doing so, made no error.
Analysis
As has been said before, it is trite to say that whether there is delay, and what the consequences of any such delay might be, is a matter that needs to be analysed and considered within the setting that the justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness.[15] As was said by this Court in Sergi v DPP:
First, as to rehabilitation, if the offender can establish there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continuation of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Here, however, such mitigatory effect as the lapse of time between 2008 and 2014 might have produced was, to a very significant extent, diminished, if not extinguished, by the appellant’s further offending while on bail for the Commonwealth offence. This was not a case where the appellant could combine a period of delay with evidence of rehabilitation to justify any substantial mitigation in sentence. The appellant in his supplementary submission conceded that this was so.
Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.[16]
[15]Sergi v DPP [2015] VSCA 181, [42] (Maxwell P, Redlich and Beach JJA).
[16]Ibid [43]–[44].
In the present case, there was undoubtedly a lengthy elapse of time between the applicant’s offending and sentence. However, it is to be noted that the applicant’s use of the false documents was designed to conceal his theft for a period of time prior to the complainant making her two statements to the police. Further, it is also to be observed that the applicant contested the charges against him until a late stage in the proceeding.
All of that said, the judge made clear in his reasons for sentence that he did not lose sight of the age of the offending for which he was required to pass sentence.[17] In my view, it is plain that the judge appropriately considered and dealt with the issue of delay so far as the question of fairness to the applicant was concerned.
[17]Reasons [23].
As to the consideration of rehabilitation so far as the issue of delay was concerned, as was rightly conceded by the applicant’s counsel on the plea before the judge, ‘it was impossible to point to any process of rehabilitation here’.[18] Thus, it cannot reasonably be contended that the judge’s treatment of the issue of delay involved any error.[19]
[18]Ibid [23].
[19]See further, Sergiv DPP [2015] VSCA 181, [42]–[46] and the authorities referred to therein.
The applicant’s offending was, as was conceded by the applicant’s counsel before the judge, serious. It was protracted and involved a significant sum of money. Additionally, it was not isolated offending, the applicant having convictions for dishonesty offences both before and after the present offending. Given the objective seriousness of the applicant’s offending, the significant consequences for his victim and the applicant’s history, there is no substance in the applicant’s complaint that the sentence imposed by the judge and/or the ultimate orders as to cumulation infringed the principle of totality.[20] With respect, the sentence imposed and the orders for cumulation were, in all the circumstances, entirely appropriate. The applicant’s proposed ground of appeal is not reasonably arguable. Further, there is no reasonable prospect that a court hearing an appeal in this matter would impose a less severe sentence or orders than those imposed by the judge.[21]
[20]See generally, Azzopardi (2011) 35 VR 43, 59-63 [56]–[69] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).
[21]Cf s 280(1) of the Criminal Procedure Act 2009.
Conclusion
The application for leave to appeal must be refused.
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