Anthony Robert Coleman and v The Queen and
[2014] VSCA 228
•17 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0106
| ANTHONY ROBERT COLEMAN |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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JUDGES: | NEAVE, PRIEST and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 17 September 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 228 | |
JUDGMENT APPEALED FROM: | [2013] VSC 548 (Dixon J) | |
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CRIMINAL LAW – Sentence – Theft – Obtaining financial advantage by deception – Deficiency in trust account – Solicitor – Total effective sentence of 5 years with non-parole period of 3 years – Application for extension of time to file application for leave to appeal against sentence – No error by sentencing judge – No different sentences should have been imposed – Application futile – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| No oral hearing. By consent the matter was decided having regard to the written materials filed by the parties. | ||
NEAVE JA
PRIEST JA
BEACH JA:
Introduction
On 3 June 2013, the applicant pleaded guilty to one charge of theft contrary to s 74(1) of the Crimes Act 1958, one charge of having a deficiency in a trust account contrary to s 3.3.21 of the Legal Profession Act 2004 and 12 charges of obtaining a financial advantage by deception contrary to s 82(1) of the Crimes Act. On 25 October 2013, following a plea hearing, a judge of the Trial Division sentenced the applicant as follows:
Charges on
Indictment
Offence
Maximum
Sentence
Cumulation
1. Theft [s 74(1) Crimes Act 1958] 10 years [s 74(1) Crimes Act 1958] 2 years 2. Deficiency in trust account
[s3.3.21 Legal Profession Act2004]
15 years [s3.3.21 Legal Profession Act 2004] 2 years 6 months 3. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 4. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 3 months 5. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 6. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 9 months 7. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 2 years Charges on
Indictment
Offence
Maximum
Sentence
Cumulation
8. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 9. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 3 years Base 10. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 11. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 12. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 13. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1) Crimes Act 1958] 18 months 6 months 14. Obtaining a financial advantage by deception [s 82(1) Crimes Act 1958] 10 years [s 82(1)Crimes Act 1958] 18 months Total Effective Sentence: 5 years imprisonment Non-Parole Period: 3 years imprisonment
On 2 June 2014, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal against his sentence. On 1 July 2014, the Registrar of Criminal Appeals refused the applicant’s application for an extension of time. On 9 July 2014, the applicant filed a Notice of Election to renew his application. Thus, the matter now comes before this Court.
The principles to be applied
The time limit for seeking leave to appeal against the applicant’s sentence was 28 days after the day on which the applicant was sentenced.[1] The principles which govern an application for extension of time in which to apply for leave to appeal were distilled by Gowans J in the judgment of the Court of Criminal Appeal in R v John Edward Darby,[2] as follows:
(1)the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2)extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3)rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4)the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5)it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6)a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.
[1]Criminal Procedure Act 2009 s 279(1).
[2]Unreported, Supreme Court of Victoria, Gowans, Lush and Crockettt JJ, 2 May 1975; see also R v O’Keefe (1979) VR 1, 5; Bowling v R [2013] VSCA 87 [14]-[18] (Redlich JA); Soteriou v R [2013] VSCA 328 [55] (Ashley JA); Kumar v R [2014] VSCA 102 [8] (Nettle and Redlich JJA and Almond AJA).
Applicant’s reasons for delay
The application for an extension of time in which to apply for leave to appeal against the applicant’s sentence was filed some six months after the time for applying for leave to appeal had expired. In support of his application, the applicant has deposed that:
(a) he has no ability to fund a private lawyer, his assets having been ‘restrained’ pursuant to orders made under the Confiscation Act 1997;
(b) since being incarcerated he has been waiting to meet with Victoria Legal Aid;
(c) while waiting for Victoria Legal Aid, he has decided to run his appeal himself;
(d) he is at significant disadvantage in prison because he does not have access to the internet to research legal matters, and he has no access to legal books, cases and legislation;
(e) despite repeated requests, he has been unable to obtain his file from his previous solicitors;
(f) he has only limited time during each day to prepare documents, and the computers he has to share with other prisoners are only available for four hours 40 minutes a day; and
(g) a depressive condition from which he has suffered for some time has resulted in him not being ‘in a position mentally to look after my affairs and run my appeal’.
It might immediately be said that even accepting everything said in the applicant’s affidavit at face value, there is little to distinguish him from a large number of prisoners serving sentences of imprisonment who manage to file applications for leave to appeal against sentence within time. The one point that distinguishes the applicant from many of these people is that until he was apprehended in relation to the offences for which he was sentenced by the judge, the applicant was a solicitor holding a Victorian Practising Certificate under the Legal Profession Act 2004. However, that fact does not assist the applicant in his application for an extension of time.
Background facts
The applicant’s offences were committed between February 2003 and July 2007. The charge of theft related to the stealing of $32,731.78 from an estate in respect of which the applicant had obtained probate of a will prepared after the deceased consulted the applicant in his professional capacity.
The deficiency in a trust account charge related to the distribution by the applicant of the amount stolen by him and the subject of the theft charge. This was a rolled-up charge. The funds were distributed via 17 cheques endorsed by the applicant and made payable to a number of non-estate beneficiaries as well as the personal accounts of the applicant and a co-accused, Fiona Buchanan. In doing this, the applicant, as a legal practitioner and without reasonable excuse caused a deficiency of trust money on each occasion that he created and distributed each cheque because these monies were held in a trust account[3] under the name of the estate.
[3]Within the meaning of ss 3.3.2 and 3.3.21 of the Legal Profession Act 2004.
The charges of obtaining a financial advantage by deception variously related to the fraudulent lodging of applications for a First Home Owner’s Grant (‘FHOG’), the preparation of false documents and the receipt and taking of monies to which the applicant was not entitled. The judge summarised the applicant’s conduct as follows:
In summary, your conduct has involved creating five fictitious identities, manipulating the identity of an unknowing victim, Ms Nugent, creating three false bank accounts and one false credit card account, preparing false documentation for and submitting six applications for first home owner’s grants and preparing falsified conveyancing documents that included instruments of transfer, contracts of sale and statutory declarations.
The degree of planning and calculation involved in this repeated conduct demonstrates significant culpability. You chose to reoffend, not to cover up your past offending, but to obtain a further benefit for yourself. Acting in your capacity as a solicitor, you falsified the electoral register to create false identities. You deliberately falsified public land title records in order to perpetrate your frauds. You cheated the systems for identification of the true owners of bank accounts and you prepared false declarations, contracts and applications for taxpayer funded grants. You appropriated to yourself the assets of a deceased estate and used it as a vehicle for further fraud. Your offending was repeated over five and a half years. This planned and premeditated conduct was facilitated by your position as a solicitor and involved a gross breach of trust of your oath and obligations as a solicitor on each occasion. The total amount you received, approximately $327,700, falls well short of some massive defalcations committed by other dishonest solicitors but your nefarious activities remained concealed for almost a decade after you first crossed the line. [4]
[4]R v Coleman [2013] VSC 548 [22]–[23] (‘Reasons’).
The applicant’s proposed grounds of appeal
The applicant identifies nine proposed grounds of appeal. They are as follows:
1.The judge erred in allowing charge 12 to proceed based on the summary of argument by the Crown (which failed to establish the elements of the offence) which was confirmed in his own sentence remarks [6].
2.The judge erred in many remarks and findings and formed views that were more detrimental to the applicant than was actually the case, and therefore his sentencing cannot be considered safe.
3.The judge erred in relying upon the victim impact statement of Ms Nugent as it was irrelevant to the case. (Reasons [24] and [45]).
4.The judge erred in finding and sentencing on the bases (scil, basis) that there was no direct evidence of the applicant's motivation.(Reasons [25]).
5.That new and fresh evidence is now available to present to the Court of Appeal concerning the applicant's medical treatment and receipt of medication in prison which if available to the judge, would have mitigated further the punishment imposed on the applicant.
6.That new and fresh evidence is now available to present to the Court of Appeal concerning the repayment of compensation orders to the victims and confiscation of assets which if available to the judge, would have mitigated further the punishment imposed on the applicant.
7.The sentence on charges 1-14, the total effective sentence and the non-parole period are manifestly excessive.
8.The sentence on charge 12 is manifestly and unjustifiably disparate when regard is had to the sentence imposed on Ms Buchanan a co-accused.
9.The Crown misled the judge that in respect of charge 5 Ms Nugent did not receive her tax refund.
Ground 1
In ground 1, complaint is made that the judge erred in allowing charge 12 to proceed based on the summary of argument by the Crown. There is nothing in this complaint.
The plea before the judge proceeded by way of an agreed set of facts. The facts were found in a document headed ‘Summary of Prosecution Opening’ (the Summary’) which was tendered during the plea hearing. The applicant, who was represented by two counsel, took no relevant objection to the Summary or to the factual basis upon which it was agreed his plea to charge 12 was made (or indeed any other of the other charges to which he pleaded guilty).
Charge 12 related to the dishonest obtaining of a financial advantage, namely a FHOG in the sum of $6,832. While the charge referred to this amount being obtained by the applicant ‘for himself’, the Summary referred to the amount being paid into a bank account in the name of the applicant’s co-accused, Ms Buchanan. The Summary provided that in creating a contract of sale between a fictitious person, the applicant aided and abetted Ms Buchanan in obtaining the FHOG from the State Revenue Office. The judge sentenced the applicant on the basis of the agreed facts in the Summary. In doing so, there was no miscarriage of justice. Arguably, the applicant was dealt with more leniently than he might have been had the opening reflected the particulars of charge 12 in the indictment. That said, the facts agreed between the parties supported charge 12 in the way the charge was put in the Summary.
Ground 2
In ground 2, the applicant makes complaint about alleged errors in the judge’s sentencing remarks. There is nothing in this complaint.
The applicant makes complaint about the judge’s description of offending in relation to Ms Nugent (charges 4 and 5) as involving the theft of her identity. The applicant says that there was no theft of identity in either of these charges. However, in our view this is mere sophistry. Charge 4 related to the obtaining of a financial advantage by deception by lodging a FHOG application in the name of Ms Nugent, and charge 5 related to the applicant deceiving Ms Nugent into signing a form that authorised the payment of her tax return into a bank account that the applicant held jointly with Buchanan. Both of these charges could be described as having elements of identity theft associated with them. However, and in any event, there is no doubt that the judge sentenced the applicant in respect of these charges upon the factual basis agreed by the parties.
Next, the applicant makes complaint that in the Reasons, the judge referred to six false FHOG applications. The applicant contends that, on a proper count, there were only five false FHOG applications. The applicant is wrong. Charges 3, 4, 6, 8, 11 and 12 each involved the making of either a fraudulent FHOG application or the making of an FHOG application based upon a false document. As an additional complaint under this heading, the applicant submits that the judge erred in referring to statutory declarations being amongst the documents falsified by him. However, whether some of the documents submitted to the State Revenue Office by the applicant in furtherance of his crimes were statutory declarations or ‘certifications’ by him in his capacity as a legal practitioner[5] was (and is) of no moment in the sentencing exercise.
[5]See for example the agreed facts in the Summary concerning charge 4.
Finally, complaint is made about the judge making specific reference to the applicant acting in his capacity as a solicitor in respect of an aspect of the applicant’s criminal conduct, and that the applicant’s conduct was facilitated by his position as a solicitor. The applicant would seek to have this Court dissect his criminal conduct so as to classify aspects of it that were performed (or could have been performed) in a non-legal capacity. There was no basis for the judge to do this. Similarly, there is no basis for this Court to engage in that exercise.
Ground 3
In ground 3, complaint is made about the receipt by the judge of a victim impact statement of Ms Nugent. The applicant makes two complaints. First, it is said that the judge was wrong to accept that Ms Nugent suffered any anguish, distress, depression, anxiety or ill health as a result of the applicant’s offending. The applicant contends that there was no evidence of any medical condition, no medical reports or evidence from medical practitioners having been submitted to the Court. Secondly, the applicant disputes that Ms Nugent was a victim of his criminal conduct. The applicant asserts that the only victim in respect of Charge 4 was the State Revenue Office. Immediately it might be noted that the applicant did not make a corresponding submission in respect of Charge 5 (the charge involving the applicant deceiving Ms Nugent into signing a form that authorised the payment of her tax refund into the joint account of the applicant and Ms Buchanan) other than perhaps in the allegation in ground 9 which we will deal with below.
There is nothing in these complaints. The judge was correct to characterise Ms Nugent as a victim. The fraudulent FHOG application the subject of charge 4 was submitted by the applicant using Ms Nugent’s identity. Ms Nugent was a victim. Further, the judge was entitled to conclude on the evidence that the applicant had ‘inflicted suffering’ on Ms Nugent.[6] This was, in the circumstances of this case, an anodyne finding and one that did not require the tendering or production of expert medical evidence.
[6]Reasons [45].
Finally, it might be noted with respect to this ground that there was in any event no relevant objection taken on the plea to the parts of Ms Nugent’s victim impact statement to which the judge had regard.
Ground 4
In ground 4, complaint is made about a statement in the Reasons that ‘there is no direct evidence of [the applicant’s] motivation’.[7] The applicant then refers to a statement made by him that was tendered on the plea hearing. The applicant submits that the judge concluded that the most serious charge (charge 9) was motivated by ‘living a high life’ rather than ‘wanting to have more time with his children but wrongly going about this by fraudulently acquiring … property’. There is nothing in this complaint.
[7]Reasons [25].
Having stated that there was no direct evidence of the applicant’s motivation, the judge then correctly set out some of the histories given by the applicant to the medical practitioners from whom reports or evidence was adduced on the plea. The judge then referred to the applicant’s statement. While the applicant’s statement makes reference to him missing his children, there is no direct statement of the applicant’s motive in his statement. However, even if there was such a statement, the judge would not have been bound to accept it having regard to the other evidence to which his Honour referred. Additionally, contrary to the applicant’s submission, the judge did not sentence the applicant on the basis that his offending was merely motivated by a wish to lead a lavish lifestyle. Ultimately the judge accepted the relevant background matters in the applicant’s statement and, without rehearsing them, took them into account in the applicant’s favour.[8]
[8]Reasons [29].
Finally, even if the motive for which the applicant now contends could by some process of reasoning be inferred from the applicant’s statement (a matter about which we take leave to doubt), there was no error in the judge’s statement that there was no direct evidence of the applicant’s motivation.
Ground 5
In ground 5 it is asserted that there is new and fresh evidence available to present to the Court concerning the applicant’s medical treatment and receipt of medication in prison which, if available to the judge, would have mitigated further the punishment imposed on the applicant. The judge dealt with the applicant’s medical condition as follows:
Returning to Dr Thomas’ evidence, he told me that your condition has stabilised with treatment and you have improved considerably. You are lucky to have no issues with non-prescription drugs and to have brought your past propensity to drink heavily under control. Your prognosis is good provided you continue with your treatment and your medication. That treatment includes cognitive therapy to control and readjust back to normal your disturbed thought processes. I accept that you suffer from claustrophobia, particularly when depressed, and that there is a risk that imprisonment may enliven your problems with claustrophobia and cause a relapse in your condition. I will take that matter into account with an appropriate allowance in your favour.
…
It is also necessary for me to take into account your present psychological condition. I accept that impaired mental functioning at the time of sentencing may have a bearing on the kind of sentence to be imposed, and the conditions in which it is to be served, and may moderate the need for general and specific deterrence. It may also go to mitigation of punishment if there is a serious risk of imprisonment having a significant adverse effect on your mental health. However, this is a question of fact and degree and the requirement for general deterrence is not eliminated, only moderated. There remains the need for a just punishment and a sentence which will deter other persons from committing offences of the same or similar character and which sufficiently manifests the court’s denunciation of your conduct. That said, some mitigation of your punishment is warranted by your present psychological condition.[9]
[9]Reasons [30]–[31] and [41].
In support of his application, the applicant has deposed:
I have been treated for depression since 1997 whilst in the army. On the first day that I was in prison I was taken off diazepam medication which had been prescribed by Dr Thomas to treat my depression. I was also taken off seroquel medication which had been prescribed by Dr Thomas, one week later. As a consequence my depression is heightened. The removal of these medications, caused me to suffer further depression as diazepam is used to treat depression. I receive no cognitive therapy from [a] psychologist. Whereas I had 57 sessions with a psychologist in the 18 months leading up to my plea hearing.
While the applicant asserts that there is relevantly new and fresh evidence about his medical condition, no additional material was put before this Court on this application. In any event, in our view, the reasons show that the judge gave appropriate consideration to the applicant’s medical condition. Not every fluctuation in a medical condition requires this Court to re-sentence an offender.
Ground 6
In ground 6, it is asserted that there is now new and fresh evidence available to present to the Court concerning the repayment of compensation orders to the victims and the confiscation of assets, which if available to the judge would have mitigated further the punishment imposed on the applicant. There is nothing in this ground.
Such repayment as has occurred since sentencing has occurred without any assistance by the applicant. While the repayment of a victim may show contrition or remorse for which credit might be given, there is nothing in the material in this case to suggest that any such conclusion should be drawn in the applicant’s favour. In sentencing the applicant, the judge was alive to the possibility that ultimately there might be some measure of restitution made to the applicant’s victims.
Further, while the applicant seeks to rely upon restraining orders made in respect of properties in Powell Street, Yarraville, the Esplanade, Altona and Ferrars Street, South Bank, the Crown notes that in February 2012 the applicant made a declaration that he had no interest in any of these properties. All that has happened since sentencing is that the applicant’s co-accused, Buchanan, who had previously filed exclusion applications in respect of these properties, has withdrawn those applications. The position at the present time is that approximately $90,000 has been recovered from the applicant’s bank accounts and related accounts, and the recovery of funds is ongoing. There is nothing relevantly new or fresh in what has occurred since the judge sentenced the applicant.
Ground 7
In ground 7, complaint is made that the sentences on charges 1 to 14, the total effective sentence and the non-parole period are all manifestly excessive. There is nothing in this complaint. Each of the sentences imposed, the orders for cumulation, the total effective sentence and the non-parole period were all well within the range of sentences and orders in respect of the applicant’s offending. Each of the offences was a serious offence for the reasons given by the judge. The judge’s reasons make it clear that appropriate sentences and orders were made in respect of the applicant’s offending. Even if we had come to the conclusion that the judge had erred in respect of one of his sentences or orders (which we have not), we would have concluded that no different sentences or orders should have been made. On that basis, we would also conclude that there is no reasonable prospect that the Court of Appeal would have imposed less severe sentences than those first imposed.[10]
[10]See s 280(1) and 281 of the Criminal Procedure Act 2009.
Ground 8
In ground 8, complaint is made that the sentence on charge 12 is manifestly and unjustifiably disparate having regard to the sentence imposed on the co-offender Buchanan. However, as was noted in the Summary, Buchanan’s involvement was minor. She pleaded guilty to one charge of providing false and misleading information pursuant to s 47(1) of the FirstHomeOwnerGrantAct2000. Buchanan was fined $3,000 without conviction. The basis of the charge against Buchanan was that she purchased a property and instead of living in the property (which is a requirement of an FHOG) she rented the property out. Further, the maximum penalty in respect of charge 12 is 10 years’ imprisonment, while the maximum penalty in respect of the offence to which Buchanan pleaded guilty was imprisonment for one year. The difference between this sentence and the sentence imposed on the applicant of 18 months was clearly justified. Additionally, it is to be noted that on charge 12, the judge did not order any cumulation of the sentence he imposed on the applicant.
Ground 9
In ground 9, complaint is made that the Crown misled the judge in respect of charge 5 that Ms Nugent did not receive the tax refund to which she was entitled. There is nothing in this ground. The facts were agreed before the judge and were based upon a statement made by Ms Nugent that was part of the depositions. If the applicant wished to dispute this fact then the time to dispute the fact was at trial. Further, there is no material (other than mere assertion by the applicant) which could permit this Court to take some different view in respect of charge 5.
Conclusion
There is no merit in any of the applicant’s proposed grounds. There is no basis for the applicant’s assertions that the judge committed error in sentencing the applicant. Further, and in any event, no different sentences should have been imposed by the judge. Additionally, there is no relevant new or fresh evidence. The applicant’s explanation for his delay is, at best, thin. An extension of time would be futile as any application for leave to appeal would be bound to be refused. The application must be dismissed.
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