Apted v the Queen
[2021] VSCA 151
•7 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0089
| DIANE DEBORAH APTED | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 May 2021 |
| DATE OF JUDGMENT: | 7 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 151 |
| JUDGMENT APPEALED FROM: | [2020] VCC 202 (Judge Wilmoth) |
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CRIMINAL LAW – Appeal – Sentence – Obtaining financial advantage by deception (5 charges) – 201 transactions over 5 years totalling $970,803.37 – Rolled up charges for each year – Charge 1 concerned two transactions in one year totalling $4,442.87 – Whether head sentence of 2 years’ imprisonment and order for cumulation of 3 months on charge 1 manifestly excessive – Appeal allowed – Resentenced on charge 1 to 3 months’ imprisonment with total concurrency – Sentences on charges 2 to 5 within range.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C T Farrington | Stary Norton Halphen |
| For the Respondent | Ms E Ruddle SC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
SIFRIS JA:
Introduction
On 28 February 2020, the appellant pleaded guilty to five charges of obtaining financial advantage by deception. On 5 March 2020, following reasons for sentence,[1] she was sentenced as set out in the table below.
[1]DPP v Apted [2020] VCC 202 (‘Reasons for Sentence’).
Charge Offence Maximum Sentence Orders 1 Obtaining financial advantage by deception 10 years’ imprisonment 2 years 3 months cumulative 2 Obtaining financial advantage by deception 10 years’ imprisonment 3 years Base 3 Obtaining financial advantage by deception 10 years’ imprisonment 3 years 3 months cumulative 4 Obtaining financial advantage by deception 10 years’ imprisonment 3 years 3 months cumulative 5 Obtaining financial advantage by deception 10 years’ imprisonment 3 years 3 months cumulative Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 6 months’ imprisonment Pre-Sentence Detention Declared: 334 days Section 6AAA Statement: 5 years’ imprisonment with a non-parole period of 3 years Ancillary orders: N/A
On 12 May 2020, the appellant filed an application for leave to appeal on two grounds. First, that both the head sentence and order for cumulation on charge 1 are manifestly excessive. Second, that the total effective sentence and non-parole period are manifestly excessive having regard to particular factors.
On 25 September 2020, Priest JA granted leave to appeal on both grounds.[2]
[2]Apted v The Queen (Court of Appeal, Priest JA, 25 September 2020) (‘Leave Reasons’).
Circumstances of the offending
From 2012 the appellant was the office manager for a family business, Precision Shower Screens and Robes (‘Precision’), operated by Phillip and James Woollard. Her responsibilities included paying accounts and wages, and the monthly reconciliation of accounts.
The appellant used a ‘batch transfer’ method of payment, which is a system designed for businesses to expedite the payment of many transactions. Hence, the Precision bank statement would show one large amount going to a single recipient, when in fact it was actually a batch of smaller transfers going to multiple recipients. This system enabled the appellant to make a mostly legitimate batch transfer payment to a supplier and at the same time enter her own account details for the illicit payment of one or more small transactions. Other methods the appellant used for dishonestly obtaining funds included hiding a payment made by a customer by deleting the job ticket from the computer and transferring the payment to her own account. Between 2012 and 2016, the appellant misappropriated the total sum of $970,803.37.
In anticipation of a possible sale of the business, an audit was conducted by an accountant in 2016. Two hundred and one suspicious transactions were identified. The appellant resigned in September 2016, and left the business in October. She returned to live in Tasmania, where her family was based. The police began an investigation, but she was not charged until April 2019. She has been in custody since then.
Each charge on the indictment was a ‘rolled-up’ charge dealing with deceptions the appellant committed in each year from 2012 to 2016 inclusive. The essentials of each charge are as follows:
(a) charge 1: two transactions in 2012, totalling $4,442.87;
(b) charge 2: 34 transactions in 2013, totalling $289,722.93;
(c) charge 3: 39 transactions in 2014, totalling $193,653.45;
(d) charge 4: 74 transactions in 2015, totalling $273,058.62; and
(e) charge 5: 52 transactions in 2016, totalling $209,925.50.
The appellant made full admissions to police. She said that she spent the money on gambling, drugs and drinking, and said it was not hard to hide the transactions from the accountant. Other evidence showed that money was often also spent on flights, presumably to Tasmania.
Reasons for sentence
After summarising the circumstances of the offending, the sentencing judge described the effect of the appellant’s crimes. In his victim impact statement, Phillip Woollard described the trust placed in the appellant, and the horror and sense of betrayal felt by management and staff when the appellant’s crimes were revealed. The appellant had been helped by the Woollards who were kind and flexible employers. The Woollards suffered enormous stress in trying to access their own account records from Bank West, who refused to cooperate until a subpoena was served.
Moreover, the long delay in prosecuting the appellant hampered the business in seeking any compensation for the losses, and potential redress through the civil court was frustrated by the appellant’s declaration of bankruptcy during the delay. No money was recovered from the appellant. Additionally, shortly after the crimes were detected, a sale of the business fell through due to an inability to supply accurate financial figures because of the thefts.
Phillip Woollard said that it will take years for the business to recover what the appellant stole. The large amount illegally expropriated by the appellant has deprived him of many opportunities which he might have expected to be able to enjoy after 17 years of hard work building the business. The sentencing judge described the appellant’s offending as involving ‘a gross breach of trust and the heartless exploitation of a small family business over four years’ and said that such a serious impact on the victims makes the offending ‘even more serious than on its face’.[3]
[3]Reasons for Sentence [8].
The sentencing judge then turned to the personal circumstances of the appellant and matters in mitigation.
The appellant was a single woman aged 57 at the time of the sentence. She had no prior convictions, pleaded guilty, provided assistance and showed remorse.
During her unhappy childhood, the appellant was subjected to her father’s alcohol abuse and violence. She experienced similar alcohol abuse and non-physical violence with the father of her two children, her relationship with him ending in 2003.
A few years after that relationship ended, the appellant began a relationship with her former partner’s brother. She had a happy relationship with him until his death from leukaemia in June 2013. It was just after his diagnosis with leukaemia that the appellant began taking money, wanting to ensure that his last Christmas was happy.
After her partner’s death, the appellant’s offending increased to support her gambling and drinking. She resorted to drugs, alcohol and gambling to cope with her grief. Not long afterwards, the appellant was treated for breast cancer. During that treatment she was unable to help her daughter in Tasmania, who had difficulties with drugs and with caring for her young children. She was finally able to go and help her daughter in 2016, and, while helping her after the birth of her fourth child, the appellant ceased gambling and drinking.
A psychologist, Ms Carla Lechner, diagnosed the appellant with Complex Post Traumatic Disorder, Major Depressive Disorder, Alcohol Use Disorder and a Gambling Disorder. In a letter to the sentencing judge, the appellant claimed that part of her motivation for taking money after her partner’s death was to pay for her addictions to gambling and drinking, her judgment being affected by her depressed mood and the addictions themselves. The sentencing judge observed that that appellant seemed ‘to have developed some insight into this’,[4] and voluntarily sought treatment for what she recognised as mental health issues. She was ‘now said to be in recovery’.[5]
[4]Ibid [16].
[5]Ibid.
The sentencing judge accepted that indications of the appellant’s remorse and acceptance of responsibility had been conveyed through her counsel, a psychologist’s report and in a letter to the court. Further, the appellant’s plea of guilty was accepted as an indication of remorse. The plea was entered at an early stage and the appellant cooperated with police, making full and frank admissions. The sentencing judge found that the assistance to investigation and avoidance of a potentially long and complex trial were factors to the appellant’s credit and entitled her to a discount on her sentence for the plea of guilty.
The sentencing judge also took into account as a mitigating factor the long delay between the detection of the appellant’s offending in 2016, and her being charged in 2019. As a result, the matter had been hanging over her head for a long period. The judge also observed that the delay also added to the seriousness of the offending, since the delay in completing the investigation weighed heavily on the victims in prolonging the anguish they have felt in dealing with the effects of the offending.
The sentencing judge observed that the prospects of rehabilitation had to be assessed in light of the fact that the appellant had no prior convictions and the offending was out of character. The appellant had abstained from alcohol and gambling and has voluntarily engaged in treatment. Further, the judge considered that the appellant was remorseful and had gained insight. Ultimately, the sentencing judge said that the fact that the appellant ‘had maintained [her] criminal actions for so long may suggest that any confidence placed in [her] prospects for rehabilitation should be guarded’, but that ‘the more positive aspects’ to which she had referred increased those prospects somewhat so that she concluded that they were ‘fair’.[6]
[6]Ibid [18].
Ground 1 — the head sentence and order for cumulation on charge 1 are manifestly excessive
As referred to above, charge 1 encompassed two transactions amounting to a total of $4,442.87. The sentencing judge imposed a sentence of two years’ imprisonment on that charge, with three months of that sentence to be served cumulatively on the base sentence, charge 2.
Submissions
The appellant submitted that two years’ imprisonment for a deception of that value for a person without prior convictions is excessive, and particularly so in the circumstances of the appellant. Further, it was submitted that three months cumulation is also excessive, particularly in the context of the same cumulation being ordered on charges 3, 4 and 5. According to the appellant, the sentence on charge 1 is also plainly excessive compared to the sentences imposed for the much greater financial advantage obtained for the purposes of each of charges 2, 3, 4 and 5.
The respondent submitted that neither the individual sentence nor order for cumulation on charge 1 are manifestly excessive. The respondent submitted that the sentence imposed on charge 1 was considerably less than those imposed on charges 2 to 5, which is indicative that the sentencing judge viewed this charge as being less serious than the other charges. The amount of money obtained was less than that involved on each of the other charges and represented a first offence, but according to the respondent it was nonetheless serious offending and constituted a gross breach of trust. The period of cumulation, the respondent submitted, was ‘moderate in the circumstances of this offending’.
Analysis
In order for the appellant to succeed on this ground, it is necessary to show that the individual sentence and order for cumulation imposed on charge 1 is wholly outside the range available to the sentencing judge.
In our opinion, the appellant has succeeded in doing so and we will allow the appeal on this ground. The head sentence of two years’ imprisonment and order for cumulation of three months for a charge involving two dishonest transactions totalling $4,442.87 cannot be anything other than manifestly excessive. It is hard to imagine a case in which a sentence of two years’ imprisonment could ever be justified for a first offender in relation to a financial advantage involving the relatively modest sum comprising charge 1.
In reaching that conclusion, we have not ignored the significant breach of trust involved in the offending and that the offending was the first step on the path to a criminal enterprise that spanned four years and involved a further 199 transactions and another $966,360.50. Nor have we overlooked the fact that the seriousness of any given offence of obtaining financial advantage by deception will involve a number of considerations, the value involved being but one.
The fact that charge 1 represented the tip of a much larger iceberg could not justify the imposition of a disproportionate sentence of that charge. Rather than fixing a sentence which is proportionate to and appropriate for the offence of charge 1, the sentencing judge’s starting point appears to have been to fix a sentence which is disproportionate to the objective criminality embodied by that charge. It seems to us that the exercise of the sentencing discretion on charge 1 has gone seriously awry. The imposition of a disproportionate sentence on charge 1 must have influenced the cumulation orders at least with respect to the sentence on that charge.
Accordingly, we will allow the appeal on ground 1 and resentence the appellant as set out below.
Ground 2 — the total effective sentence and non-parole period are manifestly excessive
Appellant’s submissions
The appellant points to a number of matters in support of this ground.
First, the appellant’s age and lack of prior history.
Second, the appellant’s circumstances of early deprivation which included a childhood that was affected by sexual and physical abuse.
Third, the cumulative burdens and distress and grief on the appellant at the time the offending happened. The appellant says that until the series of distressing events in her life that commenced in 2012, she led a lawful and decent existence, working for over thirty years in office management positions that required both diligence and honesty, despite leaving school in year 10. The appellant emphasised that it was against this background, and having disengaged from an abusive marriage and her new partner’s diagnosis of terminal illness, that the appellant initially took money to give her partner ‘small indulgences’ in his last months. The offending developed quickly to support habits (gambling, drinking and illicit drug use) that grew in the context of her loss and grief.
Fourth, her prospects of rehabilitation. The appellant submitted that her demonstrated rehabilitation, which was self-made and established by the time of the plea, was a strong factor in mitigation, but that the sentencing judge described her prospects of rehabilitation as only ‘fair’.
Fifth, the appellant’s full admissions, co-operation and early plea. It was submitted that the appellant was entitled to a very significant discount by reason of her details and frank admissions at interview and her plea of guilty at the earliest opportunity, but that the s 6AAA statement conferred only a six-month reduction to the non-parole period and a one year reduction to the head sentence.
Finally, the element of delay between the end of the offending and her arrest and charge. The appellant submitted that the sentencing judge erred in giving too little weight to the effect of delay. The appellant accepted that the additional factors occasioning delay compounded the hardship to the victim, but said they were caused by events unconnected to the victim, suggesting that the judge erred in finding that the factors added to the seriousness of the offending The appellant also submitted that it was acknowledged in the prosecution opening that the victim was able to recover, through an insurance policy, approximately half of the funds obtained by the appellant, but this was not referred to by the sentencing judge. Rather, the sentencing judge referred to the appellant’s declaration of bankruptcy preventing successful civil action for the recovery of money.
Respondent’s submissions
The respondent submitted that the total effective sentence and non-parole period are not manifestly excessive. The respondent pointed to the appellant’s conduct which constituted a significant violation of trust and involved calculated, protracted and sophisticated offending over four years and encompassed 201 unlawful transactions involving more than $970,000. The respondent also submitted that the offending had a profound impact on the victims, both personally and financially.
It was submitted by the respondent that the appellant’s tragic personal circumstances at the time the offending commenced do not explain her conduct nor excuse her behaviour. Moreover, those personal circumstances could not justify the continuation of her offending over the next four years. Whilst she was confronted with a number of difficult circumstances, most of the money she obtained was put towards drinking and gambling, and she also spent money on flights.
The respondent submitted that the sentencing judge took into account, and gave appropriate weight to, all the matters in mitigation urged by the appellant. It had to be remembered, it was submitted, that general deterrence was an important consideration. The sentence imposed, according to the respondent, is ‘clearly within the range of sentences for this type of offending and well within the range of sentences imposed in comparable cases provided to the sentencing judge on the plea’.
Analysis
In our opinion, the sentences imposed on charges 2 to 5 indicate that the sentencing judge properly took into account all of the relevant considerations referred to by the appellant, as well as the significant violation of trust and protracted and calculated offending.
The individual sentences in respect of charges 2 to 5, and the extent of the cumulation ordered between them, are within the range open to the judge in the sound exercise of the sentencing discretion. The orders for cumulation on charges 3 to 5 give appropriate recognition to these separate charges, each charge comprising multiple transactions over a year: 39 transactions in 2014 (total $193,653.45), 74 transactions in 2015 (total $273,058.62) and 52 transactions in 2016 (total $209,925.50). Cumulation of three months for each year of offending was in the circumstances well open to the sentencing judge.
As we have indicated, however, the sentence on charge 1 (including the order for cumulation) cannot be permitted to stand. In lieu of the sentence first imposed, we propose to sentence the appellant to three months’ imprisonment on that charge and make no order for cumulation. We do not propose to disturb the other sentences and orders for cumulation. We reject the respondent’s submission that notwithstanding our decision on ground 1, the total effective sentence should stand. The total effective sentence thus produced is three years and nine months’ imprisonment, upon which we will fix a non-parole period of two years and three months. Our overall intention is reflected in the table below.
Charge on Indictment Offence Maximum Sentence Orders 1 Obtaining financial deception by deception 10 years’ imprisonment 3 months Concurrent with base 2 Obtaining financial deception by deception 10 years’ imprisonment 3 years Base 3 Obtaining financial deception by deception 10 years’ imprisonment 3 years 3 months cumulative 4 Obtaining financial deception by deception 10 years’ imprisonment 3 years 3 months cumulative 5 Obtaining financial deception by deception 10 years’ imprisonment 3 years 3 months cumulative Total Effective Sentence: 3 years and 9 months’ imprisonment Non-Parole Period: 2 years and 3 months’ imprisonment Pre-Sentence Detention Declared: 793 days Section 6AAA statement: 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months Ancillary orders: N/A
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