Austerberry v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0131

TRAVIS AUSTERBERRY	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 57
JUDGMENT APPEALED FROM:	[2023] VCC 1904 (Judge Chettle)

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CRIMINAL LAW – Sentencing – Application for extension of time within which to seek leave to appeal against sentence – Theft (rolled up charge of theft encompassing 271 separate thefts totalling $479,695) – Sentence of 3 years with non-parole period of 2 years – Comparable cases – Manifest excess – Not reasonably arguable that sentence manifestly excessive – Futile to grant extension of time – Application for extension of time refused.

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Counsel
Applicant:		Unrepresented
Respondent:		Mr J O’Connor
Solicitors
Applicant:
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant was a certified practising accountant employed in Bendigo. He was a member of the Belvoir Park Gold Club at Ravenswood (‘the Club’). In 2017, he became a committee member of the Club. In 2018, he became the Club treasurer. As such, he had access to the Club’s bank account.
Between April 2020 and November 2022, in 271 separate thefts committed by him, the applicant stole a total of $479,695 from the Club.
On 20 October 2023, following a plea of guilty to a rolled up charge of theft, the applicant was sentenced in the County Court to a term of imprisonment of three years, with a non-parole period of two years.[1] The maximum term of imprisonment for theft is 10 years.
[1]DPP v Austerberry [2023] VCC 1904 (‘Reasons’).
On 20 June 2024, more than six months after the time limited for filing an application for leave to appeal against sentence, the applicant filed an application for an extension of time within which to seek leave to appeal against sentence. The applicant’s proposed ground of appeal is that the sentence imposed upon him was manifestly excessive.
The principles governing extension of time applications of the present kind are well settled. Specifically, the question whether a court should exercise its discretion to extend time is informed by what the interests of justice require in the particular circumstances of the case.[2] Factors relevant to the exercise of that discretion include the length of the delay, the reasons for the delay, and the prospects of success of the proposed appeal.[3]
[2]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[3]Ibid.
In his application for an extension of time, the applicant (who is unrepresented) advances five reasons for failing to file his application for leave to appeal within the prescribed time. Broadly speaking, his reasons consist of complaints about his former solicitors’ inaction, and delays in him receiving necessary advice and/or information. In the circumstances of this case, it is convenient to commence the analysis of the applicant’s application for an extension of time by looking at the merits of his proposed appeal.

Circumstances of the offending

The applicant was able to engage in the offending already described because, as I have already said, as the treasurer of the Club, he had access to the Club’s bank account. This access was subject to the approval of a ‘secondary approver’. The applicant obtained the log-in details of that secondary approver and used those details to show (falsely) that he had the necessary secondary approval for the transaction which constituted the 271 individual thefts committed by him.
The applicant disguised the 271 withdrawals he made from the Club’s bank account as tax-related payments, paying each amount into his own personal bank account. He subsequently used the stolen funds to bet with various betting agencies. He bet in significant and increasing quantities over the period of his offending.
In the words of the judge, he was ‘aware of the wrongfulness of [his] conduct and sought to repay the stolen funds to the Club by organising false tax returns to the Club’.[4] By this method, some $114,500 was replaced in the Club bank account before the applicant’s offending was detected. The applicant’s offending was detected after a query was made about a purported $27,000 tax payment by the Club. The query led to an audit of the Club’s financial system and then the detection of the applicant’s thefts.
[4]Reasons, [4].

Sentencing reasons

The judge commenced his reasons for sentence by describing the circumstances of the applicant’s offending.[5] In the course of doing so, his Honour noted that, while the applicant had stolen a total of $479,695, he had also ‘covertly’ made some repayments to the Club before his offending was detected, and that the loss to his victim was $365,320.[6]
[5]Ibid [1]–[4].
[6]Ibid [1].
After describing the applicant’s offending, the judge noted that, on the arrest of the applicant in April 2023, he made ‘full and frank admissions to the police’; quit his job before he could be terminated; and moved in with his mother to live. The judge also observed that the applicant pleaded guilty to his offence ‘at an early stage’.[7]
[7]Ibid [5].
The judge referred to a victim impact statement completed on behalf of the Club, noting that the Club had managed to survive the applicant’s thefts, but had ‘postponed planned capital expenditure’. The judge said that he took this victim impact statement into account in sentencing the applicant.[8]
[8]Ibid [6].
In relation to the applicant’s personal circumstances, the judge referred to the following matters:
(1)The applicant was 40 years of age at the time of sentencing. He grew up in Bendigo, and was the third of four children. His parents separated when he was 13. Both his parents and his older brother attended the plea hearing to support him. His history was set out in a report from a psychologist (Laura Fleming) and written submissions of his counsel, both of which had been tendered on the plea.
(2)After completing a Bachelor of IT and Business, the applicant moved to Melbourne in 2005 and gained work with a private accounting firm. He worked there for two and a half years and then, after a further period of employment, returned to Bendigo ‘as a result of financial difficulties [he] apparently encountered from [his] protracted gambling’.[9]
(3)After moving back to Bendigo, the applicant obtained the employment he was engaged in until he resigned from it after he was arrested. He had been unemployed since that time, awaiting the outcome of his criminal proceeding, although he had been doing voluntary work for the Bendigo and District Ostomy Association — which organisation provided a reference supportive of him on the plea.
(4)The applicant had a history of gambling, commencing when he was 16. As the judge put it, ‘Like all gamblers, you started chasing your losses and struggled to pay your credit card bills’.[10] The applicant started online gambling in 2008 and, although he tried to stop on occasions, he was ‘apparently … addicted to the rush of winning and thinking of that next big win’.[11]
(5)The applicant had had a number of personal relationships, the most significant of which lasted over seven years. That relationship ended ‘because of [his] gambling issues’, although is partner remained supportive of him and had provided a reference tendered on the plea, in which she described the applicant as being ‘a good father’ to their two sons (then aged six and nine).[12]
[9]Ibid [9].
[10]Ibid [11].
[11]Ibid [12]. See also Reasons, [13].
[12]Ibid [14]
The judge noted that the applicant had no prior convictions or subsequent criminal record, and said that he fell to be sentenced ‘as a man of otherwise good character’. The judge said that good character, however, has less weight in this type of offending — observing that it was the applicant’s good character that enabled him to engage in his offending.[13]
[13]Ibid [15].
The judge observed that, since his arrest, the applicant had removed himself from all access to gambling applications; he had sought treatment with a gambling counsellor; and he had spoken to a psychiatrist and a psychologist. The judge noted that the applicant’s gambling disorder was apparently in remission at the time of sentencing, before observing that the applicant suffered from anxiety and depression because of the ‘forensic position’ in which he now found himself.[14]
[14]Ibid [16].
The judge again noted that the applicant had the ongoing support of his family, and that he (the applicant) hoped to return to work in the future. The judge said that, if the applicant maintained his gambling abstinence, his prospects of rehabilitation appeared to be ‘good’.[15]
[15]Ibid [17].
Following this Court’s decision in R v Grossi,[16] the judge treated the applicant’s gambling addiction as ‘avoiding what otherwise would have been an aggravating motive such as pure greed or a desire to fund some other criminal activity’.[17]
[16](2008) 23 VR 500 (Vincent, Neave and Redlich JJA) (‘Grossi’).
[17]Reasons, [18]–[19]. See Grossi (2008) 23 VR 500, 514 [51] (Redlich JA, with whom the other members of the Court agreed).
The judge described the applicant’s offending as ‘serious’, saying that he stole ‘a very large sum of money’. The judge described the offending as ‘protracted and repetitive’, saying that it only came to an end when the applicant was detected. The judge observed that the applicant ‘acted in gross breach of the trust placed in [him] by the Club and its members’, before saying that principles of general deterrence, just punishment and denunciation of the applicant’s conduct were the significant sentencing considerations in this case.[18]
[18]Ibid [20].
The judge said that he had taken into account in the applicant’s favour his plea of guilty, saying that the applicant had spared the community the time and cost of a criminal trial. He said that the applicant’s plea was also evidence of his remorse, and that he was entitled to a reduction in his sentence to reflect his plea of guilty. The judge said that the value of the applicant’s plea was increased because of the effect that the COVID-19 pandemic had had upon the criminal justice system — the plea having been entered when ‘we were still struggling from the backlog of trials and the principles in Worboyes[19] … have application’.[20]
[19]Worboyes v The Queen [2021] VSCA 169.
[20]Reasons, [21].
Next, the judge said that he had taken into account the applicant’s cooperation with the police and the admissions he made in his record of interview. He also took into account the remorse the applicant had demonstrated for his offending, saying that the references tendered on the plea attested to that remorse.[21]
[21]Ibid [22].
The judge concluded his reasons for sentence by saying:
I acknowledge your prior good character, although, as I said, that has less weight in fraud cases. It is relevant to what I find are your good prospects of rehabilitation. Your lack of convictions, and family support, support that finding. I take into account your stated desire to make restitution as a further indication of your good prospects of rehabilitation.
Your counsel properly conceded that imprisonment is the only option available to the court in your case because of the factors to which I have referred. I have had regard to the cases provided and discussed on your plea in taking current sentencing practices into account in your case.[22]
[22]Ibid [23]–[24].

Applicant’s submissions

In contending that the term of imprisonment of three years with a non-parole period of two years imposed on him was manifestly excessive, the applicant observed that, in his written submissions relied upon in the plea hearing, it had been conceded that a ‘term of imprisonment must be imposed for this offending’, but also noted that it was ‘submitted that a combination penalty [was] open to the court, with a significant number of community work hours’.
In support of his contention that the sentence imposed upon him was manifestly excessive, the applicant submitted that, ‘in cases like mine, the amount stolen or obtained must generally be the primary consideration in forming the objective seriousness of [the] offending’. However, having already noted that he had stolen $479,695, but that the financial loss to the club was $365,320 (referred to by the applicant as ‘the loss amount’), the applicant submitted that ‘the net loss amount is the more [appropriate] yardstick’.
In his proposed written case, the applicant identified four decisions which he said made out his case of manifest excess: namely, the decision of this Court in Keane v The Queen;[23] and three decisions of the County Court, DPP v Lee,[24] CDPP v Saad[25] and DPP v Snelleksz & Taylor.[26]
[23][2011] VSCA 156 (‘Keane’).
[24][2020] VCC 1500 (‘Lee’).
[25][2021] VCC 1901 (‘Saad’).
[26][2023] VCC 2228 (‘Snelleksz’). I note for completeness that the medium neutral number on the cover sheet of that judgment is given as [2025] VCC 2228.
In relation to Keane, the applicant observed that the appellant was a club manager who stole $433,000. He was resentenced in the Court of Appeal to a total effective sentence of two years and six months, with a non-parole period of one year and six months. The applicant described the amount stolen by the appellant in Keane as being ‘nominally less than the amount [he] stole but much higher than the loss amount (of $365,320)’. The applicant described the amount stolen in Keane as ‘all the more higher considering that the offending preceded [his] own by at least ten years (when factoring the impact of inflation and other monetary measures)’.
In relation to Lee, the applicant observed that the offender in that case obtained a financial advantage by deception ‘11.5 times the amount I stole (comparing $4.2 m to the net loss amount)’ — yet he was only sentenced to a total effective sentence of seven years and eight months, with a non-parole period of three years and ten months.[27]
[27]In fact, the applicant made complaint that the offender in Lee was sentenced to a non-parole period of three years and eight months. Mr Lee was, however, sentenced to a non-parole period of three years and 10 months: Lee [2020] VCC 1500, [76].
In relation to Saad, the applicant noted that the amount dishonestly obtained in that case was $1,531,925, and the amount attempted to be obtained by deception was $92,400 — ‘together, 4.45 times the amount I stole (comparing $1,624,325 to the net loss amount)’ — yet the defendant in that case was sentenced to nine months’ imprisonment combined with an 18-month community correction order (with a condition that he complete 100 hours of unpaid community work).
In relation to Snelleksz, the applicant noted that the offending in that case was committed by a mother (Ms Taylor) and daughter (Ms Snelleksz) who together carried out a scheme of procuring contracts from two TAFE colleges and falsely purporting to have provided engineering-related training and certification pursuant to those contracts, thereby dishonestly receiving significant amounts. The offending spanned the period from September 2013 to May 2014 in respect of the first TAFE, and November 2014 to October 2015 in respect of the second TAFE. The amounts obtained by deception were $1.8 million and $221,000.
The applicant noted that the total amount obtained by deception in Snelleksz was ‘5.5 times the amount I stole’ — yet Ms Taylor, described as the architect and main beneficiary of the scheme, was required to serve a term of imprisonment of just 10 months; and Ms Snelleksz, whose involvement was at a much lower level, avoided prison altogether, being sentenced to a three-year CCO with 250 hours of unpaid community work.
The applicant submitted that the authorities he relied upon showed ‘a very significant discrepancy between the relationship between the amount stolen or obtained and the prison term imposed in my case and other cases’, submitting that that discrepancy could not be explained by the mitigating factors in those cases alone. That said, the applicant acknowledged that in Snelleksz, a delay of 10 years was a significant factor; and in Saad, it was significant that the defendant ‘did not personally receive the money’. As the applicant put it:
Even so, there is marked discrepancy, as the case of Keane appears to show.

Consideration

Sentencing for offences of dishonesty of the kind committed by the applicant in this case involves far more than simply looking at the amount taken — much less merely looking at the so-called ‘loss amount’ or ‘net loss amount’.
First, if one were to look only (or perhaps even merely predominantly) at a net loss amount, one might conclude that an offender could avoid appropriate punishment simply by repaying amounts stolen when his or her offending is detected. No authority or sentencing principle supports any such suggestion.
Secondly, sentencing an offender involves synthesising a myriad of relevant facts and matters which are required to be taken into account. In sentencing for theft, the amount stolen is obviously a relevant fact to be taken into account in the sentencing synthesis. It is not, however, the only fact — nor is it necessarily the predominant fact. The amount stolen will generally assume greater or lesser significance, depending upon all of the circumstances of the offending and all of the circumstances of the offender. Rarely, if ever, will it be able to be said that, simply based on the amounts taken (or ‘net loss amounts’) one particular sentence, when compared to another, has been shown to be manifestly excessive.
More specifically, insofar as the applicant submitted that there is (or should be) a linear, or other direct, relationship between either the amount stolen or the ‘loss amount’ on the one hand, and the length of any term of imprisonment on the other hand, that submission must be rejected. Obviously, the imposition of a linear relationship between the relevant amount and the sentence to be imposed, would infringe multiple principles of sentencing — not the least of which would be totality in cases involving larger amounts. Thus, in conformity with well settled sentencing principles, there is no relevant equivalence to be found between the offending and sentences imposed in Lee on the one hand, and the applicant’s case on the other hand. The sentence imposed in Lee says nothing about the correctness of the sentence imposed on the applicant.
Moreover, even in cases where the Parliament has given statutory significance for sentencing purposes to a particular fact (for example, in drug trafficking offences where the weight of the narcotic has such a statutory significance), it is an error of principle to select that fact (in the case of drugs, weight) as the chief factor to be taken into account in sentencing for such an offence.[28] All the more so would it be an error of principle to select the amount stolen (or loss amount) as the chief factor to be taken into account in fixing a sentence for an offence (in this case, theft) where the putative fact has not been given any statutory significance for sentencing purposes by the Parliament.
[28]See Wong v The Queen (2001) 207 CLR 584, 609 [67]–[70] (Gaudron, Gummow and Hayne JJ).
I turn now to the applicant’s reliance upon so-called comparable cases.
In Lieu v The Queen,[29] this Court summarised the relevant principles relating to the use of comparable cases as follows:[30]
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[31]
[29](2016) 263 A Crim R 173; [2016] VSCA 277 (Redlich, Beach and Kaye JJA) (‘Lieu’).
[30]Beach and Kaye JJA, Redlich JA agreeing.
[31]Lieu (2016) 263 A Crim R 173, 186 [46]. See also DPP (Cth) v MHK (a pseudonym) (No 1) (2017) 52 VR 272, 293 [71] (Warren CJ, Weinberg and Kaye JJA).

In his proposed written case, the applicant acknowledged some of the differences between his case on the one hand and the facts and circumstances in Lee, Saad and Snelleksz. As Lieu demonstrates, it is not necessary for this Court to conduct some granular analysis of the differences between these cases so as to make good the proposition that they do not assist the applicant in establishing that the sentence imposed upon him was manifestly excessive. All that needs to be said is that, properly understood, and analysing at least the differences referred to by the applicant in his written submissions, these cases do not assist the applicant on that issue.
However, the superficial similarities between the circumstances of the offending in Keane and the applicant’s offending justify saying a little more about that case, notwithstanding that the sentence imposed in one individual case cannot establish the appropriate range of sentences for like offending — nor whether the sentence imposed in the case currently being examined is inside or outside the permissible range.
The first point to be noted about Keane is that the offender in that case, having stolen a similar sum of money to that stolen by the applicant, was sentenced to a total effective sentence of six months less than the applicant’s total effective sentence, and a non-parole period of six months less than the applicant’s non-parole period. Already, we are in an area of relatively fine distinctions.
More importantly, there were some significant differences in the matters which Mr Keane was able to call in mitigation from those which the applicant was able to call in mitigation:
(1)First, there was a significant issue of delay in Keane, not present in the applicant’s case.[32]
(2)Secondly, Mr Keane entered into a composition with his creditors and, as a result of taking other steps, had (by the time of sentencing) repaid approximately $149,000.[33]
(3)Thirdly, Mr Keane had what this Court described as ‘a far from normal childhood and subsequent adulthood’, which ‘played some part in leading him to aberrant behaviour of which his criminality was the final chapter’.[34]
(4)Fourthly, in Keane, what was described as the offender’s ‘long-standing mental impairment’ — his anxiety and depression — entitled him to some mitigation, at least by reference to his reduced moral culpability and the risk, as specifically deposed to by the psychologists in that case, of imprisonment having an adverse effect on his mental health.[35]
[32]See Keane, [7]–[18].
[33]Ibid [10]–[11].
[34]Ibid [31].
[35]Ibid. See generally R v Verdins (2007) 16 VR 269.
All of these differences between the applicant’s circumstances and the circumstances of Keane put the sword to any notion that somehow Keane shows that the sentence imposed on the applicant was manifestly excessive.
In any event, as has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[36] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[37]
[36]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[37]Ibid.
The judge was entirely correct when he described the applicant’s offending as ‘serious’, ‘protracted and repetitive’, and involving (as it did) a gross breach of the trust placed in him by the Club and its members. The judge was also entirely correct when he said that principles of general deterrence, just punishment and denunciation of the applicant’s conduct were the significant sentencing considerations in this case.[38] So much has been said repeatedly by this Court in cases involving offending of this kind.
[38]Reasons [20]. See also Director of Public Prosecutions v Bulfin (1998) 4 VR 114.
When one synthesises the circumstances of the applicant’s serious, protracted and repetitive offending with all of the matters he was able to call in aid in mitigation (his full and frank admissions to police, early plea of guilty, previous good character, lack of prior convictions or subsequent criminal record, favourable references, charity work, good prospects of rehabilitation, ongoing support from his family, remorse and Worboyes), one sees that the sentence ultimately imposed (including the non-parole period) was, if anything, moderate. There is simply no substance in the suggestion that the sentence or any part of it was wholly outside the range of sentencing options available to the judge or, put another way, manifestly excessive. It follows that the applicant’s proposed ground of appeal is not reasonably arguable.

Conclusion

Having determined that the applicant’s proposed ground of appeal is not reasonably arguable, it would be futile to grant the applicant the extension of time he seeks in order to apply for leave to appeal against his sentence. Accordingly, the applicant’s application for an extension of time within which to seek leave to appeal will be refused.
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[2025] VSCA 57

3 April 2025