Beevers v The Queen
[2016] VSCA 271
•17 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0257
| ROSLYN BEEVERS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 September 2016 |
| DATE OF JUDGMENT: | 17 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 271 |
| JUDGMENT APPEALED FROM: | DPP v Beevers (Unreported, County Court of Victoria, Judge Taft, 20 November 2015) |
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CRIMINAL LAW — Sentence — Appeal — Arson and attempting to obtain property by deception — Intended insurance fraud — Procedural fairness — Applicant relied in mitigation on childhood abuse — Error by judge in rejecting submission on abuse without warning of his intention to do so — Leave to appeal granted — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Lewenberg & Lewenberg |
| For the Crown | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
SANTAMARIA JA:
Introduction
Following a trial, on 22 June 2015, a jury empanelled in the County Court found the applicant, Roslyn Beevers, guilty of arson[1] (charge 1). The applicant also pleaded guilty to two charges of attempting to obtain property by deception[2] (charges 2 and 3).
[1]Crimes Act 1958, s 197(3). The maximum penalty is 15 years’ imprisonment.
[2]Crimes Act 1958, ss 321M and 81(1). The maximum penalty is 5 years’ imprisonment.
On 20 November 2015, the trial judge imposed an aggregate sentence of four years and four months’ imprisonment on the three charges, and fixed a non-parole period of two years and four months.
The applicant sought leave to appeal against the sentence on the following ground:
The learned sentencing judge erred in failing to alert Counsel for the Applicant that he was considering rejecting the psychological evidence relating to childhood sexual abuse thereby denying the Applicant procedural fairness.
Pragmatically (and fairly) the respondent conceded that the complaint embodied in the ground of appeal — a denial of procedural fairness — was made out, and that leave to appeal should be granted. The respondent submitted, however, that despite error having been established, the appeal should be dismissed, since the Court ought to be satisfied that no different sentence should be imposed.[3]
[3]Criminal Procedure Act 2009, ss 281(1)(b) and (2).
In our view, the respondent’s submissions should be accepted.
Factual background
On 26 May 2012, an historic homestead, ‘Hopkins Hill’, built in 1854 and situated in Allansford, a town in the Western District, was destroyed by fire. The homestead had been built in 1854. Following the fire the applicant and her co‑accused, Robert Conn, attempted a fraudulent insurance claim for the house, its contents and a motor vehicle.
In essence, the prosecution case was that Robert Bucay, an associate of Conn’s, deliberately lit the fire, the arson having been orchestrated by Conn and the applicant.
At a separate trial, Bucay was acquitted of arson.
Conn pleaded guilty to arson; two charges of attempting to obtain property by deception; perjury; two charges of handling stolen goods; and to two summary charges of making a false report to police.[4] On 25 November 2014, Conn was sentenced to a total effective sentence of three years and ten months’ imprisonment, with a non-parole period of two years. Conn had undertaken to give evidence against the applicant in accordance with a witness statement that he gave to police on 10 October 2012, in which he acknowledged responsibility for the arson and set out the involvement of the applicant and Bucay. As the sentencing judge observed, Conn’s sentence was ‘significantly moderated’ by his pleas of guilty and his undertaking to give evidence in accordance with that statement.
[4]See Criminal Procedure Act 2009, s 242.
The applicant met Conn in 2006. At that time he was running a mortgage broking business, and obtained a loan for the applicant. The two developed a romantic relationship, and the applicant moved into Conn’s then residence in June 2009. Their relationship subsisted until 8 October 2012, when the applicant was arrested.
In December 2011, Conn purchased Hopkins Hill for $1.285 million. Originally, both Conn and the applicant were named as purchasers on the Contract of Sale, although the contract was later varied to record Conn as the sole purchaser. In order to purchase the property, and to cover the first six months of loan repayments, Conn borrowed $1.5 million.
It had been expected that the applicant would receive a very substantial sum from the estate of her mother, but the anticipated financial windfall became delayed. In those circumstances, so as to clear debt and allow a possible rebuild of the homestead, an idea was hatched to burn Hopkins Hill and to make a fraudulent insurance claim. As at the date of the fire — 26 May 2012 — Conn was yet to fully settle with the vendors, who were still owed $545,000, together with ongoing penalty interest.
So as to make the intended fire appear to be a genuine mishap, in the lead up to the arson Conn reported two fictitious burglaries. Thus, on 4 March 2012, he falsely reported to police that unknown persons had forced entry into the premises; and on 17 May 2012, he telephoned police to report falsely that unknown persons had forced their way into the premises and stolen some items.
Less than a week after the second false report, on Wednesday, 23 May 2012, Conn, Bucay and the applicant together agreed that the fire would be lit on 26 May 2012. In order to provide a false alibi, the applicant booked movie tickets for a 6.10 pm session on 26 May 2012 at a nearby cinema.
Prior to the fire, in order to ensure that they be received prior to the planned arson, the applicant also sent to the insurer via Express Post photographs of items which were subsequently claimed under insurance; and on the day of the fire, the applicant and Conn took further photographs of the contents of the house for the purpose of the anticipated insurance claim. For their safety, two dogs were also removed from the property.
Conn and the applicant both attended the booked movie session, knowing that the property would be burned during the time that they were seated in the cinema. They had their telephones switched off. Once the movie concluded, both turned on their phones, spoke to police and returned to the property, where they asserted that they were innocent victims of arson. The next day, both persisted in denying any knowledge of how the fire was caused, and made sworn statements to police detailing their movements and maintaining their deception.
The home and contents insurance coverage was $650,000 for the house and $200,000 for the contents. Conn and the applicant drew up an extensive and comprehensive list of property allegedly destroyed in the fire. Items that the applicant claimed included Louis Vuitton handbags, scarves and other goods, to the value of $51,709; three Max Mara coats to the value of $5,850; and two Chanel suits to the value of $9,500. She also made a dishonest claim for $41,000 in relation to a motor vehicle which had been destroyed.
As part of the insurance investigation, both Conn and the applicant participated in lengthy and detailed interviews with insurance investigators, portraying themselves as innocent victims. Over a period of months the applicant maintained that neither she nor Conn would organise a fire, suggesting that intruders, who had allegedly been seen at the property, may have been responsible. On 8 October 2012, however, Conn was arrested and found in possession of two mobile telephones. One of the phones had been established in a false name by Conn so that both he and the applicant had a secure means of communication with Bucay.
During her relationship with Conn, the applicant developed a close friendship with his daughter, Annette How. A few weeks before the fire, the applicant told Ms How that the house was to be burned and that she was happy for that to occur, so that she could benefit from the insurance claim and obtain $50,000, to help with a legal dispute in which she was involved. Ms How telephoned an insurance investigator in October 2012, and later passed on to the applicant the information that the claim was going to be rejected. In her evidence at trial, Ms How said that the applicant became angry, screamed at her and accused her of having ruined the applicant’s chances of getting an insurance payout. Shortly after that conversation, the applicant contacted the police informant. She was arrested and interviewed.
During her interview with police, the applicant falsely denied that she was an active participant in the arson and fraudulent insurance claim. She claimed that the first time that she knew that the arson was to be carried out was upon arriving at the cinema. The applicant asserted that Conn had told her that Bucay was burning down the house for him and that, although she had entertained concerns that something would happen in the months prior to the fire, she only became aware of the proposed arson in the late afternoon of 26 May 2012 when at the picture theatre. She did admit, however, that she had assisted Conn in compiling spreadsheets for the purposes of the fraudulent ‘contents’ insurance claim. In his reasons for sentence, the judge observed that in ‘the course of the interview, [the applicant] sought to exculpate [herself] and to blame Conn and Bucay, and told police that both Conn and Bucay had threatened [her] children, [her] grandchildren and [herself]’; and that, during her trial, the applicant ‘adhered to the version of events [she] proffered in [her] record of interview and it was contended on [her] behalf that [she was] a sad, dependent and vulnerable alcoholic, who was totally dominated by Conn’.
Considerations relevant to parity
On the applicant’s plea, counsel submitted that the applicant played a significantly lesser role than Conn, he being the central figure in the arson and insurance fraud. The prosecution, on the other hand, contended that the applicant was an equal and enthusiastic participant in the agreement to burn down the homestead and in the subsequent fraudulent attempts to obtain insurance money.
The trial judge had an advantage that this Court did not have — gleaned from telephone intercepts and his observations of Conn in court over several days — to make an assessment of Conn and his relationship with the applicant. It is appropriate that we set out in full the judge’s detailed findings — which we see no reason to disturb — in his reasons for sentencing the applicant:
This court has now had an opportunity to scrutinise and evaluate Conn’s evidence over a number of days. After leaving school, Conn joined the Victoria Police Force and served for six years. Police records from the Police Historical Society contain an opinion that the police force would be better off for his departure. Subsequently, Conn became a mortgage broker and ran a large business. Conn described himself as the ‘original mortgage broker in Victoria’ and at one time, having had 166 employees.
Conn presented as an intelligent and worldly man who was adept in navigating the finance and insurance industry. Conn was equally well-versed in the world of crime. He had a prior conviction for multiple charges of dishonesty, arising from an appearance in this court on 25 June 1997, when the learned sentencing judge found that he engaged:
‘In an ongoing and calculated policy of deception designed to deprive banks of their right to make sound and appropriate decisions as to the making of loans.’
Subsequent to the sentence imposed for the arson and allied offences, Conn has also been convicted for other offences founded on dishonesty.
I consider that the following factors are amongst those that are relevant to the determination of your role relative to that of Conn. Firstly, Conn was a personal friend and fishing companion of Robert Bucay, who was alleged to have lit the fire. That friendship had persisted over 15 years. You were not a party to that friendship and in conversations between Conn and Bucay, there was disparaging discussion about your dependence on alcohol and your erratic and unpredictable conduct.
Secondly, it was Conn who stood to be the major beneficiary from the fire and the allied insurance claims. At the time of the blaze, he was the registered proprietor of Hopkins Hill and had anticipated that he would benefit from your expected inheritance of more than $1m. The delay in finalising that inheritance placed Conn in great financial difficulty.
Thirdly, it was Conn, who in March and May 2012, reported two fictitious burglaries at the homestead, in order to make the forthcoming fire appear as if it had been committed by other persons.
Fourthly it was Conn, who purchased a mobile phone in a false name to open a secret line of communication with Bucay.
Conn asserted that you had conceived of the fire as a solution to your joint financial woes; that you approached Bucay to light the fire; that you agreed to reward Bucay if he did light the fire; and that he, Conn, had reluctantly gone along with the proposal. I entirely reject that evidence and, more generally,
I consider that Conn emerged as an evasive, self-serving witness, who constantly sought to deflect blame onto others and to avoid any personal responsibility for his conduct. In colloquial terms, Conn could be aptly described as ‘a man who is incapable of lying straight in bed’.
In assessing your relationship with Conn, this court has had the added benefit of listening to a number of intercepted telephone conversations between yourself and Conn.
In my view, it is clearly established that Conn conceived of the idea to burn the Allansford property down and that he carried out that plan in a calculated and cunning manner. For your part, you were a knowing and able assistant, who actively and enthusiastically participated in the arson and fraudulent insurance claims and expected to benefit personally.
You approved of the proposal to torch the property and knew of the false trail that Conn was laying by making false reports to police. You helped prepare for the proposed arson. You orchestrated the ‘perfect’ alibi for the day of the fire, and you knowingly compiled and lodged false insurance claims. After the fire, you lied to insurance investigators and police by assiduously seeking to deflect them from the truth. You encouraged Conn to contact Bucay via the secret line of communication, and at the very time that you engaged in public confected protestations of innocence, you were engaged in private coded conversations in which you advised Conn how best to avoid detection.
Indeed at the very time that you claimed you feared Bucay, you met him. On the following day in a coded conversation, you encouraged Conn to ask Bucay to lend you some money for a holiday.
The applicant’s personal circumstances
The applicant, born on 6 March 1961, is now 55 years of age. She grew up in Footscray in a wealthy family, and has an older sister. Her father was a decorated World War 2 soldier and was involved in a number of businesses (including paint manufacturing and house construction), and was on the board of the Western General Hospital and the Footscray Institute of Technology. The applicant assisted her father in his charitable works. She attended Lowther Hall from preparation until year 12, and later undertook a course in business law at the Footscray Institute of Technology for two and a half years. She subsequently completed an industrial chemistry diploma over two years. At the age of 18 years she married a man from a wealthy family.
The applicant told a psychologist, Ms Pamela Matthews, that she was involved in society events, invested in a racehorse and ate at Melbourne’s ‘top restaurant’ most evenings. Subsequently, the applicant left her marriage and fell pregnant to ‘an unemployed and penniless artist’ with whom she had a daughter who is now 32 years old (or thereabouts). At the age of 25 years, the applicant took over the management of her father’s paint factory and in that context she met her second husband. She was married to him for three years before separating. Later, the applicant married for a third time. She has a son by that relationship, who is now about 20 years of age. The applicant lost a twin at birth and suffered severe post-natal depression and great grief. Her relationship with her third husband was difficult and she began to drink heavily. She alleged that her husband became violent towards her and on one occasion broke several of her ribs. The applicant told Ms Matthews that her husband took over $800,000 from the family business. After a 16 year marriage, the applicant divorced in 2009, her former husband obtaining full custody of her son (whom she was permitted to visit only once a week under supervision of another parent from Wesley College, where her son attended). It seems that the applicant has continuing contact with her daughter (who lives in Sydney), but has no relationship with her son.
As we have mentioned, the applicant met Conn in 2006 and ultimately formed a relationship with him in June 2009, that relationship lasting until her arrest in October 2012. The applicant described Conn as ‘very charismatic’ and as a person who could easily ‘suck people in’, and she admitted to involvement with him in a ‘Ponzi scheme’. After her arrest — and the collapse of her relationship with Conn — the applicant married for a fourth time. That marriage was, however, short-lived, the applicant’s husband committing suicide on 29 January 2013.
The sentencing judge noted that there was objective evidence indicating that the applicant had ‘a lengthy history of alcohol dependency and attempts at detoxification and rehabilitation’. Medical records indicate that the applicant was admitted to several treatment facilities on a number of occasions between 2010 and 2014. She was diagnosed with depression and possible post-traumatic stress disorder, and was prescribed anti-depressant medication.
In his reasons for sentence, the judge said that tendered medical records ‘confirm the highly volatile and conflictual relationship [the applicant] had with Conn’; and intercepted telephone conversations show the applicant ‘to be unfailingly loquacious, and at varying times to be combative, shrill or dependent’. The judge said further that there were a number of allegations the applicant made in respect of Conn that are ‘bizarre’. In the absence of ‘independent evidence’, however, the judge said that he would ‘attach little weight to them’.
The applicant’s criminal history includes convictions for drink-driving, multiple episodes of driving whilst disqualified, contravention of a family violence order, breach of a community based order, and shop theft. Although she has been sentenced to a period of imprisonment to be served by way of an intensive corrections order and to suspended terms of imprisonment, prior to the imposition of the current sentence, the applicant had not previously been required to serve any time in actual custody.
Relevantly, in her report of 22 July 2015, Ms Matthews, a forensic psychologist, reported that the applicant had alleged a ‘history of childhood, adolescent, early adult sexual abuse by her brother in law and adult lifetime difficulty with: attachment disturbance, particularly related to abusive relationships; and alcohol disturbance’. Ms Matthews expressed the opinion that the applicant currently meets the full diagnostic criteria of Post-Traumatic Stress Disorder in that ‘she has been exposed to sexual violence’, and, among other enumerated symptoms, ‘has recurrent and distressing memories of the events’. The applicant’s presentation is consistent with the literature concerning domestic violence, in that she suffers from the ‘eroding effects of constant re-victimisation within a relationship with a violent partner, both in her relationship prior to Mr Conn and with Mr Conn, and the consequent degradation of self-esteem in combination with symptomatic post-traumatic stress disorder, depression and a sense of helplessness’.
The plea in mitigation
Counsel for the applicant submitted that there was a sound basis to distinguish the applicant’s conduct from Conn’s, on both an objective and subjective basis. Conn, counsel emphasised, had the dominant role in the arson and insurance fraud. Counsel relied on the applicant’s emotional and psychological dependence, which enmeshed her in the fraught relationship with him. Further, counsel sought to rely on Ramazanoglou.[5] Indeed, the centrepiece of counsel’s submissions was the applicant’s sexual abuse. The applicant had reported that she had been the subject of sexual abuse from age 11 years. There was also, so it was submitted, a statement from a witness which supported the abuse. It was submitted, in effect, that post-traumatic stress disorder caused by the sexual abuse contributed to the applicant’s offending by impinging upon her power to exercise proper judgment, such that her moral culpability was reduced.
[5]R v Ramazanoglou [2013] VSC 724.
Importantly, in the course of the plea the following exchange occurred:
[DEFENCE COUNSEL]: We accept that and one of the curious things about family violence is that it’s — when appearing for people where there’s a family violence aspect to a case, it’s never — it’s very rarely that the victim of family violence has never done anything to contribute to the situation. It’s not uncommon that there is this very complex relationship and ---
HIS HONOUR: I totally accept that and in many cases where women have been the subject of sexual abuse, they appear in court years later as complainants, but on occasions having returned to abusive relationships, having used drugs, having prostituted themselves, or having engaged in violent acts on their own part; that’s as noted by Ms Matthews, a very common syndrome.
Despite what had been said on the plea, however, when he came to sentence the applicant, the judge observed:[6]
Your counsel referred to the sentence of [Ramazanoglou], in which Kaye J was satisfied that the defendant’s psychological state at the time of offending was such as to reduce his moral culpability. … Ultimately the learned sentencing judge concluded, on the balance of probabilities, that the defendant’s psychological condition at the relevant time, caused or contributed to his offending by affecting his powers of proper judgment and thereby reduced his moral culpability.
I am entirely unpersuaded that similar conclusions can properly be drawn in this case. On the material before this court, I am not satisfied that you were sexually assaulted in the way you allege. There is no supportive evidence buttressing your sweeping allegations, and overall, I do not consider that you present as either reliable or honest.
[6]Emphasis added.
Submissions in this Court
In this Court, counsel for the applicant submitted that, in discussion with counsel for the applicant on the plea, the sentencing judge appeared to have accepted that the applicant had in fact been the victim of childhood sexual abuse. Given the discussion, it was submitted, counsel for the applicant was entitled to proceed on the basis that the matter had been established and accepted. It was contended that the sentencing judge gave no notice that he was considering rejecting the submission that the applicant had been the victim of childhood sexual abuse, thereby denying the applicant procedural fairness. Counsel also drew attention to the fact that, subsequent to the plea in mitigation in which the submissions concerning the applicant’s sexual abuse were made, the matter returned before the judge on a number of occasions for further plea and sentence. At no stage during these mentions did the sentencing judge bring to the attention of counsel the fact that he was not satisfied of the childhood sexual abuse.
The respondent’s counsel accepted that the sentencing judge seemingly accepted the conclusions drawn in Ms Matthews’ psychological report; that the evidence was not challenged by the prosecution; and that at no stage during the plea did the sentencing judge raise that he was considering rejecting the psychological evidence relating to the applicant’s sexual abuse. Ultimately, the respondent acknowledged, the judge found that in the absence of evidence buttressing the applicant’s allegations, he was not satisfied that the applicant was abused in the manner alleged. The respondent accepted that, had this possible conclusion been raised during the course of the plea, counsel for the applicant would have been alerted to the need to adduce evidence accordingly. As a matter of procedural fairness, the sentencing judge should have informed counsel that he was not prepared to accept the childhood sexual abuse. Hence, as we have indicated, the respondent accepted that leave to appeal should be granted; but, although the sentencing discretion might be reopened, no different sentence should be imposed.
Discussion
If it is relied upon by way of mitigation, an offender will carry the onus of establishing the fact of sexual abuse and the manner in which it is relevant to sentence.[7] The weight to be given to an offender’s childhood sexual abuse will vary from case to case. Evidence of such abuse generally ought not to be adduced with some general expectation that there will be a substantial reduction for that reason in every set of circumstances.[8] That said, there will be cases where such abuse will be relevant in mitigation of sentence for more than one reason. And although a sentencing court may hesitate too readily to accept — or, for that matter, reject — the occurrence of sexual abuse and its effects as a matter relevant to sentence, there will be circumstances where a sentencing judge would not be justified in rejecting its existence and relevance without first inviting evidence or submissions on the subject.
[7]R v Storey [1998] 1 VR 359; R v Olbrich (1999) 199 CLR 270.
[8]R v AWF (2000) 2 VR 1, 4–5 [7] (Ormiston JA).
In Davey,[9] Redlich JA — who dissented as to result, but not, we think, as to principle — observed:[10]
Procedural fairness must be upheld for its own sake as well as for its consequences. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome.[11] Once procedural unfairness is established, it is no part of this Court’s function to consider the likelihood of his Honour making a different finding or imposing a different sentence if the applicant had been given a further opportunity to make submissions or call further evidence. Relief from procedural unfairness should only be refused where a court can say that had such an opportunity been afforded, it could not have yielded a different result.[12] Given the psychiatric evidence that could have been called, no attempt was made by the Crown to suggest that such additional evidence could have made no difference.[13]
[9]Davey v The Queen [2010] VSCA 346.
[10]Ibid [29].
[11][Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492], 512.
[12]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; R v Healey [(2008) 186 A Crim R 433, 442] [42].
[13]See the discussion of Stead v State Government Insurance Commission (1986) 161 CLR 141 and Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 514–521.
Redlich JA also observed in Ucar (albeit in the context of a non-criminal case):[14]
The risk of an adverse finding will usually be present whenever there is a serious challenge to the credibility of a party or witness. Generally speaking, it will be unnecessary for the trial judge to advert to the possibility of such a finding because the risk will be apparent. Where the risk of an adverse finding being made does not necessarily inhere in the issues to be decided or where the facts or the inference which the judge contemplates drawing from the facts and which gives rise to such a risk is unknown to the party, the fundamental rule of fairness requires the decision-maker in some way to draw attention to the existence of that risk.
[14]Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 509 [43].
And as McCallum J said in Wang:[15]
… the entitlement of an offender to procedural fairness during proceedings on sentence is well-established. The obligation may extend to putting an offender on notice if unchallenged evidence as to a matter in mitigation is not to be accepted: see R v Ryan [2003] NSWCCA 202; 141 A Crim R 403 at [27]–[29] per Grove J; Ipp JA and Shaw J agreeing at [1] and [69] respectively.
[15]R v Wang [2013] NSWCCA 2, [71].
Given that the submission that the applicant had been sexually abused lay at the core of the plea in mitigation; that the judge seemingly accepted the reality of its existence and effects during discussion; and that the prosecution made no challenge to its occurrence; we are in no doubt that the judge denied the applicant procedural fairness in rejecting the fact that it had taken place without giving the applicant notice that he might do so, and inviting further submissions or evidence on the subject. Leave to appeal must thus be granted.
The more difficult question is whether a different sentence ought to be imposed. In our view it should not.
Resort to an aggregate sentence[16] has made the sentence imposed by the judge somewhat opaque. We note, however, that sentences of imprisonment of two, three or four years’ imprisonment for arson perpetrated against houses (depending, of course, upon the individual circumstances of each case) seem to accord with current sentencing practices.[17] Assuming a notional sentence of that order to be appropriate for a single charge of arson, and assuming some modest notional cumulation to be justified for the two charges of attempting to obtain property by deception — to reflect their overlapping but discrete criminality — all other things being equal, a total effective sentence of four years and four months’ imprisonment sentence would, in our view, be within the appropriate notional range (and a non-parole period of two years and four months would be unremarkable).
[16]See Sentencing Act 1991, s 9. See also Fitzpatrick v The Queen [2016] VSCA 63, [42] et seq.
[17]See R v Stallworthy [2002] VSCA 135; R v Hasan [2004] VSCA 137; DPP v Bright (2006) 163 A Crim R 538; R v Dosen [2012] VSCA 307.
The applicant could not in mitigation call upon any plea of guilty with respect to the arson. Albeit that Conn had pleaded guilty to extra charges that the applicant did not face — perjury, handling stolen goods and making a false report to police (as well as arson and two charges of attempting to obtain property by deception) — the applicant’s ‘head’ sentence was a mere six months longer than Conn’s, and the non-parole period only four months longer than Conn’s. Conn had, however, pleaded guilty, cooperated with police and given evidence.
Furthermore, although Conn ‘conceived of the idea to burn the Allansford property down and … carried out that plan in a calculated and cunning manner’, the applicant was ‘a knowing and able assistant, who actively and enthusiastically participated in the arson and fraudulent insurance claims and expected to benefit personally’. Thus, although her role was marginally subservient to that of Conn, it was still significant.
There are, of course, other factors relevant specifically to parity (and disparity) which we have endeavoured to set out above, and further factors personal to the applicant that go in mitigation. Whilst not recapitulating them in detail, but nevertheless endeavouring intuitively to synthesise them all, we are of the view that no different sentence ought to have been imposed.
At the risk of repetition, the applicant relied upon alleged sexual abuse in mitigation of sentence. Thus, in written submissions made to the sentencing judge, the applicant’s counsel said:
[The applicant] experienced significant childhood and adult sexual abuse from a trusted family member (brother in law) from age 11 into her 20s. She reported the abuse to police in 2011 after leaving Beleura clinic[18] and relapsing into drinking. She believes that the abuse impacted on her self-esteem and on her ability to make wise judgments about male partners and to form relationships of mutual trust.
[18]A clinic dealing with the treatment of alcohol addiction.
Moreover, in the course of the plea, counsel (as we mentioned) cited Ramazanoglou, and, based on the effects of the sexual abuse upon the applicant, sought to invoke ‘virtually all’ of the principles in Verdins.[19] In support of her submissions, counsel relied upon the report of Pamela Matthews, to which we have earlier made reference.[20] Having considered, first, what the applicant told her about her history of sexual abuse, and, secondly, the literature to the effect that the lifetime effect of childhood sexual abuse can be significant, Ms Matthews concluded:
In the writer’s view [the applicant’s] mental state including alcohol dependence during 2009—current and her offending in 2012 are intimately linked to both her history of developmental abuse and revictimisation in multiple relationships, and her abuse within the relationship with Mr Conn.
[19]R v Verdins (2007) 16 VR 269, 276 [32].
[20]See [29] above.
Other than her own self-reporting, however, there was little (if anything) to support the applicant’s assertions of abuse.[21] But notwithstanding the paucity of material, the sentencing judge accepted that the applicant’s ‘psychological condition’ will render a prison sentence ‘more burdensome’ for the applicant ‘than for a person who is psychologically well’. We, too, are prepared to accept that this is so. Furthermore, we are also prepared to accept that the applicant’s moral culpability is reduced to a moderate degree by the abuse which she described.
[21]We do not ignore the statement of Diana Young dated 28 October 2012 — relied upon by the applicant’s counsel — in which it is asserted that: ‘Apparently Ros’ Sister’s Husband may have raped Ros when she was a teenager, you could probably find records of it somewhere’. This, however, provides scant support for the proposition that the applicant was abused from age 11 years into her twenties.
There is, however, a host of other factors which also materially bear upon the exercise of the sentencing discretion. We have mentioned a number of them above. They include, first, the issue of parity vis-à-vis Conn, given that the applicant is not entitled to the advantages that Conn secured for himself by pleading guilty and co‑operating with the investigating and prosecution authorities. Secondly, we have no reason to doubt the sentencing judge’s assessment — which was based on his own observations and not upon anything that Conn had said — that the applicant was ‘a knowing and able assistant, who actively and enthusiastically participated in the arson and fraudulent insurance claims and expected to benefit personally’.
We should also make clear that we have not ignored the plight of the victims of the arson offence, described by the sentencing judge as follows:
A victim impact statement, written by John Telford Richardson, was read in court. Mr Richardson is a Vietnam veteran and was wounded in action, resulting in the loss of both legs below the knee. You bought the Hopkins Hill property from Mr Richardson and his wife. At the time of the fire, the Richardsons had a second mortgage in respect of the property with an agreement that $545,000, which was the residue of the purchase price, was to be paid at settlement on 20 June 2012. You also agreed that you would pay interest on the outstanding amount.
After the fire, the first mortgagee exercised its rights and sold the Hopkins Hill property at a much reduced price. The Richardsons have been left with very substantial losses. The financial impact upon them has been very great.
Mr Richardson writes:
‘Instead of having a contented retirement in Warrnambool we are living in our own small holiday home in Peterborough. I’m being treated for depression and lifelong friendships have been affected due to real estate problems and legal problems with the sale.’
Mr Richardson states that you have ruined his life and that of his wife, Lorraine.
Finally, we should observe that, although a community correction order (‘CCO’) was advanced as a suitable sentencing option,[22] in the circumstances of this case, we do not consider a CCO to be sufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just,[23] despite the various matters relied upon in mitigation.
[22]Relying on Boulton v The Queen (2014) 46 VR 308.
[23]See Sentencing Act 1991, s 5(4C); Hutchinson v The Queen (2015) 71 MVR 8, 13 [17].
Conclusion
For the foregoing reasons, we are of the view that, despite error having been shown, no different sentence should be imposed.
We would grant leave, but dismiss the appeal.
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