Bellizia v The Queen
[2016] VSCA 21
•29 February 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0184
| MICHELLE BELLIZIA |
| v |
| THE QUEEN |
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| JUDGES: | WHELAN AND SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 February 2016 |
| DATE OF JUDGMENT: | 29 February 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 21 |
| JUDGMENT APPEALED FROM: | DPP v Bellizia (Unreported, County Court of Victoria, Campton J, 10 March 2015) |
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CRIMINAL LAW – Sentence – Rolled-up charges of theft spanning 131 offences – Applicant stole money from her employers – Total effective sentence of 15 months’ imprisonment with a community correction order for 12 months – Outstanding subsequent offending in New South Wales by applicant of similar nature – Subsequent offending unproven but admitted by applicant at the plea hearing – Whether judge erred in assessing remorse, general and specific deterrence having regard to subsequent offending – No error in sentencing judge’s approach – Application for leave to appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | Peter Monagle Lawyers |
| For the Respondent | Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
MICHELLE BELLIZIA v THE QUEEN
WHELAN JA:
I have read in draft the reasons of Santamaria JA. I agree that the application should be dismissed for the reasons he gives.
SANTAMARIA JA:
Overview
On 18 February 2015, the applicant (now aged 47), pleaded guilty to three rolled-up charges of theft spanning 131 offences committed over the period November 2011 to September 2013. Following a plea on 18 February 2015, the applicant was sentenced on 10 March 2015 as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Theft [Crimes Act 1958 s 74] | 10 years’ imprisonment | Aggregate sentence: 15 months’ imprisonment with a Community Correction Order (‘CCO’) for 12 months | N/A |
| 2 | Theft [Crimes Act 1958 s 74] | 10 years’ imprisonment | Aggregate sentence: 15 months’ imprisonment with a CCO for 12 months | N/A |
| 3 | Theft [Crimes Act 1958 s 74] | 10 years’ imprisonment | Aggregate sentence: 15 months’ imprisonment with a CCO for 12 months | N/A |
| Total Effective Sentence: | 15 months’ imprisonment with a CCO for 12 months. | |||
| Pre-sentence Detention Declared: | 20 days | |||
| 6AAA Statement: | 4 years’ imprisonment with a non-parole period of 3 years. | |||
Grounds of appeal
The applicant seeks leave to appeal her sentence[1] on the following ground:
[1]DPP v Bellizia (Unreported, County Court of Victoria, Campton J, 10 March 2015) (‘Sentence’). The appeal was filed out of time. An extension of time within which to file an appeal was granted on 13 October 2015.
The sentencing judge erred in having regard to unproven subsequent offending when assessing:
(a) The weight to be placed on general and specific deterrence; and
(b) The applicant’s level of remorse.
Circumstances of the offending
CW Technology thefts: 28 November 2011–30 April 2012 (charge 1)
At the time of the offending, the applicant was employed by CW Technology Pty Ltd (‘CW Technology’) as an account manager. The applicant commenced her employment on 21 July 2009. Her duties included the preparation of financial documents, including bank statements and transaction details, as well as responsibility for all customer supply payments.
On 1 May 2012, the applicant sent a text message to Peter Kokinnis, the managing director of the company, saying that she would not be returning to work. Mr Kokinnis had noticed that the applicant appeared stressed in the weeks before her resignation. In December 2013, Mr Kokinnis became aware of a number of suspicious transactions that occurred while the applicant was employed at CW Technology.
Subsequent internal audits detected 32 suspicious transactions. Police later identified $40,222.09 had been credited to the applicant’s Commonwealth Bank account between November 2011 and April 2012.
The applicant’s method consisted of transferring the funds from a company bank account, creating a batch of payments to various creditors and recording them on the company’s accounting software as client payments. On 32 occasions, the applicant recorded money as being a payment to a creditor which was, in fact, transferred to her personal bank account.
Cash withdrawals of large amounts were made from the applicant’s bank account at or near gambling venues. In January 2012, over $3,000 was spent on a holiday in Bali and the remainder of the money was spent on living expenses, bills and retail purchases.
Kilmore Equine Clinic (‘KEC’) thefts: 11 May 2012–27 September 2012 (charge 2) and 3 January 2013–27 September 2013 (charge 3)
On 8 May 2012, the applicant commenced employment at the Kilmore Equine Clinic on a full-time basis as bookkeeper and office manager. Her duties in that role were to manage accounts receivable and payable and make payments to creditors by taking receipt of all the invoices and entering the details into the company’s relevant software. After a period of time and for the convenience of the business, Ms Simone Sheridan, the practice manager, agreed to give the applicant full access to create and confirm authorised payments from the company to suppliers. The applicant used this access to transfer money intended for the suppliers into her own bank account.
In this instance, the applicant’s method was to transfer moneys from the business account of Ms Maxine Bain, one of the proprietors of the company, to the company’s shared network. The applicant again created batches of payments to various creditors via CommBiz[2] and transferred various amounts to her own account while recording the payments as being for creditors.
[2]An online transactional banking channel specifically for institutional, corporate and business use.
The offending the subject of charge 2 consisted of 42 transactions committed between 11 May 2012 and 27 September 2012 totalling $114, 410.65.
The offending the subject of charge 3 consisted of 57 transactions committed between 3 January 2013 and 27 September 2013 totalling $154,996.75.
On 2 October 2013, after the offending was discovered, the applicant’s employment was terminated. When she was initially questioned about the discrepancies in payments to creditors, the applicant put it down to accounting error. In a subsequent meeting with John Ryan, a director of KEC, and Ms Sheridan on 20 October 2013, she admitted to transferring the money. The applicant expressed surprise at the total amount transferred and told them she would pay the money back.
Discovery and analysis
Police analysis of the applicant’s personal account discovered $265,509.82 of funds which had been transferred from the company without authorisation.
An analysis of the applicant’s spending showed that large amounts of cash withdrawals were made from or near gambling venues and a considerable amount was spent at hotels in the Crown Casino precinct.
Arrest and committal
On 21 January 2014, the applicant was interviewed at the Seymour Police Station. She made full admissions. She said that she did not realise how much money she had taken until she went through the bank account and that she had spent it at various ‘pokies venues’ because she had a gambling problem.
Plea hearing
Background to plea — subsequent offending
After she had spoken to police in relation to the current matters, the applicant relocated to New South Wales. She began employment with a real estate agent on the south coast as a book-keeper. The applicant was later charged in New South Wales with a ‘blanket’ charge, alleged to have been committed between 8 December 2013 and 19 November 2014, of obtaining financial advantage by deception comprising 27 transactions with the total funds obtained amounting to $39,068.07.
Defence submissions before sentencing judge
At the sentencing hearing, the applicant conceded that all three charges represented serious examples of theft from an employer which caused significant financial detriments and other impacts on the victims. It was acknowledged that the offending was a grave breach of the employers’ trust and a betrayal of professional values built over time. It was submitted that the case could be characterised as being in the middle range of seriousness.
It was put to the sentencing judge, that the applicant had no prior history of offending, which tended to focus attention on the events which were occurring in 2011 which, it was submitted, led to her descent into this conduct. Notwithstanding this, the applicant conceded that the sentencing court could be more guarded in assessing claims of remorse in light of the subsequent offending.
The applicant submitted that she maintained a lengthy employment history in similar positions since she was aged 18, during which she upheld the trust reposed in her until these recent matters arose.
The applicant also submitted that she had said that she was disgusted by the offending and that it had occurred in the context of having lost her moral compass at the time of the offending.
The applicant conceded at the sentencing hearing that the repetitive nature of the offending, spanning nearly two years, in addition to the subsequent matters occurring in New South Wales as raised by the prosecution were aggravating features. She conceded these matters lead to a more guarded assessment of the rehabilitation and reform of the applicant. She accepted that the subsequent matters in New South Wales occurred after police involvement in the Victorian offending.
The applicant contended that the New South Wales offending complicated the sentencing exercise, particularly for the subsequent interstate sentencing court, the benefit of totality was in danger of being lost to the applicant and this should be taken into account.
The applicant submitted that the period of time, however brief, where she offered a dishonest explanation for the irregularities that had been detected in the KEC accounts meant that just punishment and general deterrence must loom large in sentencing the applicant. Although the applicant contended that once the applicant was made aware of the scale of the offending no pretence of ignorance was maintained.
The applicant submitted that the offending was relatively simple in nature and did not involve the deletion of records and the payments remained on the system. Furthermore, as the payments were made to an account in the applicant’s own name, it was submitted that detection was inevitable.
Notwithstanding the aggravating factors present, the applicant submitted that this Court’s decision in Boulton v The Queen[3] made a community correction order (‘CCO’), either combined with imprisonment or on its own, a disposition available to the Court.
[3][2014] VSCA 342.
The applicant contended that despite her developing a gambling addiction after the commencement of the offending, preventing this factor from being mitigating, it did relevantly contribute to the quantum of funds stolen and the continuation of the thefts.
It was submitted that the applicant expressed surprise and shock to both the police and her employers at KEC at the scale of offending.
Counsel for the applicant contended that the applicant committed the offences in a state of moral destitution and disassociation, originating from her upbringing and, by 2011, the significant issues she was experiencing within her marriage. Counsel submitted that the offending was a way of reproducing herself in the degraded image that had been instilled in her by her second husband in particular.
The sentencing judge was told that the applicant spent her early life with her mother, father and brother in the Frankston North area within a socio-economically depressed area. Later, the family moved to the New South Wales south coast where the applicant completed Year 11 at school. She is unable to account for the earliest years of her life where — she is absent in family photos, it appeared that she did not reside with her family for that time, although her parents never explained this absence.
The reports of Mr Gary McMullen[4] and Dr Susanna Genot[5] were respectively relied upon by the applicant in respect of the following circumstances:
[4]Mr McMullen’s report was dated 15 February 2015.
[5]Ms Genot’s report was dated 2 December 2014.
(i) The applicant’s troubled family background characterised by neglect and abuse by her birth family, followed by abuse at the hands of her second husband;
(ii) The diagnoses of major depressive disorder with anxious distress and gambling disorder;
(iii) That the applicant’s condition increased the custodial burden and risked aggravating the condition according to the fifth and sixth limbs of R v Verdins;[6] and
(iv) According to Mr McMullen’s report, that the risk of recidivism was low, although there was need to strengthen the factors which protect against criminal behaviour.
[6](2007) 16 VR 269.
Ultimately, the applicant submitted that the appropriate course was to have her assessed for a CCO either alone, or combined with a period in custody. Any order imposed would entail, inter alia, ongoing support, particularly for matters addressed in Mr McMullen’s report.
Prosecution submissions before the sentencing judge
The prosecution submitted that the applicant’s offending was persistent, protracted and involved large sums of money, two victims and a high degree of sophistication and manipulation. It was submitted this was particularly so in relation to the KEC (the second victim), as the applicant’s offending occasioned significant financial, emotional and personal impacts.
It was contended that apart from the gambling itself, there were some indications of greed in the offending, such as money spent on the Crown Towers luxury suite and personal holidays.
The prosecution submitted that both general and specific deterrence were significant sentencing factors in offending of this magnitude of seriousness. Counsel contended that specific deterrence was especially relevant in light of the applicant’s subsequent offending in New South Wales.
Counsel for the prosecution contended that the New South Wales offending undercut what may have otherwise been taken into account as remorse, for example, the applicant’s comments in her record of interview that she was disgusted with her behaviour.
The prosecution conceded that the applicant’s plea of guilty carried high utilitarian value in that it was likely to have saved the Court several weeks having to prove each transaction.
While the prosecution conceded the applicant should receive the benefit of an early plea of guilty, it submitted, however, that, in light of the subsequent offending and the strong Crown case, it could not be indicative of remorse.
The prosecution submitted that the applicant’s plea of guilty had a high utilitarian value but little else.
Counsel submitted that the offending constituted a serious example of the charge.
Notwithstanding the applicant having no prior criminal history, it was contended that this is often the case in these situations where the offender cannot obtain the position of trust without an unblemished record.
The prosecution submitted that a significant sentence of immediate imprisonment accompanied with a CCO would be appropriate.
Sentencing remarks
The sentencing judge remarked that while the applicant had no prior criminal history, she had been charged with relevant subsequent offending in New South Wales following her leaving the KEC. The subsequent offending comprised of one rolled-up charge occurring between 8 December 2013 and 19 November 2014 of obtaining financial advantage by deception from the real estate agent which employed the applicant as the business’ book-keeper. The offending involved 27 transactions totalling $39,068.07.[7]
[7]Sentence [16].
The sentencing judge referred to the applicant’s personal circumstances, which were outlined in both the reports of Dr Genot and Mr McMullen.[8] The sentencing judge noted that Mr McMullen’s diagnosis was that the applicant suffered from Post-Traumatic Stress Disorder (‘PTSD’) which developed as a result of her father’s violence, was exacerbated by her brother’s sexual assaults and maintained by her second husband’s control and abuse.[9] In that report, Mr McMullen noted the applicant’s symptoms were consistent with Major Depressive Disorder with Anxious Distress as well as Gambling Disorder. In relation to the latter, he noted that females apt to be depressed often gamble as an escape and that gambling activity generally increased during periods of stress and depression and, in this case, occurred in the context of an abusive relationship.[10] Mr McMullen opined that the applicant’s gambling came out of a compensatory drive to counter the loss of love, money, freedom and respect experienced in the marriage.[11]
[8]Ibid [17]–[24].
[9]Ibid [25].
[10]Ibid.
[11]Ibid.
The Court took into account the matters appropriate within the Sentencing Act 1991 as well as the mitigating matters set out in both Mr McMullen’s report and Dr Genot’s report.[12]
[12]Ibid [26].
The sentencing judge also took into account the applicant’s guilty plea, lack of prior criminal history, her upbringing and background and her domestic situation immediately prior to the offending.[13]
[13]Ibid [27].
The sentencing judge accepted Mr McMullen’s diagnoses of PTSD and Major Depression with Anxiety. The Court also accepted that there would be an increased custodial burden to the applicant in light of these conditions, and general deterrence was moderated to a small extent owing to this set of circumstances.[14]
[14]Ibid [28].
The sentencing judge took into account character reference material from Ms Cox and the applicant’s daughter Tiasha.[15]
[15]Ibid [29].
The Court was not satisfied that the applicant’s son’s condition amounted to such exceptional circumstances as to form the basis of a conclusion that particular family hardship would be occasioned by the applicant’s imprisonment. Her son could be cared for by his father.[16]
[16]Ibid [30].
The sentencing judge said that both general and specific deterrence were relevant sentencing factors in this case. It was accepted that the applicant’s offending was persistent and involved sophistication and manipulation. The offending against the first employer lasted five months and 14 months in the case of the second employer. Both victims lost large amounts of money.[17]
[17]Ibid [31].
The Court said that, while the applicant had said in her record of interview that she was disgusted and ashamed of what she had done, in fact she went on offending in New South Wales. The sentencing judge said:
Both general and specific deterrence are important in this case. While you said in your record or interview that you were disgusted and ashamed by your offending, the fact is that you went on to commit similar offences in New South Wales. This does not sit well with your claims of remorse.[18]
[18]Ibid [34].
The victim impact statements of Simone Sheridan and Maxine Bain were also taken into account by the sentencing judge.[19]
[19]Ibid 32.
The Court said that a portion of the sentence should be served in custody. However, in light of the factors in mitigation, the Court accepted that general and specific deterrence would be satisfied if a portion of that sentence is served in the community by way of CCO. A CCO might assist in addressing the applicant’s risk of re-offending by ensuring appropriate treatment is available.[20]
[20]Ibid [35].
Written contentions of the applicant
The applicant conceded that subsequent convictions are a relevant matter in determining sentence. While they may not be used to positively increase any head sentence imposed, they are relevant in rebutting any mitigatory evidence relating to (a) prospects of rehabilitation; (b) remorse; or (c) the need for specific deterrence. Counsel for the applicant referred to Alexandros v Birchell,[21] which considered the decision of this Court in R v Rumpf.[22]
[21](2000) 31 MVR 307 (‘Alexandros’).
[22][1988] VR 466 (‘Rumpf’).
Alexandros and Rumpf deal specifically with cases where there are subsequent convictions, or findings of guilt. They do not apply to cases where subsequent matters remain unproven.
The applicant submitted that circumstances in which unproven subsequent offending may be considered are limited. The applicant contended that in Trikilis v The Queen,[23] this Court said that the correct approach was to pay regard to them only in assessing an offender’s prospects of rehabilitation. It was also contended that Ceylan v The Queen[24] adopted the same approach.
[23][2010] VSCA 241 (Neave and Weinberg JJA and T Forrest AJA) (‘Trikilis’).
[24][2011] VSCA 318 (Ashley and Weinberg JJA) (‘Ceylan’).
The applicant submitted that s 100 of the Sentencing Act 1991 provides a mechanism for a court to deal with unproven subsequent matters beyond the scope afforded in Trikilis. Given the subsequent matter in this case occurred outside the jurisdiction of the sentencing court they could not be dealt with in that fashion pursuant to s 100 (6) of that Act.[25]
[25]Section 100 of the Sentencing Act 1991 deals with the disposal of other pending charges. Section 100(6) provides: ‘Despite anything in subsection (3), a court must not take into account any charge of an indictable offence which it would not have jurisdiction to try even with the consent of the person charged with it.’
At the time of sentencing, the applicant had yet to be dealt with on the subsequent matter in New South Wales. On the plea, counsel for the applicant effectively indicated that the matter was admitted and indicated that the correct approach was to take a more guarded view of her of rehabilitation. The sentencing judge did not dispute that this was the correct approach.
The applicant submitted that sentencing judge went beyond assessing the applicant’s prospects of rehabilitation in her approach to the subsequent matter. Instead, it was viewed as a significant matter in aggravation.
The applicant did not dispute that general and specific deterrence were important factors in her case. However, it was submitted that the subsequent matter should not have had a bearing on the weight to be placed on those factors.
Further, the applicant submitted that there was no basis for determining that the subsequent matter lessened the degree to which she could rely on remorse as a mitigating factor.
The applicant submitted that this error is significant, material and should result in the reopening of the sentencing discretion. It was contended that the application for leave to appeal should be granted because, pursuant to s 280 of the Criminal Procedure Act 2009, there is a reasonable prospect of this Court reducing the total effective sentence.
Oral contentions of the applicant
At the hearing, the applicant’s case was put differently. Counsel for the applicant properly conceded that, depending on the facts and circumstances, re-offending may be relevant to an assessment of remorse as well as prospects of rehabilitation. Counsel submitted that the assessment of an offender’s remorse and prospects of rehabilitation are properly made by the sentencing judge at the time of sentencing. It is entirely possible that an offender can come before the court for sentence and, at that specific time, is remorseful, notwithstanding conduct subsequent to the conduct for which the applicant is to be sentenced. The applicant contended that the sentencing judge had erred in dismissing the possibility of remorse because of the subsequent conduct in New South Wales.
Analysis
The applicant contended that the sentencing judge erred (a) in taking into account the subsequent charges and (b) in using them for purposes beyond a consideration of the applicant’s prospects of prospects for rehabilitation. She said that, if subsequent matters are relevant, Trikilis and Ceylan confine their relevance to the issue of rehabilitation.
In Trikilis, the applicant for leave to appeal had pleaded guilty to, and been convicted of, several offences of trafficking in various controlled substances. In sentencing him, the judge took into account the fact that, at the time of sentence, he had been charged with further offences involving the sale of further controlled substances whilst on bail for the offences for which he was convicted. In doing so, the sentencing judge had said:
The only relevance of that matter to the matter for which I am to sentence you, is that it reflects on your prospects for rehabilitation.[26]
[26]Trikilis [2010] VSCA 241 [7].
First, in Trikilis, the subsequent charges had been brought to the attention of the sentencing judge (in a conversation about the length of pre-sentence detention) and counsel for the applicant had informed the Court that ‘whilst there was a dispute as to the amounts that may have been trafficked, there was no dispute as to the fact of the trafficking itself’.[27] Second, the Court did not hold that the only relevance of subsequent charges was rehabilitation. Rather, the sentencing judge had confined his consideration of the subsequent charges to the issue of rehabilitation, and the Court saw no error in his approach. As the Court said:
We can discern no error in his Honour’s approach. He had before him agreement between counsel as to the fact of the subsequent charges, and a concession by the applicant’s counsel as to the relevant live issues relating to those charges. That information was properly before him and he was entitled to use it as he did.[28]
[27]Ibid [6].
[28]Ibid [8].
In Ceylan, the applicant had been charged with two counts: the first involved trafficking a drug of dependence in May 2008; the second the possession of prescribed precursor chemical in late 2007 and early 2008. He was bailed, and, when on bail, arrested again in March 2009. It was alleged that he was in possession of another methylamphetamine laboratory. The sentencing judge considered the applicant’s prospects of rehabilitation. He said:
You have one outstanding matter to be dealt with before the Courts. After your release on bail in May 2008 in respect of the matters for which I am to sentence you, you were arrested again in March 2009 at a property in Oaklands Junction where the prosecution allege you were in possession of another methylamphetamine laboratory. You are awaiting trial in respect of that matter and I was informed that such trial is listed to be heard on 29 August this year. I do not of course have regard to this matter in sentencing you for the offending to which you have pleaded guilty before me. However, your arrest and possession of precursor chemicals in March 2009, has relevant (sic) to prospects for future rehabilitation.[29]
…
When you were finally arrested and charged in 2008, you were released on CISP bail, a condition of which was that you obtain drug counselling. You relapsed into drug use and offended again and the outstanding for the Oakland Junction methylamphetamine laboratory saw you re-arrested where you served nineteen days on remand before being re-bailed.[30]
[29]Ceylan [2011] VSCA 318 [17].
[30]Ibid.
The applicant was given leave to rely on the following ground of appeal:
The total effective sentence imposed by the sentencing judge was manifestly excessive in that:
…
(b)his Honour relied upon the subsequent arrest and charging of the appellant for possession of a controlled precursor as a relevant factor in assessing the future prospect of rehabilitation of the appellant.[31]
[31]Ibid [3].
At the hearing of the appeal against sentence, Ashley JA (with whom Weinberg JA agreed) said:
I am prepared to accept, despite some of what appellant’s senior counsel said on the plea, that the judge was not invited by counsel to assume, for sentencing purposes, that the appellant possessed precursor chemicals in March 2009. If the judge had acted upon such an assumption, and if it had affected the sentence which he imposed, it would have been erroneous. But I am not persuaded that he erred. Despite saying that the appellant’s arrest and possession of precursor chemicals was relevant to prospects of rehabilitation, the judge plainly stated that the appellant’s prospects were good if he remained drug free, that he had taken steps to substantially rehabilitate himself, and that he had given regard to setting a longer than usual potential parole period to further the appellant’s prospects of rehabilitation. The furthest the appellant’s counsel had gone in the plea was to say that his client’s rehabilitation was underway. The non-parole period which the judge set was in fact quite short.[32]
[32]Ibid [19].
As is plain, subsequent charges may be relevant to sentencing. In Ceylan, a subsequent charge was used by the sentencing judge in assessing the prospects of rehabilitation. The Court of Appeal found no error in his approach.
However, neither Trikilis nor Ceylan stands for the proposition that, in sentencing, the existence of ‘subsequent charges’ may be considered only in reference to prospects of rehabilitation.
In the present case, at the plea hearing, counsel for the applicant conceded that, when the applicant relocated to New South Wales ‘that was where the offending in respect of the real estate agent occurred’.
When sentencing, a court should be told about the existence of any subsequent charges.[33] Apart from other considerations, the presence of such subsequent charges may provide a basis for deferring sentence until this subsequent matters have been disposed. In Rumpf, McGarvie J (with whom Young CJ and Murray J agreed) spoke of the various disclosure duties of the prosecution and the defence on the matter of sentencing. He said:
In my opinion the facts which the prosecution has a duty adequately to present to the Court are not limited to the facts of the offence. Many facts beyond those are taken into consideration in passing sentence. For example, as stated by Fox and Freiberg: ‘The behaviour of the defendant after he has offended is considered a proper matter to be taken into account at sentencing. His voluntary desistance from further wrongdoing, preparedness to make restitution, willingness to assist police, and efforts to rehabilitate himself all may tell to his advantage when he is sentenced. First because such conduct may indicate remorse and secondly, because it may be seen as an effort to mitigate the harm caused to the victim or to society’.
It is the duty of a defence lawyer upon a plea on sentence not knowingly to mislead the court. … Counsel and solicitors for the defence must not knowingly mislead the court either by the words used or by omitting to say what is necessary to be said in order to prevent literally true words which have been used from misleading. … So long as what is put before the court on behalf of the convicted person is not misleading, it is not the duty of a defence lawyer to disclose to the court detrimental facts such as prior convictions or detrimental aspects of the client's antecedents or character.[34]
[33]Subsequent charges must be distinguished from ‘post offence conduct’. See Freiberg, Fox and Freiberg’s Sentencing — State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 412–14 [6.115].
[34]Rumpf [1988] VR 466, 472 (citations omitted). So, for example, it would mislead a court to make submissions about an accused’s previous good character without disclosing the existence of known prior convictions. It would also mislead the court to urge the making of orders for reparation or the payment of fines where the accused was known to be bankrupt.
Further, an occasion for the exercise of power under s 100 of the Sentencing Act 1991 may arise.[35] An opportunity may exist for taking into consideration other offences where the conditions for the exercise of that jurisdiction exist.
[35]See Freiberg, above n 33, 148–52 [2.110]-[2.115].
Where s 100 cannot be or is not invoked, great care must be taken in the use that may be made of subsequent charges, especially where those charges are to be contested. No one may be punished in the absence of a conviction. In Rumpf, McGarvie J spoke about the relevance of convictions for crimes committed subsequent to the offence for which the prisoner is being sentenced. He said:
While the Court has regard to the whole of the offender's antecedents in making decisions in respect of a minimum term it is not entitled to use convictions occurring later than the relevant offence, for the purpose of increasing the length of the head sentence which would otherwise be imposed: … While convictions later than the offence can not be used positively to increase the head sentence which would, in the absence of considerations personal to the offender, otherwise be imposed, they may be used, in my opinion, to negate, reduce or qualify an inference as to the offender's later conduct which would otherwise arise and operate in mitigation of sentence. In this way they may prevent a reduction of the sentence which would be imposed in the absence of the mitigating inference.[36]
[36]Rumpf [1988] VR 466, 475 (citations omitted).
So, if the use of subsequent convictions is limited, the use of subsequent charges must be similarly attenuated. Where the charges are to be contested, the fact of the charges themselves will usually be irrelevant. However, matters collateral to the charges — such as the location of an offender or the company he or she was keeping or the conduct he or she was engaging in — if admitted, may be of relevance.
Where, as here, the further offending is conceded, it may be used by a judge to ‘negate, reduce or qualify an inference as to the offender's later conduct which would otherwise arise and operate in mitigation of sentence’.[37]
[37]Ibid.
Certainly, they will be relevant in assessing prospects of rehabilitation. They may also be relevant to other matters such as remorse and specific deterrence. In assessing the weight to be given to a protestation of remorse, it would normally be quite sensible for a sentencing judge to take into account subsequent offending, at least those involving matters that are cognate with the convictions. Similarly, when assessing the extent to which specific deterrence should inform the amount of punishment, it may be quite unrealistic for the judge to ignore those subsequent matters.
The applicant was correct in submitting that remorse — as with any other mitigating factor — is a factor that is to be assessed at the time of sentencing.[38] At the hearing, counsel for the applicant submitted that remorse was a live issue and that the sentencing judge did not make any express finding in respect of remorse. Although a sentencing court should give reasons for the principal factors that influenced the sentencing,[39] there is no requirement for a sentencing court to make findings on every disputed piece of the evidence.[40] There was no error in the sentencing judge’s approach. While the sentencing judge expressed some scepticism about the applicant’s remorse, she did not proceed on the footing that, because of the applicant’s subsequent conduct in New South Wales, she would exclude any consideration of remorse.
[38]See, eg Kentwell v The Queen (2014) 252 CLR 601, 618 [43].
[39]R v Koumis (2008) 18 VR 434, 439.
[40]DW v The Queen (2004) 150 A Crim R 139, 147 [27].
The application for leave to appeal against sentence should be dismissed. Further, the application should also be dismissed as pursuant to s 280(1) of the Criminal Procedure Act 2009 there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed.
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