Caruana v The Queen

[2011] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0311

SHARON LOUISE CARUANA	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 May 2011
DATE OF JUDGMENT	12 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 180
JUDGMENT APPEALED FROM	DPP v Caruana (Unreported, County Court of Victoria, Judge Montgomery, 6 August 2010)

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CRIMINAL LAW – Sentence appeal – Appellant defrauded her employer of almost $375,000 – Sentenced to total effective sentence of three years’ imprisonment with non-parole period of 18 months  – Whether sentencing judge failed to adequately take into account appellant’s diagnosed high-level neuroticism – Whether sentencing judge failed to adequately take into account delay between offending and determination of appellant’s sentence – No error demonstrated – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Galbally & O’Bryan
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT:

1. The appellant is a 36‑year‑old woman.  Between 2001 and 2007, she worked in the accounts receivable department at CSL Limited (‘CSL’) and, whilst working at CSL, used her position to defraud it of almost $375,000.  This resulted in her being indicted on five charges of obtaining financial advantage by deception and three charges of theft.

1. Between 29 May 2003 and 21 November 2007, the appellant fraudulently transferred CSL funds to three separate credit card accounts.  These accounts were in the names of two of her former boyfriends and a travel agent through whom she arranged travel.   The total amount transferred was $356,119.89.  The appellant concealed her offending by making these transactions appear to be refunds to legitimate CSL customers.  The first recipient was the appellant’s boyfriend from about 1996 to 2005.  Money transferred to him was used to pay her rent and to finance the renovation of her parents’ home.  The second recipient was the appellant’s boyfriend from about 2006 to 2008.  Money transferred to him was used for a variety of purposes, including to pay for his living expenses and to buy things for his children.  Money transferred to the travel agent was used to pay for the appellant’s travel to and from Queensland, where the second boyfriend lived, as well as a 10‑day holiday in Thailand that she took.  These offences formed the substance of charges 1, 4, 5, 6 and 8.

1. On three separate occasions, the appellant also failed to reimburse CSL for money she had obtained through a foreign exchange account that CSL had with American Express.  The total amount stolen by her in this way was $18,591.11.  These thefts formed the basis of charges 2, 3 and 7.

1. The appellant’s offending was initially detected in late 2007 by CSL’s financial controller.  She has no prior convictions, has previously been of exemplary character and, over the last 10 years or so, has acted as a carer for both of her parents.  The appellant’s mother died in January 2009 and her father died in March 2010.  The desire to help her parents appears to have been at least part of the motivation for her offending.

1. On 6 August 2010, the appellant was arraigned before Judge Montgomery in the County Court and pleaded guilty to all of the charges on which she was indicted.  His Honour sentenced her as follows:

Charge	Sentence	Cumulation
1	Six months’ imprisonment	Three months
2	Six months’ imprisonment	Three months
3	Six months’ imprisonment
4	12 months’ imprisonment	Three months
5	Two years’ imprisonment	Base sentence
6	Two years’ imprisonment
7	12 months’ imprisonment	Three months
8	Two years’ imprisonment
Total effective sentence		Three years’ imprisonment
Non-parole period		18 months

1. On 10 December 2010, Bongiorno JA granted the appellant leave to appeal against her sentence.

1. The grounds of appeal relied upon by the appellant are: (1) that the sentencing judge failed to adequately take into account the appellant’s diagnosed and accepted high‑level neuroticism; and (2) that the sentencing judge failed to adequately take into account the delay between the appellant’s offending and the determination of her sentence.

Ground 1

1. The appellant was assessed by a psychologist, Mr David Sullivan, on 25 January 2010.  He administered diagnostic tests and wrote a comprehensive report expressing his opinion.  The report states:

[The appellant’s] high score on the Neuroticism scale is indicative of her high level of anxiety, a high level of emotional fragility, a deep sense of insecurity, a poorly developed sense of identity and a lack of emotional robustness and resilience in her intrapsychic and interpersonal interactions. …

I consider that her vulnerable personality and in particular, the severity of her neurotic disposition, contributed to her neurotic belief that, when her father was diagnosed with a terminal condition in 2000, she had to help her parents, and following the demise of her long term relationship in 2005, her sense of guilt about her new partner’s decision in 2006 to leave his children in Queensland and her associated neurotic belief that she had to financially support him, contributed to Ms Caruana’s severely diminished capacity to act in an acceptable and responsible manner.

1. Counsel for the appellant argued on this appeal that if this part of Mr Sullivan’s opinion had had the effect it ought to have had in the synthesis of an appropriate sentence, the principles in R v Verdins[1] would have been enlivened.  He argued that the effect of Mr Sullivan’s opinion should have been to significantly diminish the relevance of general deterrence, to lower the appellant’s moral culpability and to temper the relevance of denunciation.

   [1](2007) 16 VR 269 (‘Verdins’).

1. No submission based on Verdins was made on behalf of the appellant at the plea hearing.  Indeed, counsel for the appellant at the plea hearing appeared to  disclaim any reliance upon ‘psychiatric illness’.  He did, however, draw the sentencing judge’s attention to relevant parts of Mr Sullivan’s report.

1. That the sentencing judge was aware of Mr Sullivan’s opinion is clear.  In his sentencing remarks, his Honour said:

Mr Sullivan conducted, what is called, the Eysenck Personality Scale Test upon you.  His conclusion was that you had a high score on the neuroticism scale which was indicative of your high level of anxiety, a high level of emotional fragility, a deep sense of insecurity and a poorly developed sense of identity and a lack of emotional robustness and resilience in your intrapsychic and interpersonal interactions.

He said taking into account your high neurotic and empathetic orientation this, at least in part, accounts for your remarkably poor judgment in moral responsibility and moral conflict dilemmas.  He said your scores on the personality questionnaire indicated a severe level of dysfunctionality in your personality profile.  He said that he considered your personality was vulnerable and in particular the severity of your neurotic disposition contributed to your neurotic belief.

He concluded that irrespective of sentencing you will require skilled psychological treatment to enable you to begin to resolve your personality dysfunction which will otherwise continue to impact negatively on your general functioning.  He concluded that you have little or no risk of reoffending and I accept that.

1. We are not satisfied that the sentencing judge failed to give adequate consideration to Mr Sullivan’s opinion in constructing the sentence imposed.  Although his Honour accepted the Crown’s submission that general deterrence was the primary sentencing consideration in this case, he did so after a detailed consideration of the facts specific to this case, all of which he set out.  These facts include Mr Sullivan’s opinion as to the appellant’s psychological state at the time of the commission of these offences and the other mitigating factors noted by his Honour.

1. The most powerful evidence that his Honour took Mr Sullivan’s opinion into account can be found in the sentences that he imposed.  They are, both as far as the individual sentences and the total effective sentence are concerned, lenient indeed.  In imposing them, his Honour did not accept the Crown’s submission as to range, particularly with respect to the appellant’s non‑parole period.  That he did not specifically refer to Verdins principles is not surprising having regard to the submission the appellant’s counsel made on her plea.  We reject ground 1.

Ground 2

1. This ground is that the sentencing judge failed to give sufficient weight to the delay involved in the appellant’s prosecution.  Counsel for the appellant pointed out that almost three years elapsed between the end of the appellant’s offending and the determination of her sentence.  He submitted that this should, of itself, be a mitigating factor, without any need to explore the appellant’s use of that time to rehabilitate herself.

1. Although the sentencing judge did not refer to delay in his sentencing remarks, he made a specific finding that the appellant was unlikely to offend again — in effect a finding that she was totally rehabilitated — and held that specific deterrence had no part to play in fixing the sentence.  Again, the sentence he fixed demonstrated that he gave full weight to every possible mitigating factor.  This ground cannot be accepted either.

1. Finally, even if either or both of these grounds had been made out and there were an error or errors in Judge Montgomery’s sentencing process, we are firmly of the opinion that the appellant has not demonstrated that, either in respect of any of her individual sentences or in respect of her total effective sentence, a different sentence should be imposed. Thus, she has not satisfied the test laid down in s 281(1) of the Criminal Procedure Act2009.  The appeal will be dismissed.

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