De Sieno v The Queen
[2011] VSCA 353
•19 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0173
| RHONDA MARGARET DE SIENO | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and WHELAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 August 2011 |
| DATE OF JUDGMENT | 19 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 353 |
| JUDGMENT APPEALED FROM | DPP v De Sieno (Unreported, County Court of Victoria, Judge Parsons, 25 May 2010) |
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CRIMINAL LAW – Appeal against sentence – Appellant stole approximately $4.6 million from two companies that employed her – Pleaded guilty to 42 counts of theft – Sentenced to total effective sentence of seven years and five months’ imprisonment with non‑parole period of five years – Crown conceded that sentence was manifestly excessive – Appeal allowed – Appellant re-sentenced to total effective sentence of six years and three months’ imprisonment with non‑parole period of four years – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr O P Holdenson QC | Stynes Dixon Lawyers |
For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
On 28 April 2010, the appellant, Rhonda Margaret De Sieno, pleaded guilty before his Honour Judge Parsons in the County Court at Geelong to 42 counts of theft from her employers, Local Mix Concrete Pty Ltd and Local Mix Quarries Pty Ltd.
The offences were committed between 29 September 2000 and 2 October 2006. The total amount stolen was just over $4.6 million. Mrs De Sieno was sentenced to a total effective sentence of seven years and five months’ imprisonment with a non‑parole period of five years.
The appellant’s depredations were effected in a number of different ways. As the companies’ bookkeeper, she was able to and did steal by directly transferring money from the companies’ accounts into her own, by overpaying herself and paying a person who was not employed by the companies wages, by stealing approximately $500,000 in cash and by making excessive payments into her superannuation fund.
The appellant had made significant but not total restitution by the time of sentence. She had repaid approximately $3.7 million.
Apart from the total amount stolen before detection, which is probably higher than in most cases, the appellant’s offending followed a very familiar pattern of employee theft: breach of trust, carefully concealed false accounting, a gambling problem, usually at a casino or on poker machines, and associated psychological problems.
As the Crown has conceded that the total effective sentence imposed on the appellant was manifestly excessive, there is no need to canvas the facts of this case in any further detail. They were adequately set out by the sentencing judge in his sentencing remarks. His Honour accepted all the mitigatory factors put on the appellant’s behalf but appears to have constructed sentences which, after concurrency and cumulation were addressed, resulted in a total effective sentence which was excessive both as to the head sentence and as to the non‑parole period.
On the plea hearing before the sentencing judge, the Crown proposed a sentencing range of between five and a half and six and a half years’ imprisonment for the head sentence with a non‑parole period of four to four and a half years. This range is accepted in this Court by counsel for the appellant and is not inappropriate.
In imposing individual sentences for each count, it also appears that the sentencing judge failed to heed the admonition of this Court in Director of Public Prosecutions (Vic) v Grabovac[1] that it is preferable to impose appropriate sentences on each individual count in a series reflecting the gravity of the offending on that count and to use concurrency to achieve a proper total effective sentence.
[1][1998] 1 VR 664.
The appellant should be re‑sentenced as follows:
Count Sentence Cumulation 1 3 months’ imprisonment 2 1 year’s imprisonment 3 months 3 6 months’ imprisonment 4 6 months’ imprisonment 5 1 month’s imprisonment 6 1 month’s imprisonment 7 3 months’ imprisonment 8 2 years’ imprisonment 6 months 9 6 months’ imprisonment 10 3 months’ imprisonment 11 3 months’ imprisonment 12 1 month’s imprisonment 13 3 months’ imprisonment 14 3 months’ imprisonment 15 2 years’ imprisonment 6 months 16 6 months’ imprisonment
17 6 months’ imprisonment 18 1 month’s imprisonment 19 6 months’ imprisonment 20 4 years’ imprisonment Base sentence 21 6 months’ imprisonment 22 6 months’ imprisonment 23 3 months’ imprisonment 24 1 month’s imprisonment 25 3 months’ imprisonment 26 2 years’ imprisonment 6 months 27 6 months’ imprisonment 28 1 month’s imprisonment 29 6 months’ imprisonment 30 1 year’s imprisonment 3 months 31 1 year and 6 months’ imprisonment 3 months 32 6 months’ imprisonment 33 1 month’s imprisonment 34 6 months’ imprisonment 35 3 months’ imprisonment 36 3 months’ imprisonment 37 6 months’ imprisonment 38 1 month’s imprisonment 39 6 months’ imprisonment 40 6 months’ imprisonment 41 6 months’ imprisonment 42 1 month’s imprisonment
This results in a total effective sentence of six years and three months’ imprisonment. I would fix a non‑parole period of four years.
WHELAN AJA:
I agree.
BONGIORNO JA:
Accordingly, the order of the Court is that:
1. The appeal is allowed.
2. The sentences of imprisonment imposed below are quashed and in lieu thereof the sentences that I have referred to are imposed.
3. The Court directs that 3 months of the sentence imposed on count 2, 6 months of the sentence imposed on count 8, 6 months of the sentence imposed on count 15, 6 months of the sentence imposed on count 26, 3 months of the sentence imposed on count 30 and 3 months of the sentence imposed on count 31 be served cumulatively upon each other and upon the sentence imposed on count 20, making a total effective sentence of 6 years and 3 months’ imprisonment.
4. A non-parole period of 4 years is fixed.
It is declared that the period of 479 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
It should be stated pursuant to s 6AAA of the Sentencing Act 1991 that had the appellant not pleaded guilty, she ought to have received a total effective sentence of eight years and six months’ imprisonment with a non-parole period of seven years.
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