Director of Public Prosecutions v Hayden
[2012] VCC 1317
•4 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02341
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE HAYDEN |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July, 28 August 2012 | |
DATE OF SENTENCE: | 4 September 2012 | |
CASE MAY BE CITED AS: | DPP v Hayden | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1317 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – obtaining by deception – guilty plea – fraudster – sustained deception – vulnerable victim – weight to be given to unsupported assertions by accused – reliance on employment reference withdrawn – offender charged with offences relating to placing false reference before court – inadequacy of evidence supporting causal connection between mental illness or psychological condition and offending – Verdins - … - whether evidence of remorse
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Coghlan | Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn on 3 July 2012 Mr M. Perry on 28 August, 4 September 2012 | Pica Criminal Lawyers |
HER HONOUR:
1 Wayne Hayden you have pleaded guilty to two charges of obtaining property by deception, three of obtaining financial advantage by deception and one of criminal damage.
2 The most serious of those is Charge 1. That is a charge of obtaining property by deception. The victim of that charge is a woman by the name of Kelly Walker. The two of you met around about 2008 through an internet dating website and started communicating with each other. By November of 2008, you had met in person and began to develop a personal relationship that turned from a friendship very quickly to an intimate relationship. As Ms Walker explained in her victim impact statement, she fell very much in love with you and thought that her feelings were reciprocated.
3 Very shortly after the relationship began, you started telling her lies and, as a result of those lies, inducing her to pay you amounts of money. She had accrued from her modest employment and her modest means savings of approximately $105,000 by the time she met you. Your deceptions meant that you obtained all of that money from her, plus some additional money that was funded through her earnings during the period of your relationship and by placing her into debt.
4 The first of the lies that you told Ms Walker and that led to you obtaining money from her occurred in early December 2008, about a month, it would appear, into the relationship. You told her that you needed to seek legal advice because your former partner had taken out a loan against a property purchased by you in Pakenham. You explained that there was also a complication in relation to her stated intention to make a claim over a property that you had inherited from your father in Queensland.
5 You asked if you could borrow some money from Ms Walker to get legal advice and she lent you the money. You asked for the money in cash, something that she thought was unusual and queried with you. You gave her an explanation which allayed her concerns.
6 Only days after that, having obviously satisfied yourself that she trusted you and believed your lies, you told her another lie. You told her that you owed a friend $1000 and that you wanted to buy a caravan and you asked again to borrow the money. She lent you those two amounts.
7 Days later again, you told her that as a result, again of complications arising from the relationship with your former partner, your bank account had been frozen and you were behind in your rent. You asked for a loan to pay your rent. Ms Walker again lent you that money.
8 About two weeks later, by this time until early January of 2009, you asked to borrow another amount of money, this time $1000. You said you needed it for a court case in Queensland. You had told Ms Walker that you were an undercover policeman. She believed that. You told her that you needed to borrow the money for the court case because it was a part of the product of your undercover work that you had to pay your expenses yourself and then, having provided receipts, obtain reimbursement from the police. Ms Walker believed this lie as she had the others and gave you the amount you sought.
9 Shortly after that, you told Ms Walker that you had just been diagnosed with bowel cancer. You told her that you had been neglecting your health because of the stress that you had been under in your police work and that you would not be able to return to police work.
10 You told her that you were concerned that you would not be able to meet your medical costs and also told her that you did not want to put an extra burden on her by asking to borrow more money, but explained that you had taken steps to transfer the house that you had previously told her you had inherited from your father into her name. You said you had interrupted that transaction because there was somebody interested in buying the house and therefore you would simply repay her from the proceeds of sale once that house was sold. You told her that on the sale of the house in Queensland you would repay her all of the money that you had by then borrowed.
11 You became aware that Ms Walker had a term deposit with Bankwest. Her small nest egg of just over $100,000 was not something that she had invested in shares or anything speculative, she had it in a term deposit at the bank. When that term deposit matured, you went to the bank with her. You were aware of exactly how much money she got. She withdrew $8000 and gave it to you for what you passed off to be your medical expenses for the cancer. You then watched her as she redeposited the balance of her money.
12 On six separate occasions, you extorted money from her by telling her that you needed further money for your medical treatment for the cancer and for paying your rent because you were behind due to the medical treatment you were receiving.
13 The next lie you told was one that I was told on the plea you felt particular shame about. In March of 2009, you told Ms Walker that when you were a teenager you had fathered a child in New South Wales, but that you had not known of the existence of the child under after your father's death. You said you had discovered that your father had been paying for the care of the child who you said was intellectually disabled and in care in Queensland. After your father's death, you said you discovered the existence of the child through your father's will and that you had then been passed the responsibility for paying for the care of that child.
14 You said that you had just discovered the child had died and that you had received a bill for the last six months of his care and for his funeral expenses which you could not meet. You said to Ms Walker that you were ashamed that you had not previously told her about the existence of the child. She gave you a bank cheque for $18,200. That is the largest of the 40 individual amounts that are the subject of this charge of obtaining by deception. This was, on her understanding as a result of the lies you told her, money for the past care bill and the funeral expenses for that child.
15 You later told Ms Walker that the money she paid you, that $18,200, was more than was needed to pay for the expenses related to that child and that you had used the balance to buy a house in Warragul for the two of you to live in together. On 26 occasions after that, you told lies relating to the purchase, the renovation or restoration of that house and the furnishing of it as a means of extracting more money from her.
16 You told a series of lies relating to it. At one stage you said that you needed money for the driveway, fencing and outdoor improvements. On another occasion, you said you needed money for an extension for an extra room for Ms Walker's parents when they visited and stayed with you.
17 You said that you had allowed somebody to keep their horse on the property, that the horse had been injured, that a neighbour had paid the vet bill for the horse and that you had to reimburse the neighbour. You said on a number of occasions that you needed money for building materials, or for loan repayments relating to the house, or for furnishings for it. You also said you needed money to finish the renovations and to do landscape gardening.
18 You also in May of 2009 told Ms Walker that you had purchased a car for her. You told her that you needed money to pay the outstanding balance on the car and to transport the car from Queensland to Victoria. Again you used the promise of the proceeds of the sale of what you said was the house that you had inherited from your father in Queensland as the basis upon which the money would be repaid. Ms Walker advanced you that money as well.
19 By October 2009, you had become a little more elusive. Ms Walker was having trouble contacting you and you told her at times that you had to go interstate to deal with matters. You told her that the purchase of the Queensland property had fallen through, that you could no longer live in the house in Warragul that you said you had bought for the two of you and were doing up because you could not make the repayments and it had been repossessed by the bank.
20 By October 2009, you told Ms Walker that you had a new buyer for the house in Queensland, but that things needed to be done to it in order to complete the sale. Again, Ms Walker believed you, and again advanced you monies on the promise or the understanding that she would be repaid when the house was sold.
21 By the end of 2009, you told Ms Walker that you had got a job in Daydream Island and that you would ring her every five or six weeks. She told you that she was struggling with the debt that she was then under, she having by then exhausted all of her savings and had borrowed money in order to continue to advance these monies to you.
22 She asked if you could sell the car that you had told her you had bought and that she had in part funded or sell the caravan that she had lent you the money for, but you refused to do that. You became angry with her and told her in effect that she could do nothing about it because both of those items were registered in your name.
23 You had also taken some of her personal possessions, ostensibly in order to furnish the house in Warragul. You acknowledged taking them, and said that you would return them, but did not.
24 Your contact with Ms Walker after that was mainly by phone. On a number of occasions, you told her that you were in Newcastle. You told her you wanted to come back to Melbourne so that you could explain everything to her. You told her you wanted to start a new life, that you were having doctor's appointments, and you told her - it would appear for the first time - that you had been diagnosed as being bipolar and as having a narcissistic personality.
25 You ultimately admitted to her that you had never been an undercover police officer, that there was not and never had been any house in Warragul, nor any house in Queensland that you had inherited. You told her that all the money that she had given to you had gone to paying off a house that your former partner was living in with the son that the two of you had had.
26 That son, you said, had the same name, Jackson, as the son that you had told Ms Walker you had fathered as a teenager and whose care your father had funded until his death and you had thereafter.
27 You sought to reassure Ms Walker that her funds were recoverable by your making a claim for an interest in the house that your former partner and your son were living in. You told her that you had an appointment with a lawyer to make the claim for the monies that you had put into the house. You supported that false story and the way of reassuring her by asking her to produce receipts for all the monies that you had provided her.
28 In total, you obtained through these 40 separate amounts of money you obtained from her as a result of these lies an amount of $122,160. None of it has been repaid to Ms Walker.
29 Early in your relationship in January 2009, you had told Ms Walker that you needed to hire a car when you were in Queensland. This was when you were ostensibly going to Queensland to court to give evidence in your role as an undercover policeman. Ms Walker gave you a credit card number of hers on the understanding that it could be used as security for the hire of the credit card, but there was no suggestion that there was to be any money drawn down on it or that you had any authority to charge amounts to that card. You were not a signatory to it.
30 As a result of getting that credit card number, on 40 separate occasions during a two week period in January 2009 you used her credit card to obtain cash or goods to a total amount of just under $5000, $4923.12. That gives rise to Charge 2, obtaining a financial advantage by deception.
31 The next three charges of obtaining a financial advantage by deception relate to what is in effect the theft of the identity of a cousin of yours by the name of Danny Woods. You made an application for a Go MasterCard through Harvey Norman and GE Capital Finance, trading as GE Money.
32 Using the MasterCard obtained through these means, you obtained on one occasion an amount of $3,400 worth of electrical items purchased through the use of that card. That is Charge 3. You then used it on two occasions in December 2010 to obtain cash advances totalling $70. At about the same or the following day, you used it to pay $20 to Optus.
33 That means a total of $3772.27 was charged to that MasterCard during the period covered by the three charges. You made one payment down of the amount owing on that of $70. Your cousin Mr Woods had no knowledge that you had used his identity to obtain that MasterCard until contacted by the police.
34 By February 2011, Ms Walker had faced the reality that you had been deceiving her and had gone to the police. On 28 February 2011, she conducted a telephone conversation with you which was recorded. In that you said to her that you guessed that you owed her about $150,000, although you had not written anything down. You said that you had just made up the details of the appearance of the Warragul house as matters went along. You said that you had obtained Legal Aid representation for the claim against your former partner and that the claim was for $250,000. You expressed frustration at the slowness of the proceedings.
35 Ms Walker asked you about the claim that you had cancer and asked you about the occasion she had seen you spitting up blood, something that had been passed off by you as relating to the cancer. You told her that was simply blood from problems that you had had with your teeth at the time and which caused your gums to bleed.
36 You told her that the caravan existed but you had gotten rid of it. You said, when asked about the house in Queensland, that it did exist and it was on the Sunshine Coast. He said that it was sold but the proceeds of sale had all been spent on paying debts owed by your father and that you had never owned the house yourself.
37 You said to her "I wish I could have told you how things really were and maybe just you would have helped me, maybe you wouldn’t have, but I should have given you that opportunity and I didn't". You told her that you had been seeing a psychiatrist, that you had been seeking therapy, medication and counselling. You said "I had an issue with the person I was, I didn't think that I could be liked for the person I think I was, so I had to make up outlandish lies to make myself better and I believed it. I have a narcissistic tendency, which means I have a gift for manipulating people to my own gain. I just use them for bad. I have manipulated lies around you to get what I want, as you know". You told her that everything you'd said to her about having cancer was lies and that there was no house in Warragul.
38 When asked about the money that you had used from her credit card, you said you had used it because you wanted to get away from Pakenham where you lived. You maintained at that stage that all the money you had received from her had gone to the home loan in respect of a property that your former partner was in. You told her that your real and living son Jackson did not have any disability and what you had said about that was "all bullshit".
39 About a month after that telephone conversation, you went to Ms Walker's home. She was not home at the time. You scratched your name onto the paintwork of the front door. A day after that, you sent her an SMS admitting that you had caused the damage to the front door, asserted that you had been there to return her personal property which you had continued to promise you would return but had not, but that you had not done so because she was not home (Charge 6).
40 In April of 2011, you contacted Ms Walker and arranged to meet her in Prahran. She contacted the police and you were arrested. When questioned by the police, you told them that Ms Walker had lent you the money and that you could not repay it. Initially you told the police you had borrowed $25,000. You said you had borrowed $18,000 of that to get your life back on track. You told the police that you had spent all the money on gambling and asserted that you had told Ms Walker that was the case. You said that you had her permission to use her credit card to chalk up that $5000 worth of debt on it.
41 At one stage you said you had paid Ms Walker back $500. At another stage, you said you had repaid her $800. You claimed, so far as the personal property of Ms Walker was concerned, that some of it had been given to you by her and that you had sold it. You said you had still some of it in your possession.
42 When presented with bank records and supporting evidence showing the amounts of money that Ms Walker had paid to you, you did not deny receiving cheques and the money from her but denied the circumstances asserted by her. You repeated what you had earlier said to the police that the money had been used for gambling, you said at the Crown Casino and gambling venues in the Pakenham area.
43 You said that the only time you had mentioned any property to Ms Walker - by property I assume that means the house in Warragul and the house in Queensland - was to alleviate the constant harassment she was giving you after you had not repaid her. You denied lying to her to obtain money and said to the police that she had to justify why she lent you the money. You acknowledged that she did not know you had a gambling problem until after it was all said and done and you said that initially you had never had to give her any explanation before you obtained money from her. You expressed an intention to repay her and said you wanted to sit down with her and talk about it.
44 When confronted by the Go MasterCard in your cousin's name, you asserted that you had permission to use the card and said that you had used it to obtain cash advances. As the summary that I have recounted makes clear, you had used it not only to obtain cash advances but also goods and services.
45 When asked about scratching your name on the lintel of the doorway of Ms Walker's home, you admitted that, although you said it was not a permanent marker and you said you had left it so that she would know you had been at her home.
46 Not surprisingly, the effect on Ms Walker has been significant. She said in her victim impact statement that before November 2008 she was happy, independent and financially secure with a satisfactory work and social life, that she was single, alone but not lonely. She said that she was totally unprepared for the instant attraction she felt towards you and how at ease and comfortable she felt in your company. She said when the relationship began, you were caring and loving and you swept her off her feet.
47 She said "I made comments to friends that I'd become one of those women I used to roll my eyes at, who would declare their undying love and emotion for their partner. I was smitten, happy and in love". She said "I still struggle to reconcile that time in my life when I was so happy and excited for the future with the truth that I now know. I can't believe that the happiest time in my life would become the worst in my life, leaving me scared and secure, depressed and suicidal".
48 Tellingly, what she said was this: "The lies Wayne Hayden told me, the stress, despair and anxiety he caused me through his deceit are as traumatising as the loss of my financial security. He knew I was suffering, he acknowledged it and commented on my strength to carry on, yet he continued to let me suffer."
49 She spoke of the sacrifices she made to advance you the monies that she did. At times, she went without food, at times overcoming her pride she borrowed money from friends in order to pay money to you. Significantly, and honourably, she has repaid the money that she has borrowed from people and has worked to get herself back on track.
50 She said finding out the full extent of your deceptions was devastating. "Having to comprehend that he had manufactured a relationship with me from our first meeting for his own greed and gain was overwhelming. I have been unable to forgive myself for my poor lack of judgement. I feel like my instincts deserted me when I met him. I could no longer trust and rely on my intuition and what I thought was my good judgement of character."
51 Your cousin speaks of the dismay he felt when he discovered you had stolen his identity and when that sense of trust that one thinks one can have in family members was breached by that.
52 You have four previous court appearances between 1995 and 2002 in Queensland, two of those appearances were for a number of dishonesty related offences.
53 In January 2011, you were sentenced in the Dandenong Magistrates' Court for multiple offences of obtaining property by deception, obtaining a financial advantage by deception, theft and make false document. The January 2011 court appearance is a prior conviction only for Charge 6, the criminal damage charge.
54 The Dandenong Magistrates' Court placed you on a community-based order as a result of those matters in January 2011. By your admission of guilt of Charge 6, you have breached that community-based order.
55 I was also told on the first day of the hearing that you had other charges pending which were due to be finalised in the Magistrates' Court the week after the first plea hearing before me. I was told they were for similar dishonesty type offences, but which occurred before these events.
56 I cannot, as I have already said, take either the January 2011 matters or the other matters that were pending at the time the plea commenced before me into account as previous convictions obviously in respect of Charges 1 through 5, and so far as the January 2011 court appearance is concerned, its relevance to Charge 6 is marginal because Charge 6, criminal damage, is a very different type of offending to the offending the subject of the Dandenong Magistrates' Court disposition.
57 So save to say that you had, before the offending here commenced, some convictions, including some for lesser dishonesty offences, those previous court appearances I consider as not relevant for my sentencing purposes.
58 The subsequent matters, both the January 2011 matters for which you had been sentenced by the time you came before me and the other matters which were pending when you first came before me, they have a limited relevance to consideration of your prospects for rehabilitation, but in the circumstances very little weight indeed.
59 The hearing of this matter has not been straightforward. It was listed initially to proceed as a contested committal, but on the day of the contested committal hearing, you dispensed with the need to cross-examine the summonsed witnesses and indicated your intention to plead guilty. You were committed on 15 Dec 2011 to this court, but on the listed plea date, 19 March this year, you indicated you did not wish to proceed with your guilty plea.
60 A month later, you indicated again that you would plead guilty. You were arraigned on that date and the plea date was then set for 3 July.
61 When the plea came on for hearing before me on that date, I was told these matters. First, that the prosecution summary was accepted in its entirety, that no issue was taken in relation to the summary forming a proper basis, in conjunction with the depositions, for sentencing. Specifically, I was told “there are no matters in there challenged in any way by Mr Hayden”.
62 Next, your previous convictions were admitted, but for one of the convictions in the January 2011 matters, a shop stealing. I was told that you could not recall the circumstances. The prosecution had been told that that was your position just before the commencement of the hearing and therefore the question of whether that particular shop stealing conviction was admitted, was held over for the prosecution to seek to obtain an extract of conviction and formally prove it before sentence.
63 Thirdly, a report from Dr Walton dated 26 June 2012 was tendered, but there were different versions of it provided to the court and the prosecution on the one hand and in the possession of the defence on the other.
64 Fourthly, a letter described by Mr Gwynn, counsel then representing you, as a “letter of confirmation of present employment” as a furniture removalist with JMI group and dated 29 June 2012 and signed by a Ms Rebecca Reiss, described as “manager” was tendered.
65 Mr Gwynn presented his plea submissions and the plea was adjourned to 28 August to give the defence the opportunity to obtain a further report from Dr Walton and to consider whether to place any further evidence before me addressing concerns I had raised about the lack of independent support for and at times the lack of any support for matters raised in Dr Walton's report.
66 By the time plea came back on on 28 August, the outstanding prior conviction had been admitted, a signed and corrected original of Dr Walton’s report of 26 June was filed, and a further report from Dr Walton dated 11 July was also provided. Surprisingly, given the confusion which had been caused by the provision of different versions of the original Walton report and the circumstances - to which I will shortly advert - which had led to the seizure of the letter of confirmation of current employment, there was no signed original of the second Walton report at that stage. That has since been remedied.
67 The absence of a signed original was not a concern about form for its own sake, as by then a search warrant had been issued and the letter of confirmation of present employment which had been tendered had been seized. You had been interviewed and charged with attempt to pervert the course of justice and make and use false document in respect of that letter. Mr Gwynn had been advised, after seeking ethics committee advice, that he could no longer act for you and Mr Perry had been briefed to appear on your behalf.
68 Ms Coghlan for the prosecution advised me on the return date that inquiries had been made of JMI, the purported employer, which revealed that neither you nor Ms Reiss, the signatory of the letter, were employed by JMI on 29 June 2012, the date the letter bore, although each of you had worked there previously.
69 Mr Perry advised that reliance on the letter was withdrawn. He submitted I should treat it as if it had never been proffered and relied on, and, as you had made no admissions in respect of it, you were therefore entitled to the full benefit of the presumption of innocence in respect of the pending charges.
70 Ms Coghlan submitted that the withdrawal of reliance on the letter was relevant to an assessment of your prospects for rehabilitation, in the sense that there was no longer any evidence that you had continuing employment, a matter that had been relied on originally.
71 This leaves me as a sentencing judge in a difficult position. You are, clearly, entitled to the benefit of the presumption of innocence in respect of the attempt to pervert the course of justice charge and the make and use false document charges. If a deliberately false letter was put before me, in an attempt to support your prospects of receiving a non-custodial sentence, or a shorter custodial sentence than would otherwise have been appropriate, then it will be for another court, or judge, to impose just punishment for that.
72 I cannot take the fact that you have been charged with these offences into account as sentencing facts which aggravate the seriousness of these offences, or which diminishes the weight otherwise to be given to your prospects for rehabilitation, or which adds to the weight otherwise to be given to an assessment of your moral culpability, denunciation, just punishment or specific deterrence in respect of these charges.
73 However, I do not think it is as simple as in effect pretending I was never provided with a letter apparently proffered on behalf of your employer. I had, on the first day of the plea, before the letter was seized and you were charged, indicated my concerns about the absence of independent support for matters put on your behalf. I made specific reference to the content of the letter and to Dr Walton’s report.
74 Before the prosecution had raised its concerns on that first date about the authenticity of the letter, I had noted my concerns about the weight to be given to the references in the letter to the assertion that you were trusted with large amounts of cash, and had always shown to be trustworthy, given the absence of reference in it to any knowledge of the charges you were to face in court only days later.
75 Mr Gwynn told me that his instructions from you were that the author was aware of the pending charges. I told him that I was not prepared to act on that without evidence to support it. I also raised in detail my concerns about the apparent lack of independent support for what you had told Dr Walton and on which he had based the opinions expressed in his report.
76 This was, after all as I pointed out, a sentencing hearing for a persistent pattern of dishonest behaviour, of telling and maintaining elaborate lies from which you obtained considerable benefit, and where, on the agreed summary, you accepted telling Ms Walker:
"I have a narcissistic tendency which means I have a gift of manipulating people to my own gain. I have manipulated lies around you to get what I want."
77 We have, in this State, conducted pleas on the basis that counsel are permitted to assert matters of instruction without supporting the matters asserted by sworn evidence from their client or some other source. However, it does not follow that everything told to defence counsel by their clients and put before a court as a result of this long-standing practice should be uncritically accepted by a court as honest and reliable.
78 There is nothing in the circumstances of the withdrawal of reliance on the letter which allays those pre-existing concerns I had articulated about the truthfulness or reliability of your instructions generally.
79 Mr Gwynn acknowledged the main charge involved a significant breach of trust and a betrayal of Ms Walker’s love and affection for you. He said that you accepted, as you had said to Dr Walton, that your conduct was deplorable. He also acknowledged that the offences involving Mr Woods, your cousin, involved a breach of trust.
80 In addition to the reduction in the sentence occasioned by your guilty plea, Mr Gwynn relied predominantly on your mental health and your prospects for rehabilitation to balance the needs of deterrence, denunciation and just punishment.
81 So far as the guilty plea is concerned, it is, as Mr Gwynn acknowledged, a plea made not at the earliest opportunity, but nonetheless one deserving of credit for its utilitarian purposes and for saving the victims, particularly Ms Walker, the pain of reliving the events and the indignity of being confronted with an alternative version.
82 Mr Gwynn told me that you had expressed the hope that this would allow her to put what you had done to her behind her. He relied on that and your consent to compensation as evidence of remorse.
83 I do not consider your expression of hope that she can put this behind her or your consent to compensation as any indication of genuine remorse for her. Restitution orders are inevitable, given your pleas, and nothing in your conduct indicates any remorse for what you did to her. You have no assets and, in that sense, your consent to compensation is of no real utility, as Mr Gwynn acknowledged.
84 I was also told that you are ashamed of the lies that you told her, particularly the lie about the discovery of the existence and subsequent death of a disabled son. Shame is understandable, given the magnitude of that lie, but I am not satisfied that there is any link between that and any remorse for your conduct towards Ms Walker.
85 So far as your prospects for rehabilitation are concerned, you are a 43 year old man with good employment prospects if you turn yourself to honest endeavours. You are intelligent, you completed your schooling and passed your VCE without difficulty, and you have held down a number of jobs for protracted periods.
86 Although divorced, you have the support of your former wife, a psychologist, and I was told you have active involvement with the lives of your two sons, one born to her and one born of the later relationship to which I have already referred. These provide you with the prospect of stability and support. You do not seem to have problems forming relationships, and you do not appear to be socially isolated.
87 From what I am told, you have no problems with abuse of illicit drugs, and although I was told your parents were alcoholics, alcohol abuse I am told did not feature in the offending and does not appear to present a potential future problem.
88 As Ms Coghlan pointed out, the inevitable consequence of your withdrawal of reliance on the employment letter is the absence of evidence that you have employment awaiting for you on your release, however it is clear that you have employment prospects in the sense that you are employable.
89 Mr Gwynn also relied on your explanation that you had stolen the money to support gambling and, on your instructions, that you had voluntarily and apparently without difficulty stopped gambling 12 months ago. This explanation, which you gave the police and gave Mr Gwynn was not the one you gave Ms Walker when she confronted you and you acknowledged that you had lied to her to extract the money from her.
90 There is some support for your use of the money obtained from Ms Walker, or some of it, to gamble. An examination of your ATM withdrawals shows significant sums withdrawn from or near Crown Casino. Whether you used the money you stole from Ms Walker at the casino or just withdrew it from those ATMs I am unable to determine.
91 Whether, as you told Mr Gwynn, you stopped gambling of your own volition 12 months ago or not, I am equally unable to determine. If you did, then it would seem that your ability to control your gambling indicates gambling is more likely to be a product of access to money, or lack of it, than by reason of any mental illness or mental condition.
92 Unfortunately, neither your explanation that you gambled the money you obtained, nor your voluntary cessation was explored when you were seen by Dr Walton, and I do not have the benefit of his opinion about the relevance of gambling or its cessation to his opinion, qualified as it is, that there was any causal connection between your apparent bipolar disorder, the offending, any link to gambling, and the apparently effortless cessation of it.
93 It follows there is nothing in your instructions as put to me from the Bar table or in any material relied on that provides any evidentiary support for a finding your offending was related to sourcing funds for gambling - not that that would have been a mitigating factor in any event - or that your prospects of rehabilitation are enhanced by your asserted voluntary cessation of gambling.
94 The next matter relied on as providing support for your prospects of rehabilitation was the motivation to get on top of your mental health problems and to earn the respect of your children. Your sons are now 16 and four and I am told that the 16 year old is aware of these charges and has told you that he is ashamed of you. Up until the time of the plea, your former wife, the mother of the 16 year old, had been putting you up, and you had been living as two separated parents in the same home with her and your son.
95 It is a laudable aim to get on top of your mental health problems and to earn the respect of your child, but as Mr Gwynn was unable, when asked, to point to anything which had changed so as to make this a positive force supporting your prospects for rehabilitation compared to the time when you were lying and deceiving Ms Walker, I do not see that that provides significant support for your prospects for rehabilitation. From what I was told and from what you had told Dr Walton, you had been actively involved in the lives of your sons throughout the period of offending. That had clearly been not sufficient to deter you.
96 As I will detail later, the scant evidence placed before me in relation to your mental health does not indicate that you have had any change of attitude to “getting on top of your mental health” since these offences came to light. The only link between your hopes for your children and your prospects for rehabilitation in my view is what Mr Gwynn characterised as the hope that being there for your children, or having your children there for you, that anyone with children has.
97 This then brings me to the evidence concerning your mental health. It is unsatisfactory. On the first day of the hearing, the following material was provided to me.
98 A four line certificate from Dr Zahnoor Ahmad of AGHAPY medical centre in Pakenham dated 21 March 2012. It says this:
"This is to certify that Mr Wayne Hayden is suffering from bipolar disorder and is under the care of psychologists. He is still having symptoms of depression and will need further assessment by a psychologist. This letter is issued at his request."
99 Next, a one page referral from Dr Sam Gindy of Eastcare Medical Centre in Pakenham to a Mrs Nirvana Saad, which says:
"Thank you for seeing Wayne Hayden, age 43 years, for an opinion and management. I enclose for you a copy of today's progress notes in conjunction with the patient's past history, allergies and current medications."
100 That is also dated 21 March 2012. That refers to a past history of three attendances at Eastcare Medical Centre on 7 August 2007 for hypercholesterolemia, on 10 February 2010 for a mental health care plan, and on 7 July 2010 where the only notation is borderline personality disorder.
101 The current medications are listed as Cymbalta, Imovane, Temazepam and Zyprexa. The letter concludes:
"Thank you for seeing this patient regarding depression, bipolar disorder and borderline personality."
102 The final piece of evidence relating to your mental health tendered on the first day of the plea was the first report from Dr Walton, to which I have already referred. In it, he referred to having been provided with a “psychiatric record from Southern Health”. The Southern Health records were not attached to Dr Walton's report or provided at the first hearing. It would appear from what Mr Gwynn said on that day that they had not been provided to him.
103 In the body of his report, Dr Walton referred to your admission to a psychiatric unit in Caloundra in Queensland in 1999 following an attempt of self harm, and to your report that you were established on mood stabilising anti-depressant and antipsychotic medications, but that there had not been ongoing psychiatric follow up. No material relating to the Caloundra admission, or subsequent prescribing of these drugs was sighted by him or provided on the plea.
104 As Dr Walton’s second report made clear, the only material he was provided with related to your post offending admissions. In his first report, he referred to you coming to psychiatric attention in late 2009, to a two week admission to Casey Hospital psychiatric unit in June 2010, and to Dandenong Hospital for two days in July 2011. His second report said that he was provided with a copy of the medical records relating to two psychiatric admissions to Casey and Dandenong Hospitals in 2010. He said “the medical records in Victoria”, which in context must mean the records of those two inpatient admissions, “repeatedly confirm a diagnosis of bipolar disorder, at times supplemented by a description of narcissistic and possible borderline personality traits”
105 In his second report, he made it clear he had not been provided with any independent corroborating documentation concerning any of your earlier psychiatric history. He was not provided with the two reports from the two Pakenham GP clinics which were tendered on the plea.
106 In his first report, he said you had reported being medicated with Epilem, Cymbalta and Seroquel during the period of offending, but that you were currently unmedicated. He said you reported you had undergone extensive trials of medication, but were convinced that pharmacological intervention was not of assistance. Again, the second report makes it clear there is no independent support for any of those matters.
107 I have already referred to the fact that you were placed on a community-based order in January 2011. That contained a special condition concerning psychological and psychiatric assessment and treatment as directed. In his second report, Dr Walton confirmed that he had not at any stage been provided with any information as to what was placed before the sentencing court in January 2011, and was unaware of the reason why a psychiatric or psychological assessment and treatment order was made as part of the community-based order. He was not aware whether there had been any assessment or treatment as a result of the making of that order. If there were earlier psychological or psychiatric reports which had been relied on for that 2011 court hearing, they had not been produced to him and they have not been produced to me.
108 One of the reasons why the plea was adjourned part heard was because I had raised my concerns about the paucity of independent support for what you had told Dr Walton about your past psychiatric history. Although a transcript is not usually provided of plea hearings, I directed a transcript be produced and provided to the parties, so that there would be no uncertainty about my concerns.
109 I treat the failure to pursue the matters I raised, except by providing a supplementary report from Dr Walton, as a matter of conscious choice on your part. The supplementary report was provided without the benefit of a further interview with you, without providing Dr Walton with any more medical records, including records of prescribed medication during the offending period, without any independent information about your behaviour during the period of the offending, and without advice about whether a psychological or psychiatric report was provided before the community-based order was imposed in 2011 with that treatment condition. All of these were concerns I had specifically raised on the first day. See the transcript of the plea, pages 50 to 58.
110 In response to my question of Mr Gwynn about whether a psychiatric report or psychological report had been provided before the community-based order was imposed in 2011, he said that his solicitors were not then acting for you. Your solicitors are experienced and competent criminal law specialists. They were provided with the transcript of the first day of hearing. They could have pursued the matter and advised me of the result of their inquiries, had they been instructed to do so.
111 Although on the first day when I had raised my concerns, Mr Gwynn had raised the possibility of calling Dr Walton to give evidence, he was not called when the matter resumed. In the circumstances, I treat that too as a matter of conscious choice.
112 I treat the failure to provide the court with anything further than that supplementary report of Dr Walton's as a matter of conscious choice. I raised too specifically the absence of reference to or production of any records to which Dr Walton had had access. Although in his second report Dr Walton identified the records that he had been provided with, they were still not produced, and all that was revealed of their contents was Dr Walton’s statement that “they repeatedly confirm a diagnosis of bipolar disorder, at times supplemented by a description of narcissistic and possible borderline personality traits”.
113 Mr Perry acknowledged that these conclusions about conscious choice were well open to me, having regard to what I had identified as my concerns on the first hearing date.
114 What conclusions then can I draw from Dr Walton's reports? You report to him a longstanding diagnosis of bipolar disorder. In his first report, he said you provided “a fairly convincing history of mood swings sufficient to justify a diagnosis of bipolar disorder”, and he refers to what he described as “repeated confirmations” of that in the Casey and Dandenong records of your 2010 admissions.
115 In his second report, Dr Walton quoted the references from those records to narcissistic and borderline personality traits. There was no specific reference in Dr Walton's report to what appeared in the prosecution summary about you telling Ms Walker that you had been diagnosed as having a narcissistic personality, nor to that part of the pretext conversation where you spoke to Ms Walker about your narcissistic tendency, and what you said meant that you had what you had described as a "gift" of manipulating people for your own gain and your admission that you had manipulated lies around Ms Walker to get what you wanted.
116 Dr Walton's reports do not consider the significance of those admissions about your gift for manipulation and lying to get what you want, or those diagnoses or personality traits when expressing his opinions about the likely impact of your bipolar disorder on the offending. In particular, there is no consideration of whether the likelihood of the existence of a causal connection between the bipolar disorder and the offending is affected by those factors.
117 In the opinion section of his first report, Dr Walton expressed the following opinions:
1) That you had provided that “fairly convincing history“ of mood swings sufficient to justify a diagnosis of bipolar disorder to which I have already referred;
2) That you "seem" to be suffering from "so-called rapid bipolar disorder", a condition which he described as being notoriously unresponsive to medication;
3) That no formal defence of mental impairment was open to you; and
4) That precisely at the time of assessment, you were in a fairly quiescent frame of mind and were able to express what he described as appropriate remorse. He noted what he described as your aspiration to effect restitution. Whether that is a correct characterisation or another manifestation of your talent for lying and manipulation to get what you wanted, he did not consider, and I am unable to make an assessment about.
118 Dr Walton then, in his first report, expressed some general propositions about bipolar disorder not applied to the circumstances of your offending. He said it is recognised that bipolar disorder is a mental illness which erodes a person’s capacity for consistently exercising proper social judgment. Bipolar disorder sufferers often fail to properly consider the consequences of their actions. Behaviour may vary from manic recklessness through to self destructive despair. All of these features elevate the risk of offending.
119 In his second report, Dr Walton relied on the following matters as evidencing abnormal or disorganised behaviour - that is, as indicative of the existence the bipolar disorder was manifesting itself in other aspects of your life apart from the deception of Ms Walker:
1) Repeatedly abandoning your wife to engage in affairs with other women;
2) Difficulties in your relationship with the victim;
3) Entertaining grandiose ideas with excessive spending which led to recurring financial difficulties;
4) Your being prone to depressive despair, at times of suicidal intensity such as preceded your hospitalisation in 2010;
5) Engagement in self inflicted wounding;
6) Your employment record, which he described as “erratic to say the least and quite varied”; and
7) A history, although not apparently during the period of offending, of binge drinking.
120 Dr Walton said it could not be stated unequivocally that these are features of your bipolar disorder, but “they are consistent with that proposition”.
121 Apart from his reference to difficulties in your relationship with Ms Walker, none of the matters he refers to are linked in time to the period of offending. Some of them are not supported by any evidence or even by matters put on your instructions.
122 There was nothing put on the plea to indicate that you had a history of repeatedly abandoning your wife to engage in affairs with other women. On the contrary, I was told you remained with your wife until 2006 and, although still on good terms with her, then formed a new relationship with the woman who became the mother of your second child, and that you had been, for a period up to the time of the charges, being provided with a home - but not a resumed spousal relationship - with your ex wife.
123 There was nothing put to me, and nothing in the depositional material to indicate that during the period of offending, you were entertaining grandiose ideas with excessive spending which led to recurring financial difficulties.
124 You certainly extracted all the money you could from Ms Walker and used it for your own purposes, but there is no evidence any of the money went on excessive spending on grandiose ideas.
125 Whilst you were hospitalised on two occasions in 2010 or 2010 and 2011, that time is, as Dr Walton said in the very next paragraph of his second report:
"Not very adjacent to specific incidents of offending, and it is simply impossible to closely correlate the incidents resulting in this man’s charges and his precise mental state at the material times."
126 Assuming you were hospitalised in Caloundra in 1999 following an incident of self harm, something that has not been supported by hospital records or other evidence, that is a single incident, even further removed in time than the 2010 hospitalisations.
127 Although you have had a number of career changes, that is not in itself unusual, particularly in a young man who, on leaving school, firsts elects to pursue a dream of becoming a professional sportsman. You showed persistence with that, and then in your next field of endeavour, aged care nursing. Your employment history as recounted to me demonstrated considerable stability: you had a number of periods of employment of between three and five years with a single employer and engaged in a single endeavour. You may not have remained in later jobs for so long, but again, there is nothing to indicate in the pattern of employment anything that in my view would properly be characterised as erratic and quite varied.
128 Whatever had been your true drinking habits when younger, and again there was no independent evidence about it, Dr Walton discounted that as being a feature of your behaviour at the time of the offending.
129 Although, at the commencement of the plea, Mr Gwynn had specifically said that the prosecution summary was accepted in its entirety, Dr Walton in his second report said your account to him of the facts was not:
"As extreme as his unreservedly accepting all the details in the Crown opening and I have no knowledge as to whether or not such a stance differs from accounts he has provided to others."
130 Dr Walton correctly points out it is not his domain to assess veracity. He must express his opinions based on the information he is given. I, on the other hand, must assess whether the information that he is given is such that I can rely on it, and so consider the weight to be given to the opinions he has expressed based on the information he had.
131 Dr Walton said in his second report he had no option but to speak in generalities about the application of Verdins. He said:
"Because it is simply impossible to closely correlate the incidents resulting in this man’s charges to his precise mental state at the material times. Thus it is necessary to fall back to comments about the common consequences of bipolar disorder and indicate no more than there is a reasonable probability that the psychiatric illness is relevant."
"It is at least possible that the bipolar disorder has no relevance whatsoever. It is also possible that the psychiatric condition may actually provide the central explanation for the misconduct but neither of those propositions can be asserted with vigour."
132 The Court of Appeal recently again considered the application of the Verdins principles in Armour v The Queen [2012] VSCA 188. It said:
"[13] As the judge correctly noted, where the person being sentenced relies on some impairment of mental functioning as relevant to moral culpability (or as in some other way bearing on sentence), the task for the sentencing Court is to decide whether, and if so to what extent, the impairment is likely to have affected his or her mental functioning at the time of the offence, or in the lead-up to it, or is likely to affect him or her if sentenced to imprisonment. That proposition was laid down in R v Verdins and has been applied consistently since."
[14] As to Verdins proposition 1, concerning the reduction of moral culpability, the Court in Verdins said:"
"It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender's conduct. The effect on the court's assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence."
[15] As was pointed out in Carroll v The Queen, a finding of the kind in issue here - that the applicant’s moral culpability was not reduced by his adjustment disorder and depression - is a finding of fact. Accordingly, such a finding will attract intervention by this Court only if it can be shown that it was not reasonably open on the evidence for the judge to make the finding which he or she did. In the present case, as we pointed out to counsel for the applicant, it would have had to be shown that there was no other conclusion reasonably open to the trial judge but that the applicant’s culpability was reduced, at least to some extent, by the impairment of his mental functioning."
[16] Not only was his Honour's conclusion reasonably open but we respectfully agree with it. His Honour's approach exemplifies the rigour with which arguments of this kind must be assessed, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal. As is now well recognised, diagnostic labels are by themselves of no assistance to a sentencing judge. What matters is what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time."
[17] Where reliance is placed on proposition 1 of Verdins, concerning moral culpability, the question for the sentencing Court is whether the evidence establishes - on the balance of probabilities - that the impairment of mental functioning contributed to the offending in such a way as to render the offender less blameworthy for the offending than he or she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?"
133 There is simply no evidence that you were suffering rapidly fluctuating mood swings during the period of the offending, or that your bipolar disorder in any way contributed to the offending in such a way as to render you less blameworthy than you otherwise would have been.
134 You have failed to discharge your onus of satisfying me on the balance of probabilities there is a causal connection between any mental illness and the offending. It follows from this finding that there is no basis for moderating the weight to be given to general or specific deterrence either by reason of bipolar disorder.
135 Dr Walton said that anyone suffering from pathological mood swings is likely to find imprisonment more onerous as there is a risk that they will fall foul of the authorities. Given his reference to the common characteristics of bipolar disorder, that is impaired proper exercise of social judgment, failure to properly think through the consequences of actions - or "impulsiveness" - and the prospect of experiencing extremes of emotion ranging from manic recklessness to self destructive despair, I accept that it is a likely consequence for any person suffering bipolar disorder.
136 If, as Dr Walton thinks is possibly the case, you suffer rapid cycling bipolar disorder, and if further trials with different doses or combination of medications are unsuccessful in managing the condition, that too would add to the possibility that imprisonment would be more onerous.
137 In my opinion, once the attempt to rely on Verdins to reduce moral culpability or to moderate the weight to be given to general and specific deterrence has failed to overcome the evidentiary threshold, no sentence other than one of imprisonment, immediately served is appropriate for Charge 1, having regard to the need to properly mark denunciation, just punishment and deterrence, both general and specific. I however do take into account the possibility that imprisonment will be more onerous because of the condition for those reasons that I have identified.
138 Mr Gwynn’s initial sentencing submission was for a suspended sentence in respect of Charge 1 and a community corrections order in respect to the other charges. Since that submission was first made, a combination of the decision of the Court of Appeal in Leys and Leys No. S APCR 2012 0054 and 0055, and the amendment of s.44 of the Sentencing Act by s.8 of the Road Safety and Sentencing Acts Amendment Act 2012, which came into effect on 18 August this year, makes it clear that a suspended sentence cannot be imposed to run parallel with a community corrections order.
139 For the reasons that I have given, even if I had the power to impose such a combination of sentence, I would not have considered it inappropriate in the circumstances. Nor do I consider the offending such that a community corrections order with the maximum three months imprisonment allowed to be imposed as part of a CCO for an individual offence is appropriate either for Charge 1.
140 This was callous, manipulative and cruel exploitation of the vulnerability of a person who loved you, and whose love and trust you told her you returned. Time and time again you lied to her and betrayed the trust that she placed in you. You kept up the façade of love and a promise of a shared life together until you had milked her of all she had, and run her into debt, and you then abandoned her. Your conduct throughout was despicable and contemptible.
141 The sentence on Charge 1 must reflect the protracted nature of this conduct. The one charge of obtaining by deception represents 40 separate deceptions, 40 separate occasions where you tricked her into disgorging the whole of her hard earned savings and ran her into debt.
142 Charge 2, the obtaining of a financial advantage by deception concerning the use of Ms Walker’s credit card, is a different type of low conduct. With the 40 transactions the subject of Charge 1, Ms Walker gave you the money, as a result of lies you told. So far as Charge 2 is concerned, you obtained the credit on her card as a result of a lie. You got her permission to use the card initially, although by deceiving her as to your true purpose for wanting it. She did not know that you thereafter ran up expenses on her card. Charge 2 also represents 40 separate transactions, but with a considerably lesser total, $5000. As different offending, although the same course of deceit, it is deserving of some but not total cumulation with the sentence on Charge 1.
143 Charge 6, the other one involving Ms Walker, is a different type of conduct. Although relatively minor in quantum, and although capable, as was Charge 2, of being dealt with summarily, it too is deserving of a term of imprisonment and in my view one which should be served cumulatively upon the other sentences or partial cumulations I have indicated. It was a cruel and mocking taunt to someone to whom you had by then exposed your deceptions.
144 So far as the charges concerning your cousin are concerned, they too could have been dealt with summarily. The amounts are minor, but the method of identity fraud shows a callous disregard for the effect of your conduct on those who, knowing you and being related to you, should be able to expect to trust you. They too, in my view, having regard to their part in the overall dishonesty of your conduct, are such that no sentence other than one of imprisonment is appropriate. Bearing in mind that they could have been dealt with summarily and the fact that they constitute a course of conduct, I propose to make the sentences on the fourth and fifth charges wholly concurrent with the sentence on the third charge and to order only modest cumulation of a sentence on Charge 3 with the other charges.
145 Could you now please stand? Wayne Hayden, on the six charges to which you have pleaded guilty you are convicted.
146 On Charge 1, you are sentenced to be imprisoned for a period of three years and eight months.
147 On Charge 2, you are sentenced to be imprisoned for a period of six months and I direct that two months of that be served cumulatively upon the sentence of Charge 1 and the other partial cumulation orders I am about to announce.
148 On Charge 3, the first charge concerning your cousin, you are sentenced to be imprisoned for a period of four months and I direct that one month of that be served cumulatively upon Charge 1 and the other partial cumulation orders.
149 On Charge 4, you are sentenced to be imprisoned for a period of one month.
150 On Charge 5, you are sentenced to be imprisoned for a period of one month.
151 On Charge 6, the criminal damage charge concerning Ms Walker, you are sentenced to be imprisoned for one month and I direct that the whole of that be served cumulatively upon the sentence on Charge 1 and the other partial cumulation orders.
152 That makes a total effective sentence of four years and I direct that you serve a period of three years before being eligible for parole.
153 I declare that you have spent 63 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
154 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you on Charge 1 to be imprisoned for five years and six months. On Charge 2, to be imprisoned for nine months. On Charge 3, to be imprisoned for six months. On Charges 4 and 5, to be imprisoned for two months. On Charge 6, to be imprisoned for two months. With cumulation orders following the same pattern, I would have directed that would have made a total effective sentence of six years and I would have fixed a non-parole period of four years and nine months.
155 As I have indicated, I will make the disposal and compensation orders in the amounts and for the property sought, once they have been provided in completed form.
156 Do the orders I pronounce reflect what I said I intended to do?
157 MR PERRY: Yes, Your Honour.
158 MS SKEPPER: Yes, Your Honour.
159 HER HONOUR: Is the arithmetic correct?
160 MS SKEPPER: Yes, Your Honour.
161 HER HONOUR: Are there any further ancillary orders?
162 MS SKEPPER: No, Your Honour.
163 HER HONOUR: Thank you. Remove Mr Hayden please.
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