Director of Public Prosecutions v Whittingham
[2023] VCC 1864
•17 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00448
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK WHITTINGHAM |
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JUDGE: | JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
| DATES OF TRIAL DATE OF PLEA HEARING: | 1-2, 5-9, 13-16, 19-20 June 2023 10 August & 27 September 2023 | |
DATE OF SENTENCE: | 17 October 2023 | |
CASE MAY BE CITED AS: | DPP v Whittingham | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1864 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: One charge of perverting the course of justice – verdict following trial – false email tendered during jury trial on charges of obtaining a financial advantage by deception – resulting in jury discharge and trial being aborted – charges subsequently discontinued – serious example of perverting the course of justice – deliberate act to deceive – prior and subsequent dishonesty offences – delay – absence of remorse - general deterrence and denunciation paramount sentencing considerations.
Legislation Cited: Sentencing Act 1991; Crimes Act 1958 s 320
Cases Cited:Cheung v. The Queen (2001) 209 CLR 1; Treloar v. The King [2023] VSCA 214; Carter v. The Queen [2020] VSCA 156; Bamblett v. The King [2023] VSCA 184; DPP v.Merryfull & Anor [2023] VSCA 244; Hill v. The Queen [2021] VSCA 349
Sentence: Three years’ imprisonment, with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D.M. Caruso | Office of Public Prosecutions Victoria |
| For the Accused | Mr V.G. Peters (at the trial) Mr D. Sala (on the plea) | Nelson Brown Legal Angus Cameron Lawyers |
HER HONOUR:
1Mark Whittingham, on 20 June 2023, by majority verdict, a jury found you guilty of the offence of perverting the course of justice contrary to the common law, the maximum penalty for which is 25 years’ imprisonment pursuant to s 320 of the Crimes Act 1958.
2No verdict was reached by the jury in respect of a further charge of attempting to pervert the course of justice, and on 20 July 2023 the prosecution filed a notice of discontinuance of that charge.
3The charge of perverting the course of justice arose from the events of 25 September 2017 where you deliberately deceived the Court by the use of a false email, resulting in the discharge of a jury empanelled to hear your criminal trial on two charges of obtaining a financial advantage by deception.
4It is now my role to sentence you for the offence of perverting the course of justice. In doing so, I must sentence you on a basis consistent with the jury verdict on your trial.[1] In assessing your criminal culpability for this conduct, I must be satisfied of the facts relevant to these issues to the criminal standard.[2]
[1]Cheung v The Queen (2001) 209 CLR 1, 10 [6]
[2]Cheung, at [7]
Summary of offending
5In order to place the offending in context, it is necessary to outline the circumstances that led to you being charged with two counts of obtaining a financial advantage by deception for which you stood trial in September 2017.
6The trial in respect of those two charges related to your purchase of a residential property in Shasta Avenue, Brighton East (‘the Shasta property’).
7In June 2012 you signed a contract of sale to purchase the Shasta property from Greg Kahan and his wife, Amanda Hall for $3.6 million, with a ten percent deposit payable immediately. Thereafter further instalment payments were agreed, with the sum of $3.24 million payable on settlement. The deposit amounts were to be paid in to the trust account of the vendor’s solicitors, Sackville Wilks.
8In August 2012, you also entered into a licence agreement with the vendors to lease the Shasta property until the settlement date at an agreed rate of $2,500 per week. You and your then wife, Mary Hall[3] and your two children moved into the Shasta property four weeks later.
[3] A pseudonym.
9Due to financial difficulties, you failed to meet a number of the instalments on the agreed dates, and in February 2013 you were served with a Notice of Default. It is not necessary to go into the detail of the various defaults, other than to note that in August 2013 you negotiated a new purchase price of $3.675 million under a new contract of sale, and alternate instalment arrangements. Of the deposit of $365,000 that was payable, the sum of $100,000 was outstanding as of that date.
10It was agreed that you would pay the sum of $40,000 by 20 August 2013 and a further $60,000 by 21 August 2013.
11In the 2017 trial, you pleaded not guilty to two charges of obtaining a financial advantage by deception in circumstances where it was alleged that you falsely represented that you had transferred the instalment payments in August 2013; and that you dishonestly deposited a cheque in the sum of $100,000 on 5 September 2013, knowing it would be dishonoured. At around this time, you also faced trial for other dishonestly matters, to which I will return. This trial was known as the ‘Shasta trial’.
12The Shasta trial commenced before His Honour Judge Trapnell in this Court on 18 September 2017 after you pleaded not guilty to the two charges. A jury of 12 was empanelled to hear the trial.
13On the morning of Monday, 25 September 2017, being the sixth day of the trial, you provided your lawyers with a two-page email chain and instructed them to bring the emails to the attention of the Court.[4] Your trial barrister provided the document to the prosecution and to the trial Judge, and advised the Judge that you had sent the email to him over the weekend. He told the Court that the email had not been in the possession of either the defence or the prosecution prior to this date.[5]
[4]Exhibit 16 in the trial - Statement of Agreed Facts dated 1 June 2023.
[5]Trial transcript dated 25 September 2017 at T 301.
14The first email in that chain purports to be an email from your then wife, Mary Hall to the vendor’s solicitor, John Gdanski of Sackville Wilks dated 21 August 2013 at 5:15pm regarding the Shasta property. The email, which is written without punctuation marks, relevantly states as follows:[6]
“… I understand that you spoke with Mark today and you are refusing to accept the future dated transfers on 22 and 23 August. We have spoken with my brother and it looks like he is going to help us with the 100K Mark attempted to give you a cheque as a good faith gesture a week or so ago to be banked as soon as the funds were in our accounts I will be dropping this to your office in the morning to be held until the money comes through as a good faith gesture The transfers have now been cancelled as per your request Further to this we can’t do anymore at this stage.”
[6]Exhibit 30 in the trial
15The email is signed off with the words, ‘Thank you [Mary]’ and at the bottom of the email states, ‘Sent from [Mary’s] iPhone’.
16The next email in the chain purports to be a response from John Gdanksi to Mary Hall dated 22 August 2013, at 10.49am which, in part, reads:
“My clients do not care what the reasons are, they want the money that is owed under the contract.
I don’t know what happened last Friday and I don’t care, but my clients have a right to recover money owed.
A Rescission Notice will be issued today and sent to Steve Agnew and if clear funds or a bank cheque of $100,000 plus costs is not received by the expire (sic) date of the Notice being 5 September 2013, you will be removed from the property at 4pm and the contract will be at an end.”
17The email dated 22 August 2013 concluded with a formal signature block under the name of John Gdanski, Director, Sackville Wilks Pty Ltd.
18The last email in the chain is a further email purportedly sent by John Gdanski dated 5 September 2013 at 4.14pm addressed to Mary Hall, also containing no punctuation marks, and which relevantly reads as follows:
“Do you think we are idiots here
I have not heard from you or Mark
We have just banked your cheque and placed a special clearance on it if it does not clear or we do not receive clear funds in our trust account by way of bank cheque telegraphic transfer by 12pm tomorrow we will have people at Shasta Av at 4 pm that day to evict your family as you have had long enough
…
No more excuses pay up or get out”
19The email purporting to be from John Gdanski dated 5 September 2013 did not include a formal signature block but concluded with the following words:
“Sent from my iPhone so excuse me if this message is too blunt, too short, or has typographical errors.”
20Upon provision of the email trail, and following discussion with defence and prosecution counsel, Judge Trapnell discharged the jury on 25 September 2017 and the trial was aborted. No verdict was taken.[7]
[7]Exhibit 16 in the trial – Agreed Statement of Facts dated 1 June 2023 at [6].
21At the hearing before Judge Trapnell, your Counsel argued that the emails provided ‘a complete defence to the to the charges’[8] as they raised a potential defence to the element of dishonesty in respect of both charges. The Judge, referring to the email, stated he was satisfied that, ‘on its face, it does give rise to a defence’[9], and discharged the jury for the veracity of the emails to be investigated.
[8]Exhibit 17 recording of the Hearing before Judge Trapnell on 25 September 2017, transcript page 310, Line 1
[9]Exhibit 17, at transcript page 319, line 11
22It was following the further police investigation that you were charged with the offence of perverting the course of justice by instructing your lawyers to tender the false emails to the Court in the Shasta trial. This was the subject of your trial before me.
23During the course of this trial, your former wife, now Mary Hall,[10] gave evidence that she never wrote the email dated 21 August 2013 and that the first time she saw the email was when the police brought it to her house in November 2017.[11] She said she never received any of the emails purportedly written in response by John Gdanski.[12] Moreover, Ms Hall said that you were the only one who had any dealings regarding the purchase of the Shasta property; that she had no involvement in the purchase; and did not know the vendor’s solicitor, John Gdanski or his firm, Sackville Wilks.[13]
[10] A pseudonym.
[11]Trial transcript – T 68
[12]Trial transcript – T 69-70
[13]Trial transcript T 66-67
24As to the content of the emails, Ms Hall said she never spoke to either of her brothers about borrowing $100,000 to assist with the purchase of the Shasta property. Ms Hall also said she was never in possession of a cheque in the sum of $100,000 and never attended at the office of Sackville Wilks with any cheque. Her two brothers, both gave evidence at the trial that they had ever offered to lend you or their sister $100,000 and that neither of you had ever asked for a loan in respect of the Shasta property.
25The vendor of the Shasta property, Greg Kahan gave evidence at the trial that you had provided him with a cheque for $100,000 which you both took to the bank together, but says you never asked him to hold the cheque in good faith until you received further funds. He said you never told him you were awaiting funds from Mary Hall’s brothers. Mr Kahan stated that he had never refused to accept future dated transfers, but said this was never raised by you. Similarly, the vendor’s solicitor, John Gdanski, gave evidence that he never sought instructions from Greg Kahan to either accept, or reject, future dated transfers during this period.
26By its verdict, the jury must have been satisfied beyond reasonable doubt that the email was not written by Mary Hall; that it was a false email, and that you were aware of this fact when you caused the email to be provided to the Court resulting in the jury being discharged on 25 September 2017. Specifically, the jury must have been satisfied beyond reasonable doubt that you intended for this conduct to pervert the course of justice.
Offence gravity
27That the offence of perverting the course of justice is inherently serious is reflected in the following observations of the Court of Appeal in the recent case of Treloar v The King:[14]
“The offence of attempting to pervert the course of justice is a particularly serious criminal offence. The maximum sentence for the offence is 25 years’ imprisonment, which reflects the inherent gravity of such an offence. In essence, offending such as that engaged in by the applicant is calculated to undermine and strike at the heart of our justice system.”
[14]Treloar v The King [2023] VSCA 214, at [31] (Treloar)
28While the case of Treloar related to the offence of attempting to pervert the course of justice, the observations of the Court of Appeal have equal application to the offence of perverting the course of justice.[15] The offence of perverting the course of justice also carries a maximum penalty of 25 years’ imprisonment signifying the seriousness with which Parliament, on behalf of the community, considers such offending.
[15]Noting that the offence of attempting to pervert the course of justice is not an inchoate offence, despite the use of the word ‘attempt’: Carter v The Queen [2020] VSCA 156
29The authorities make it clear that this offence is to be viewed seriously by the Courts and appropriately denounced.[16]
[16]Bamblett v The King [2023] VSCA 184, at [28], citing Carter v The Queen [2020] VSCA 156, at [70] (Niall and Weinberg JJA)
30The objective gravity of your offending is borne out by a number of features.
31The system of trial by jury is often referred to as a cornerstone of our criminal justice system. In 2017, a jury of 12 members of the community had been empanelled in the Shasta trial. The trial was into its sixth day when you caused the false emails to be produced to the Court, resulting in the discharge of that jury without verdict. You did so for the purpose of exculpating yourself and avoiding the risk of a conviction for the offences of obtaining a financial advantage by deception. Such conduct is particularly serious in compromising the proper administration of justice.
32Engaging in this offending, intending to pervert the course of justice by thwarting the proper conduct of your criminal trial, could only be characterised as significantly culpable conduct.
33As highlighted by the prosecution submissions, your conduct derailed a criminal trial, wasting the valuable resources of the Court and the community, particularly for the jurors sitting on the Shasta trial.
34The prosecution also argues there is evidence which supports a finding that your conduct was pre-planned. Specifically, the prosecution relies on calls made to your daughter from prison, where you were on remand, known colloquially as “Arunta calls” around this time. On 19 December 2017, almost a week earlier, you spoke to your daughter, saying, “there might be a big surprise in the next week or two”, and later in that conversation stating, “I would say that, you know, things might occur that they don’t expect”. The prosecution argues that only available inference is that the ‘big surprise’ was a reference to was the false email that you understood would abort your trial.
35For me to find that your offending was aggravated by being pre-planned, I must be satisfied of this fact beyond reasonable doubt. Here, while one possible explanation or inference to be drawn from these comments is that, as early as a week prior to 25 September 2017, you were planning to derail your trial using the false email, this is far from clear in the context of the entire conversation. Moreover, all prisoners are informed that their telephone calls are recorded, and you would have been aware of this fact. There is no evidence as to how the emails came into existence or how they came into your possession while you were on remand. Given the opaque reference to “a big surprise” and things “they don’t expect” I am not satisfied, to the requisite standard, that these statements unequivocally support a finding of preparation or planning to engage in the conduct that led to the trial being aborted.
36Notwithstanding this conclusion, your offending could not be described as spontaneous either. You provided the email to your legal representatives, knowing it to be false, over the weekend prior to the resumption of the trial on the Monday. You embarked on a conscious and deliberate decision to do so. You had more than adequate time to reflect on your proposed course, and withdraw those instructions, but you did not do so. You bear a high level of moral culpability for your offending.
37Your counsel appropriately conceded that your offending was serious and ‘absolutely’ had a detrimental effect on the administration of justice. It is undoubtedly a serious example of this offence. In cases such as these, the sentencing principles of general deterrence, just punishment and denunciation are accorded significant weight. As stated by the Court of Appeal in Treloar:[17]
“It is important that sentences imposed in such cases be sufficient to properly express the condemnation by the courts and the community of the kind of conduct engaged in by the applicant…it is necessary that sentences be adequate to deter likeminded persons in the community from engaging in such conduct.”
[17] Treloar, at [33]
Personal circumstances
38I turn now to your personal circumstances.
39You were born in October 1969 and are now 53 years old.
40You were raised by your mother in North Melbourne. Your parents never married and your father played no role in your early life. In fact, you did not meet your father until you were around 10 years old. You were raised by your mother, maternal grandmother and aunt, all of whom have now passed away.
41You completed primary school in West Melbourne and the equivalent of Year 11 at Footscray Technical School. You also played cricket and football in your younger years.
42After leaving school, you worked consistently in a number of roles in the banking and finance sector. Your first job was at Myer, working as a salesman and trainee manager for five years before obtaining a clerkship with the former State Bank of Victoria, later working in home lending and on the integration with the Commonwealth bank. You also worked as a credit officer and settlements clerk at the National Bank and later worked at Aussie Home Loans as a credit and lending officer. You later held managerial roles at the Bank of Melbourne and Westpac, specialising in home lending. You were appointed the state manager for Victoria and Tasmania when you worked for ING.
43You met your former wife in 1990 when you both worked for the State Bank of Victoria. You married in 1993 and have three daughters and a son together. It is readily apparent that the ramifications of this offending placed significant pressure on these relationships, but despite this, your former wife and your children remain supportive of you, as demonstrated by their attendance at your plea hearings.
44In 1990 you purchased an interest in part of the Nelson Alexander Real Estate Group, of which you became a director. However, this venture in which you worked as a mortgage broker, was unsuccessful.
45From the time you commenced employment in 1985 until July 2012, you had led a law-abiding life. By the early 2000s, you had developed an extensive loan trail book and developed an online advertising business for homes.
46Although some of these business ventures were both legitimate and successful, by around 2015 you became the subject of an extensive police investigation by Victorian Fraud and Extortion Squad following complaints by mortgage brokers and real estate agents that you sold them loan trail books and rent rolls which either did not exist, or which you had no authority to sell.
47The Victoria Police investigation, named Operation Calcitic, related to two periods of offending. The first occurred between December 2010 and late 2013, leading to you being charged with multiple counts of obtaining a financial advantage by deception. The second period of offending occurred between January and February 2015, while you were on bail, which resulted in further charges of obtaining a financial advantage by deception relating to your conduct in fraudulently obtaining finance through Westpac by providing false personal and financial information.
48You have been sentenced to imprisonment three times for fraud because of this conduct or associated conduct.
49The first time, which was prior to this offending, was on 5 October 2016. On that date you were sentenced by the Moorabbin Magistrates’ Court to six months’ imprisonment for three charges of obtaining a financial advantage by deception and 32 charges of obtaining property by deception and were ordered to pay compensation totalling $27,739.00.
50The second occasion was on 7 March 2019, subsequent to this offending, when Judge Trapnell sentenced you to five years’ imprisonment with a non-parole period of three years and four months on 16 charges of obtaining a financial advantage by deception arising out the Operation Calcitic investigation. On that date, you were sentenced as a continuing criminal enterprise offender in respect of five of those offences.
51The third occasion, also subsequent to this offending, was on 29 August 2019, when Judge Lacava sentenced you to aggregate of 12 months’ imprisonment with a non-parole period of six months for two charges of obtaining a financial advantage by deception.
52You were declared bankrupt on 26 July 2019.
53You were declared a vexatious litigant by Justice Ginnane of the Supreme Court on 2 March 2021.[18]
[18] Attorney-General (Vic) v Whittingham [2021] VSC 91
54You met your current partner, Alice Henry[19] within a month of your release on parole and moved in to her home to live with her and her daughter. She too, has demonstrated her support for you by her attendance at Court hearings and remains committed to your life together upon your release from custody.
[19] A pseudonym.
Matters in mitigation
55Having discussed the objective gravity of your offending, I turn to discuss the matters advanced on your behalf in mitigation of sentence. In doing so, I have been assisted by the thorough and helpful submissions made on your behalf by Mr Sala.
56First and foremost, reliance is placed on the significant delay associated with these proceedings. In this case, there was a delay of approximately six years between the date of your offending in September 2017 and the date of your trial on the charge of perverting the course of justice. A significant delay between being charged with an offence and the date of sentence can be a powerful matter in mitigation of sentence.[20] Delay may be relevant to sentence in two ways: firstly, undue delay may result in unfairness to the offender; and secondly, in affording an opportunity to an offender to demonstrate their rehabilitation.
[20] DPP v Merryfull & Anor [2023] VSCA 244 at [44], citing R v Merrett (2007) 14 VR 392
57In considering the submissions made on your behalf, it is necessary to set out the procedural history of this matter.
58The jury was discharged due to your offending in September 2017. Following an investigation, the police obtained a statement from Mary Hall on 1 November 2017. You refused to be interviewed on 24 September 2018 and again on 11 October 2019. You were sentenced by Judge Trapnell on 13 March 2019 and by Judge Lacava on 29 August 2019. It was not until you were granted parole on 11 March 2020, that you were charged with this offending on 17 March 2020. Although the prosecution point to the complexity of the police investigation into the offending, I accept there was considerable delay between the time of Mary Hall’s statement and you being charged.
59A further period of delay occurred through no fault of yours. The vendor’s solicitor, John Gdanski, was the subject of a compulsory examination in June 2020, but due to the recording being lost, was re-examined in October 2020. Further delay was occasioned due to the impact of the pandemic on the criminal justice system. A committal hearing was conducted in the Magistrates’ Court in March 2021 and you were committed to stand trial.
60You completed your sentences on 18 April 2021, in circumstances where you had served 1053 days by way of pre-sentence detention.
61Thereafter, following various procedural listings, a trial date listed for October 2022 was vacated when you withdrew instructions for your then lawyers to act and you were afforded an opportunity to engage new legal representation. A pre-trial argument proceeded before me in May 2023 when you had engaged new solicitors, and following my ruling, a jury was empanelled in your trial on 2 June 2023.
62It is now six years since this offending occurred. During that period, you completed your sentence in April 2021 and, due to the delay of two years before you were charged, arguably missed the opportunity of having any part of the sentence served concurrently with those imposed in 2019. While your counsel accepts that the discrete criminality of this offence would have warranted only limited concurrency, the question of totality would still have had some application. I have given this matter some weight in moderating your sentence.
63It was not argued that the delay caused you undue distress or anxiety adding to any unfairness caused by this delay.
64Related to the issue of totality, is the submission that your time in custody under the sentences imposed in 2019 was particularly onerous.
65You were assessed for the purposes of the plea by psychologist, Dr Aaron Cunningham on 3 August 2023. In his report dated 7 August 2023, Dr Cunningham notes you were found guilty of this offence following trial, and states, “[h]e continues to believe he did not intentionally seek to break the law”.[21] You told Dr Cunningham you experienced a difficult time in custody, including lockdowns following prison riots, witnessing ‘countless’ stabbing and beatings from ‘guards and prisoners’.[22]
[21]Exhibit 1 on plea – psychological report of Dr A. Cunningham dated 7 August 2023, at [5.0]
[22]Exhibit 1 on plea, at [2.0]
66The prosecution has provided information through Corrections which records that a total of 170 days were deducted from your sentence for emergency management days, with 28 days specifically recognised for the hardship experienced following the 2015 riot.[23] I note however, that in sentencing you, Judge Trapnell took these matters into account, in particular, the number of days you spent in lockdown while in custody.[24] I accept however, that your time in custody was difficult for various reasons and, in circumstances where you have not offended since your release on parole, it appears to have acted as a deterrent.
[23]Affidavit of Jennifer Anne Hosking sworn 27 September 2023.
[24]DPP v Whittingham [2019] VCC 313, at [155] and [161]
67As to the second way in which delay may be of relevance, it was submitted that since your release from custody you have demonstrated positive prospects of rehabilitation given the absence of any further offending over the past three years. While the prosecution accepts that you have not offended since your release from custody, it disputes you have demonstrated positive steps to better your prospects or to demonstrate rehabilitation over this period.
68In the recent case of DPP v Merryfull & Another[25] the Court of Appeal explained the way in which an offender may call on delay in aid of establishing improved prospects of rehabilitation, stating:[26]
“The rehabilitation limb concerns whether, during the period of delay, an accused made progress towards rehabilitation. There are two aspects to this limb: remorse and reform. The first requires evidence of acceptance of responsibility for the offending, acknowledgment of its wrongfulness and expression of contrition. The second requires evidence of the steps an offender has taken to reform. Such evidence might include obtaining counselling or other professional assistance, refraining from committing any further offences and contributions made to the community. Both remorse and reform must be demonstrated for a sentencing judge to give full weight to the limb. Less than full weight will be accorded where reliance is placed merely on abstinence from further offending.”
[25]DPP v Merryfull & Anor [2023] VSCA 244 (‘Merryfull’)
[26]Merryfull, at [46]
69There is no evidence of any remorse for your offending. You did not plead guilty to the offence of perverting the course of justice. This of course is not an aggravating feature and you are not to be punished for running a trial. However, there is no indication that you accept responsibility for your offending and you have not otherwise expressed any remorse for perverting the course of justice. An offender who pleads guilty to an offence, particularly where the plea is accompanied by genuine remorse, is entitled to a significant sentencing discount and you are not entitled to that benefit or discount. In the absence of remorse, you are not entitled to the full weight of the rehabilitation limb that is available to an offender where both remorse and reform are demonstrated through delay.
70Nonetheless, there are some positive indicators for your future. As highlighted by your counsel, for many years you lived a productive, pro-social life employed in a range of jobs in the banking and finance sector. Your children and your former wife have written letters to the court in which they express their ongoing support for you, testifying that they believe you are ‘trying to move on with your life’, have worked hard and have always wanted the best for your family.[27]
[27]Part of Exhibit 2 on the plea– references of Whittingham [children] dated 2 August 2023, and of [Mary Hall] dated 2 August 2023.
71You also have the support of your new partner, Ms Henry. In her reference dated 5 August 2013, Ms Henry writes that you have her ongoing support and that you have a stable home available to you on your eventual release with her and her daughter. She describes you as kind and caring.[28] Ms Henry also outlines assistance you have provided to other prisoners with literacy.
[28]Part of Exhibit 2 on the plea – reference of [Alice Henry] dated 5 August 2023.
72Two other references provided on your behalf, from long-term friends. Ms Dudley[29] describes you as generous, a person of integrity and a ‘man of your word’, and express the view that this offence is ‘out of character’. Clearly this assessment is inconsistent with your prior criminal history and subsequent conviction for protracted dishonesty offending, but I accept it reflects the personal experience of the author in her dealings with you over the years.
[29] A pseudonym.
73At the plea hearing, reliance was also placed on the fact that following your release from custody, you had returned to some form of self-employment with a profile on the social media site, “LinkedIn” offering financial services consulting. You also told Dr Cunningham you returned to employment in financial services following your release, helping businesses prepare for sale. You said you had over 11,000 contacts and that many business were willing to give you a ‘second chance’.[30]
[30]Exhibit 1 on the plea, at [2.0]
74Your plea hearing was adjourned to afford you an opportunity to provide any additional evidence, such as bank statements or references from clients, regarding your new business venture. No such material has been provided, and Mr Sala conceded he could take this matter no further.
75The prosecution urged me to find that you have intentionally misled the court in advancing the submission that you have been in active employment. While I am unable to make a positive finding regarding your employment status over the past three years and any enhanced rehabilitation prospects based on such employment, nor am I able to conclude you have actively misled the court about this issue. I therefore have no regard to this matter in the sentence I impose.
76I do accept however, that the fact you have not offended in the past three years is of weight in your favour, and reduces to a modest extent the need for the sentence to specifically deter you from future offending. Beyond that fact however, there is no other positive demonstration of steps taken in your reform. Accordingly the weight I attach to delay as demonstrative of your rehabilitation is only limited.
77You also told Dr Cunningham you had sued over 100 people successfully from jail, but that you ‘were made a vexatious litigant and the cases were dropped’.[31]
[31]Exhibit 1, at [2.0]
78The account you gave Dr Cunningham of engaging in successful litigation from custody is in stark contrast to the findings of Justice Ginnane leading to his decision dated 2 March 2021 declaring you a vexatious litigant, and must be rejected.
79Following psychometric testing, Dr Cunningham’s report raises concerns about the validity of your stated levels of distress. As a result, Dr Cunningham states he is unable to confirm whether you meet the criteria for any diagnosed mental health disorder, notwithstanding your reports of emotional distress and PTSD following your experiences in custody. Accordingly, while Dr Cunningham notes the reports of panic attacks, anxiety and other complaints contained in Justice Health documents, he is unable to confirm any mental health diagnosis given the ‘questionable validity of your profile’, which he explained as including ‘non-credible reporting of somatic and cognitive symptoms’.[32]
[32]Exhibit 1, at [3.0]
80Given Dr Cunningham’s conclusions, there is no cogent evidence upon which I can conclude that you suffer any diagnosed mental health condition or that any of the limbs of the authority in Verdins[33] have application in moderating your sentence.
[33]R v Verdins (2007) 16 VR 269
Sentencing submissions
81At the plea hearing, the prosecution submitted that the paramount sentencing considerations of general deterrence and denunciation could only be met by the imposition of a ‘stern term of imprisonment’ structured by way of a head sentence and non-parole period.
82The defence submissions concede that an immediate term of imprisonment is the only sentencing disposition available, but Mr Sala urges the court to impose a sentence that affords you the opportunity of serving a lengthy period on parole. This submission is made based on the impact of delay, the fact your criminal history is only relatively recent, combined with a submission that you have positive prospects of rehabilitation.
83There is some force in the submission that your criminal history is recent and that your time in custody appears to have operated as a deterrent to you. Against that, the offending for which you were sentenced in 2019 involved multiple charges involving deceptions that, in the case of the sentence imposed by Judge Trapnell, were found to be ‘sophisticated and well-planned’ and that involved ‘sustained fraudulent conduct on your part’ resulting in deceptions totalling $744,877.[34] The offending conduct for which you were sentenced commenced in July 2012 and continued over a period of 42 months.
[34]DPP v Whittingham [2019] VCC 313, at [122] and [124]
84Your offending involved multiple victims, both individuals and corporations. Although you are not to be punished twice for that offending, it is against this background that you were also charged with the Shasta property deceptions, and to avoid the prospect of a conviction for that offending, engaged in this deceptive conduct, intending to pervert the course of justice.
85I reiterate, the offending for which you were sentenced in 2019 is not a prior conviction and you are not to be doubly punished for that offending. Your subsequent convictions are only relevant to my assessment of your future prospects. In that regard, I note that the sentence imposed by Judge Trapnell was also for dishonesty offences involving the Westpac bank arising from your conduct in presenting fraudulent documents, including a falsified income tax assessment purportedly issued by the Australian Taxation Office in order to obtain loans for three luxury cars. In this case, you engaged in another deliberate act of deception, also involving the use of a false document, this time to exculpate yourself and avoid the risk of a conviction for further dishonesty offences.
86At the time you were sentenced by Judge Trapnell in March 2019, in assessing your prospects of rehabilitation, the Judge expressed the view that he could ‘only adopt a very cautious approach in light of the extent and duration of your offending conduct’, stating that while you had ‘taken some positive steps to turn your life around’, it was ‘concerning that on your release from custody you will likely have no family or other support’.
87While I am still unable to assess your prospects of rehabilitation in a positive way, I consider your present circumstances hold more reason for optimism than they did in 2019. You now have the support of your entire family, both your former partner, your children and Ms Henry. It is also relevant to my assessment that you have not offended since being granted parole, a period of over three years. While I remain somewhat guarded about your future prospects, I do not consider they are devoid of any optimism. Only time will tell.
88I accept that delay has relevance to your sentence and have taken this into account in moderating your sentence. Beyond delay as a factor, there is no other basis to conclude that I should fix a significantly shorter non-parole period than would otherwise be appropriate in the absence of remorse or insight into the serious nature of this offending.
89I have had regard to current sentencing practices while acknowledging that neither counsel were able to refer me to any cases that were ‘on all fours’ with this offending. In particular, I have had regard to the recent decision of the Court of Appeal in Treloar, where the offender was resentenced to 15 months’ imprisonment with a non-parole period of 9 months for the offence of attempting to pervert the course of justice.
90In that case, the 58-year-old offender provided fraudulently altered documents to the Magistrates’ court to exculpate herself. To that extent, there is some similarity with your offending. However, in Treloar, the offender only had one prior matter from 2012 for a single charge of theft and for which she had received a non-conviction disposition. As a former police officer, it was accepted the offender’s time in custody was more burdensome due to her status as a protected prisoner and due to a medical condition. Perhaps most significantly, the offender in Treloar had pleaded guilty to the offence at a time when her plea had added utility because of the effect of the pandemic on our justice system.
91I have also considered the case of Hill v The Queen[35], where a 26-year-old offender was sentenced to six months’ imprisonment combined with an 18-month community correction order for attempting to pervert the course of justice. In that case, the offender had forged a letter of employment to assist in advancing her application for diversion on a charge of handling stolen goods. The offender in Hill had no prior convictions, there had been a two-year and 8 month delay between the offending and sentence, and the offender was entitled to a moderation in sentence given her diagnosed PTSD enlivened limbs 5 and 6 of Verdins. In Hill, the offender had also pleaded guilty to the offence, and was entitled to the discernible sentencing discount reflecting the heightened utility of a guilty plea entered in the wake of the pandemic.
[35]Hill v The Queen [2021] VSCA 349
92I accept the prosecution submission that your offending is far more serious than in Hill in particular, and that the offenders in both of these cases had a number of powerful mitigating factors that do not apply here, most importantly, the mitigating effect of a guilty plea. These cases provide some, but limited guidance as to current sentencing practices. This is particularly the case given the offence of perverting the course of justice is one which can encompass a wide range of conduct. As always, each case turns on its own facts and circumstances.
93In my view, the sentencing considerations of general deterrence and denunciation compel the conclusion that the only available sentence in this case is one of immediate imprisonment. While these sentencing considerations eclipse that of specific deterrence, given your prior criminal history and subsequent convictions for dishonesty offending over a protracted period, the sentence I impose must still operate to deter you from future offending while fostering your enhanced prospects of rehabilitation, to which I have referred.
Sentence
94Balancing these matters, I sentence you as follows.
95On charge 1 – perverting the course of justice, you are convicted and sentenced to three years’ imprisonment. I fix a period of two years imprisonment before you are eligible for parole. Pursuant to s 18 of the Sentencing Act 1991, I declare 119 days of pre-sentence detention to be reckoned as served under the sentence I have imposed.
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