DPP v Dyason (Unreported, County Court of Victoria, Judge Harbison, 15 October 2014)
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CRIMINAL LAW – Sentence appeal – ‘White collar’ offender – Relevance of reasoning in DPP v Bulfin [1998] 4 VR 114 to community correction orders in light of Boulton v The Queen [2014] VSCA 342 – Reasoning in DPP v Bulfin continues to be relevant – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr M G O’Connell SC with Mr J G Westmore
Galbally & O’Bryan
For the Respondent
Mr B F Kissane QC
Ms V Anscombe, Acting Solicitor for Public Prosecutions
WHELAN JA SANTAMARIA JA BEACH JA:
Between 11 August 2003 and 26 November 2010 the appellant, Coral Maree Dyason, worked as a finance officer at St John’s Village. St John’s Village is a residential aged care facility in Wangaratta. It is owned by the Anglican Diocese of Wangaratta. It has an independent board of management. During the relevant period it serviced 387 residents and employed 210 staff.
Between 1 July 2004 and 26 November 2010 Ms Dyason systematically diverted funds belonging to St John’s Village to herself, both in cash and through some 47 bank accounts used by her for this purpose. The total amount which she dishonestly obtained was approximately $1.4 million. After some repayments by her and the reversal of a transaction by the bank, that amount was reduced to approximately $1.3 million. Her fraudulent activities were brought to an end when a particularly large fraudulent payment was queried by the bank with the chief executive officer of St John’s Village who then instigated an enquiry. Ms Dyason was stood down and the following day she sent email messages to the local Bishop and to St John’s Village management confessing to what she described as a betrayal of trust and friendship on her part. Within a few days she made some repayments totalling approximately $60,000 and the bank reversed the queried payment which was a little over $43,000.
A firm of chartered accountants conducted an initial investigation at the request of the management of St John’s Village, as a result of which the matter was referred to the police. On 30 June 2011 Ms Dyason met with the police and asked for certain financial records which she said would assist her in identifying the misappropriated money. She was provided with those records. On 15 November 2011 Ms Dyason met police investigators again. A record of interview was conducted and Ms Dyason produced a 14 page spread sheet which detailed the transactions she identified as misappropriations by her. An investigation was then carried out by a Victoria Police forensic accountant and search warrants directed to financial institutions were executed.
Ms Dyason…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dyason v The Queen [2015] VSCA 120
Case
[2015] VSCA 120
Decision Date
CaseChat Overview and Summary
In the matter of Dyason v The Queen, the appellant, Dyason, sought to appeal his sentence in relation to his conviction for criminal offences. The appeal was heard in the Supreme Court of Victoria. The primary focus of the appeal was on the imposition of a community correction order as part of his sentence, which Dyason argued was inappropriate given his status as a 'white collar' offender. The court was required to determine the relevance of the reasoning in DPP v Bulfin [1998] 4 VR 114 in the context of community correction orders, particularly in light of the subsequent decision in Boulton v The Queen [2014] VSCA 342.
The central legal issue before the court was whether the reasoning in DPP v Bulfin, which emphasised the importance of deterrence and denunciation in sentencing, remained applicable in the context of community correction orders, particularly for 'white collar' offenders. The court also needed to consider how this interacted with the more recent decision in Boulton, which provided further guidance on the use of community correction orders. The court was tasked with reconciling these precedents to determine the appropriate approach to sentencing in the current case.
After examining the relevant authorities, the court concluded that the reasoning in DPP v Bulfin continued to be relevant when considering the appropriateness of a community correction order. The court found that the principles of deterrence and denunciation, as articulated in Bulfin, were not incompatible with the use of community correction orders. Furthermore, the court held that the principles outlined in Boulton did not displace the reasoning in Bulfin, but rather provided additional guidance on the circumstances in which community correction orders might be appropriate. Consequently, the court rejected Dyason’s appeal and dismissed it.
No further orders were made by the court, and the original sentence, including the community correction order, was upheld.