Fleay v The State of Western Australia - [2021] WASCA 214

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FLEAY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 214
CORAM:   BUSS P
MAZZA JA
MCGRATH J

HEARD:   14 SEPTEMBER 2021
DELIVERED          :   16 DECEMBER 2021
FILE NO/S:   CACR 6 of 2021
BETWEEN:   SCOTT FRANCIS FLEAY
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARONE DCJ
File Number            :   IND 1530 of 2019

Catchwords:

Criminal law - Appeal against sentence - White-collar crime - Appellant convicted of 23 counts of stealing, contrary to s 378 of the Criminal Code (WA) and two counts of stealing as a director, contrary to s 378(8) of the Code - Whether total effective sentence of 6 years' imprisonment with eligibility for parole infringed the first limb of the totality principle

Legislation:

Criminal Code (WA), s 378, s 378(8)

Result:

Leave to appeal granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	D Grace QC & A Blackburn
Respondent	:	R G Wilson

Solicitors:

Appellant	:	D G Price & Co
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Brennan v The State of Western Australia [2010] WASCA 19
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1
Grubb v The Queen [2002] WASCA 158
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Job v The Queen (2011) 216 A Crim R 521
Kabambi v The State of Western Australia [2019] WASCA 44
McMahon v The Queen [2011] NSWCCA 147
Mickelberg v The Queen (1984) 13 A Crim R 365
Nikaghanri v The State of Western Australia [2009] WASCA 192
Pollock v The State of Western Australia [2011] WASCA 133
R v Black [2002] WASCA 26
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Fell [2004] NSWCCA 235
R v Nath (1994) 74 A Crim R 115
R v Phelan (1996) 66 A Crim R 446
R v Pollard [2006] NSWCCA 405
Roffey v The State of Western Australia [2007] WASCA 246
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
The State of Western Australia v Chapman [2012] WASCA 203
UGN v The State of Western Australia [2021] WASCA 10
Wilkie v The State of Western Australia [2005] WASCA 156
Wittensleger v The State of Western Australia [2014] WASCA 205

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was charged on indictment with 23 counts of stealing, contrary to s 378 of the Criminal Code (WA) (the Code), and two counts of stealing as a director, contrary to s 378(8) of the Code. The appellant pleaded guilty to one count of stealing (count 11) and not guilty to all of the other counts.
On 21 October 2020, after an eight‑day trial before Barone DCJ and a jury, the appellant was convicted of 11 counts of stealing (including count 11) and one count of stealing as a director. He was acquitted of the remaining counts.
On 4 December 2020, her Honour imposed the following sentences:

Charge	Description	Plea	Outcome	Max Sentence	Sentence
Count 1	On 24 April 2007 at Perth, the appellant stole $2,000,007.50 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	4 years' imprisonment (head sentence)
Count 2	On 30 June 2008 at Perth, the appellant stole $20,000 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	18 months' imprisonment (concurrent)
Count 3	On the same date and at the same place as in count 2, the appellant stole a further $20,000 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	18 months' imprisonment (concurrent)
Count 5	On the same date and at the same place as in count 2, the appellant stole another $20,000 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	18 months' imprisonment (concurrent)
Count 7	On 11 August 2008 at Perth, the appellant stole $2,399,575.14 in money, the property of Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	4 years' imprisonment (partly concurrent - commences 2 years after the beginning of count 1)
Count 10	On 7 October 2008 at Perth, the appellant stole $9,568.15 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	14 months' imprisonment (concurrent)
Count 11	On 22 October 2008 at Perth, the appellant stole $65,000 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Guilty	Convicted	7 years' imprisonment	22 months' imprisonment (concurrent)
Count 14	On 14 November 2008 at Perth, the appellant stole $5,000 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	12 months' imprisonment (concurrent)
Count 19	On 17 July 2009 at Perth, the appellant stole $100,000 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	2 years and 3 months' imprisonment (concurrent)
Count 20	On 12 August 2009 at Perth, the appellant, being a director of a company, namely GJ Giant Pty Ltd, stole $15,678 in money, the property of GJ Giant Pty Ltd, contrary to s 378(8) of the Code.	Not guilty	Convicted	10 years' imprisonment	20 months' imprisonment (concurrent)
Count 22	On 29 October 2009 at Perth, the appellant stole $3,997 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	12 months' imprisonment (concurrent)
Count 24	On 24 February 2010 at Perth, the appellant stole $4,000 in money, the property of Ghassan Ahmad Jabado and Maria Jabado, contrary to s 378 of the Code.	Not guilty	Convicted	7 years' imprisonment	12 months' imprisonment (concurrent)

The total effective sentence imposed upon the appellant was 6 years' imprisonment with eligibility for parole, commencing on 4 December 2020.
The appellant does not challenge any of the individual sentences. His sole ground of appeal is that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle. The question of leave to appeal on this ground was referred to the hearing of the appeal.[1]
[1] Order of Buss P dated 26 February 2021, AB 4.
For the reasons that follow, we would dismiss the appeal.

The facts of the offending

Her Honour made the following findings of fact for the purposes of sentencing.[2] They are unchallenged in this appeal.
[2] ts 798 - 801.
At all material times, the appellant worked at a private accounting firm in Perth, first as a senior accountant and then as a director.[3] The appellant became the accountant for Mr Gassan (Gus) Jabado and his wife, Mrs Maria Jabado. As their accountant, the appellant became involved in almost all aspects of the Jabados' business interests and their personal finances. The appellant and the Jabados also became friends. Mr and Mrs Jabado placed their total trust in the appellant. In 2006, each of them gave to the appellant their enduring power of attorney. The appellant did not use the enduring power of attorney to steal the money the subject of the offences, but its existence demonstrated the level of trust that the Jabados reposed in the appellant. In December 2007, the appellant became a director of the Jabados' family company, GJ Giant Pty Ltd. The appellant had unfettered access to their various bank accounts.
[3] ts 803.
Mr and Mrs Jabado were not financially unsophisticated. Mr Jabado, in particular, was actively involved in his various business enterprises. Mrs Jabado had assets of her own and was aware of her own financial position.
In summary, over a period of just under three years, between April 2007 and February 2010, the appellant stole $2,247,572.65 from Mr and Mrs Jabado jointly. He also stole $15,678 from GJ Giant Pty Ltd and $2,399,575.14 from Mrs Jabado. In total, the appellant stole $4,662,825.79.
The appellant used the money he stole in three ways. The first was to purchase or assist in the purchase of three expensive homes in the western suburbs of Perth. These amounts totalled $4,564.582.64. The sum stolen in count 1, $2,000,007.50, was used to partly pay for the purchase of 127 Forrest Street in Peppermint Grove. The sum stolen in count 7, $2,399,575.14, was used to pay for the purchase of 220 Broome Street in Cottesloe in the appellant's company's name. The sum stolen in count 11, $65,000, was used to pay for the stamp duty on the purchase of the Broome Street property. The sum stolen in count 19, $100,000, was used to pay for a deposit on the purchase of 57 Irvine Street, Peppermint Grove.
The second way the appellant used the money he stole was to meet various tax liabilities. The appellant used a total sum of $33,243.15 (counts 10, 20, 22 and 24) for this purpose.
The third way the appellant used the money he stole was for his general personal expenditure in the total sum of $65,000 (counts 2, 3, 5 and 14). $60,000 of the $65,000 stolen by the appellant had been intended by Mr and Mrs Jabado to be paid to charities. Of the total sum, $45,000 was paid to the appellant's personal company and $20,000 was used to pay the appellant's American Express account.
The appellant began making repayments of the moneys he had stolen before Mr and Mrs Jabado became aware of his offending. In fact, Mrs Jabado, who died in September 2010, was never aware of the offending. On 3 February 2010, the appellant repaid $400,000. However, shortly after this payment, on 24 February 2010, he stole $4,000 from Mr and Mrs Jabado. In October 2010, the appellant repaid $1,500,000 and, in December 2010, he repaid a further $2,000,000. In December 2010, Mr Jabado became suspicious and sought the assistance of another accountant to review his finances. The appellant assisted in this process, but denied that he had done anything wrong. In January 2011, the appellant repaid a further $200,000.
In May 2011, the appellant paid $1,348,200 to Mr Jabado. The appellant intended for Mr Jabado to pay this money to Mrs Jabado's estate, but Mr Jabado did not do so. He refused to return the funds to the appellant or to disburse them to his late wife's estate. Instead, he retained them. The appellant then paid a further $1,409,662 to Mrs Jabado's estate. This, her Honour found, was, in effect, a double payment of money owed to Mrs Jabado's estate.
Her Honour found that the appellant repaid a total of $6,857,862 to Mr and Mrs Jabado's estate, plus interest at commercial rates. Her Honour found that, in the end, neither Mr Jabado nor Mrs Jabado's estate had suffered any financial loss. In fact, Mr Jabado 'benefited' at least in the amount of $1,348,200, being the moneys he retained to which he was not entitled. All up, the amount repaid by the appellant exceeded the money stolen by him by over $2,000,000.
The appellant did not and does not have any addiction which might explain his offending. The money he stole was largely spent on the purchase of expensive homes. Her Honour found that the appellant, in effect, funded a lifestyle for himself and his family that he could not afford. She expressly found that the appellant did not steal the money for what might be considered a moral imperative.
Her Honour found that there was some degree of sophistication in the appellant's offending which involved the filing of inaccurate tax returns and making misleading, if not inaccurate, entries on a cheque butt. Her Honour found that, largely, the appellant's offending involved the diversion of money in the hope or expectation that Mr and Mrs Jabado would not look closely enough at their financial records to discover any wrongdoing, given the value of their assets and their total trust in the appellant. Sophisticated or not, the appellant's ability to avoid detection was successful to the extent that he was able to offend for a period of nearly three years.

The appellant's personal circumstances

At the time he was sentenced, the appellant was 53 years of age. During the offending period he was aged between 38 and 41. He was educated to year 12 and holds a Bachelor of Business degree. Between 2006 and 2011, he held the position of senior accountant and then director with an accounting firm and later became a director and equity partner in another firm until 2020. The appellant is married and has two children who have suffered economically and emotionally as a result of the appellant's wrongdoing. The appellant is very well regarded by those who know him. He has served as a councillor in the Shire of Peppermint Grove and was actively involved with his daughters' school. He has no prior criminal history and has not committed any offence since February 2010. The appellant appears to be in good physical and mental health.

The sentencing judge's approach

Her Honour said that the seriousness of the appellant's offending lay in the total value of the money stolen, the period of time in which he had stolen it and the gross breach of trust that was involved in the offending.[4]
[4] ts 802.
Her Honour accepted that the appellant had suffered extra‑curial punishment as a result of Mr Jabado, or someone at his direction, anonymously sending information outlining the appellant's offending to the appellant's workplace, the school at which his wife worked, and the Shire of Peppermint Grove, where he was a councillor. Her Honour also accepted that Mr Jabado had acted in a violent, aggressive and intimidating manner towards the appellant and his wife for a period of time after the offending was discovered.[5] Her Honour recognised that the appellant's offending had attracted considerable adverse publicity in the media and took into account that the appellant had been subjected to some public opprobrium. However, her Honour moderated this to the extent that the public opprobrium and the appellant's loss of public credit due to the media attention was entirely at his own hands.[6]
[5] ts 802.
[6] ts 807.
Her Honour took into account the Jabados' vulnerability and said it was 'common sense' that they would have felt a gross breach of trust and have been angered by the appellant's offending against them.[7]
[7] ts 802.
Her Honour noted that there was some degree of sophistication in the appellant's offending in that, for example, the appellant filed inaccurate tax returns on behalf of his superannuation fund and made misleading entries on a cheque butt.[8]
[8] ts 802.
Her Honour had regard to a number of mitigating circumstances, including that the appellant was a person of prior good character with no criminal record. Character witnesses who gave evidence at trial and written character references highlighted that the appellant was a loving and supporting father, and her Honour noted that he had the unwavering devotion of his family, notwithstanding his offending.[9] However, her Honour also said that the value she could place on the appellant's good character was moderated by the fact that it was this quality which led to the Jabados trusting him.
[9] ts 805.
Her Honour accepted that the appellant's risk of reoffending in a similar manner was low.[10] This was, in part, because the appellant's damaged reputation as an accountant meant it would be unlikely that he would be put in a position of trust again. In finding that the appellant was a low risk of reoffending, her Honour also noted that the appellant's offending was specific to his relationship with the Jabados, that he had not committed any offences other than those against the Jabados, and that he was acutely aware of the effect that his offending had, and would continue to have, on his wife and daughters. As a result, her Honour found that less weight needed to be placed on personal deterrence. Her Honour also took into account the fact that the nature of the allegations and the convictions had caused the appellant considerable stress and anxiety.
[10] ts 806.
Her Honour acknowledged that, during the course of his trial, the appellant made considerable concessions and significant admissions which facilitated the efficient running of the trial.
Her Honour also took into account the fact that the appellant repaid all of the moneys, although 'not necessarily as a mitigating factor'.[11] Rather, her Honour described the fact that no victim was left at a loss and that Mr Jabado obtained a net gain, as being part of the circumstances in which she was to consider the overall seriousness of the offending.
[11] ts 804-805.
Her Honour found that the appellant was not remorseful.[12] She said that she was not satisfied that the appellant had repaid the moneys he stole out of a sense of remorse or appreciation of any wrongdoing on his part.[13] She said that she was satisfied beyond reasonable doubt that he started to repay the money in the hope that his offending would not be discovered.
[12] ts 804.
[13] ts 801.
Her Honour said that the main sentencing considerations for offences of the kind committed by the appellant were general and personal deterrence.[14]
[14] ts 808.
After imposing the individual sentences referred to in [4] above, her Honour had regard to questions of concurrency, cumulacy and totality before imposing the total effective sentence of 6 years' imprisonment.

The appellant's submissions

It was submitted on behalf of the appellant that the sentencing considerations of general and personal deterrence, punishment and the fostering of rehabilitation did not justify a total effective sentence of the length imposed by her Honour.[15]
[15] Appellant's written submissions [18]; AB 14.
Senior counsel for the appellant submitted that there were 'two sides of the ledger' to be considered.[16]
[16] Appeal ts 4.
On one side was a consideration of the appellant's criminality, having regard to the appellant's gross breach of trust; the persistence of his offending; that there was a level of sophistication in the commission of some of the offences; that the sums stolen were used to fund the appellant's lifestyle; and the need for general deterrence.
On the other side of the ledger was a consideration of what senior counsel characterised as 'positive' factors such as: the appellant's repayment of the stolen funds and the overpayment of more than $1.3 million to Mr Jabado; the extra‑curial punishment suffered by the appellant and his family over a period of approximately three years as a result of threats and harassment from Mr Jabado; the public opprobrium and fall from grace suffered by the appellant; the appellant's loss of his career as an accountant; the appellant's prior good character and contributions to the community; that in the approximately 10 years since the commission of the last offence, the appellant had not committed any further offences and had 'effected a rehabilitation'.[17]
[17] Appeal ts 8.
Having regard to this 'positive' side of the ledger, it was submitted that the total effective sentence of 6 years' imprisonment was unreasonable and plainly unjust and infringed the first limb of the totality principle.
In the appellant's written submissions, reference was made to a number of cases said to 'bear some similarity' to the present circumstances, including R v Black;[18] Grubb v The Queen;[19] R v Faithfull;[20] Wilkie v The State of Western Australia;[21] and Pollock v The State of Western Australia.[22]
[18] R v Black [2002] WASCA 26.
[19] Grubb v The Queen [2002] WASCA 158.
[20] R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554.
[21] Wilkie v The State of Western Australia [2005] WASCA 156.
[22] Pollock v The State of Western Australia [2011] WASCA 133.

In citing these cases, it was acknowledged by the appellant that there was no particular tariff for offences of the kind committed by him because of the infinite variety of circumstances which impinge on the gravity of the conduct of an offender.[23] Accordingly, comparable cases are of limited utility in the assessment of the ground of appeal.
[23] Appellant's written submissions [17]; AB 13.
The appellant contended:[24]
This is a most unusual case of historical offending which has been followed by a decade of exemplary behaviour with no loss (and in fact a substantial gain) to the victims. Given all the circumstances of the offending and of the appellant a total effective sentence significantly less than 6 years ought to have been imposed.
[24] Appellant's written submissions [19]; AB 15.

General appellate principles - totality principle

The general principles that govern appeals contending inferred error on the basis that the total effective sentence infringes the first limb of the totality principle are uncontroversial and have been repeatedly stated in cases decided by this court.[25]
[25] See, for example, Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26]; Kabambi v The State of Western Australia [2019] WASCA 44 [21] and UGN v The State of Western Australia [2021] WASCA 10 [37], [38], [40], [41].
Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences imposed in other cases does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

Disposition

The maximum penalty for the offence of stealing, contrary to s 378 of the Code, is 7 years' imprisonment, and the maximum penalty for stealing as a director, contrary to s 378(8) of the Code, is 10 years' imprisonment.
The offences committed by the appellant are self‑evidently serious and involved a very high degree of criminality. There were three aggravating circumstances of particular importance. First, the thefts involved a very large sum of money, totalling $4,662,825.79. Second, the funds were stolen over a long period of time, almost three years. Third, the victims reposed their total trust in the appellant, which he betrayed. Not only was the appellant their accountant, but he was also their friend. A consequence of the victims' total trust in the appellant was that they did not examine in detail their own financial records. This made them vulnerable to the appellant's predations; a situation he exploited.
There can be no doubt that the appellant was well aware of the wrongfulness of his offending. The thefts were completely contrary to his professional and personal duties to Mr and Mrs Jabado, the high personal standards he projected to those who knew him in his local community, and the reputation that he had as a person of honesty, integrity and service. It was these qualities which enabled him to commit the offences.
The stolen funds were predominantly used by the appellant to purchase expensive real estate in the western suburbs of Perth. Evidently, his motive was to accumulate wealth to pursue a more affluent lifestyle. In this way, it can be said that greed drove the offending.
The dominant sentencing consideration in white‑collar offending is general deterrence. As Warren CJ, Redlich JA and Ross AJA observed in Director of Public Prosecutions (Cth) v Gregory,[26]
[G]eneral deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit-seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration.
While these observations were made in the context of taxation offences, they are apt to the present case.
[26] Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1 [53].
To advance the sentencing objective of general deterrence, an appellant's favourable personal circumstances do not have the same importance as in other types of offences.[27] Thus, in the appellant's case, his prior good character, service to the community and rehabilitation are not to be ignored, but the mitigating weight to be afforded to them must be moderated by the need to deter other would be white‑collar offenders.
[27] Pollock v The State of Western Australia [2011] WASCA 133 [42], [69], [72]; McMahon v The Queen [2011] NSWCCA 147 [76]; R v Pollard [2006] NSWCCA 405 [19].
In his submissions, senior counsel for the appellant emphasised:
(a)the payment of restitution to the victims;
(b)the overpayment to Mr Jabado;
(c)the public opprobrium and extra‑curial punishment suffered by the appellant; and
(d)the fact that, since February 2010, the appellant has not committed an offence and has made positive contributions to the community.

Giving restitution or making reparation may be a reflection of genuine remorse, contrition or rehabilitation and, in that manner, is a mitigating factor. Whether the giving of restitution or the making of reparation reflects genuine remorse, contrition or rehabilitation will depend upon all of the circumstances of the case. Some factors which may be relevant to the assessment include:
(a)the extent to which the restitution or reparation involved sacrifice on the part of the offender;[28]
(b)the extent to which the restitution or reparation reduced the loss suffered by the victim;[29]
(c)whether the restitution or reparation was made voluntarily or involuntarily;[30] and
(d)the timing of the restitution or reparation (ie, whether it was made before or after the offending was discovered).[31]
This list is not intended to be exhaustive.
[28] R v Phelan (1996) 66 A Crim R 446, 448 (Hunt CJ); Job v The Queen (2011) 216 A Crim R 521 [50] (Hidden J; McClellan CJ at CL & Grove AJ agreeing).
[29] R v Fell [2004] NSWCCA 235 [29] (Giles JA, Hulme & Adams JJ).
[30] R v Nath (1994) 74 A Crim R 115.
[31] Job [48] - [49].
The culpability of a person who dishonestly obtains money or property is not, in principle, significantly diminished by the voluntary return to the victim of the money or property that should not have been taken in the first place. However, even without genuine remorse, contrition or rehabilitation, there is a pragmatic rationale for allowing some mitigation for the giving of restitution or the making of reparation. As Brinsden J said in Mickelberg v The Queen:[32]
While a crime is a crime against the community … nevertheless one must remember that a crime is often a crime which injured a particular individual. It seems to me that the ends of justice are better served if some restitution is made to the victim where restitution is possible. The courts ought to encourage restitution and obviously one way for them to do that is to offer some inducement in the form of a lesser penalty.
[32] Mickelberg v The Queen (1984) 13 A Crim R 365, 370.
In the present case, the appellant does not allege that her Honour erred in the way she dealt with the payment of restitution. On the evidence, it was open to her Honour to find, as she did, that the payment of restitution was not motivated by remorse or an appreciation of any wrongdoing on his part. Although the appellant began making restitutionary payments before he was charged, he did so in the hope that his offending would not be discovered. Nevertheless, it should be recognised that the victim did not suffer a loss and that, having regard to the pragmatic rationale referred to above, the payment of restitution was to some degree mitigatory.
There was no evidence that the appellant had made a substantial sacrifice to pay the restitution. The payment of restitution meant that the victims had not lost the money that had been stolen from them; a matter that would have aggravated the appellant's offending.
An unusual feature of the present case is that the appellant made the overpayment to Mr Jabado referred to at [17], [35] and [51] above. As a result, Mr Jabado benefitted, in a financial sense, in the sum of at least $1,348,200. Senior counsel for the appellant told this court that the appellant decided not to pursue Mr Jabado for the overpayment for fear that the demand would, in substance, result in the victim further harassing and threatening him and his family.[33] The sentencing judge made no finding to this effect.
[33] Appeal ts 4 - 5.
Whatever the reason for the overpayment, it must be acknowledged that the appellant conferred a benefit upon Mr Jabado in the sum of at least $1,348,200, which the appellant did not seek to recover. This overpayment ameliorated the financial impact that the offending had upon Mr Jabado, and bestowed a benefit upon him. Her Honour took that fact into account in considering the overall seriousness of the offending.
Her Honour found, and we accept, that the appellant (and his family) were, for an extended period (said by the appellant to be approximately three years) after the thefts were discovered, subject to harassment and threats by Mr Jabado. While Mr Jabado would have been understandably angry and hurt by the appellant's actions, his behaviour towards the appellant was unacceptable and unjustified. In the circumstances of the present case, the appellant was subjected to conduct that could be characterised as extra curial punishment, which is, to some extent, a mitigating factor.
Her Honour found that the appellant had also suffered public opprobrium and disgrace as a result of the offending. In the course of the sentencing proceedings, counsel tendered media reports of the proceedings to the sentencing judge.
Public opprobrium is a likely consequence for white‑collar criminals when their dishonesty is discovered. This is a foreseeable consequence of such offending. Whether public opprobrium is a mitigating factor is a matter of some controversy. See, for example, the conflicting views on the issue in Ryan v The Queen.[34] Nevertheless, her Honour accepted that the appellant had suffered public opprobrium and that this was a mitigating factor. Accepting in this case (without deciding) that it was a mitigating factor, it is not a matter of great weight because the appellant must have appreciated, at the time of his offending, that it would be likely that if his actions came to light, he (and his family) would suffer adverse publicity and disgrace. Despite this obvious risk, the appellant offended and continued to offend for a period of almost three years.
[34] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267.
Between February 2010 and his conviction for the present offences, the appellant has not committed any further offences. He has worked as an accountant, contributed to his daughters' school and was, for part of this time, a councillor in the Shire of Peppermint Grove. Given what has happened to the appellant, it is unlikely that he will reoffend. Accordingly, personal deterrence was not a significant sentencing factor.
In addition to the cases cited by the appellant, the respondent also referred to a number of other cases decided by this court including Hladin v The State of Western Australia;[35] Nikaghanri v The State of Western Australia;[36] Brennan v The State of Western Australia;[37] The State of Western Australia v Chapman;[38] and Wittensleger v The State of Western Australia.[39]
[35] Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176.
[36] Nikaghanri v The State of Western Australia [2009] WASCA 192.
[37] Brennan v The State of Western Australia [2010] WASCA 19.
[38] The State of Western Australia v Chapman [2012] WASCA 203.
[39] Wittensleger v The State of Western Australia [2014] WASCA 205.
The cases cited by the appellant and the respondent are, as their counsel recognised, of little assistance. It is unnecessary to analyse them in detail. As the appellant acknowledged, there is no tariff for offending of the kind committed by the appellant. It is enough to say that we do not regard the outcome in the present case as being relevantly inconsistent with the outcomes in the cases that have been cited.
In considering whether the total effective sentence infringed the first limb of the totality principle, we note that the appellant has not challenged any of the individual sentences that were imposed upon him. In particular, the appellant has not challenged the sentence of 4 years' imprisonment that was imposed by her Honour in respect of count 1. If this individual sentence is within the proper exercise of her Honour's sentencing discretion (and, in our opinion, it is), then it is difficult to accept the oral submission made by senior counsel for the appellant, that the appellant should have received, in effect, no, or only modest, additional punishment for the other offences he committed. In our opinion, significant additional punishment was required for the other thefts perpetrated by the appellant in the approximately three‑year period of the offending in order to properly reflect his overall criminality.
The appellant is not to be penalised for failing to enter pleas of guilty in respect of the offences for which he was convicted. However, he did not have the benefit that pleas of guilty would have brought. Nor did he have the benefit of remorse.
We have evaluated all of the relevant facts and circumstances of the case. The seriousness of the appellant's offending and the need for general deterrence required the imposition of a substantial total effective sentence. We have weighed the combined effect of the matters said by senior counsel for the appellant to be on the 'positive' side of the ledger. However, we have not been persuaded that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle. We do not regard the total effective sentence as being unreasonable or plainly unjust. It has not been demonstrated that a substantial wrong has occurred. Implied error has not been established. While we would grant leave to appeal, the ground has not been made out and the appeal must be dismissed.

Orders

The orders that we would make are as follows:
(1)Leave to appeal is granted.
(2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
16 DECEMBER 2021