Gundry v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0046

LOUISE GUNDRY	Applicant
v
THE KING	Respondent

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JUDGES:	Emerton P and Lyons JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2025
DATE OF JUDGMENT:	22 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 233
JUDGMENT APPEALED FROM:	[2025] VCC 36 (Judge Hawkins)

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CRIMINAL LAW – Appeal – Sentence – Substantial theft by employee of small business over several years – Whether early guilty plea given appropriate weight – Whether applicant demonstrated genuine remorse – Where only part of stolen monies recovered – Where victims required to issue proceedings and pay legal costs to effect partial recovery of stolen monies – No evidence that offender sought to engage with victims concerning repayment of monies – Plea of guilty not necessarily indicative of an expression of remorse – Judge correct to conclude only some limited remorse – No error established – Leave to appeal refused.

Crimes Act 1958, s 74.

Potter v The King [2023] VSCA 104; R v Gray [1977] VR 225; R v Starr [2002] VSCA 180; Repac v The King [2023] VSCA 313, considered.

Mohtadi v The Queen [2018] VSCA 238, applied.

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Counsel
Applicant:		Mr D McGlone
Respondent:		Ms J Warren with Ms S Goegan
Solicitors
Applicant:	Marshall Jovanovska Ralph Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
LYONS JA:

Introduction

On 6 December 2024, the applicant pleaded guilty to one charge of theft of a total amount of $178,252,[1] which carries a maximum penalty of 10 years’ imprisonment. The applicant was sentenced on 30 January 2025 to 18 months’ imprisonment with a non‑parole period of 12 months.
[1]Contrary to s 74 of the Crimes Act 1958.
The applicant seeks leave to appeal against her sentence on the following proposed ground:
The learned trial judge erred by finding that:
(a)the plea of guilty was entered after a contested committal;
(b)the applicant had not expressed genuine remorse; and
(c)the applicant had not paid any restitution.
The applicant submitted that, viewed in totality, the cumulative effect of the three alleged errors resulted in a material error which vitiated the sentencing discretion.
For the reasons that follow, we would refuse leave to appeal.

The offending[2]

[2]Based on the Summary of Prosecution Opening, which was accepted by the applicant’s counsel as accurate.

Ms Gundry was charged with the theft of $178,252 from Mr Verandah Pty Ltd (‘Mr Verandah’) between 18 May 2015 and 12 July 2019.
Mr Verandah is a small, family-owned construction company which specialises in building verandahs, carports and garages. Mr Chris Dimos and his partner, Ms Gillian Vallak, own and operate Mr Verandah.
The applicant had been formally employed as an office manager by Mr Verandah since 2 June 2009, initially on a casual basis and then moving to a permanent role later that year. Her tasks included checking bank statements and cash flow, managing and banking all cheque and cash payments (including the payment of suppliers), and checking building permits acquired, payments entered and quotations made by the business.
The applicant had access to Mr Verandah’s NAB bank accounts and managed two of its company credit cards. To access the business accounts, the applicant was given a secure login and password, which the applicant used to pay suppliers’ invoices, and manage funds coming into the business. The applicant would also use this account to pay staff’s wages, including her own.
Mr Verandah’s main supplier was Van Steensel Pty Ltd (‘Van Steensel’), a timber supplier. Mr Verandah would purchase around $35,000 worth of timber a month from Van Steensel.
In 2015 and 2016, Mr Dimos noticed several smaller transfers of $1,000 or $2,000 being made to Van Steensel each week, along with the larger lump sum payments. Mr Dimos was initially satisfied with the applicant’s explanation as to these payments. However, on 18 July 2019, he observed several smaller payments to Van Steensel for rounded amounts of between $1,000 to $3,000 appearing more frequently than usual.
Mr Dimos made enquiries with Van Steensel and discovered that these payments were not received by Van Steensel and that Mr Verandah in fact had outstanding invoices totalling $45,835.
On 25 July 2019, Mr Dimos arranged for an accountant to attend the office to make enquires about these transactions. The applicant stated she was unable to log in to her account when requested by the accountant. Her login details were passed on to the accountant.
On 30 July 2019, Mr Dimos asked the applicant to accompany him to the local NAB branch. The applicant gave the teller her login details and gave permission to access the account and view the transactions in question. The teller informed Mr Dimos and the applicant that the teller could see that all the suspicious transactions were being transferred into the joint account of the applicant and her partner, Adam Rand (‘joint account’).
The applicant denied this and said words to the effect of ‘that’s impossible, that [joint] account was closed a long time ago’. The teller said that the joint account had been active until the previous day when the remaining money was withdrawn and the joint account closed by Mr Rand.
Mr Dimos’s solicitor spoke with the applicant in an audio-recorded meeting on 31 July 2019. The applicant denied having stolen the money, blaming Mr Rand for accessing the account and taking the money. She denied closing the joint account and offered to show the solicitor her text history as evidence. Her text history revealed:
(a)a text message between the applicant and Mr Rand at 1:26 pm on 25 July 2019, being shortly after Mr Dimos asked his accountant to attend the office of Mr Verandah to investigate the suspicious transactions. The applicant said ‘I need to close the nab account ok…’ and Mr Rand replied ‘Ok’;
(b)a text message exchange between the applicant and Mr Rand at 1:44 pm on 29 July 2019 in which the applicant states ‘I have to money [sic] into vansteensel [sic] now. It’s in arrears and I think Chris is checking account’ and Mr Rand replied with a nervous face emoji; and
(c)a text message exchange between the applicant and Mr Rand on the morning of 30 July 2019, to the following effect:
GUNDRY – What’s our mortgage at… it’s about 480 isn’t it? Our split way just cramped itself I think
GUNDRY – Crapped
RAND – 462
GUNDRY – Is that the total with the additional one!
GUNDRY – Don’t risk using phone to much. We can talk later.
RAND – 400
GUNDRY – Bruno the lawyer rang me I have to go in there at 1030.
RAND – K (sad and nervous emojis) If you want me there let me know
GUNDRY – Nope it’s ok. I’ll confront it then we can deal with it.
At the meeting on 31 July 2019 with Mr Dimos’s solicitor, the applicant’s employment with Mr Verandah was terminated summarily. The matter was reported to police on 21 August 2019.
Following a police investigation, it was revealed that the applicant made $178,252 worth of unauthorised transactions into the joint account, disguising the transactions by describing them as payments to various suppliers or as credit card payments.
The applicant was interviewed by police in August 2022, three years after the offence was reported by Mr Dimos. The applicant did not receive a summons in relation to the aged offences until July 2023, almost 12 months after the applicant’s initial police interview.
The applicant pleaded guilty on 6 December 2024 and was sentenced on 30 January 2025.

Judge’s reasons

In detailed reasons for the sentence imposed, the judge addressed the circumstances of the offending,[3] the nature and gravity of the offending,[4] the applicant’s personal circumstances,[5] and sentencing considerations including her plea of guilty, the delay in the prosecution of the charge, the absence of prior convictions and the sentences imposed for comparable offending.[6]
[3]Reasons, [3]–[26].
[4]Reasons, [27]–[38].
[5]Reasons, [39]–[52].
[6]Reasons, [53]–[62].
In relation to the seriousness of the offending, the judge emphasised that the protracted offending occasioned a significant breach of trust and involved a significant theft, particularly for a business such as Mr Verandah.[7] The judge noted that Mr Verandah is a small, family-owned business that had reposed significant trust in the applicant for 10 years and had given her access to the bank accounts, including for the purpose of paying her own salary and the salaries of other employees.[8]
[7]Reasons, [27] and [29].
[8]Reasons, [6] and [27].
The judge also emphasised that the offending involved transactions over four years which were pre-meditated, carefully planned and concealed.[9] Further, having previously concluded the applicant had disguised these unauthorised withdrawals by using the names of suppliers,[10] the judge noted that the applicant continued to lie once irregularities were identified to further conceal her offending: by lying when approached by Mr Dimos, by pretending her login did not work on 25 July 2019 and by blaming her partner, Mr Rand.[11]
[9]Reasons, [28].
[10]Reasons, [25].
[11]Reasons, [31].
The judge referred to the fact that the amount stolen ($178,252) was a significant proportion of the revenue of a small business.[12] The judge then noted that the applicant was personally enriched by the offending ‘for more than just need’ as some of the funds were obtained while the applicant was on holiday in Bali.[13]
[12]Reasons, [29].
[13]Reasons, [30].
Further, the judge referred to the fact that the applicant had not compensated the victims, whom she knew personally, although the victims did receive approximately $30,000 net from the applicant’s trustee in bankruptcy after the applicant’s assets were realised.[14]
[14]Reasons, [32].
In the circumstances, the judge concluded that:
(a)while the protracted offending involved a significant sum, it was not a large scale fraud and ought be categorised as ‘mid-range’ offending of this type;[15] and
(b)the offending was not an impulsive act or the result of impaired judgment on a single occasion. The applicant understood the nature and deceit involved in the offending against her employers with the result that her ‘objective moral culpability is high’.[16]
[15]Reasons, [33].
[16]Reasons, [34].
In this context, the judge referred to the victim impact statements of Mr Dimos and Ms Vallak, and in particular to the strain the offending put on the financial situation of each of Mr Verandah, Mr Dimos and Ms Vallak (including the postponing of Ms Vallak’s retirement plans) and the impact on Mr Dimos’s health.[17]
[17]Reasons, [36]–[38].
In respect of the applicant’s personal circumstances, the judge noted that the applicant:
(a)has three children aged between four and 16 from two different relationships who are in her full-time care;[18]
(b)ended her relationship with Mr Rand in 2019 and is currently single;[19]
(c)completed year 12 and holds a diploma in marketing and management, and after graduating worked in various positions as an administrative or personal assistant before her employment with Mr Verandah;[20]
(d)found difficulty obtaining employment after her position with Mr Verandah was terminated and, at the time of sentencing, was working casually as a swimming teacher;[21]and
(e)has no history of substance abuse or other addiction.[22]
[18]Reasons, [42].
[19]Reasons, [43].
[20]Reasons, [44]–[45].
[21]Reasons, [46].
[22]Reasons, [47].
The judge then referred to the expert reports relied upon by the applicant, namely:
(a)the report of Wing Nei Lau, psychologist, dated 10 December 2021 (the ‘Lau report’) which recorded that the applicant had ‘extremely severe’ anxiety and moderate/severe depression and stress at about that time;[23]
(b)the report of Kim Dowse, psychologist, dated 15 November 2024 (the ‘Dowse report’) which recorded that the applicant attended five sessions up to 15 November 2024 directed at developing insight into her offending. Most relevantly, Ms Dowse observed that the applicant had been ‘impressive’ in the sessions and was keen to develop safeguards to avoid re-offending;[24] and
(c)the report of David Ball, forensic psychologist, dated 27 November 2024 (the ‘Ball report’) which reported that the applicant did not meet the criteria for any mental illness, substance use disorders or mood disorders.[25]
[23]Reasons, [48].
[24]Reasons, [49].
[25]Reasons, [50].
As a result of the offending, the judge recorded that:
(a)judgment was entered against the applicant and Mr Rand in civil proceedings commenced by Mr Verandah resulting in the applicant being declared bankrupt (as noted above, Mr Verandah received $60,000, half of which was owed in legal fees);
(b)the applicant’s residence in Seaford was transferred to Mr Rand’s mother and the applicant’s brother; and
(c)other property of the applicant, including a Range Rover motor vehicle, was sold by the trustee in bankruptcy.[26]
[26]Reasons, [51].
As to sentencing considerations, the judge emphasised the relevance of the breach of trust which formed part of the offending. The judge said:
Where there has been a significant breach of trust involved in the offending, general deterrence and denunciation are of paramount importance in sentencing. Online banking is a fundamental part of modern business. Whilst efficient, it is relatively simple for vulnerable people, including those who place their trust in their employees, to fall victim to theft and fraud. For that reason, it is important that it is made plain to others who are tempted to supplement their funds by helping themselves to their employer’s funds, that they will face stern punishment.[27]
[27]Reasons, [59].
The judge also considered a number of mitigating factors, namely:
(a)the applicant has ‘good prospects of rehabilitation’ and her ‘risk of reoffending is low’ due to her insight gained through psychological counselling, lack of prior convictions and otherwise prior good character;[28]
(b)the applicant is the primary carer of her three children which increases the burden of incarceration;[29] and
(c)for reasons not attributable to the applicant, there has been a delay of approximately five years before the sentence was delivered.[30]
[28]Reasons, [56].
[29]Reasons, [57].
[30]Reasons, [58].
In addition, the judge also took into account the applicant’s guilty plea. The judge said:
You pleaded guilty after a committal hearing where witnesses were examined. However, the matter ultimately settled on a basis proposed by you prior to that hearing. I accept that your plea of guilty has significant utilitarian benefit and will take this into account in mitigation of your sentence.[31]
[31]Reasons, [55].
The judge also considered whether the applicant had remorse for the offending. The judge referred to the fact that, on the day her employment was terminated, the applicant sent a text message on 31 July 2019 (‘31 July text message’) to Ms Vallak, saying ‘… I’m sorry for what’s happened and the stress on you and Chris. I need to stick by my family and will arrange paying the debt in full’, however the applicant had not done so by the time of sentencing.[32] The judge continued:
Whilst this suggests you felt momentary remorse for your actions, you have not made any recompense in keeping with this promise. In your interview with police, you declined to answer questions about this message and have not otherwise expressed genuine remorse for your actions.[33]
[32]Reasons, [53]–[54].
[33]Reasons, [54].
The judge then addressed the sentences imposed in cases which were asserted to be comparable by the prosecution and the defence. The judge said:
… Those referred to on your behalf involved cases of theft in the course of employment with a similar quantum, where a Community Correction Order without any term of immediate imprisonment was imposed. Significantly, many of the offenders in those cases had made either full or partial restitution to their victims. This demonstration of remorse is absent in your case. You chose not to enter any agreement to repay the victims in this case. They were forced to institute civil action in order to recoup some of their loss. They only received a fraction of what you stole from them after your estate was realised.[34]
[34]Reasons, [60].
The judge noted that this Court in Boulton v The Queen[35] stressed that a Community Corrections Order (‘CCO’) with appropriate conditions can be suitably punitive even in cases of serious offending. However, the judge concluded that, having regard to the considerations above, in particular the seriousness of the offending and high moral culpability, a term of imprisonment with a head sentence was the only appropriate sentencing disposition and that a CCO alone or in combination was wholly inadequate to meet those various sentencing objectives.[36]
[35]Boulton v The Queen [2014] 46 VR 308, 338–9 [131]–[135] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA); [2014] VSCA 342.
[36]Reasons, [62].

Relevant legal principles

As set out above, the applicant raised a single proposed ground of appeal, containing three alleged errors by the judge below, which she submitted have the cumulative effect of vitiating the sentencing discretion. In response, the respondent contended that if individually these matters could have no material impact, so too cumulatively they could not have any material impact upon the sentence.
Before considering whether any of the asserted mistakes or errors have been established, it is important to recall that not all mistakes made by a judge will amount to an error which vitiates the sentencing discretion such that a different sentence should be imposed.
The test of materiality of an error was set out by Macaulay and Whelan JJA in Repac v The King:[37]
An error is material if, at the least, it had the capacity to influence the judge’s instinctive synthesis of all the circumstances in arriving at the sentence imposed. The burden is on the respondent to demonstrate that it did not have such a capacity.
[37]Repac v The King [2023] VSCA 313, [37] (Macaulay and Whelan JJA) (emphasis in original).
In Potter v The King,[38] Niall and Hargrave JJA further explained that:
The principles to be applied to determine whether an error is material in the sense that it vitiates the sentence has been considered in a number of decisions of the Court. In Gillespie (a pseudonym) v The Queen, Whelan and McLeish JJA said:
A mistake of the kind made by the sentencing judge here will not be an ‘error in the sentence’ so as to vitiate the sentencing discretion in every case. If it can be seen that the mistake was so insignificant that it ‘could not have materially affected the decision’ then it will not be an error ‘in the sentence’. The court must be satisfied that the mistake could not have materially affected the decision before concluding that there is no error in the sentence. If there is such error, the court must then consider whether it is satisfied that a different sentence should be imposed.

Proposed ground 1(a)

[38]Potter v The King [2023] VSCA 104, [32] (Niall and Hargrave JJA) (citation omitted).

Applicant’s submissions

Proposed ground 1(a) concerns an alleged factual error: the judge erred in finding the applicant pleaded guilty ‘after a committal hearing where witnesses were examined’.[39]
[39]Reasons, [55].
In fact, in this case, there was no committal hearing where witnesses were cross-examined: rather, the matter proceeded by means of a straight hand-up brief without any of the witnesses being cross-examined.

The applicant contends that the true chronology was as follows:
(a)prior to the matter proceeding as a plea, quantum was an issue;
(b)at a committal mention on 22 September 2023, leave was granted to cross-examine Mr Dimos and a committal was listed for 14 November 2023;
(c)the committal hearing listed for 14 November 2023 was adjourned to 13 December 2023 while negotiations were continuing;
(d)a joint application was made to adjourn the committal from 13 December 2023 in circumstances where the prosecution had made a counteroffer, conceding some but not all of the disputed transactions;
(e)that joint application was refused and the matter proceeded by way of a hand-up brief without any witnesses being cross-examined; and
(f)ultimately, the matter resolved in July 2024 on the same terms as the defence had originally proposed in November 2023.
The applicant submitted there was confusion before the judge as to the circumstances of the plea. This was submitted to be a clear error and related to another error on the basis that the judge did not sentence based on early plea.
The applicant submitted that the applicant’s plea should be considered a plea at the earliest opportunity, consistent with the decision in Cameron v The Queen.[40] As a result of the judge’s error, the early plea is not reflected in the reasons and the judge did not attach the greater significance warranted by an early plea. In addition, the applicant submitted that the failure to sentence based on an early plea also impacted the judge’s assessment of the applicant’s remorse — which is the subject of proposed ground 1(b).

Respondent’s submissions

[40](2002) 209 CLR 339; [2002] HCA 6.

The respondent acknowledged that the judge misstated that the plea was entered after a committal hearing in which witnesses were cross-examined.[41] This was due to an error in the written submissions of the prosecution which was corrected in the plea hearing.
[41]The prosecutor explained that as she had no prior involvement in the matter, she had been mistaken in her understanding that the committal hearing had been contested.
The chronology provided by the prosecution in the summary of opening contained an error in stating that there were contested committal hearings on 14 November 2023 and 13 December 2023, and that the applicant pleaded guilty after a committal hearing where witnesses were cross-examined. At the plea hearing, counsel for the applicant clarified that this was not what occurred. In fact, there was a committal hearing that was listed, but it was adjourned by consent. Leave was granted to cross-examine a witness, but he did not give evidence. This summary was accepted as correct by the prosecution, and the judge accepted that the plea should be considered ‘as an early plea’.
Further illustrating that the judge did understand the correct timing of the plea, the respondent noted that the next two sentences of the impugned reasons record:
… However, the matter ultimately settled on a basis proposed by you prior to that hearing. I accept that your plea of guilty has significant utilitarian benefit and will take this into account in mitigation of your sentence.[42]
[42]Reasons, [55].
As a result, the respondent submitted that, despite the judge’s unfortunate misstatement, there was no error and the applicant was in fact sentenced on the basis of an early plea. Further, the respondent stated that even if the judge was mistaken as to the timing of the plea, this error was immaterial given the judge stated that the applicant’s plea of guilty provided ‘a significant utilitarian benefit’.[43]

Consideration

[43]Reasons, [55]. See generally Smith v The Queen (2022) 101 MVR 17, 25 [30] (Priest and Macaulay JJA); [2022] VSCA 148.

We accept that the judge was incorrect when she stated that the applicant pleaded guilty ‘after a committal hearing where witnesses were examined’ when considering the effect of the applicant’s guilty plea. The judge acknowledged this mistake in her report to the Court.
However, when viewed in context, the judge correctly sentenced on the basis of an early guilty plea. First, the judge accepted at the plea hearing that the applicant’s guilty plea should be considered ‘as an early plea’. Second, as set out in [47] above, immediately after referring in the reasons to the applicant pleading guilty after a committal hearing where witnesses were examined, the judge acknowledged that the matter ‘ultimately settled on a basis proposed by [the applicant] prior to that hearing’ with the result that the applicant was entitled to a sentence that appropriately reflected the ‘significant utilitarian benefit’ she had provided on the basis of her plea of guilty.[44]
[44]Reasons, [55].
The applicant sought to distinguish between the ordinary utilitarian benefit that comes from the guilty plea, and the greater utilitarian benefit of an early guilty plea. We acknowledge that the earlier the plea, the greater the benefit to the administration of justice and the greater the potential discount for its utilitarian benefit. However, in this case, the judge accepted that the guilty plea had ‘a significant utilitarian benefit’ and stated that a ‘significant’ discount was afforded. In our view, there is no indication in the reasons or sentence imposed to doubt the judge’s statement that such a discount was applied.
As a result, we are not satisfied that the factual misstatement in the sentencing reasons, viewed in context, had the capacity to influence the judge’s instinctive synthesis of all relevant factors in arriving at the sentence imposed in the circumstances of this case.

Proposed ground 1(b)

Applicant’s submissions

The applicant submitted that the judge erred in concluding that the applicant had not expressed genuine remorse for her offending. The applicant contended that the judge erred in finding that there was only ‘momentary remorse’ from the 31 July text message[45] and by concluding that any remorse was cancelled by declining to answer questions in relation to the 31 July text message in her record of interview[46] and by the applicant’s failure to make recompense to the victims[47].
[45]Reasons, [54].
[46]Reasons, [54].
[47]Reasons, [54] and [60].
Rather, the applicant submitted that she had expressed genuine remorse as evidenced by the 31 July text message, by the expressions of remorse in the Ball report and the Dowse report, and by her early plea.
As to the Ball report, the applicant relied upon the following passage:
She said, ‘I think about [the offending] a lot and feel very ashamed and for many years sick over what I’d done. I feel it came from a long line of financial stress. I feel at times I was trying to keep everyone happy and stress free. I thought if I could relieve Adam [Rand], it would help the kids and I from his aggression towards us. I feel very stupid and that I was not myself. I feel weak. There was a lot of pressure surrounding debt and from my ex emotionally. I don’t know what I thought and it was eating me away’.
Ms Gundry expressed remorse for her offending. She said, ‘I’m more than sorry. Words cannot even describe how bad I feel. Something that I thought was innocent got out of control and has changed so many lives. A lot of trust was broken and I am completely ashamed and sorry for what I’ve done and the heartache caused.’
The applicant addressed Mr Ball’s earlier statement that he has ‘no way of confirming … historical details’ of the applicant and therefore ‘the possibility of exaggeration, confabulation or minimization cannot be immediately ignored’. The applicant contended this was no more than a professional caveat that any self-report remains vulnerable to possible concoction, but does not change Mr Ball’s professional assessment of the applicant and the statements of remorse.
As to the Dowse report, Ms Dowse stated that ‘Ms Gundry was highly remorseful of her offending’ and that ‘it is my opinion that she will make lasting changes given her remorse and her success in treatment’.
In respect of the record of interview, the applicant submitted that the judge erred in concluding that the text showed only momentary remorse by reference to her ‘no comment’ responses to questions asked about the 31 July text message during the interview.[48] The applicant contended that she was entitled to decline to make any comment in the record of interview as she had a right to silence, and that her remorse cannot be said to be ‘momentary’ in the context of the 31 July text message and the psychological reports.
[48]Reasons, [53]–[54].
Finally, in oral submissions, the applicant contended that it was open for the Court to infer that her partner, Mr Rand, encouraged or put pressure on her to commit the offending. This was in reliance on the Lau report which described Mr Rand’s relationship with the applicant as controlling and emotionally and financially abusive. The applicant contended Mr Rand’s conduct could be viewed as lessening her moral culpability or had relevance to remorse.

Respondent’s submissions

The respondent submitted that there was no error as to the judge’s conclusion that the applicant only showed limited remorse.
First, the respondent submitted that, given the defence accepted that the applicant was ‘not frank’ when confronted about the thefts in 2019 or when she was interviewed by police in 2022, it was open to the judge to conclude that the applicant only demonstrated ‘momentary remorse’.
Second, the respondent submitted that the judge had appropriate regard[49] to the psychological reports and, in any event, they did not demonstrate the applicant’s remorse. The respondent highlights the following aspects of the Ball report:
(a)the applicant ‘generally lacks insight into her offending behaviour’ and ‘has limited but increasing capacity to effectively solve problems and to act with good judgment’;
(b)there was no way of confirming the applicant’s historical details and ‘the possibility of exaggeration, confabulation or minimization’ could not be ignored; and
(c)the applicant described the offending as precipitated by being ‘caught between an exploitative employer and a toxic relationship with her previous partner’. She complained of being paid the same hourly rate over a ten-year period and not receiving long service leave or pay rises.
[49]Reasons, [48]–[50], [56].
The respondent contended that the reliance on the ‘no comment’ record of interview was not an aggravating factor but submitted that, from the time of the 31 July text message there was no other expression of remorse until November 2024 when the psychological reports were filed in preparation for the plea. The respondent submitted that the psychological reports consistently betrayed the applicant’s lack of acceptance of responsibility for the conduct by referring to her employer as exploitative and seeking to blame Mr Rand. The respondent also contended that, contrary to her comments recorded in the psychological reports, the stolen funds were not used to assist her family’s ailing finances: rather, they were accessed while on holiday in Bali and at recreational facilities.
Further, in respect of the role of Mr Rand, the respondent contended that Mr Rand’s involvement was beyond the scope of the plea that was presented on the applicant’s behalf and effectively advanced a new argument on appeal which should not be countenanced by this Court.[50]
[50]See Romero v The Queen (2011) 32 VR 486, 489–90 [11] (Redlich JA, Buchanan JA agreeing at 494 [28] and Mandie JA agreeing at 494 [29]); [2011] VSCA 45: ‘The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence’.
Other than the expression of remorse in the 31 July text message, the respondent maintained that the applicant had engaged in no conduct and had taken no steps to act upon that remorse by arranging to pay all or part of the debt.
Finally, the respondent submitted that the judge nevertheless found the applicant to have good prospects of rehabilitation and a low risk of reoffending, demonstrating that even if there was an error as to remorse, it was not material to the sentencing discretion.

Consideration

Remorse is a mitigating factor in the sentencing process. This Court in Mohtadi v The Queen[51] stated that:
[R]emorse involves a genuine subjective feeling of regret for the harm that has been occasioned, either to other persons or to society, as a consequence of the criminal activity in which the particular offender has been involved … A conclusion as to remorse, by the applicant, could only be based upon appropriate evidence that indicated he had insight into the type of harm that commonly results in that type of activity, and a genuine sense of contrition being a party to it.[52]
[51][2018] VSCA 238.
[52]Mohtadi v The Queen [2018] VSCA 238, [26] (Kyrou and Kaye JJA).
Thus the onus is on the offender to establish remorse, to the satisfaction of the court, based on appropriate evidence (either words or conduct). Depending on the nature of the offence, it may involve acknowledgement of the injury, loss or damage caused, restitution to the victim (particularly if voluntary),[53] co-operation with authorities or the provision of information leading to restitution of goods or property.[54] Of course, it is difficult to state an exhaustive list of matters which might constitute remorse.[55]
[53]R v Starr [2002] VSCA 180, [26] (O’Bryan AJA, Winneke P agreeing at [1], Chernov JA agreeing at [2]).
[54]R v Golding [1980] 24 SASR 161, 162–3 (Wells J).
[55]R v Starr [2002] VSCA 180, [26] (O’Bryan AJA, Winneke P agreeing at [1], Chernov JA agreeing at [2]).

Further, a guilty plea is not necessarily indicative of an expression of remorse:[56] it depends on all the circumstances of the case.[57]
[56]Mohtadi v The Queen [2018] VSCA 238, [28]–[29] (Kyrou and Kaye JJA).
[57]R v Gray [1977] VR 225, 231–2 (McInerney and Crockett JJ, Gillard J agreeing at 235).
At the outset, we do not accept that the judge concluded that the applicant showed no genuine remorse. Rather, based on a fair reading of the reasons, the judge concluded that the applicant showed some limited genuine remorse having regard to the 31 July text message and the applicant’s subsequent conduct.
As set out in [33] above, the judge addressed the 31 July text message and the subsequent conduct of the applicant relevant to remorse.[58] The 31 July text message stated that the applicant was ‘sorry for what’s happened’ and that the applicant ‘will arrange paying the debt in full with [the victims’ solicitor]’. The judge said that the 31 July text message ‘suggest[ed] … momentary remorse for [the applicant’s] actions’.[59]
[58]Reasons, [53]–[54].
[59]Reasons, [54].
The judge then went on to consider subsequent conduct of the applicant relevant to remorse, namely that the applicant had not made ‘any recompense in keeping with this promise’ and the applicant declined in her interview with police to answer questions about the 31 July text message.[60]
[60]Reasons, [54].
As a result, the judge concluded that the applicant had ‘not otherwise expressed genuine remorse for [her] actions’.[61] In this context, we read this conclusion to be a finding of some limited genuine remorse reflected in the 31 July text message, rather than a finding of no genuine remorse at all.
[61]Reasons, [54] (emphasis added).
We are conscious that when considering comparable cases the judge noted that those cases often involved full or partial restitution.[62] The judge then stated:
This demonstration of remorse is absent in your case. You chose not to enter any agreement to repay the victims in this case. They were forced to institute civil action in order to recoup some of their loss. They only received a fraction of what you stole from them after your estate was realised.[63]
[62]Reasons, [60].
[63]Reasons, [60].
In our view, when the judge referred to ‘[t]his demonstration of remorse’, the judge was referring to one potential indication of remorse, ie restitution of the loss, not to the fact there was no genuine remorse at all. The judge then referred to:
(a)the conduct of the applicant in not entering into any agreement or arrangement with the victims for repayment consistent with the 31 July message;
(b)the consequent need for the victims to initiate legal proceeding at further expense to them; and
(c)on the bankruptcy of the applicant, the victims only recovered a fraction of this loss.[64]
[64]Reasons, [60].
On reading all these parts of the reasons dealing with remorse, we are persuaded that the judge found that the applicant showed some limited genuine remorse in light of the 31 July text message and other subsequent conduct.
In our view, the judge did not err in reaching this conclusion.
It is true that the 31 July text message did disclose the applicant’s sorrow for what had happened and her (initial) intention to repay the stolen money. That is consistent with some remorse at that time. This is in a context where the offending went on for over four years, involving prolonged time and effort on the applicant’s part to sustain the deception. However, there was no evidence of remorse towards the victims after that time. There was no evidence of any agreement or arrangement to repay any part of the stolen money. Further, there was no evidence of any attempt by the applicant to reach any such agreement or to engage with the victims to avoid the expense of legal fees to recover the stolen money.
To the contrary, the victims were required to issue legal proceedings, obtain a default judgment and bankrupt the applicant, incurring costs in the order of $30,000. We refer to the comments of the judge set out in [29] above. Thus, the part repayment of the stolen money in this case was not undertaken by the applicant voluntarily but at the instigation and cost of the victims by legal action. This had the effect of increasing the loss in fact suffered by them as a result of the applicant’s offending.
Relatedly, in these circumstances, we are unable to infer that the plea of guilty evidenced genuine remorse by the applicant. This is particularly so having regard to the fact that the prosecution case against the applicant was reasonably strong, based in large part upon the banking records of Mr Verandah and the entries in the joint account of the applicant and Mr Rand.
Further, we consider the judge was entitled to have regard to the applicant’s refusal to comment during her record of interview in determining whether the applicant was genuinely remorseful. This formed part of a long sequence of conduct on her part in which she declined to take responsibility for her actions or show any form of remorse.
In short, there was an absence of conduct on the part of the applicant towards the victims subsequent to the 31 July text message to provide evidence of the applicant’s genuine remorse. The only other evidence relied upon before this Court were statements made by the applicant to Mr Ball and Ms Dowse as to remorse. As set out above, the issue of whether remorse has been established is a matter for the sentencing judge based upon all the relevant evidence. We do not consider that either the Ball report or the Dowse report provide a basis to find genuine remorse without significant qualification.
It is true that each of the Ball and Dowse reports recorded that the applicant was remorseful based upon what they had been told by her. However, any statement to the effect that the applicant expressed remorse recorded in these reports must be viewed in context.

As set out in [56] above, the comments of Mr Ball were made in a context where Mr Ball recorded that he had no way of confirming the applicant’s historic details, that the possibility of ‘exaggeration [or] confabulation’ could not be excluded and that the applicant ‘generally lacks insights into her offending behaviour and general psychological functioning’.
Further, in our view it is disturbing, in the context of remorse, that the Ball report records that the applicant stated that she thought that the offending was ‘[s]omething that I thought was innocent [which] got out of control’. Relatedly, in the section of his report dealing with the applicant’s current situation and remorse, Mr Ball recorded that the applicant ‘explained her offending in the context of being caught between an exploitative employer and a toxic relationship’. The report continues:
She said, “I was paid $32 per hour over a ten year period. No long service leave or pay rises. Adam (Mr Rand) made me stay there and made me feel worthless, especially if I talked about leaving. After 5 years our son was born, and I started stealing. Didn’t get pay increase. I don’t know. I think it’s to do with home stress. Financial stress. Adam had a lot of debt. Owed the ATO (Australian Tax Office) $100K and a credit line up to $200K. He would say ‘magic up some money from work’. Mr Verandah offered a bonus scheme allowing purchases for my house. I started borrowing from Mr Verandah with the intention of paying it back. It never got paid back”.
The Dowse report is a very brief report of one page. It records that Ms Dowse had five counselling sessions with the applicant at the time the report was prepared. It also records that the purport of Ms Dowse’s counselling ‘was directed at developing insight into [the applicant’s] offending and becoming aware of [her] triggers and justification’. While insight into the type of harm that commonly results from the offending committed is of relevance to remorse, we are not satisfied that Ms Dowse was referring to that kind of insight here: rather, these observations are more relevant to the applicant’s prospects of reoffending — ie her triggers and justification.
While Ms Dowse records that the applicant was ‘highly remorseful’, Ms Dowse notes, within the same paragraph, that the applicant had taken the money to prop up her family’s ailing finances and that her partner encouraged her to take the money. These reasons given by the applicant for her offending do not seem to us to reflect insight into her offending, let alone insight into the harm occasioned by her criminal conduct. In any event, the statement that the applicant had taken money ‘to prop up the family’s ailing finances’ seems inconsistent with the finding of the judge, which was not challenged, that the applicant did not just steal for need, but that funds were withdrawn for holidays and recreational activities.
In addition, each of the Ball report and the Dowse report were prepared in the month before the plea hearing: it has been said that ‘great weight [will not] be attached to remorse that appears only once the prospect of imprisonment looms closely’.[65]
[65]Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Lawbook, 3^rd ed, 2014) [6.95]; Director of Public Prosecutions v Tiumalu [2024] VSCA 192, [64] (Emerton P, Priest and McLeish JJA).
As a result, having regard to:
(a)the weight to be given to comments as to the applicant’s statements of remorse in the context of each of these psychological reports; and
(b)the other evidence — or the absence of evidence — before the judge set out above relevant to remorse,
we can find no error in the judge’s conclusion that the applicant only showed limited genuine remorse.
To the extent that it is relevant, we accept the submission of the respondent that the absence of any remorse is only to be treated as the absence of a mitigating factor. As a result, the judge’s conclusion that there was only limited remorse was not an aggravating factor in the sentencing process. In this context, we note that notwithstanding this finding of only limited remorse, in sentencing the applicant the judge took into account her finding that the applicant had good prospects of rehabilitation and that her risk of reoffending was low.
Finally, as to Mr Rand’s alleged involvement, we accept the respondent’s contention that any matter advanced in relation to Mr Rand’s involvement is beyond the scope of the plea presented by the defence and therefore should not be entertained. In any event, we do not accept that we are able to infer on the current material that Mr Rand encouraged or put pressure on the applicant to steal from Mr Verandah.

Proposed ground 1(c)

Applicant’s submissions

As to proposed ground 1(c), the applicant contended that the judge erred in finding that the applicant ‘chose’ not to enter into any agreement to repay the victims. Rather, the applicant submitted that she had no capacity to make voluntary repayments by way of restitution in light of the civil proceedings instituted by Mr Verandah shortly after the detection of the offending, and the consequent freezing orders granted by the County Court on 2 August 2019. As is evident, this relates to proposed ground 1(b).
The applicant submitted that as she gave instructions not to oppose the civil proceedings, a default judgement was obtained and that on bankruptcy funds were made available to the victims, this should be considered a recognition of her fault.

Respondent’s submissions

The respondent submitted that the subject matter of the proposed ground 1(c) was ventilated at the plea and rejected by the judge. The judge’s finding that the applicant ‘chose not to enter any agreement to repay the victims’[66] was accurate given that the judge did not accept the applicant’s ability to make restitution was effectively hamstrung by the institution of civil proceedings against her: rather, as the judge concluded, the applicant could have reached a settlement or agreed to a payment plan to pay back the debt.[67] However, as noted above at [29], the judge was aware that the victims had received $60,000 as a result of the ensuing bankruptcy proceeding, of which $30,000 was required to be paid as legal fees.[68]
[66]Reasons, [60].
[67]Reasons, [60].
[68]Reasons, [32] and [60].
In any event, the respondent contended that the failure to repay the victims was not an aggravating factor, but more accurately characterised as an absence of a mitigating factor, noting that it was on this basis that the judge distinguished the applicant’s case from other comparable cases.[69] Further, the respondent submitted that it is generally accepted that making recompense can operate as a powerful indication of remorse.

Consideration

[69]Reasons, [60].

We consider that this proposed ground is without merit.
As set out above, proposed ground 1(c) is related to proposed ground 1(b) and the comments of the judge relating to the failure of the applicant to repay all or any part of the stolen money. More particularly, this proposed ground relates to the judge’s comments in [60] that:
(a)the applicant chose not to enter into any agreement or arrangement with the victims for repayment consistent with the 31 July text message;
(b)there was a consequent need for the victims to initiate legal proceedings and bankruptcy proceedings at further expense to them; and
(c)on the bankruptcy of the applicant, the victims only recovered a fraction of this loss.
The applicant submitted that the judge erred in concluding that she chose not to enter into an agreement to repay the victims. In fact, she had no capacity to do so in light of the proceedings issued and the freezing order imposed over her assets.
We reject this submission. The existence of the freezing order did not affect in any way the ability of the applicant to offer to reach an agreement or arrangement with the victims.
Further, as referred to above, in this case there was no evidence of any attempt by the applicant to reach any such agreement or to engage with the victims to avoid the expense of legal fees to recover the stolen money. Rather, the plea proceeded on the basis that:
(a)proceedings had to be issued to seek repayment of the stolen money (which were not defended) and to bankrupt the applicant; and
(b)the victims only recovered a small part of the stolen money on the administration of the applicant’s bankruptcy estate.
In these circumstances, the judge was well entitled to conclude that the applicant chose not to enter into any agreement or arrangement with the victims to pay all or any part of the stolen money.

Other matters and conclusion

Although it is unnecessary to decide in light of our conclusions in respect of the proposed grounds, the respondent contended that even if error is made out in respect of one or more of the impugned findings, the Court must be satisfied that a different sentence should be imposed.[70] In this regard, the respondent repeats the judge’s conclusions regarding the need for general deterrence and denunciation, and the high moral culpability attaching to breaches of trust in offences of this kind.
[70]Criminal Procedure Act 2009, s 280(1).
For completeness, we wish to record that, even if there were material errors as asserted by the applicant, we would not impose a different sentence having regard to:
(a)the objective seriousness of the conduct, which involved a substantial sum and a significant breach of trust as a result of sustained, deliberate and deceitful conduct over four years;
(b)the applicant’s high moral culpability as someone who gained the victims’ trust over time, and the substantial deceit involved;[71]
(c)the fact that the theft was not just for the applicant’s financial need, but included funds stolen while the applicant was on overseas holiday;[72]
(d)the sizable impact of the theft on the victims, as evidenced in their victim impact statements which stated that the offending had devasted the victims ‘financially and emotionally’ and required them to work much longer hours to avoid bankruptcy, including deferring Ms Vallak’s retirement;[73]
(e)the limited genuine remorse shown;[74] and
(f)the need for general deterrence and denunciation.[75]
104This is so, notwithstanding:
(a)the applicant’s lack of prior convictions, good prospects of rehabilitation and low risk of reoffending;[76]
(b)her difficult personal circumstances;[77]
(c)her guilty plea[78] and the delay in bringing this matter to trial.[79]
[71]Reasons, [34] and [62].
[72]Reasons, [30].
[73]Reasons, [36]–[38].
[74][74] See [7070]–[7676] and [9089] above.
[75]Reasons, [59].
[76]Reasons, [56] and [62].
[77]Reasons, [57].
[78]See [49]–[51] above.
[79]Reasons, [58].
In all these circumstances, we would refuse leave to appeal.
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[2025] VSCA 233

22 September 2025