Kelly v The Queen
[2021] VSCA 216
•10 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0142
| SHAUN DESMOND KELLY | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 August 2021 |
| DATE OF JUDGMENT: | 10 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 216 |
| JUDGMENT APPEALED FROM: | [2020] VCC 736 (Judge Lyon) |
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CRIMINAL LAW – Sentence – Appeal – Obtaining property by deception (8 charges) – Total amount involved approximately $1.5 million – Continuing criminal enterprise offences – TES 5 years and 6 months, NPP 3 years and 5 months – Denial of procedural fairness – Events occurring after plea hearing taken into account by sentencing judge against appellant – Appellant not given opportunity to make submissions about events occurring after plea hearing – Serious offending – Whether Court satisfied that different sentence should now be imposed – Court not satisfied that different sentence should be imposed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Gurvich QC with Mr P J Smallwood | James Dowsley & Associates |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
The appellant pleaded guilty in the County Court to eight charges of obtaining property by deception.[1] Charge 1 was a rolled up charge covering 11 instances of offending. Charges 2 to 8 were ‘continuing criminal enterprise offences’ within the meaning of s 6H of the Sentencing Act 1991.[2] Accordingly, while the maximum term of imprisonment on charge 1 was 10 years,[3] the maximum term of imprisonment on each of charges 2 to 8 was 20 years.[4]
[1]Contrary to s 81 of the Crimes Act 1958.
[2]See item 1(d) of Schedule 1A of the Sentencing Act 1991.
[3]See s 81(1) of the Crimes Act 1958.
[4]See s 6I of the Sentencing Act 1991.
On 22 May 2020, following a plea hearing conducted on 12 May 2020, the appellant was sentenced as follows:
Charge Offence Sentence Cumulation 1
Obtaining property by deception
2 years
1 month
2
Obtaining property by deception
1 year 8 months
2 months
3
Obtaining property by deception
2 years
2 months
4
Obtaining property by deception
2 years 7 months
4 months
5
Obtaining property by deception
2 years 6 months
3 months
6
Obtaining property by deception
3 years
6 months
7
Obtaining property by deception
3 years 4 months
7 months
8
Obtaining property by deception
3 years 5 months
Base
Total Effective Sentence 5 years 6 months Non-Parole Period 3 years 5 months Section 6AAA Statement 7 years with a non-parole period of 5 years
On 2 December 2020, the appellant was granted leave to appeal against sentence on the following ground of appeal:
There was an error in the sentence first imposed arising from the sentencing judge’s findings about the appellant’s (i) prospects for rehabilitation, (ii) purported lack of insight into the gravity of his situation and (iii) purported contempt for the criminal justice process, findings that were not open to be made given:
(a) they were not justified;
(b) they were made in circumstances where the appellant was denied procedural fairness; and
(c) the findings going to the appellant’s prospects for rehabilitation were inconsistent with the information before the sentencing court and comments made by the sentencing judge during the plea hearing.
The offending
The appellant’s fraud was a serious fraud. From August 2016, the appellant was contracted via his business, Amelie Investment Pty Ltd, to work as a property manager and office assistant for the Mondous Group. The offences were committed in that context over a year, between 28 March 2017 and 16 March 2018.
The Agreed Summary of Prosecution Opening, treated on the plea as an agreed statement of facts, summarised the circumstances of the offending as follows:[5]
[5] Footnotes omitted.
Mondous Group is a family owned business which is part of S & N Super Fund Pty Ltd. It is comprised of various entities and specialises in land subdivision, commercial building and farming activities.
[The appellant’s] role as property manager included updating rental invoices for tenancies, managing expenses for tenants and invoicing them accordingly. This role provided [the applicant] with access to bank statements to check the rent had been paid by tenants to various Mondous Group entities.
As part of his office assistant duties [the appellant] would be provided with invoices from the Director of Mondous Group and asked to write out the cheques. The Director would sign the cheques and post them.
[The appellant] was not authorized by Mondous Group or the bank to sign any cheques, nor was he a signatory on the bank account.
[The appellant] provided Amelie Investments Pty Ltd as the entity in which his hourly fee as a contractor was to be paid into.
In March 2018, Mondous Group identified 4 irregularities in the transactions [the appellant] had worked on as property manager, where the amount expended was in excess of the budget.
Upon consultation with Mondous Group’s consulting engineer it was found that the payment details provided to the civil contractor did not match the contractor’s invoices.
…
After investigation with the ANZ bank it was discovered that the cheques in question were not made out to the payee on the company records but were made out to Amelie Investments Pty Ltd.
Further it was discovered that [the appellant] would write the contractor’s name on the cheque stubs and then write the cheques in question out to Amelie Investments Pty Ltd. He would write the correct payee details or ‘cancelled’ on the cheque stubs to avoid detection.
[The appellant] would then sign the cheques in the name of the Mondous Group Director, which he did not have the authority to do, and deposit the money into his own account.
In total, the appellant fraudulently deposited $1,498,281.88 from the company into an account he controlled.
The course of the proceeding
So as to understand how the ground of appeal is put, it is necessary to say something about the course of the proceeding.
As we have already said, the plea hearing was conducted on 12 May 2020. At the conclusion of the plea, the judge decided to grant bail pending sentence. Importantly, the judge addressed the appellant as follows:[6]
The order of the court will be that your bail will be extended until a date to be fixed. I won’t sentence today, and it’s going to take me a little while to take into account all of the factors that have been put on your behalf. I must reach a balance between the community expectations on sentence, and I must take into account at least to some extent the factors placed on your behalf.
Do not mistake vigorous questioning of [your solicitor] for criticism of him. It's just that I have to approach this with some rigour. By the same token, Mr Kelly, I do not want you to be under any misapprehension as to what will happen on the date of sentence. You will be sentenced to a period of imprisonment.
The extension of your bail at this time is very much an exception, and in that, I trust your previous good character, and the fact that you have good prospects for your rehabilitation. I’m not going to lecture you on what you must do in the next little while, but I can say this without any morality at all. Use the next few days wisely, and to put your affairs in order, all right? Take advice from [your solicitor] on that.
You will be advised of the date for sentence when my associate calls [your solicitor’s] office. So you’ll need to make yourself available, and on that day you will need to present yourself to the County Court. [Your solicitor] will give you further instructions on that.
[6]Emphasis added.
After thanking counsel for their ‘attendance by video-link’, the judge then said that he ‘would need a few days to consider the appropriate disposition in this case’.
As it transpired, at 10:46 am on Monday 18 May 2020, the judge’s chambers advised the parties that the judge would sentence the appellant on 20 May 2020. At that time, however, the appellant was in Queensland. In the course of the hearing on the morning of 20 May 2020, it became clear that the judge — perfectly understandably — was displeased by what he saw to be the appellant’s unjustified failure to answer his bail. Indeed, he made his displeasure known in a number of strongly-worded remarks, including the following:
No, [Mr Solicitor], you listen to me. Your client is in breach of his bail.
I know that you say, you take the sharp point that he was allowed up there. The terms of his bail are that he is to appear before this Court when called upon to do so, and … the fact that he is not here, is an absolute disgrace. It is taking a liberty for the facts that his bail was extended past the day of plea.…
I can only take it that he has absconded.
…
I’m not interested in any stories your client has to tell you about the fact that he deliberately breached his bail to be here.
…
I think the better course to take will be to issue a warrant for the arrest of [the appellant]. I order that [the appellant] is not to be released, but to be brought before me upon his apprehension. The choice is his, [Mr Solicitor], as to whether he comes back, as I say, like a man, or whether the police have to find him.
…
No. No, I am not prepared to list the matter until I see [the applicant] before me, and then he will be sentenced on a date to be fixed. He has done nothing to earn the trust of this court.
Notwithstanding the judge’s apparent annoyance, however, the appellant’s solicitor was able to make the following points:
·the solicitor had advised the appellant that he ‘wasn’t in breach of his conditions’ of bail by going to Queensland;
·the appellant had not ‘absconded’;
·the appellant was ‘apologetic’, and ‘committed to fixing what had happened’;
·the appellant was prepared to go to Brisbane to see if he could get a flight that afternoon;
·the appellant was ‘absolutely committed to coming back’; and
·the appellant was ‘prepared to surrender himself into custody upon his return’.
Two days later, on 22 May 2020, the appellant having returned to Victoria, the judge sentenced him. Having regard to the appellant’s contention that he was denied procedural fairness, it is appropriate to set out the entirety of the discussion that preceded the imposition of sentence:
HIS HONOUR: There’s no pre-sentence detention?
[APPELLANT’S SOLICITOR]: Sorry, Your Honour?
HIS HONOUR: There’s no pre-sentence detention?
[APPELLANT’S SOLICITOR]: There’s no pre-sentence detention - - -
HIS HONOUR: Thank you.
[APPELLANT’S SOLICITOR]: - - - and just before Your Honour moves to pass sentence, if Your Honour were prepared to, to hear, Mr Kelly wishes to apologise to Your Honour.
HIS HONOUR: No. I’m not prepared to hear. Can you hear me, [prosecutor]?
[PROSECUTOR]: Yes, I can, Your Honour. Thank you.
HIS HONOUR: Yes. Mr Kenna?
MR KENNA: (No audible response.)
HIS HONOUR: Thank you.
(SENTENCE FOLLOWS)
Reasons for sentence
In his reasons for sentence,[7] the judge summarised the appellant’s offences as follows:
[7]DPP v Kelly [2020] VCC 736 (‘Reasons’).
Charge 1 is a rolled up charge involving the fraudulent deposit of 11 cheques, each individually under the value of $50,000 into [the appellant’s] private company bank account. These 11 cheques were deposited between 28 March 2017 to 11 December 2017 and totalled $154,399.81.
The other offences are as follows:
·charge two occurred on 7 June 2017, a deposit of $53,256.56;
·charge three occurred on 17 July 2017, a deposit of $66,428.70;
·charge four occurred on 31 July 2017, a deposit of $160,386.48;
·charge five occurred on 7 September 2017, a deposit of $145,682.10;
·charge six occurred on 8 November 2017, a deposit of $220,534.38;
·charge seven occurred on 12 January 2018, a deposit of $338,948.80; and
·charge eight occurred on 16 March 2018, a deposit of $343,532.05.[8]
[8]Ibid [8]–[9].
The judge then recorded the appellant’s counsel’s ‘breakdown’ of the destination of the embezzled funds as follows:
·$345,500 was repaid;
·$350,000 was placed into the appellant’s business venture;
·$300,000 was spent on gambling;
·$150,000 was used to pay outstanding GST; and
·$350,000 was spent on debts and living expenses.[9]
[9]Ibid [14].
The judge noted that the appellant was 48 when he was sentenced.[10] His Honour then described the appellant’s personal circumstances in some detail.[11] In the course of so doing, his Honour referred to the reports of two psychologists, Dr Barth and Mr Lewis, which had been tendered on the plea. The judge noted Dr Barth’s opinion that the appellant had good prospects for rehabilitation, provided that he received ‘solid psychological intervention’.[12] Additionally, his Honour noted opinions that, while the appellant may have initially been suffering from an adjustment disorder with mixed anxiety and depressed mood, once ‘financial stressors were removed’ that condition dissipated, and the appellant did not suffer from any other disorder or cognitive impairment.[13]
[10]Ibid [21].
[11]Ibid [21]–[39].
[12]Ibid [33]–[34].
[13]Ibid [37]–[38].
The judge then turned to the objective gravity of the offending and the appellant’s moral culpability, saying that he took into account that:
·the offending occurred over a 12-month period;
·the appellant was sentenced on charges 2 to 8 as a continuing criminal enterprise offender;
·charge 1 was a rolled-up charge comprising 11 transactions;
·the offending involved 18 separate transactions;
·the appellant committed the offences from a position of trust;
·the appellant did not, however, prey on small investors;
·there was no application for compensation[14] (although, as the judge said, this did not lessen the appellant’s moral culpability);
·the offending involved planning, including the use of ‘cover up emails’;
·the offending involved a degree of calculation, with at least $200,000 placed into a solicitor’s investment account;
·the appellant spent $350,000 ‘on debt and lifestyle’; and
·the appellant made admissions to the offending.[15]
[14]Apparently, as the judge put it, ‘compensation had been made by the bank’.
[15]Reasons [40].
The judge concluded that, ‘even on the most benevolent view of the motives for [the appellant’s] conduct, [his] moral culpability is extremely high’.[16]
[16]Ibid.
As to the burden of imprisonment, the judge took into account that the appellant suffered from asthma and had increased vulnerability to the severity of COVID-19 if infected, so that the pandemic would make the appellant’s initial time in custody more difficult.[17]
[17]Ibid [47].
The judge dealt with a number of authorities to which he was referred during argument, including Director of Public Prosecutions v Bulfin,[18] Director of Public Prosecutions (Cth) v Gregory[19] and Dyason v The Queen.[20] The judge rejected a submission by the appellant that he should impose a lower sentence than the one imposed on the appellant in Dyason (Ms Dyason was sentenced for seven charges of obtaining property by deception[21] to an aggregate sentence of five years, with a non-parole period of three years).
[18][1998] 4 VR 114 (‘Bulfin’).
[19](2011) 34 VR 1 (‘Gregory’).
[20][2015] VSCA 120 (‘Dyason’).
[21]The total amount obtained in Dyason was approximately $1.4 million.
Additionally, the judge rejected a submission that a prison sentence should not be imposed on the appellant,[22] and an alternative submission that a combination sentence (a term of imprisonment with a community correction order) could be imposed.[23] The judge said that he considered the offending so serious that, in accordance with the principles set out in Bulfin, Gregory and Dyason, nothing short of an immediate term of imprisonment with a non-parole period was appropriate.[24]
[22]Reasons [45].
[23]Ibid [49].
[24]Ibid [50].
The judge noted a concession made by the prosecutor that the appellant’s plea of guilty was made at the earliest reasonable opportunity and that his good character was a mitigating factor. He said, however, that ‘cases such as Bulfin give only a little weight to this’.[25] By ‘this’, we take his Honour to have been referring to the weight given to good character in sentencing for offending of the present kind.
[25]Ibid [55].
Significantly for present purposes, a matter that was given a deal of attention in the judge’s sentencing remarks was the appellant’s failure to appear at the date first fixed for the sentence. It is these remarks which, the appellant’s counsel contends, demonstrate error. The judge said:[26]
In the end, I consider that you have some prospects for your rehabilitation. But it must be apparent from all that I have said that I consider there are some real concerns that must be addressed. And when it comes to the issue of your avoidance and your denial of reality, I must address the elephant in the room. You were due to be sentenced on Wednesday, 20 May 2020. With no opposition from the Crown, I extended your bail from the sentence hearing, on 12 May, to a date to be fixed for sentence.
I told you in the presence of your lawyer that sentence would be sooner rather than later; a matter of days, or a week or weeks, not months away. You chose in that time to drive to Queensland. You told your lawyer on Monday, 18 May that you were in far north Queensland. By Tuesday night you were at the Queensland/New South Wales border and you were tired, so he advised you not to drive any further that night. The following morning, you attended an orthodontic appointment on the Gold Coast in Queensland. An email produced to the Court and dated 13 May states the appointment date of 20 May was held for you.
I was told that you went to Queensland by car so you could see your children and make some arrangements for your business affairs. To that I can safely add that you also intended to receive orthodontic treatment. Many issues come to mind, Mr Kelly. The issue that you decided to drive to a State whose borders were closed during a pandemic. The issue that as at the evening before the sentence you were still some 1800 kilometres from Victoria, with only a car available to enable you to return. The issue arises, when did you leave Victoria? None of these issues and the answers to them are essential to this process. What is important is that I can only draw the conclusion that either the gravity of your situation has still not sunk in or you still prefer to satisfy your own selfish priorities over the law.
Now, I recognise that your bail conditions did not prohibit you from travelling interstate. But your bail said you had to be available to attend court. Now, given that your lawyer handed up a report from [psychologist] Dr Barth that said that you were in the early phase of gaining insight, that there were grounds for optimism for your rehabilitative prospects, that you were intelligent, you have prosocial values and that there are positive indicators, I can only conclude that you gave your return to Victoria for your sentence a low or no priority.
The only positive out of this is that you did return to Victoria voluntarily and presented at court this morning by an arrangement made by your lawyer and the police. You did so, however, entirely on your own terms, and rather than present at a local station and risk spending the weekend or longer in a local lockup, it was arranged without any intervention of the court that you would turn up to the County Court and hand yourself in with the expectation of your lawyer that I would proceed to sentence. More fortunately for you I was prepared to do that rather than have you kicked around watch house cells for a week or two weeks.
But it smacks of a breathtaking arrogance on your part or alternatively a massive denial of the reality of this situation. And either way, it smacks of a contempt for the criminal justice process. Mr Kelly, I conclude you are a long, long way from rehabilitation for your offending.[27]
[26]Emphasis added.
[27]Reasons [56]-[61] (emphasis added).
Parties’ contentions
The appellant noted that, during the course of the plea, the judge variously referred to the appellant’s prospects for rehabilitation as ‘good, but there are some real causes for concern’; as ‘good, but with some concerns’; and finally, as ‘good’. As we have already noted, in addressing the appellant when granting him bail at the end of the plea hearing, the judge said:
The extension of your bail at this time is very much an exception, and in that, I trust your previous good character, and the fact that you have good prospects for your rehabilitation.
The appellant contends that there was a ‘strong foundation’ for the judge’s characterisation of the appellant’s prospects for rehabilitation, during the plea hearing, as being good: namely, the expert psychological evidence which had been the subject of discussion during the course of the plea; the absence of prior or subsequent offending; and the appellant’s early guilty pleas, acceptance of responsibility, admissions and remorse.
As the appellant put it, however, ‘without inviting or hearing further submissions from the parties’, after the appellant failed to answer his bail, the judge sentenced him on the basis that he only had ‘some prospects for [his] rehabilitation’;[28] and that ‘…either the gravity of [his] situation [had] still not sunk in or [he] still prefer[red] to satisfy [his] own selfish priorities over the law;[29] and that it could only be concluded that the appellant gave his return to Victoria for sentence ‘a low or no priority’.[30] And, as we have already noted, the judge concluded:
But it [the appellant’s failure to attend court on 20 May 2020] smacks of a breathtaking arrogance on your part or alternatively a massive denial of the reality of this situation. And either way, it smacks of a contempt for the criminal justice process. Mr Kelly, I conclude you are a long, long way from rehabilitation for your offending.[31]
[28]Reasons [56].
[29]Ibid [58].
[30]Ibid [59].
[31]Ibid [61].
The appellant contended that the judge’s findings, in his reasons for sentence, about the appellant’s prospects for rehabilitation; purported lack of insight into the gravity of his situation; and purported contempt for the criminal justice process, were not open to be made. First, they were not justified on the evidence. Secondly, they were made in circumstances where the appellant was denied procedural fairness.[32] Thirdly, the findings were inconsistent with the information before the sentencing court, and comments made by the judge during the course of the plea. The appellant submitted that it is ‘well established that if a court changes its previously expressed views, it should notify the parties and provide an opportunity for further submissions to be made’.[33]
[32]The appellant relied upon Pantorno v The Queen (1989) 166 CLR 466, 473, and SD v The Queen (2013) 39 VR 487, 496 [39].
[33]See DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267, [38].
The respondent contended that the judge’s conclusion on the issue of rehabilitation in his reasons for sentence was ‘essentially the same’ as his view expressed during the course of the plea. Specifically, during the plea, the judge said he ‘would consider the prospects of rehabilitation good, but with some concerns’. In his reasons, he said, ‘I consider that you have some prospects for your rehabilitation. But it must be apparent from all that I have said that I consider there are some real concerns that must be addressed.’[34] The respondent submitted that both of these statements were ‘essentially the same’, and they were ‘consistent with the material before the court’.
[34]Reasons [56].
Next, the respondent submitted that the appellant was not denied procedural fairness. It was submitted that this was not a case where the plea proceeded on a particular basis, but the judge later sentenced on a different basis, of which the parties had no advance notice. Nor, it was submitted, was this a case of the judge informing himself of matters without the knowledge of the parties. The respondent submitted that there was general consensus that the appellant had positive prospects of rehabilitation, but also that there were some matters of concern. The judge gave the appellant’s plea counsel the opportunity to make submissions on this ‘likely conclusion’. Ultimately, the judge reached the conclusion he had foreshadowed during the plea and there was no procedural unfairness involved in so doing.
On the specific issue of the appellant’s failure to attend the hearing on 20 May 2020, the respondent submitted that the appellant’s solicitor was able to make a number of submissions to the judge on 20 May 2020, including that the appellant:
·was sincerely apologetic;
·was willing to hear sentence by telephone;
·had an orthodontic appointment on the Gold Coast;
·did not breach bail by going to Queensland;
·started driving south as soon as the court gave notice of the sentencing hearing;
·was unable to fly to Melbourne because the Gold Coast airport was closed;
·was prepared to drive to Brisbane to try and get an immediate flight back to Melbourne;
·had not absconded; and
·was committed to returning for sentence.
Finally, the respondent submitted that, in any event, no different sentence should now be imposed. The objective seriousness of the offending was high. Across the eight charges, and 18 transactions, the appellant defrauded his employer of just under $1.5 million. Over the 12 months of offending, the appellant became more brazen; the value of the transactions progressively increased. The offending was committed from a position of trust, since the appellant had access to the bank accounts and chequebooks of his employer. Additionally, the appellant used ‘measures to disguise his conduct, including mislabelling cheque stubs, and using cover-up emails’.
Consideration
While the judge expressed himself in different terms about the appellant’s prospects of rehabilitation, at different times during the plea hearing, broadly speaking he appeared to accept that the appellant’s prospects were good. Notwithstanding the respondent’s best endeavours to characterise the judge’s conclusions on remorse in his reasons for sentence as ‘essentially the same’ as those used by him during the plea, the judge plainly expressed himself in less effusive terms on the issue of remorse when it came to sentencing. The word ‘good’ was not used in his Honour’s reasons, and the expression ‘good prospects’ became ‘some prospects’.
Moreover, contrary to the respondent’s submissions, the judge’s conclusion in his reasons for sentence that the appellant was ‘a long, long way from rehabilitation’,[35] cannot be explained by reference to Dr Barth’s opinion as expressed in his report, which the judge had at the time of the plea hearing, that the appellant was ‘in the early phase of gaining insight into his offending behaviour’.
[35]Ibid [61].
The appellant’s submission that the judge formed a more negative view of his prospects of rehabilitation following his failure to answer his bail on 20 May 2020 must be accepted. Plainly, the judge formed the more negative view of the appellant’s prospects for rehabilitation because of what the judge regarded as the appellant’s totally inappropriate conduct of going to Queensland after having been told that he was likely to be sentenced a relatively short time after the plea hearing (a matter of days, or possibly a week).
That said, this was not a case where the possibility that the judge might alter his views on the issues of acceptance of responsibility, insight and rehabilitation was not made plain during the hearing on 20 May 2020. The judge’s reaction to the appellant’s absence on 20 May 2020, and what he said on that day, could not have left anyone in any doubt that the appellant’s failure to answer his bail on that day was a matter that the judge might take into account, adversely to the appellant, on the issues of insight, acceptance of responsibility and remorse.
During the course of the hearing on 20 May 2020, the appellant’s solicitor attempted to explain the circumstances in which his client had failed to answer his bail that day. He proffered an apology on behalf of his client, endeavoured to give context to his client’s non-attendance, submitted that there was no breach of bail in the appellant merely travelling to Queensland, and put forward steps that the appellant could take to remedy the situation as soon as possible. Unfortunately for the appellant, the judge was not particularly receptive — variously saying ‘I’m not interested in any stories your client has to tell …’ and ‘I don’t accept a word of that’. The hearing on 20 May 2020 concluded with the judge saying, ‘I’m not going to sit here and listen to any more you have to say’.
On 22 May 2020, and prior to the judge passing sentence, the appellant’s solicitor told the judge that the appellant wished to apologise. The judge said that he was not prepared to hear that, and proceeded to sentence the appellant. In an ideal world, the appellant’s solicitor might then have raised the question of whether he needed to make submissions about the issues of acceptance of responsibility, insight or rehabilitation — having regard to what had occurred since the end of the plea hearing. That is the course we would have expected experienced counsel to have taken. Moreover, if such a course had been taken then we would expect that the judge would have either permitted further submissions to be made or told counsel that (notwithstanding his apparent anger) nothing that had occurred since the end of the plea hearing had changed the views he expressed during the course of the plea.
All of that said, having examined closely the transcript of 12, 20 and 22 May 2020, ultimately we are driven to conclude that, in making the findings the judge made, on the issues of acceptance of responsibility, insight and rehabilitation, without seeking further submissions from the appellant, involved a denial of procedural fairness. We reject, however, the appellant’s additional submission that the judge’s ultimate findings were not open on the evidence. There may well have been good grounds for his Honour to reach the conclusions he reached — but, as we have said, those conclusions should not have been reached without affording the appellant a chance to apologise and a chance to make further submissions.
Section 281 of the Criminal Procedure Act 2009 requires this Court to dismiss the appellant’s appeal unless the appellant satisfies the Court that, in addition to there being an error in the sentence first imposed, a different sentence should be imposed. Assuming in the appellant’s favour that he appropriately accepted responsibility, possessed insight and had good prospects of success, we are not satisfied that any different sentence should now be imposed. The judge was correct when he concluded that the appellant’s moral culpability was ‘extremely high’.[36] The offending involved substantial breaches of trust. There were some 18 transactions involving just under $1.5 million, and the offending involved steps taken by the appellant to conceal his dishonesty.
[36]Reasons [40].
As was said in Bulfin, offenders typically involved in ‘white collar’ crimes like the present usually have no prior criminal history, and their prospects of rehabilitation will generally be ‘very high’.[37] That is why those matters tend to have less relevance in sentencing for crimes of the present kind as compared to other offending.
[37]Bulfin [1998] 4 VR 114, 131 (Charles JA).
There can be no doubt that the appellant’s offending in this case required a substantial term of imprisonment and non-parole period. It is also to be remembered that, as the appellant fell to be sentenced as a continuing criminal enterprise offender on charges 2 to 8, the maximum term of imprisonment for those offences was 20 years. In all of the circumstances, and accepting that the appellant had and has good prospects of rehabilitation, the sentences imposed, and orders made, by the judge were moderate. More specifically, we are not satisfied that a different sentence should now be imposed on any of charges 1 to 8, or that any different orders for cumulation or non-parole period should now be fixed.
Conclusion
The appeal will be dismissed.
Correcting an omission
As we have already observed, the appellant was sentenced as a continuing criminal enterprise offender on charges 2 to 8. Section 6J(1) of the Sentencing Act 1991 required the judge to enter in the records of the County Court the fact that the appellant was sentenced for a continuing criminal enterprise offence in respect of those charges. The matter was not drawn to the judge’s attention, and his Honour thus failed to take this step.
The respondent submitted that, pursuant to s 104A(5A) of the Sentencing Act, this Court should correct the judge’s omission. The appellant did not resist this course. In the circumstances, we will make an order that the Record of Orders made in the County Court be amended to record the fact that the appellant was sentenced for a continuing criminal enterprise offence on each of charges 2 to 8.
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