Kruger v The King
[2023] VSCA 149
•20 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0083 |
| CAROLYN DAWN KRUGER | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGE: | BEACH and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 June 2023 |
| DATE OF JUDGMENT: | 20 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 149 |
| JUDGMENT APPEALED FROM: | [2022] VCC 594 (Judge Syme) |
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CRIMINAL LAW – Sentence – Appeal – Theft (8 charges) – Theft from employer of amounts totalling in excess of $3.7 million – TES of 5 years and 4 months, with NPP of 4 years – Appeal against NPP – Whether judge erred in failing to conclude that appellant’s childhood trauma and deprivation reduced her moral culpability for offending – Whether judge erred in failing to find serious risk that imprisonment would have adverse effect on appellant’s mental health – Judge erred in failing to conclude that appellant’s childhood deprivation reduced her moral culpability – Appellant not establishing that any different non-parole period should be imposed – Appeal dismissed.
Criminal Procedure Act 2009, s 281(1)(b).
Power v The Queen (1974) 131 CLR 623; R v Morgan (1980) 7 A Crim R 146; DPP v Bulfin [1998] 4 VR 114; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; DL v The Queen (2018) 265 CLR 215; DPP v Herrmann [2021] VSCA 160; and Chuah v The Queen [2022] VSCA 51 referred to.
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| Counsel | ||
| Appellant: | Mr CT Carr SC with Ms K Farrell | |
| Respondent: | Ms A Moran with Ms S Lenthall | |
| Solicitors | ||
| Appellant: | Galbally Parker Lawyers | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
BEACH JA
TAYLOR JA:
The appellant was employed as a bookkeeper by a water filtration business, Triangle Waterquip Pty Ltd (‘Triangle’). Between 3 January 2008 and 18 February 2015, she made 349 unauthorised electronic transfers from Triangle’s bank accounts to bank accounts in her name or under her control. In total, over a seven year period, the appellant stole a total of $3,780,672.93 from Triangle. On 28 June 2019, in relation to this offending, the appellant pleaded guilty in the County Court to eight charges of theft contrary to s 74(1) of the Crimes Act 1958. The maximum term of imprisonment for theft is 10 years.
On 7 April 2022, following a plea hearing on 31 March 2022 and further submissions made on 7 April, the appellant was sentenced to 3 years’ imprisonment on each charge. The sentence imposed upon charge 1 was the base sentence, and the judge cumulated 4 months of each of the sentences imposed on charges 2 to 8, making a total effective sentence of 5 years and 4 months. A non-parole period of 4 years was fixed.[1] Pursuant to leave granted on 8 November 2022,[2] the appellant appeals against her sentence on the following grounds:
[1]DPP v Kruger [2022] VCC 594 (‘Sentencing Reasons’).
[2]Kruger v The King [2022] VSCA 244 (‘Leave Reasons’). In order to make these reasons comprehensible as a stand-alone document, we have taken significant parts of the Leave Reasons and reproduced them in these reasons, rather than referring to back to relevant paragraphs of the Leave Reasons.
1.There was an error in the non-parole period by reason of the sentencing judge’s:
(a)failure to give any weight to the appellant’s childhood trauma and deprivation; or
(b)failure to afford the appellant procedural fairness before not accepting, or not giving any weight in mitigation to, the evidence of the appellant’s childhood trauma and deprivation.
2.There was an error in the non-parole period by reason of the sentencing judge’s:
(a)failure to find that there was a serious risk of imprisonment having a significant adverse effect on the appellant’s mental health (other than any claimed dissociative identity disorder), including her major depressive disorder and/or complex post-traumatic stress disorder; or
(b)failure to afford the appellant procedural fairness before not accepting, or not giving any weight in mitigation to, the evidence that that there was a serious risk of imprisonment having a significant adverse effect on the appellant’s mental health (other than any claimed dissociative identity disorder), including her major depressive disorder and/or complex post-traumatic stress disorder.
Circumstances of the offending
The appellant commenced employment with Triangle in 1997 as a bookkeeper. At that time, Triangle’s turnover was growing and its directors needed assistance with the administration side of the business including the payment of accounts. Over time, the appellant was given responsibility for all of the accounting and administrative functions of Triangle’s business, including accounts payable, accounts receivable and wages. The appellant had full access to Triangle’s bank accounts. During the period of her offending, the appellant operated various bank accounts in her own name and in the names of ‘Keyboard Data Services’, ‘Ontrack Accounting’ and ‘Melbourne IT Solutions’. All of these bank accounts were used by the appellant in her offending.
On 12 February 2015, an office administrator employed by Triangle discovered two payments (one for $1200 and one for $2000) that she could not reconcile on the accounts payable register. When confronted with this, the appellant initially said, ‘You don’t need to worry about that’. On 18 February 2015, however, the appellant admitted taking these amounts ($3200) without authority as she ‘desperately needed the money to meet an urgent financial commitment’. Subsequently, a further unauthorised transaction of $7,154 was discovered. Further investigations, however, showed that the appellant had transferred a total of $207,056.51 from Triangle’s trading account, without authorisation.
On 25 February 2015, at a meeting between the appellant and the directors and shareholders of Triangle, the appellant admitted that she was connected to Ontrack Accounting, Keyboard Data Services and Melbourne IT Solutions. She also admitted to having taken approximately $80,000 without authorisation. She denied, however, that the amount she had taken exceeded $200,000. Notwithstanding that denial, on the following day, the appellant sent an email to the directors of Triangle admitting that she had made 26 unauthorised transactions, totalling $207,131.80.
On 29 May 2015, a deed (‘the deed’) was entered into between the appellant and the directors of Triangle, in which the appellant agreed to repay monies to the company through the sale of several properties owned by her. Further investigations by a forensic accountant revealed that a total of approximately $4.5 million had been transferred without authorisation by the appellant between 2008 and February 2015.
As we have already observed, the appellant fell to be sentenced in respect of eight charges, covering a seven year period, during which she made 349 unauthorised electronic transfers of amounts totalling $3,780,672.93. The specifics of each charge may be summarised as follows:
•Charge 1: between 3 January 2008 and 23 December 2008, 40 transfers to the value of $252,334.81;
•Charge 2: between 13 January 2009 and 22 December 2009, 47 transfers to the value of $701,440.94;
•Charge 3: between 5 January 2010 and 23 December 2010, 40 transfers to the value of $509,783.31;
•Charge 4: between 20 January 2011 and 22 December 2011, 52 transfers to the value of $710,739.32;
•Charge 5: between 12 January 2012 and 20 December 2012, 55 transfers to the value of $666,987.39;
•Charge 6: between 2 January 2013 and 19 December 2013, 68 transfers to the value of $522,118.92;
•Charge 7: between 7 January 2014 and 19 December 2014, 38 transfers to the value of $345,371.42; and
•Charge 8: between 7 January 2015 and 18 February 2015, nine transfers to the value of $71,896.82.
The deed contained a term that if the amount of money obtained by deception by the appellant was found to have exceeded $1 million, Triangle would report the matter to police. The matter was duly reported and, on 10 March 2017, the appellant made a ‘no comment’ record of interview. She was then charged and released on bail.
The plea hearing
On the plea, the appellant tendered and relied upon two medical reports from her treating psychologist, Ms Angela Scanlon, prepared in September 2018 and January 2022; a report from her treating psychiatrist, Dr Ruwan Haputhantrige, dated 21 February 2022; three reports from a consultant psychiatrist, Dr Sylvia Solinski, dated 15 May 2020, 27 June 2020 and 18 August 2020, and a transcript of the evidence given by Dr Solinski on 13 August 2021; two reports from a consultant forensic psychiatrist, Dr Jacqueline Rakov, dated 24 and 27 March 2022; two reports from the appellant’s general practitioner, Dr Robyn Newnham, dated 6 April 2020 and 31 January 2022; a report from a pain management specialist, Dr John Monagle, dated 21 January 2022; a report from a consultant dermatologist, Associate Professor Anna Braue, dated 10 February 2022; and a report from a urogynaecologist, Dr Natharnia Young, dated 19 January 2022.
The prosecutor tendered and relied upon a report from a consultant forensic psychiatrist, Dr Danny Sullivan, dated 6 April 2021, and email correspondence to which Dr Sullivan was a party; and two reports from an occupational and forensic psychiatrist, Dr Leon Turnbull, dated 14 January 2019 and 9 June 2019 (which reports had been prepared at the request of solicitors who had previously acted for the appellant).
The medical evidence tendered by the appellant was relied upon to establish that she suffered from a number of psychological and psychiatric conditions, including dissociative identity disorder (DID), post-traumatic stress disorder (PTSD) and depression. It was contended that the DID developed in the context of the appellant having suffered a traumatic childhood, ‘marred by sexual, physical and emotional abuse, deprivation, neglect and family violence’. Additionally, in March 2016, the appellant had been involved in a serious motor accident in which she suffered ‘multiple serious injuries including left shoulder tear, left ulnar nerve injury, fractures to four ribs and multiple sternum fractures, fractured nose and brief loss of consciousness’. The appellant’s medical evidence also disclosed a history of skin cancer and urogynaecological issues.
On the plea, the appellant relied upon the following matters in mitigation:
•her plea of guilty;
•her lack of any criminal history, and the fact that she was otherwise of good character;
•her profound childhood deprivation and abuse suffered during her formative years, which were submitted to enliven the principles set out in Bugmy v The Queen[3] and DPP v Herrmann;[4]
•her psychological and psychiatric conditions, which were submitted to enliven principles 1, 3, 4, 5 and 6 set out in R v Verdins;[5]
•her physical ill health, which it was submitted would be adversely affected by imprisonment, as well as making imprisonment significantly more burdensome for the appellant than for a person in normal health;
•the fact that the appellant had made restitution in the sum of $584,000, before being declared bankrupt;
•the appellant’s remorse as demonstrated in the reports of Dr Solinski; and
•the appellant’s good prospects of rehabilitation.
[3](2013) 249 CLR 571 (‘Bugmy’).
[4][2021] VSCA 160 (‘Herrman’)
[5](2007) 16 VR 269 (‘Verdins’). For the purpose of this application, it is Verdins principles 5 and 6 which have relevance. Those principles are:
(5)The existence of [impaired mental functioning] at the date of sentencing (or its foreseeable occurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(6)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
On the plea, the prosecution accepted that Bugmy was relevant in the general way described by the plurality in that decision,[6] being:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[7]
[6]French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.
[7]Bugmy (2013) 249 CLR 571, 594 [40]. See also Herrman [2021] VSCA 160, [36].
The prosecution did not, however, accept that Bugmy was relevant in the more specific way described by the plurality at [43]–[44] of their judgment,[8] because that ‘specific application’ of Bugmy required a nexus to be shown between the appellant’s disadvantaged childhood and her offending — which nexus, the prosecution contended, was not established on the evidence.
[8]See also Herrman [2021] VSCA 160, [37].
The prosecution thus submitted on the plea that Verdins principles 1 to 4 had no application in the present case. The prosecution did, however, concede that Verdins principles 5 and 6 were relevant in the sentencing synthesis.
On the plea, the appellant accepted that an immediate custodial sentence was required. She submitted, however, that a suspended sentence was available in relation to charges 1 to 6, given that those offences were committed prior to 1 September 2013. She also submitted that a shorter than usual non-parole period should be imposed, having regard to her plea of guilty, lack of prior convictions, deprived childhood and physical and mental ill health.
In response, the prosecution submitted that a sentence of imprisonment with a non-parole period to be served was the only disposition that would properly give effect to general deterrence and just punishment. The prosecutor contended that there were serious matters of aggravation namely:
•the appellant’s gross breach of trust;
•the offending having occurred over an extended period of time;
•the fact that in excess of $3.7 million was stolen; and
•the number of separate transactions giving rise to the offending.
Sentencing Reasons
The judge commenced her reasons for sentence with a description of the appellant’s offending.[9] In the course of her Honour’s description, she noted that the charges were rolled-up charges[10] and, because none of the individual transactions exceeded $50,000, part 2B of the Sentencing Act1991[11] had no application.[12]
[9]Sentencing Reasons, [1]–[12].
[10]Ibid [12].
[11]The continuing criminal enterprise provisions.
[12]Sentencing Reasons, [7].
The judge referred to the victim impact statements filed by Walter Menke, Catherine Rousell and Fred Menke, the directors of Triangle, noting the human cost of the offending — the offending having affected the physical and psychological health of the family to whom the business belonged.[13]
[13]Ibid [13]–[15].
The judge noted that the appellant first pleaded guilty on 25 October 2019,[14] ‘after considerable negotiations’.[15] Her Honour summarised the various delays caused by matters including COVID restrictions and the appellant’s application to change her plea, saying that, notwithstanding such delay, the appellant was still entitled to a discount for an early plea — albeit one that would be ‘somewhat diminished as a result of the subsequent hearings, but not due to other delays caused by outside issues’.[16] The judge acknowledged that the potential for delay had caused the appellant anxiety, and also observed that the appellant had repaid $584,000 from the sale of property. The judge described this as being in the appellant’s favour.[17]
[14]In fact, the appellant pleaded guilty on 28 June 2019 – her plea was then fixed for hearing in October 2019: Leave Reasons, [10]-[11].
[15]Sentencing Reasons, [16].
[16]Ibid [17].
[17]Ibid.
Under the heading, ‘Objective gravity of offending’, the judge said that matters that made the offending more serious included the fact that the appellant was employed by the victim and was therefore in a position of trust; the offending continued over an extended period of time, and that trust continued, ‘and continued to be abused by [the appellant]’.[18] The judge then said that the time over which the offending occurred was an aggravating factor; the appellant did not stop offending until she was challenged and admitted a small degree of the theft. The judge said that each offence was serious and that the totality of the offending was significant.[19]
[18]Ibid [18].
[19]Ibid [19].
Under the heading, ‘Personal circumstances and background’, the judge set out some of the detail of the appellant’s early family life.[20] The judge described the appellant’s background as having been taken from ‘a series of self-reports by [the appellant] to psychologists and psychiatrists who interviewed [her] well after [the] offending commenced’. The judge appeared to deprecate (at least to some extent) some of this self-reporting, noting that none of those to whom the appellant gave her version (a version which the judge noted was accepted by the prosecution) had sought to confirm any of the details with members of the appellant’s family who were still alive.[21] Nevertheless, the judge said that it was accepted that the appellant’s childhood was ‘replete with profound deprivation, at least at the hands of [her] parents and siblings’.[22]
[20]Ibid [20]–[27].
[21]Ibid [20].
[22]Ibid [23].
Under the heading, ‘Psychological and physical health’, the judge dealt in considerable detail with the evidence tendered on the plea.[23] The judge critically analysed the evidence of Ms Scanlon,[24] Dr Haputhantrige,[25] Dr Solinski,[26] Dr Turnbull,[27] Dr Sullivan[28] and Dr Rakov.[29] Having summarised that evidence, the judge said that there was no acceptable evidence to support a finding that at the time of her offending the appellant was suffering from a mental impairment which reduced her moral culpability for the offending.[30]
[23]Ibid [28]–[83].
[24]Ibid [34]–[46].
[25]Ibid [47]–[50].
[26]Ibid [51]–[63].
[27]Ibid [64]–[71].
[28]Ibid [72]–[80].
[29]Ibid [81]–[83].
[30]Ibid [84].
Under the heading, ‘Medical condition, difficulties in custody’, the judge accepted that imprisonment was ‘likely to be more burdensome for the [appellant] than for a person not suffering from her physical and mental health difficulties [Verdins principle 5]’.[31] Having regard to the terms of ground 2, it is appropriate to set out that part of her Honour’s reasons dealing with Verdins principle 6 (albeit that Verdins principles 5 and 6 are, to some extent, dealt with together in her Honour’s reasons). Specifically, the judge said:
The next principle to take into account, is for the Court to consider if there is a serious risk that imprisonment will have a significantly adverse impact on the offender's mental health. This will be, according to the Verdins principles, a mitigating factor. Ms Kruger’s various treating psychologists, psychiatrist, and general practitioner each opine that a custodial environment will be detrimental to Ms Kruger’s already fragile mental health. In addition to Dr Rakov, her treating psychologist and psychiatrist both state that imprisonment will cause increased suicide risk. Dr Rakov raises concerns about the availability of psychological therapy in a custodial environment, observing that Ms Kruger is likely to struggle to cope with both the reality of the circumstances that led her to custody, and the custodial environment herself.
As noted above, there is very little evidence of how the current presentation or mental health presentation of Ms Kruger will make her time in custody more difficult. Importantly, Dr Sullivan, who is a practitioner who has experience in the corrective system, has provided some information. As noted above, Dr Sullivan currently is the executive director of clinical services at the Victorian Institute of Forensic Mental Health. He is well placed to provide such information. He opines that Ms Kruger should be able to avail herself of support through nursing staff, various counselling psychology options and programs.
He concedes that they may not be as accessible as in the community. He noted that there is a facility to accommodate women in settings which provide extra support if this is considered necessary, such as Rosewood or the Marmack Unit. He notes however that at the time of assessment he would not have considered this necessary, but he concedes that circumstances may always change. He also helpfully observed that given the nature of her offending and her mental health profile, she may be eligible to transfer to the Tarrengower Prison, which he suggests is a relatively humane and therapeutic prison. I observe separate to all of this information, that it is the obligation and the duty of corrective services to provide appropriate physical and mental health care for all inmates in their care. I accept that custody is likely to be more burdensome for Ms Kruger than for a person not suffering from her physical and mental health difficulties as I think summarised appropriately by Dr Sullivan.
This would have some moderating effect on the sentence to be imposed, both on the head sentence and on the non-parole period.[32]
[31]Ibid [90].
[32]Ibid [88]–[91].
The judge then said that insofar as there were other matters relevant to the sentencing process to which she had not already referred, these were the appellant’s previous good character,[33] the fact that she had made the restitution of $584,000,[34] and her remorse. The judge referred to the appellant’s plea of guilty as being ‘some evidence of remorse’, but said that her insight was ‘limited’.[35] Nevertheless, the judge accepted that it was unlikely that the appellant would reoffend.[36]
[33]Ibid [93]–[94].
[34]Ibid [95].
[35]Ibid [100].
[36]Ibid [101].
In the course of discussing these issues, the judge made reference to ‘moral culpability’ and ‘mental health considerations’. Having regard to the terms of ground 1, it is necessary to set out what her Honour said in relation to moral culpability as follows:
In relation to the issue of the purpose of the offending and moral culpability other than mental health considerations, in some submission by defence counsel it was suggested that funds went for the purpose of Ms Kruger’s private business concerns which were apparently quite extensive at some stage. Other suggestions are that in order to ingratiate herself with her birth family, she might have given them some funds. Other suggestions are that she might have paid money to friends. The suggestion that she gave money to family except perhaps her daughter, is not supported by her self-report to therapists as she says that she has not been in contact with her extended family since 2007.
Ms Kruger is still in contact with her father apparently. It was submitted that if any money was given to family in those circumstances then it is related to her (that is Ms Kruger’s) needy and abusive background and her need to please her family members, therefore related to her poor mental health presentation. In the absence of any evidence that money was so diverted, this is sheer speculation. In any event such payments, if made, to her business or family are for the purpose of her own personal benefit in some way. It cannot be said that there was a pressing benevolent need existing elsewhere.[37]
[37]Ibid [96]–[97].
Appellant’s contentions
Under ground 1, the appellant referred to what she described as the ‘significant evidence’ given on the plea about her childhood trauma and deprivation. She submitted that there was a large degree of consistency in her accounts on the issue, and noted that the prosecution had accepted that Bugmy and Herrmann had application in this case.
The appellant submitted that, while the judge recorded the appellant’s description of her childhood trauma and deprivation in the ‘Personal circumstances and background’ section of her reasons, nowhere in her reasons did her Honour engage with the relevant principles nor ascribe any weight to those matters in mitigation. The appellant accepted that, while the mere failure to mention a matter in sentencing reasons does not necessarily mean that the matter has not been considered, the length and detail of her Honour’s reasons (containing, as they did, comprehensive analyses and conclusions in respect of matters that the judge then expressly accepted or rejected) supports the proposition that the judge’s failure to refer to Bugmy, or any of the principles for which it stands, demonstrated that her Honour failed to give those matters any weight.
In the alternative, the appellant submitted that if the judge rejected the evidence of childhood trauma and deprivation then, in light of the prosecution’s concession on the plea and the way in which the plea was conducted, the judge denied the appellant procedural fairness in not telling the appellant that she was not willing to accept the concessions made by the prosecution.[38]
[38]See DL v The Queen (2018) 265 CLR 215, 232 [39] (‘DL’); Chuah v The Queen [2022] VSCA 51, [54] (‘Chuah’).
Under ground 2, the appellant made a similar argument in respect of Verdins principle 6. The prosecution expressly conceded that Verdins principle 6 was engaged by the appellant’s mental health conditions (other than her DID). The appellant submitted that the concession was an appropriate one in light of the opinions expressed by Ms Scanlon, Dr Newnham, Dr Monagle, Dr Rakov and Dr Haputhantrige.
The appellant accepted that, while Dr Sullivan had expressed a view that the appellant should be able to avail herself of support in prison through nursing staff, counselling and other programs, it was not open to the judge to reject the significant body of evidence as to the risk of a significant deterioration in the appellant’s mental health being caused by her incarceration.
In the alternative, the appellant contended that if the judge rejected the prosecution concession that Verdins principle 6 was enlivened then there was a denial of procedural fairness. Again, the appellant relied upon the High Court’s decision in DL and this Court’s decision in Chuah.
In oral argument, senior counsel for the appellant made detailed submissions designed to persuade us that, there being error in the sentence first imposed, a different non-parole period should now be imposed.[39] In summary, he submitted that, in fixing a non-parole period, it was appropriate to give different weight to relevant sentencing considerations from the weight that might be given when imposing a total effective sentence. Specifically, he submitted that this case was a case where greater weight should be given to the issue of mercy on the non-parole period than may have been given in respect of the total effective sentence. In support of his submissions, senior counsel for the appellant referred to the judgment of Jenkinson J (with whom Kaye J agreed) in R v Morgan,[40] where his Honour described the non-parole period as:
... the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify.[41]
[39]See s 281(1) of the Criminal Procedure Act 2009.
[40](1980) 7 A Crim R 146 (‘Morgan’).
[41]Ibid 154.
In support of his submissions on the issue of mercy, senior counsel for the appellant referred in detail to the appellant’s deprived upbringing, the physical and sexual abuse she endured as a child, the fact that she first received psychological/psychiatric treatment in 2008, the extent of her ongoing psychiatric condition and symptoms, the fact that her condition had ‘an iatrogenic component’, and the ‘scant availability’ of psychological therapy in custody. It was submitted that all of these matters justified this Court in exercising mercy and imposing a significantly lower non-parole period than that imposed by the judge.
Respondent’s contentions
Under ground 1, the respondent submitted that the judge expressly accepted the appellant’s childhood was replete with profound deprivation. Moreover, the particulars of the appellant’s background, including the submitted deprivation, were recited in her Honour’s sentencing remarks in some detail. The respondent submitted that, having outlined the appellant’s traumatic history and described it as ‘profound deprivation’, adopting the language of Bugmy and Herrmann, there is no substance in ground 1. It submitted that this was not a case where a matter of significance was completely overlooked or simply absent from the sentencing reasons. The mere fact that the sentencing remarks do not explicitly engage with the relevant principles in a more overt way did not mean that those principles had not been considered and applied.
Under ground 2, the respondent advanced a similar argument. It was submitted that a fair reading of the sentencing reasons indicated that the judge took into account the existence of the serious risk that imprisonment would have a significant adverse effect on the appellant’s mental health. The respondent then submitted that it was clear that her Honour also had regard (as she was entitled to) to the mental health services available in custody in determining what weight to give this sentencing factor.
In the event that this Court upheld either of the respondent’s complaints of error in her Honour’s sentence, the respondent submitted that no different sentence should now be imposed and that therefore, pursuant to s 281 of the Criminal Procedure Act 2009, the appeal should be dismissed.
Ground 1: Bugmy
A significant plank of the appellant’s plea related to the trauma and deprivation she suffered as a child. On the plea, there was no issue between the parties about the existence of the appellant’s childhood trauma and deprivation. Moreover, the appellant made submissions and expressly relied upon Bugmy and Herrmann for the proposition that the appellant’s childhood deprivation and trauma should mitigate the sentence to be imposed upon her because her moral culpability was less than the culpability of ‘an offender whose formative years have not been marred in that way’.[42] That submission was not contested by the prosecution on the plea.
[42]Bugmy (2013) 249 CLR 571, 594 [40]; Herrmann [2021] VSCA 160, [36].
The appellant correctly concedes that a mere failure to mention a particular matter in sentencing reasons does not necessarily mean that that matter was not taken into account. In the present case, the judge referred to the appellant’s childhood trauma and deprivation in the course of summarising the appellant’s personal circumstances and background. In the circumstances, it is at least arguable that, in so doing, her Honour properly took into account those matters.[43] There are, however, two difficulties with taking that approach in the present case.
[43]Leave Reasons, [42].
First, as was identified on the plea, in Bugmy, the High Court explained the two different ways in which childhood deprivation may potentially be relevant to the assessment of moral culpability.[44] The first, and more general way, was expressed as follows:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[45]
And the second, more specific way, was expressed in these terms:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[46]
[44]See also Herrmann [2021] VSCA 160, [36]–[46].
[45]Bugmy (2013) 249 CLR 571, 594 [40].
[46]Ibid 595 [44].
On the plea, the appellant relied upon Bugmy, submitting that her childhood deprivation was relevant in both of the ways identified by the High Court. As we have said, while the prosecution accepted that Bugmy was relevant in the first (more general) way, it did not accept that the appellant’s childhood deprivation was relevant in the second (more specific) way. In the circumstances, it was incumbent on the judge to resolve this disputed issue in the course of her reasons for sentence. The judge’s failure to make any reference to Bugmy or to this dispute between the parties provides significant support for the appellant’s contention that, in sentencing the appellant, the judge overlooked Bugmy. If it was her Honour’s view that the required causal link which might engage the second limb of Bugmy was not established (as we would also conclude from having examined the evidence for ourselves), it was incumbent upon her Honour to say so in the Sentencing Reasons.
Secondly, while the judge made specific reference to the issue of moral culpability in relation to ‘mental health considerations’,[47] albeit that her Honour did not accept that there was any ‘acceptable evidence to support a finding that … at the time of the offending [the appellant] was suffering from a mental impairment such as to reduce her moral culpability’,[48] she did not make any reference to the trauma or deprivation suffered by the appellant as a child in relation to that issue. While it may be accepted that the judge took into account the appellant’s childhood deprivation as a relevant background circumstance when imposing sentence,[49] the failure by the judge to refer to the appellant’s childhood deprivation as a matter reducing her moral culpability leads us to conclude that her Honour did not accept that the appellant’s childhood deprivation was a matter which reduced her moral culpability. In light of the evidence on the plea and the prosecutor’s concession as to the applicability of the first limb of Bugmy, her Honour erred in failing to do so.
[47]Sentencing Reasons, [96].
[48]Ibid [84].
[49]See DPP v Terrick (2009) 24 VR 457, 468 [46]; Newton v The King [2023] VSCA 22, [42].
The appellant having established an error in the sentence imposed by her Honour, it is now necessary to consider whether a different sentence (non-parole period) should be imposed.[50] We will return to this issue following our consideration of ground 2.
[50]See s 281(1)(b) of the Criminal Procedure Act.
Ground 2: Verdins principle 6
On the plea, the prosecution expressly conceded that Verdins principle 6 had application in the sentencing of the appellant in respect of her PTSD, anxiety and depression. As we have already observed, the judge’s treatment of Verdins principle 6 was intermixed with her Honour’s consideration of Verdins principle 5. In the course of this part of her Honour’s reasons,[51] the judge said that it was ‘for the Court to consider if there is a serious risk that imprisonment will have a significantly adverse impact on [the appellant’s] mental health’.[52] Her Honour then discussed some of the medical evidence (specifically, the opinions of Dr Rakov and Dr Sullivan) before accepting that custody was likely to be more burdensome for the appellant than for a person not suffering from her physical and mental health difficulties.[53] Nowhere, however, did her Honour expressly conclude or accept that there was a serious risk that imprisonment would have a significantly adverse impact on the appellant’s mental health.
[51]Sentencing Reasons, [88]–[91].
[52]Ibid [88] (emphasis added).
[53]Ibid [90].
While the judge summarised the medical evidence in some detail, the express acceptance of the application of Verdins principle 5 and the identification of only the possible application of Verdins principle 6 (without an express conclusion in relation to that principle), leaves open the question of whether Verdins principal 6 played any part in the sentencing synthesis.[54]
[54]Leave Reasons, [46].
Strictly speaking, having found error under ground 1 (thus engaging s 281(1)(a) of the Criminal Procedure Act), it is not necessary for us to resolve the question of whether her Honour erred as alleged in ground 2. That said, we think there is force in the appellant’s contentions that, without forewarning the appellant, the judge did not act on the prosecution’s express concession that Verdins principle 6 applied in this case; and that, in failing to sentence on the basis that Verdins principle 6 applied, the judge erred. The issue thus becomes whether, under s 281(1)(b) of the Act, a different sentence should now be imposed.
Should a different sentence be imposed?
This appeal relates only to the non-parole period imposed by the judge. The judge having sentenced the appellant to a total effective sentence of 5 years and 4 months, fixed a non-parole period of 4 years. It now falls to us to determine whether a different non-parole period should be imposed in light of the appellant’s circumstances and the circumstances of the offending.
In Director of Public Prosecutions v Bulfin,[55] this Court rejected a submission made on behalf of an offender, who had pleaded guilty to a variety of offences involving fraud and deception, that in ‘white collar cases’ there should be a ‘wider than normal gap’ between the head sentence and the non-parole period. Charles JA (with whom Winneke P and Callaway JA relevantly agreed) rejected that submission. His Honour referred to the fact that white collar offenders usually had no prior criminal history and that the prospects of rehabilitation of such offenders were generally very high. He observed that specific deterrence would often not feature largely in the sentencing consideration. He said, however, that these features had a tendency to distract attention from the importance of general deterrence. Charles JA then said the following:
The motivation to engage in conduct of the kind here under consideration may spring from many sources: a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few. Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme. Many of these matters were discussed by this court, similarly constituted, in R v Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12 September 1996); see also R v Cave (1988) 32 A Crim R 484 per O’Bryan J at 487. The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.
For persons first contemplating corporate criminality, a sentence which requires an offender to spend a substantial term in actual custody by virtue of the non-parole period fixed, is, in my view, much more likely to focus their attention and have real deterrent impact than a longer head sentence, much of which is likely to be served on parole after the offender’s release from custody. If this view be correct, to fix an unduly short non-parole period, would, in cases such as the present, be quite subversive of the whole concept of general deterrence, notwithstanding that a significantly longer head sentence was imposed. The sentencing practice discussed in Corbett [of having a substantial gap between the head sentence and non-parole period][56] must be understood with those considerations firmly in mind.[57]
[55][1998] 4 VR 114 (‘Bulfin’).
[56]R v Corbett (1991) 52 A Crim R 112, 117.
[57]Bulfin [1998] 4 VR 114, 131–2.
A court sentencing an offender fixes a non-parole period as the minimum time which the court determines that justice requires an offender must serve having regard to the circumstances of the offending.[58] In the present case, we are not persuaded that any different non-parole period from that imposed by the judge should now be fixed. Notwithstanding the matters urged on behalf of the appellant in mitigation (including the fact that Verdins principles 5 and 6 have application and that the appellant’s moral culpability is reduced to some extent by her childhood deprivation and trauma),[59] we are unable to conclude that any non-parole period less than 4 years should now be imposed. The stealing of in excess of $3.7 million, over a seven year period, by a person in a position of trust in the circumstances of this case is simply too serious for the imposition of a shorter non-parole period than that fixed by the judge. While the matters relied upon by the appellant in mitigation of her sentence justify some mercy being shown to her, a non-parole period of 4 years makes proper allowance for that mercy in the present case.
[58]Power v The Queen (1974) 131 CLR 623, 629; Doig v The King [2023] NSWCCA 76, [76]. See also Morgan (1980) 7 A Crim R 146, 154.
[59]See also the matters in mitigation referred to at Sentencing Reasons, [90], [93] and [101].
While it might be said that the non-parole period of 4 years on a total effective sentence of 5 years and 4 months appears longer than one might usually see, if there is any difficulty in the relationship between the non-parole period and the total effective sentence in this case, it is caused by the judge having imposed a total effective sentence which was, if anything, lenient.[60] The imposition of a lenient total effective sentence by her Honour does not require this Court to now impose a lower non-parole period than ought, in all the circumstances, be imposed. More specifically, the appellant has not satisfied us that any different sentence should now be imposed. What this Court said in Bulfin is apposite in the present case.
[60]Leave Reasons, [57].
Conclusion
The appeal will be dismissed.
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