Kruger v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0083

CAROLYN DAWN KRUGER	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2022
DATE OF JUDGMENT:	8 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 244
JUDGMENT APPEALED FROM:	[2022] VCC 594 (Judge Syme)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – 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 – Whether reasonably arguable judge erred in failing to give any weight to applicant’s childhood trauma and deprivation – Whether reasonably arguable judge erred in failing to find serious risk of imprisonment would have adverse effect on applicant’s mental health – Whether reasonably arguable judge denied applicant procedural fairness – Whether reasonably arguable NPP manifestly excessive – Reasonably arguable judge erred in failing to give weight to childhood deprivation and trauma; alternatively, denied applicant procedural fairness – Reasonably arguable judge erred in failing to find imprisonment would have adverse effect on mental health; alternatively, denied applicant procedural fairness – Not reasonably arguable that NPP manifestly excessive – No reasonable prospect that Court of Appeal would reduce TES – Leave to appeal granted on grounds found to be reasonably arguable, limited to complaints about the NPP.

Criminal Procedure Act 2009, s 280(1).

DPP v Bulfin [1998] 4 VR 114; R v Verdins (2007) 16 VR 269; Ludeman v The Queen (2010) 31 VR 606; Clarkson v The Queen (2011) 32 VR 361; Bugmy v The Queen (2013) 249 CLR 571; DL v The Queen (2018) 265 CLR 215; DPP v Herrman [2021] VSCA 160; and Chuah v The Queen [2022] VSCA 51 referred to.

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Counsel
Applicant:		Mr CT Carr KC with Mr J Murphy
Respondent:		Ms K Hammill
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant was employed as a bookkeeper by a water filtration business, Triangle Waterquip Pty Ltd (‘Triangle’). Between 3 January 2008 and 18 February 2015, the applicant 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 applicant stole a total of $3,780,672.93 from Triangle. On 28 June 2019, in relation to this offending, the applicant 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 applicant 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] The applicant now seeks leave to appeal on the following proposed grounds:
[1]DPP v Kruger [2022] VCC 594 (‘Reasons’).
1.There was an error in each of the individual sentences imposed, the orders for cumulation and the non-parole period by reason of the learned sentencing judge’s:
(a)failure to give any weight to the applicant’s childhood trauma and deprivation; or
(b)failure to afford the applicant procedural fairness before not accepting, or not giving any weight in mitigation to, the evidence of the applicant’s childhood trauma and deprivation.
2.There was an error in each of the individual sentences imposed, the orders for cumulation and the non-parole period by reason of the learned sentencing judge’s:
(a)failure to find that there was a serious risk of imprisonment having a significant adverse effect on the applicant’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 applicant 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 applicant’s mental health (other than any claimed dissociative identity disorder), including her major depressive disorder and/or complex post-traumatic stress disorder.
3.The non-parole period was manifestly excessive in all the circumstances.

Circumstances of the offending

The applicant 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 applicant was given responsibility for all of the accounting and administrative functions of Triangle’s business, including accounts payable, accounts receivable and wages. The applicant had full access to Triangle’s bank accounts. During the period of her offending, the applicant 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 applicant 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 applicant initially said, ‘You don’t need to worry about that’. On 18 February 2015, however, the applicant 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 applicant had transferred a total of $207,056.51 from Triangle’s trading account, without authorisation.
On 25 February 2015, at a meeting between the applicant and the directors and shareholders of Triangle, the applicant 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 applicant 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 applicant and the directors of Triangle, in which the applicant 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 applicant between 2008 and February 2015.
As I have already observed, the applicant 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 applicant 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 applicant made a ‘no comment’ record of interview. She was then charged, and released on bail.

Procedural history

On 14 December 2017, the applicant’s committal hearing proceeded by way of straight hand-up brief. Between 15 December 2017 and 24 June 2019, 13 directions hearings were conducted. Several of those hearings were adjourned due to the applicant being hospitalised at a psychiatric unit and/or her lawyers having concerns about her fitness to stand trial.
On 28 June 2019, three days before trial (the trial had been fixed for hearing on 1 July 2019 on a 20 day estimate), the applicant was arraigned and pleaded guilty. The trial date was thus vacated.
On 25 October 2019, the applicant’s plea hearing was adjourned due to her being hospitalised. On 28 April 2020, the applicant’s plea hearing was adjourned again, to enable a report to be obtained from an expert. On 20 May 2020, a further mention of the matter was again adjourned (and again at the request of the applicant).
On 3 July 2020, at a mention hearing, the applicant made an application to change her plea. There followed a number of mentions and administrative hearings, before the change of plea application was heard over a number of days in August and September 2021. On 19 November 2021, the applicant’s application to change her plea was refused,[2] and (as I have already noted) her plea subsequently came on for hearing on 31 March 2022 before the sentencing judge.
[2]DPP v Kruger [2021] VCC 2177.

The plea hearing

On the plea, the applicant 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 applicant’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 from the applicant).
The medical evidence tendered by the applicant 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 applicant having suffered a traumatic childhood, ‘marred by sexual, physical and emotional abuse, deprivation, neglect and family violence’. Additionally, in March 2016, the applicant 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 applicant’s medical evidence also disclosed a history of skin cancer and urogynaecological issues.
On the plea, the applicant 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 Herrman;[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 applicant than for a person in normal health;
•the fact that the applicant had made restitution in the sum of $584,000, before being declared bankrupt;
•the applicant’s remorse as demonstrated in the reports of Dr Solinski; and
•the applicant’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 applicant’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 applicant 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 applicant’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 applicant’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]Reasons [1]–[12].
[10]Ibid [12].
[11]The continuing criminal enterprise provisions.
[12]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 applicant 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 applicant’s application to change her plea, saying that, notwithstanding such delay, the applicant 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 applicant anxiety, and also observed that the applicant had repaid $584,000 from the sale of property. The judge described this as being in the applicant’s favour.[17]
[14]In fact, as I have already noted, the applicant pleaded guilty on 28 June 2019 – her plea was then fixed for hearing in October 2019.
[15]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 applicant 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 applicant]’.[18] The judge then said that the time over which the offending occurred was an aggravating factor; the applicant 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 applicant’s early family life.[20] The judge described the applicant’s background as having been taken from ‘a series of self-reports by [the applicant] 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 applicant 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 applicant’s family who were still alive.[21] Nevertheless, the judge said that it was accepted that the applicant’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 applicant 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 applicant than for a person not suffering from her physical and mental health difficulties [Verdins principle 5]’.[31] Having regard to the terms of proposed 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 her previous good character,[33] the fact that she had made the restitution of $584,000,[34] and her remorse (the judge accepting that it was unlikely that the applicant would reoffend in the future).[35] In the course of this discussion, the judge made reference to ‘moral culpability’ and ‘mental health considerations’. Having regard to the terms of proposed ground 1, it is necessary to set out this part of her Honour’s reasons in full. Specifically, the judge said:
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.[36]
[33]Ibid [93]–[94].
[34]Ibid [95].
[35]Ibid [100]–[102].
[36]Ibid [96]–[97].

Applicant’s contentions

Under proposed ground 1, the applicant 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 Herrman had application in this case.
The applicant submitted that, while the judge recorded the applicant’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 applicant 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 applicant 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 applicant procedural fairness in not telling the applicant that she was not willing to accept the concessions made by the prosecution.[37]
[37]See DL v The Queen (2018) 265 CLR 215, 232 [39] (‘DL’); Chuah v The Queen [2022] VSCA 51, [54] (‘Chuah’).
Under proposed ground 2, the applicant made a similar argument in respect of Verdins principle 6. The prosecution expressly conceded that Verdins principle 6 was engaged by the applicant’s mental health conditions (other than her DID). The applicant 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 applicant accepted that, while Dr Sullivan had expressed a view that the applicant 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 applicant’s mental health being caused by her incarceration.
In the alternative, the applicant 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 applicant relied upon the High Court’s decision in DL and this Court’s decision in Chuah.
Under proposed ground 3, the applicant contended that the non-parole period was manifestly excessive. She submitted that the usual non-parole period is of the order of 60 to 70 per cent and, while there is in law no correct ratio, the non-parole period of 75 per cent in this case invites appellate scrutiny. She then submitted that the non-parole period could not withstand that scrutiny in light of the sentencing judge’s acceptance that the applicant was someone of prior good character; was unlikely to reoffend; now had an improved understanding of her psychological conditions; and that prison would weigh more heavily on her by reason of her physical and mental health conditions.[38]
[38]Reasons [90], [93] and [101].

Respondent’s contentions

Under proposed ground 1, the respondent submitted that the judge expressly accepted the applicant’s childhood was replete with profound deprivation. Moreover, the particulars of the applicant’s background, including the submitted deprivation, were recited in her Honour’s sentencing remarks in some detail. The respondent submitted that, having outlined the applicant’s traumatic history and described it as ‘profound deprivation’, adopting the language of Bugmy and Herrman, there is no substance in proposed 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 proposed 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 applicant’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.
Under proposed ground 3, the respondent submitted that there was no basis for contending that the non-parole period was wholly outside the permissible range of sentencing options available to the judge. In advancing that submission, the respondent referred to this Court’s decisions of DPP v Bulfin[39] and Clarksonv The Queen.[40]
[39][1998] 4 VR 114 (‘Bulfin’).
[40](2011) 32 VR 361 (‘Clarkson’).
Finally, the respondent contended that if any of the grounds of appeal were found to be reasonably arguable then the application for leave to appeal should be dismissed in any event because ‘no lesser sentence should be imposed’. The respondent submitted:
The theft of nearly $4 million from an employer over a seven year period, particularly in the absence of compelling mitigating material, calls strongly for general deterrence, denunciation and just punishment. On any view, a substantial period of imprisonment is required.

Proposed ground 1: Bugmy

A significant plank of the applicant’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 applicant’s childhood trauma and deprivation. Moreover, the applicant made submissions and expressly relied upon Bugmy and Herrman for the proposition that the applicant’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’.[41] That submission was not contested by the prosecution on the plea.
[41]Bugmy (2013) 249 CLR 571, 594 [40]; Herrman [2021] VSCA 160, [36].
The applicant 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 applicant’s childhood trauma and deprivation in the course of summarising the applicant’s personal circumstances and background. It is at least arguable that, in so doing, her Honour properly took into account those matters. Indeed, on the determination of an appeal on this matter, this Court might well so conclude.
The difficulty for the respondent in the present case is that her Honour expressly identified the matters which she took into account in reduction of the applicant’s moral culpability. Those matters did not expressly include any reference to the trauma and deprivation suffered by the applicant as a child. Having regard to the evidence on the plea, the prosecution’s concession as to the applicability of Bugmy during the course of the plea, one might have expected some reference to Bugmy in the Reasons together with at least a short statement about the relevance (or otherwise) of the applicant’s childhood trauma and deprivation to her moral culpability for her offending.
In my view, subject to the operation of s 280(1) of the Criminal Procedure Act (about which I will say more below), the questions of whether the judge failed to give appropriate weight to the applicant’s childhood trauma and deprivation, or failed to afford the applicant procedural fairness before not accepting (or giving appropriate weight to) that trauma and deprivation, are sufficiently arguable to justify a grant of leave in relation to those issues. The complaints the applicant makes in relation to these issues may ultimately fail but, at this stage, I think that they are reasonably arguable – particularly in light of the fact that her Honour’s acceptance of the applicant’s childhood trauma and deprivation was arguably somewhat qualified.[42]
[42]See, in particular, the reference to ‘self-reporting’ at Reasons [20]; Reasons [21]; the reference to a ‘lack of rigour’ at Reasons [22]; the reference to the applicant’s failure to give evidence ‘personally in the plea hearing’ at Reasons [23]; the reference to the applicant’s ‘versions’, which were said to be ‘not consistent at all times’ at Reasons [23]; before her Honour’s statement, also at Reasons [23], that, ‘It is accepted that [the applicant’s] childhood was replete with profound deprivation …’.

Proposed ground 2: Verdins principle 6

On the plea, the prosecution expressly conceded that Verdins principle 6 had application in the sentencing of the applicant in respect of her PTSD, anxiety and depression. As I 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,[43] 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 applicant’s] mental health’.[44] 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 applicant than for a person not suffering from her physical and mental health difficulties.[45] 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 applicant’s mental health.
[43]Reasons [88]–[91].
[44]Ibid [88] (emphasis added).
[45]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 proposition 6 played any part in the sentencing synthesis. To that extent, and again subject to the operation of s 280(1) of the Criminal Procedure Act 2009, the question of whether the judge erred in failing to apply Verdins principle 6 or failed to afford the applicant procedural fairness before not applying that principle, is sufficiently arguable to justify a grant of leave to appeal.

Proposed ground 3: manifestly excessive non-parole period

As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[46] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[47]
[46]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[47]Ibid.
In Bulfin, 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 must be understood with those considerations firmly in mind.[48]
[48][1998] 4 VR 114, 131–2.

The applicant’s assertion that the non-parole period of 4 years was ‘manifestly excessive in all the circumstances’ is not reasonably arguable. This was serious offending, involving multiple and egregious breaches of trust over a prolonged period of time, and which resulted in the applicant taking in excess of $3.7 million from her employer. For the reasons explained in Bulfin, general deterrence and denunciation were particularly significant sentencing considerations. Taking full account of all of the matters relied upon by the applicant in mitigation, in all of the circumstances of her offending, the non-parole period of 4 years fixed in this case was moderate and well within the range of non-parole periods available to the sentencing judge. The contrary is not reasonably arguable.
While the non-parole period may appear high when compared to the total effective sentence, unarguably that is the result of the judge imposing sentences and making orders for cumulation that have produced a total effective sentence which is, if anything, lenient. The imposition of a lenient total effective sentence does not make a non-parole period, which is best described as moderate, manifestly excessive.
Leave to appeal with respect to proposed ground 3 must be refused.

Section 280(1) of the Criminal Procedure Act

Section 280(1) of the Criminal Procedure Act relevantly provides:
The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if –
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
In Ludeman v The Queen,[49] the Court of Appeal,[50] had to consider the proper construction of s 280(2) of the Criminal Procedure Act as it existed in 2010. Section 280(2) is the predecessor of the current s 280(1)(a). In 2010, at the time Ludeman was decided, s 280(2) provided:
An application for leave to appeal under section 278 may be refused in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.
[49](2010) 31 VR 606 (‘Ludeman’).
[50]Constituted by Warren CJ, Buchanan, Nettle, Ashley and Redlich JJA.
One of the issues in Ludeman was whether a total effective sentence was a ‘sentence’ within the meaning of s 280(2). The Court held that the word ‘sentence’ in s 280(2) embraced each individual sentence imposed, any consequential orders made for cumulation or concurrency, and any non-parole period which was fixed; but not the total effective sentence.
Following Ludeman, s 280 of the Criminal Procedure Act was amended so as to insert sub-s (1)(b) in its present form into s 280, permitting this Court to refuse an application for leave to appeal in relation to any proposed ground of appeal if ‘there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed’.
Read literally, s 280(1)(b) permits this Court to refuse an application for leave to appeal in relation to any ground of appeal if there is no reasonable prospect of any reduction in any total effective sentence on appeal — even if, for example, it was reasonably arguable that the non-parole period was manifestly excessive. For present purposes, however, it is not necessary to discuss in any detail whether the proper construction of s 280(1)(b) would permit such a course to be taken; or whether it would be wrong, as a matter of discretion, to apply s 280(1)(b) in such circumstances; or whether s 280(3)[51] could be used to avoid what might otherwise be an injustice in applying s 280(1)(b). By whatever path one might take, one would not refuse an applicant the ability to argue a ground of appeal with substance in respect of a non-parole period simply because there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence.
[51]Which permits this Court, on refusing an application for leave to appeal by reason of s 280(1)(b), to amend the sentence first imposed by substituting a less severe sentence, or to make any other order that this Court considers ought to be made (as to the operation of an order made under s 280(3) by a single judge, see ss 315(3) and (4) of the Criminal Procedure Act).
In the present case, for the reasons I have given above, about the circumstances and seriousness of the applicant’s offending, in concluding that it is not reasonably arguable that the non-parole is manifestly excessive, there is no reasonable prospect that the Court of Appeal would reduce the applicant’s total effective sentence. As I have said, the total effective sentence in this case was, if anything, lenient. On the other hand, while I think the non-parole period in this case is moderate, I cannot say that there is no reasonable prospect that the Court of Appeal would impose a less severe non-parole period.[52] While it is not reasonably arguable that the non-parole period is manifestly excessive, I cannot exclude the possibility that, if the applicant establishes one of her complaints about the way in which the judge dealt with her childhood trauma and deprivation, or Verdins principle 6, the Court of Appeal might impose a lower non-parole period than the one fixed by the judge. The question then becomes what relevance (if any) those conclusions have on this application for leave to appeal.
[52]See s 280(1)(a) of the Criminal Procedure Act.
While proposed ground of appeal 1 and proposed ground of appeal 2 each deal with a discrete point (Bugmy in relation to proposed ground 1, and Verdins principle 6 in relation to proposed ground 2), each proposed ground is in truth a collection of appeal grounds. Specifically, proposed ground 1 contains grounds of appeal that relate to each individual sentence, each order for cumulation and the non-parole period. The same may be said of proposed ground 2. Thus (and relevantly for present purposes), each of proposed ground 1 and proposed ground 2 could be expressed in two separate grounds: one which complains about error in the individual sentences and the orders for cumulation;[53] and one that complains about the non-parole period.
[53]Indeed, such a ground could also be divided into separate grounds making individual complaints about each individual sentence and each order for cumulation, but it is not necessary to go so far for present purposes.
The way in which an application for leave to appeal is drafted (in particular, whether appeal points are expressed individually in separate proposed grounds, or collected together in a single proposed ground) cannot foreclose the proper application of s 280(1) of the Criminal Procedure Act. Under s 280(1)(b), this Court is entitled to refuse an application for leave to appeal in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed. That provision thus permits this Court (if it concludes that there is no reasonable prospect of a reduction in the total effective sentence) to refuse leave in relation to grounds of appeal that seek to overturn individual sentences and orders for cumulation that make up that total effective sentence. That is the course I propose to take on the present application. The proper construction of s 280(1) does not require this Court to grant leave to appeal against a sentence on an individual charge or order for cumulation (where there is no reasonable prospect that a less severe sentence or order might be imposed by the Court of Appeal in respect of that sentence or order) just because a complaint about the sentence or order is rolled up in a ground which makes the same underlying complaint about another individual sentence or order about which it cannot be said that there is no reasonable prospect of a lesser sentence or order (in the present case, this being the non-parole period).
The course I propose to take could also be taken on the following alternative basis. If there is no reasonable prospect of a reduction in the total effective sentence, then, in many such cases there would be no reasonable prospect that the Court would impose less severe sentences or orders for cumulation making up that total effective sentence. The present is such a case. While it is not necessary to make this finding (in light of the operation of s 280(1)(b) in this case), in my view there is no reasonable prospect that the Court of Appeal would impose a less severe sentence on any of charges 1 to 8, or less severe orders for cumulation than any of those made by the judge. While the offending involved in respect of charge 8 occurred over a much shorter period than the offending involved in charges 1 to 7, and involved a substantially lesser sum of money, that offending occurred in the context of charges 1 to 7 having already occurred, and there is no reasonable prospect of the Court of Appeal imposing a less severe sentence or order for cumulation in relation to that charge.
It follows from the above that the appropriate course to be taken on this application for leave to appeal is to grant leave in respect of proposed grounds 1 and 2, limited to complaints about the non-parole period fixed by the judge. Leave to appeal should be refused in relation to the applicant’s proposed grounds of appeal that seek to set aside the individual sentences on charges 1 to 8 and the orders for cumulation, pursuant to s 280(1)(b); alternatively pursuant to s 280(1)(a) of the Criminal Procedure Act.
Conclusion
For the above reasons, I will make the following orders:
(1)The applicant is granted leave to appeal on the following grounds:
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 applicant’s childhood trauma and deprivation; or
(b)failure to afford the applicant procedural fairness before not accepting, or not giving any weight in mitigation to, the evidence of the applicant’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 applicant’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 applicant 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 applicant’s mental health (other than any claimed dissociative identity disorder), including her major depressive disorder and/or complex post-traumatic stress disorder.
(2)Leave to appeal on proposed ground 3 is refused.
(3)Leave to appeal against the individual sentences imposed on charges 1 to 8 and the orders for cumulation made in respect of those sentences is refused.
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[2022] VSCA 244

8 November 2022