Liberatore v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0121

ANGELA LIBERATORE	Applicant
v
THE KING	Respondent

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JUDGES:	Kenny JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	11 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 263
JUDGMENT APPEALED FROM:	[2024] VCC 231 (Judge Trapnell)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Obtaining property by deception – Obtaining financial advantage by deception – Victims were family members – Breach of trust – Found guilty at trial – Relevant prior criminal history – Lack of insight and remorse – Symptoms of post-traumatic stress disorder – Delay – Total effective sentence of 5 years and 3 months – Non-parole period 3 years and 8 months – Whether sentence manifestly excessive – Whether sentencing judge gave insufficient weight to the principle of totality – Whether sentencing judge gave insufficient weight to current sentencing practice – Whether sentencing judge gave insufficient weight to delay – Leave to appeal refused.

Criminal Procedure Act 2009 ss 278, 280, 315.

DPP v Merryfull and Bloomfield [2023] VSCA 244, applied; Tones v The Queen [2017] VSCA 118, applied; Wilson v The Queen [2022] VSCA 2, applied, Postiglione v The Queen (1997) 189 CLR 295, considered; Mill v The Queen (1988) 166 CLR 59, considered; DPP v Mastrangelo [2018] VCC 87, distinguished; Kotsifas v The Queen [2021] VSCA 368, distinguished; Taylor v The Queen (2019) 59 VR 163, distinguished; Friel v The Queen [2018] VSCA 48, distinguished; DPP v Cappelli [2019] VCC 2118, distinguished.

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Counsel for written submissions
Applicant:		Ms G Morgan
Respondent:		Mr J O’Toole
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNY JA:

Introduction and overview

On 16 August 2023, the applicant was found guilty at trial in the County Court of Victoria of 33 charges of obtaining a financial advantage by deception and two charges of obtaining property by deception.
On 7 March 2024, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
2	Obtaining property by deception (Crimes Act 1958, s 81(1))	10 years’ imprisonment	4 months’ imprisonment	3 months
3	Obtaining property by deception (Crimes Act 1958, s 81(1))	10 years’ imprisonment	4 months’ imprisonment	3 months
5	Obtaining financial advantage by deception (Crimes Act 1958, s 82(1))	10 years’ imprisonment	2 years’ imprisonment	1 year
6–30, 32–37	Obtaining financial advantage by deception (Crimes Act 1958, s 82(1))	10 years’ imprisonment	Aggregate sentence of 1 year and 6 months’ imprisonment	9 months
31	Obtaining financial advantage by deception (Crimes Act 1958, s 82(1))	10 years’ imprisonment	3 years’ imprisonment	Base
Total Effective Sentence:		5 years and 3 months’ imprisonment
Non-Parole Period:		3 years and 8 months
Pre-sentence Detention Declared:		204 days
Section 6AAA Statement:		N/A
Other Relevant Orders: N/A

The applicant seeks leave to appeal against sentence on the following single ground:
Ground 1: The total effective sentence imposed and non-parole period fixed are manifestly excessive in all the circumstances.
Particulars
a)The learned sentencing judge gave insufficient weight to:
i.the principle of totality, in the orders for cumulation made;
ii.current sentencing practice; and
iii.delay.
b)The learned sentencing judge gave too much weight to the applicant’s prior and subsequent criminal history, and in turn the need for specific deterrence and the protection of the community.
For the reasons stated below, leave to appeal is refused.

Circumstances of offending

At the time of the offending, the applicant was self-employed and operated a business, Luxury Home Designs Pty Ltd (‘Luxury Home Designs’).
The victims of the applicant’s offending were members of her family. They were her aunt (Antonina Lacivita), Antonina’s daughter and the applicant’s cousin (Jessica Lacivita), and Jessica’s fiancé (Peter Koukos).
When the applicant’s offending began in 2014, Jessica was planning her wedding to Peter.[1]
[1]DPP v Liberatore [2024] VCC 231, [3]–[37] (‘Reasons’).
Charges 2 and 3 on the indictment concerned two cheques for $5,000 each. The cheques were obtained by the applicant on 17 March and 15 April 2014 from Antonina on the basis that these would be contributions towards Jessica’s wedding dress (Charge 2) and a deposit for a wedding reception at the La Mirage Reception Centre (Charge 3).[2]
[2]Reasons, [8]–[10].
Charges 5, 6–30, 31 and 32–37 on the indictment concerned a series of offences of obtaining financial advantage by deception in a total amount of $372,400 between July 2014 and December 2016, from Jessica and Peter.[3] The applicant’s written case set out the circumstances of the applicant’s offending as follows:[4]
[3]Reasons, [11]–[36].
[4]The respondent did not take issue with the applicant’s account. The footnotes to sub-paragraphs (a) to (j) are as set out in the applicant’s written case.
(a)In mid-2014, after an earlier purchase arranged by the applicant of land in a residential development in Queensland[5] had fallen through because the couple were unable to obtain finance, the applicant told Jessica she would lend the couple the $188,000 purchase price for another block in the second stage of the development until they could obtain finance.
(b)Jessica and Peter obtained finance through the National Australia Bank (‘NAB’) to repay the applicant, and on 21 July 2014 a bank cheque was issued to the applicant in the amount of $127,500 (Charge 5).
(c)The applicant produced a false email from Mackay Property Investments which purportedly confirmed that the $188,000 necessary to purchase the block of land was being held on their behalf.[6]
(d)Thereafter, between 14 January 2015 and 14 June 2016, Jessica and Peter transferred $35,000 over 25 transactions ranging between $500 and $2,000, on the basis that these were for the further repayment of the applicant’s loan to them (Charges 6–30).
(e)In May 2016, the applicant told Jessica and Peter that the builder needed $200,000 for a house to be built on their land, and that she would once again lend them that money. Jessica and Peter, believing that this payment had been made by the applicant to the builder on their behalf, applied for a further loan through the NAB, which was approved. On 17 June 2016 the applicant received a bank cheque made out to Luxury Home Designs in the amount of $200,000 (Charge 31).
(f)Between 3 October 2016 and 22 December 2016, Jessica and Peter transferred a further six instalments of between $1,200 and $2,000 amounting to $9,900 (Charges 32–37), believing that amount to be owed by them to the applicant.
(g)On 15 November 2016, a further false email created by the applicant [was sent to] Peter indicating that $388,000 was being held in trust for the purchase of their investment property, with settlement anticipated to occur in August 2017.[7]
(h)In mid 2017, when approached for an update, the applicant told the couple that the development had been delayed because of cyclones in the area. Ultimately, she told them the developer had gone into liquidation and the entirety of their funds were gone.
(i)Jessica and Peter then engaged legal representation and sent a letter of demand to the applicant seeking the return of their money. On 8 September 2017, her legal representatives wrote back stating that the money they had provided to her were payments for various legitimate loans to them over time by her parents, through her. Two invoices purportedly signed by Jessica and Peter were produced.[8] Thereafter, the police were contacted and the investigation into the applicant’s fraudulent dealings commenced.[9]
(j)Victim impact statements (‘VIS’) prepared by Jessica and Peter were tendered at the plea hearing. As a result of the offending, the couple took out loans in the amount of $327,500 which they were still paying off at the time of the plea hearing.
[5]For which a deposit of $1,000 was paid and contracts signed.
[6]The learned trial judge found as an aggravating feature in sentencing the applicant that she had created this email: Reasons, [18]–[19], [59].
[7]The learned trial judge found as an aggravating feature in sentencing the applicant that she had created this email: Reasons, [30] and [59].
[8]At trial, the defence to charges 5–37 was in accordance with the position taken by the applicant in the letter sent by her legal representatives on 8 September 2017 – that is, that the prosecution had failed to exclude that the money given to the applicant was in repayment of legitimate loans made by her to Jessica and Peter.
[9]In October 2017.

Plea hearing

There was a plea hearing on 1 November 2023, at which the prosecution tendered the VIS of Jessica and Peter;[10] and the parties filed written submissions. The defence tendered a number of letters, including a letter dated 21 October 2023 from a psychotherapist (Pat Favorito) concerning the applicant’s mother; a letter dated 19 September 2023 from Dr Rafiq A Memon concerning the applicant’s father; and a report dated 31 October 2023 from Genevieve Abbott, psychologist, concerning the applicant.
[10]Reasons, [38].

Victim impact

According to the VIS made by Jessica and Peter, the couple took out loans in the amount of $327,500 as a consequence of the offending. They were still paying off the debt at the time of the plea hearing, and have not been able to recover the funds the applicant obtained from them.[11]
[11]Reasons, [61].
In her VIS, Jessica said that she has ‘suffered relentless emotional distress and heartache’ due to the applicant’s offending. She found ‘it hard to comprehend how someone [she] loved, trusted, and looked up to’ ‘could hurt’ her ‘so profoundly’. She said that she felt ‘numb’, ‘in disbelief’, and ‘grieving the person’ she thought she knew. She related that her cousin’s offending has caused family conflict, and that she is very sad her father would no longer speak to her aunt. She described how her mental health had suffered. She said that she felt ‘crushed’ and that her life had been ‘turned upside down’. She said the applicant had left her with ‘a huge financial burden and loss’ and that the financial strain had led to arguments with her partner, Peter, which had adversely affected their marriage.
In his victim impact statement, Peter said that he had been ‘distracted and distant with worry’ and that his two young children had suffered on this account. He said that he was constantly worried about how he would pay household bills, ‘food, mortgage, and [his] kid’s education and extracurricular activities’. He said that he was ‘constantly distracted and … never at ease’. He related that he had taken more sick leave and social leave than accrued in recent years, and found himself often unable to concentrate at work.

Personal circumstances

The applicant was 50 years of age at the time of sentencing. She suffered from gallstones and back pain;[12] and had ‘experienced mental health issues for some time, stemming from the bullying [she] experienced during [her] schooling’.[13]
[12]Reasons, [73].
[13]Reasons, [74].
The applicant has a brother and elderly parents, both of whom were born in Italy, but had met in Melbourne. The applicant enjoyed a ‘good childhood’ and remained ‘very close’ to her mother.[14] The applicant completed year 12, but, as already noted, ‘experienced significant bullying throughout high school’.[15] The sentencing reasons recorded that the applicant had been in a relationship in her mid-twenties, but ‘[her] then partner attempted to sexually offend against [her]’ and the applicant had had ‘no significant relationships’ thereafter.[16]
[14]Reasons, [64].
[15]Reasons, [65].
[16]Reasons, [72].
After school, the applicant moved to the Gold Coast, where she worked as a waitress for about five years and then took up a sales position with Optus, a position she held for about five years.[17] The applicant returned home to live with her parents, ‘because their health was deteriorating’.[18] She went on to complete a full-time diploma in beauty therapy and subsequently opened a beauty salon, employing six staff.[19] After selling the beauty salon, the applicant ‘worked in property development, starting [her] own business, Luxury Home Designs Pty Ltd, which involved interior decorating for new houses’.[20] Several years later, after selling the business, she worked for Optimum Wealth Solutions. During this time, however, there were times when she was not paid and was in receipt of Centrelink benefits.[21]
[17]Reasons, [67].
[18]Reasons, [68].
[19]Reasons, [68].
[20]Reasons, [69].
[21]Reasons, [69].
From about 2012 to 2018, the applicant operated a business buying and selling ‘Chanel’ handbags.[22] As a result of her involvement in that business, she was charged with ‘a number of dishonesty offences arising from the handbags not being genuine Chanel products’.[23]
[22]Reasons, [70].
[23]Reasons, [70].
Since 2016 until remanded in custody on 16 August 2024, the applicant had been receiving Centrelink payments. There had been other occasions in the past when she had struggled financially, including when she was assisting her parents to pay their mortgage ‘at the time of high interest rates’. [24]
[24]Reasons, [71].
Sentencing Reasons
The sentencing judge described the applicant’s offending as ‘grave’ and ‘[o]verall ... serious examples’ of the relevant offences, noting that she had defrauded her victims of a ‘relatively substantial’ amount of money.[25] His Honour assessed the applicant’s moral culpability as ‘very high’.[26] His Honour added that ‘[at] many stages in [her] nefarious course of conduct [the applicant] could have ceased [her] dishonest actions, but [she] persisted in [her] insidious exploitation of [her] position of trust as a close friend and relative’.[27] His Honour described the applicant’s breach of trust as ‘appalling’ and a ‘serious aggravating feature’ of her offending.[28]
[25]Reasons, [55].
[26]Reasons, [62].
[27]Reasons, [55].
[28]Reasons, [56].
The sentencing judge found the applicant’s offending conduct was ‘systematic and deliberate’,[29] involving repeated acts of dishonesty over nearly three years. This ‘callous behaviour’[30] was, his Honour held, ‘premeditated, relatively sophisticated, well planned and executed’.[31] His Honour further observed that the applicant sought to ‘cover up’ her criminal conduct when the ‘victims sought reassurance from’ her.[32] His Honour held that the applicant ‘knew the victims were not materially wealthy and they would need to become indebted in order to make ... payment’ to her of $200,000 in June 2016; and in making this payment ‘they were clearly relying upon and trusting the representations’ she made to them regarding the use to be made of the funds.[33]
[29]Reasons, [57].
[30]Reasons, [61].
[31]Reasons, [57].
[32]Reasons, [58].
[33]Reasons, [60].
The sentencing judge concluded that:
General deterrence, just punishment and denunciation are important sentencing principles in this case. In light of [her] relevant prior criminal history and ... lack of insight and remorse, I consider specific deterrence and protection of the community must also be given significant weight.[34]
[34]Reasons, [62].
The sentencing judge gave detailed consideration to the applicant’s mental health. His Honour referred to Ms Abbot’s treatment and to her letter of 31 October 2023.[35] His Honour observed:
[The applicant] initiated treatment with Ms Abbott after [she] began experiencing severe symptoms of post-traumatic stress disorder (‘PTSD’) in the context of the current court proceedings.
[Her] symptoms included thoughts of self-harm and suicide, difficulty leaving the house and social withdrawal which made [her] daily functioning difficult. Ms Abbott writes [she] also experience[s] insomnia and night terrors, panic attacks and increased distress and panic in situations where [she] may come into contact with people who know about [her] offending. [The applicant] also exhibit[s] avoidance of any reminders of [her] experiences, memory impairment, negative thoughts about [herself] and intense emotional distress, lowered self-esteem, difficulty feeling any positive emotions, loss of enjoyment in activities previously enjoyed, constant hypervigilance and difficulty concentrating and focusing.[36]
[35]Reasons, [75]–[78].
[36]Reasons, [76]–[77].
His Honour noted that:
These symptoms were exacerbated when [the applicant’s] name and details of [her] offending were published in the media, leading to [her] friends and family as well as the general public becoming aware of [her] situation. Ms Abbott opines this had a significant impact on [her] social relationships.[37]
[37]Reasons, [78].
At the time of sentencing, his Honour noted that while the applicant had previously had ‘a close relationship with both [her] parents and brother, as well as [her] extended family and local community’, ‘there was no one present supporting [her] in court during the trial or the plea hearing’.[38]
[38]Reasons, [79].
The sentencing judge found that the applicant’s PTSD symptoms caused her ‘great difficulty in attending to the basic necessities of life’;[39] and that she had made ‘very limited progress’ beyond minimising [her] risk of self-harm’.[40] His Honour also noted Ms Abbott’s opinion that the applicant would be at increased risk of self-harm and increased risk of severity of symptoms if she were imprisoned.[41] In this context, his Honour accepted that ‘Verdins principle 5 is engaged to some extent’.[42] In his Honour’s view, however, ‘many of [the applicant’s] present symptoms [were] reactive to [her] current predicament and [were] likely to resolve, or at least significantly lessen, once the current court processes [were] concluded and [the applicant] was aware of the final outcome of [the] proceedings’.[43]
[39]Reasons, [80].
[40]Reasons, [84].
[41]Reasons, [85].
[42]Reasons, [88]; R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
[43]Reasons, [88].
The sentencing judge did not accept that ‘Verdins principle 6’ was engaged in the applicant’s case. His Honour stated:
For this consideration ‘to mitigate punishment [the offender is] required to demonstrate, on the balance of probabilities, there is ‘a serious risk of imprisonment having a significantly adverse effect on [the offender’s] mental health’. To the extent Ms Abbott expresses a relevant opinion, it takes the form of a mere ‘reasonable suggestion’ rather than a firm proposition that [the applicant’s] mental health would probably deteriorate. Moreover, the degree of probability is undefined. To my mind, a reasonable probability that an event might occur is not equivalent to a serious risk of the event occurring. The Victorian Court of Appeal has repeatedly emphasised that ‘a rigorous evaluation of the evidence’ is required in relation to the application of Verdin’s principles.[44]
[44]Reasons, [89]–[90], citing Brown v The Queen (2020) 62 VR 491, 507–8 [60]–[62] (Maxwell P, Niall, T Forrest, Emerton, Osborn JJA); [2020] VSCA 212.

His Honour added:
Moreover, since [the applicant had] not received treatment from Ms Abbott since ... remanded in custody, and Ms Abbott opines [her] symptoms present in the context of publicity surrounding [her] case, I do not accept her opinion regarding the likelihood of [the applicant’s] mental health deteriorating and the severity of [her] symptoms worsening in the event of [her] imprisonment. [The applicant’s] symptoms may increase as a consequence of publicity surrounding the jury’s verdicts and the sentences I impose on [her], but this is a necessary consequence of [her] offending conduct and, in any event, will very likely diminish as time passes.[45]
[45]Reasons, [90].
The sentencing judge noted that the applicant had ‘a relevant prior criminal history’, including ‘a large number of convictions for dishonesty related offences’.[46] His Honour referred to the applicant’s appearance in the Preston Magistrates’ Court in April 1993 ‘on 133 charges of obtaining property by deception’ for which the applicant was sentenced to a Community Corrections Order without conviction, for a period of 12 months to perform 80 hours of unpaid community work, and required to pay a fine by way of compensation.[47] Regarding these convictions, his Honour stated:
While these are spent convictions, the parties are agreed I may have regard to them for the purposes of sentencing ... on the present charges. Nonetheless, ... I will give these prior matters little weight, although they do represent an early start (aged 17 or 18 years) to [the applicant’s] propensity for committing deception offences, which it appears has continued until September 2018 (aged 44 years).[48]
[46]Reasons, [91].
[47]Reasons, [91].
[48]Reasons, [92].
The judge’s sentencing reasons went on to record the applicant’s other convictions as follows:
(a)In August 2012 in the Heidelberg Magistrates’ Court on a charge of attempting to obtain property by deception and a charge of making false report to police, for which she was sentenced to ‘a [Community Corrections Order] for 12 months to perform 120 hours of community work’.[49] His Honour noted there was also a treatment and rehabilitation condition.
(b)In February 2015 in the Melbourne Magistrates’ Court on a charge of dealing with property suspected of being the proceeds of crime, for which the applicant was sentenced to an aggregate fine of $500.[50]
(c)In September 2017 in the Heidelberg Magistrates’ Court on seven charges of obtaining property by deception, for which she was ‘sentenced to a [Community Corrections Order] for 12 months to perform 100 hours of unpaid community work and ... ordered to pay compensation totalling $26,563’.[51] His Honour noted that this offending must have occurred during or around the period of the offending constituted by charges 14 to 23 on the indictment in the present case.[52]
(d)In January 2019 in the Heidelberg Magistrates’ Court on three charges of obtaining property by deception and one charge of negligently dealing with proceeds of crime, for which the applicant was sentenced to ‘a [Community Corrections Order] for 18 months to perform 150 hours of unpaid community work ... under the supervision of a community corrections officer’, with treatment and rehabilitation conditions.[53]
[49]Reasons, [93].
[50]Reasons, [94].
[51]Reasons, [95].
[52]Reasons, [95].
[53]Reasons, [96].
The judge noted that the applicant’s subsequent offences (paragraphs 29(c) and 29(d) above) ‘cannot be taken into account in the same way as prior criminal history’ but that:
... they bear upon ... assessment of [the applicant’s] character and shed light on [her] risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing [the applicant] for the present offences. They are relevant also to my assessment of [the applicant’s] prospects of rehabilitation.[54]
[54]Reasons, [98].
His Honour concluded that the applicant’s prior criminal history demonstrated ‘“a continuing disobedience of the law,” which has continued after the period of the present offences’ and that it was necessary for him ‘to give significant weight to specific deterrence and protection of the community’.[55]
[55]Reasons, [100].
There was, so his Honour found, ‘little that can be put ... in mitigation of penalty’.[56] His Honour noted that the applicant stood trial, as was her right, but could receive no discount for a guilty plea. Having continued to deny the offending, his Honour concluded that the applicant lacked insight into the reasons for her offending conduct and demonstrated no remorse.[57]
[56]Reasons, [101].
[57]Reasons, [101].
The sentencing judge did, however, accept that delay was a mitigating factor in the applicant’s case, observing as follows:
While investigations into financial fraud are often protracted, nonetheless there has been a significant delay between the commission of the present offences, which occurred between March 2014 and December 2016, the victims’ report to police in October 2017, [the applicant’s] police interview on 30 August 2018, the filing of charges in December 2019, and the trial which proceeded in late July and August 2023. There has been further unavoidable delay, not occasioned by [the applicant], between the verdict in August 2023, the plea hearing in Melbourne in November 2023 and ... sentence in March 2024.[58]
[58]Reasons, [102].
His Honour took ‘the punitive effects of delay ... into account’, observing:
So far as delay akin to punishment is concerned, since [the applicant was] charged in relation to these offences [she has] had the prospect of sentences of imprisonment hanging over [her] head for over three years. Undoubtedly, as the psychological evidence from Ms Abbott demonstrates, this has caused [the applicant] significant anxiety and stress.[59]
[59]Reasons, [109].
His Honour also accepted there was some evidence of the applicant’s efforts towards rehabilitation during the period of delay, in that the applicant was engaged in psychological treatment with Ms Abbott from February 2022 until her remand in August 2023. His Honour observed, however, that apparently ‘these sessions were mostly focused on assisting [the applicant] to cope with the anxiety and stress’ occasioned by court processes.[60]
[60]Reasons, [104].
Ultimately, his Honour adopted a ‘guarded approach’ to the applicant’s rehabilitation prospects. His Honour stated as follows:
In light of [the applicant’s] overall criminal history and the protracted and serious nature of the present offending, together with [the applicant’s] total lack of insight and remorse, I can only adopt a guarded approach to [her] prospects for rehabilitation. Much will depend on [her] ability to resist the urge to commit further dishonesty offences if a suitable situation presents itself … in the future.[61]
[61]Reasons, [108].
Referencing Markovic v The Queen[62] the sentencing judge did not assess the effect of the applicant’s imprisonment on her father or mother as ‘so exceptional as to attract a sentencing discount’. In his Honour’s view:
[I]n order to establish exceptional circumstances, there must be cogent evidence that establishes the situation is so highly exceptional it would be, in effect, inhuman to imprison the offender. The letters tendered by [the applicant] outlining [her] mother’s and father’s health issues are very brief. Apart from Ms Favorito’s statement [her] parents rely on [her] for practical and emotional support, there is no evidence to show the extent of the care [her] parents require or the level of care [she] had been providing to them prior to [her] remand in custody. There is virtually no evidence regarding whether any other family members, friends or neighbours can assist with [her] parents’ care. ... [N]o evidence was given by [her] mother, [her] father, [her] brother, or indeed, by [the applicant].[63]
[62](2010) 30 VR 589, 591 [5] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105 (‘Markovic’); Reasons, [115].
[63]Reasons, [118].
His Honour accepted, however, that the applicant’s parents suffered from the conditions to which the letters of Dr Memon and Ms Favorito referred, and that the applicant ‘will experience anguish regarding the health’ of her parents and her ‘inability to care for and support them’, and that this would add to her burden of imprisonment.[64] Referring to Markovic at [20],[65] his Honour held that this burden was a separate mitigatory consideration, and that the applicant would ‘receive lesser sentences ... by reason of imprisonment being more burdensome’ on account of her ‘anguish at being unable to care for’ her parents while serving her sentence.[66]
[64]Reasons, [119].
[65]Reasons, [119].
[66]Reasons, [120].
His Honour’s sentencing reasons concluded by acknowledging the relevance of current sentencing practices. In this context, his Honour noted that he took into account ‘the comparable cases’ to which the parties had referred him.[67] His Honour observed that he was ‘required to balance the interests of the community in denouncing [the applicant’s] criminal conduct with the interests of the community in seeking to ensure that so far as possible, [the applicant is] rehabilitated and reintegrated into society’.[68] His Honour continued:
Clearly denunciation, general deterrence and just punishment must be given considerable weight in sentencing [the applicant] for these offences. Moreover, I consider significant weight also needs to be given to specific deterrence and protection of the community, given the nature of [the applicant’s] offending conduct, [her] high moral culpability, [her] lack of remorse, [her] prior criminal history and subsequent offending. For the reasons given, I assess [the applicant’s] prospects of rehabilitation as being guarded.[69]
[67]Reasons, [121].
[68]Reasons, [125].
[69]Reasons, [126].
In sentencing the applicant, the sentencing judge referred to the importance of the totality principle ‘given the general circumstances common to all offences’.[70] His Honour added that he ‘must also avoid imposing a crushing sentence’ and that ‘[t]hese considerations will be particularly reflected in [the] orders for cumulation’.[71]
[70]Reasons, [130].
[71]Reasons, [130].
His Honour considered it appropriate to impose an aggregate sentence of imprisonment on charges 6–30 and 32–37 because these offences were founded on the same facts or formed part of a series of offences of the same or a similar character, and were of a ‘comparable level of seriousness’.[72] His Honour stated that that aggregate sentence would be ‘no longer than the effective total [he] would otherwise have imposed’.[73]
[72]Reasons, [133].
[73]Reasons, [134].

The applicant’s submissions

The applicant did not challenge the individual sentences imposed by the sentencing judge. Rather, the applicant’s submission was that, taking into account the objective seriousness of the offending as a whole, the orders for cumulation resulted in a sentence which is manifestly excessive. Citing Postiglione v The Queen,[74] the applicant submitted that the sentence imposed on her indicated that ‘little weight must have been given in the instinctive synthesis to the totality principle’. By way of explanation, the applicant submitted that:
The offending concerning the property development commenced with the conduct [the] subject of [charge] 5, being the payment of $127,500 by bank cheque. This was secured on the basis of a dishonest representation that the victims Jessica Lacivita and Peter Koukos owed the Applicant a total of $188,000 for purchasing land in a development on their behalf. Each of [charges] 6 – 30 and 32 involved a continuation of the offending on the basis of that same central representation, alleged in identical terms on the indictment for each of these offences.
[Charge] 31 concerned the payment of $200,000 on the basis that the funds were required by the developer because they had reached construction stage. Clearly, it was the most serious offence by virtue of the quantum involved, and constituted the base sentence. It was an expansion of the original dishonesty representation. An additional dishonest representation was alleged for each of [charges] 33 – 37. It once again expanded upon the original representation in some respects, securing payments totalling an additional $7900.
Upon the base sentence of 3 years for [charge] 31, an additional 1 year (for [charge] 5) and 9 months (for [charges] 6 - 30 and 32 – 37) was added by the orders for cumulation.
In relation to [charges] 2 and 3, the quantum involved for each of those offences was $5000, and one $10,000 in total. The person from whom the cheques were obtained was a separate victim, but the money had been provided to the Applicant on the basis that it was for the benefit of the same victims as those referable to the remaining 32 counts. While there was separate criminality involved in these counts, it added little to the total criminality involved. Despite this, 3 months of the individual 4 month sentences imposed for each of these offences were the subject of orders for cumulation, resulting in an additional 6 months imprisonment beyond that imposed for [charges] 5-37.
Overall, these offence constituted a course of substantially the same deceptive conduct over a period of 2 years and 9 months, with a quantum of $388,420 all being funds acquired from, or for the benefit of, the victims Jessica and Peter Koukos. Because the matter proceeded as a trial, each offence was charged individually. In these circumstances, the orders for cumulation have resulted in a sentence which does not adequately give effect to the principle of totality.
[74](1997) 189 CLR 295.
The applicant contended that while it was open to the judge to find that the offending constituted serious examples of obtaining property by deception and obtaining financial advantage by deception, and that the applicant’s moral culpability was very high, there were a number of features not present in the applicant’s offending that distinguished it from other cases where similar sentences were imposed.
The applicant submitted that the sentence imposed on her was ‘akin to the sentences often seen where the offender holds a position of power, trust or responsibility ... where the dishonesty has been committed in the course of professional practice’, which was not so here.[75] The applicant acknowledged, however, that there was a significant breach of trust referable to her family relationship with the victims. The applicant contended that, in this circumstance, general deterrence ‘should not have attracted the same primacy in sentencing as it must have done in the sentence ultimately imposed’.
[75]Citing Kotsifas v The Queen [2021] VSCA 368; DPP v Bouhaliis [2019] VSC 684; The Queen v Maloney [2014] VSC 641; The Queen v Tansey [2012] VSC 221; DPP v Penny [2012] VSCA 203.
The applicant argued that the sentence imposed was out of step with current sentencing practices and that the objective seriousness of the offence did not justify it. The applicant referred to the Sentencing Advisory Council’s Sentencing Statistics for the Higher Courts concerning offences of obtaining financial advantage by deception from July 2017 to June 2022. The applicant submitted:
Among the 87 cases where imprisonment was imposed, only 18 offenders received a total effective sentence of more than 5 years. When comparing the sentence in this case to the statistics for the reporting period, it is within the highest 20% of cases where a term of imprisonment was imposed for offences of obtaining a financial advantage by deception, and in the top 12.5% of the 144 sentences imposed overall where obtaining a financial advantage by deception was the principal offence.
While the applicant accepted that the sentencing judge was entitled to take account of the subsequent offences, she submitted that, as at the date of sentence, she had not committed a further offence for about 5 years and 6 months, and within that period had completed the Community Corrections Order imposed in 2019 (which included mental health assessment and offending behaviour conditions) without breach. The applicant submitted that this was relevant to both the need for specific deterrence and her prospects of rehabilitation. Citing Rodriguez v DPP (Cth),[76] the applicant contended that rehabilitation during delay and its effect of specific deterrence were relevant on sentence, but that his Honour had only accorded weight to the anxiety she suffered during the delay.
[76](2013) 40 VR 436, 445–6 [36] (Warren CJ and Redlich JA); [2013] VSCA 216 (‘Rodriguez’).
Finally, the applicant contended that, in assessing the need for specific deterrence and the protection of the community, the sentencing judge afforded too much weight to the two non-custodial dispositions imposed on the applicant for offending in 2017 and 2019 during and subsequent to the offending at issue in this case. Accepting that these matters were relevant, the applicant argued that her prior criminal history had attracted ‘very modest dispositions’; and that his Honour’s characterisation of the spent convictions in 1993 as representing an ‘early start’ to her propensity for committing deception offences up to September 2018 did not ‘reflect the almost 20 year gap between the 1993 matters and the next time the applicant came before the Court in 2012’. The applicant submitted that, having regard to the objective gravity of the offending and sentence imposed, too much weight must have been given to the applicant’s prior and subsequent offending, and in turn to specific deterrence and protection of the community.

The respondent’s submissions

The respondent contended that, taking account of the applicant’s offending as a whole, and those mitigatory matters on which she was able to rely, the total effective sentence (and non-parole period) were within ‘sound discretionary judgment’. The respondent submitted that orders for cumulation in relation to charges 2 and 3 were required to reflect that the applicant’s aunt was a separate victim in a separate episode of offending at a separate time and for a separate reason. The respondent submitted that the difference in quantum relevant to these charges was reflected in the lower sentences imposed. The respondent further submitted that the orders for cumulation made in respect of charge 5 and those charges that resulted in an aggregate sentence (charges 6–30 and 32–37) were modest in the circumstances, given that the quantum that related to charge 5 and the duration of the offending relevant to charges 6–30 and 32–37.
The respondent noted that the applicant’s counsel conceded before the sentencing judge that ‘objectively the offending is serious given it occurred over the course of approximately two years and nine months’ and the total value was $382,400’ and that ‘[t]he familial relationship’ gives rise to a ‘serious breach of trust’. The respondent argued that, while the total effective sentence of 5 years and 3 months’ imprisonment sits towards the upper end of sentences for offending of the kind and the quantum involved in this case, it was not outside the range open to the sentencing judge. The respondent referred in this context to DPP v Zhuang[77] and DPP v Dalgleish (a pseudonym).[78]
[77](2015) 250 A Crim R 282, 292 (Redlich, Priest and Beach JJA); [2015] VSCA 96 (‘Zhuang’).
[78](2017) 262 CLR 428, 444–5 (Kiefel CJ, Bell and Keane JJ) and 453–4 (Gageler and Gordon JJ); [2017] HCA 41 (‘Dalgleish’).
The respondent also drew this Court’s attention to the submission made on the applicant’s behalf at the plea hearing that DPP v Mastrangelo[79] was a comparable case to this. The respondent also noted that the prosecutor had referred the sentencing judge to DPP v Adams[80], DPP v Cappelli[81], Friel v The Queen[82], Taylor v The Queen[83], Kotsifas v The Queen[84] and The Queen v Galleta[85]. The respondent submitted that analyses of the relevant cases demonstrates that the sentence imposed on the applicant was not out of step with current practice.
[79][2018] VCC 87 (‘Mastrangelo’).
[80][2006] VSCA 149 (‘Adams’).
[81][2019] VCC 2118 (‘Cappelli’).
[82][2018] VSCA 48 (‘Friel’).
[83](2019) 59 VR 163; [2019] VSCA 162 (‘Taylor’).
[84][2021] VSCA 368 (‘Kotsifas’).
[85][2007] VSCA 177 (‘Galleta’).

The respondent submitted that, although the applicant’s offending was not ‘enabled’ by the fact that she was, for example, a lawyer or accountant, the applicant significantly breached her position of trust with respect to the victims, by virtue of ‘the family dynamic’ and the fact that she was the operator of a business of a relevant kind. The respondent submitted that ‘[t]he nature of the applicant’s employment was akin to her acting in a professional role from the perspective of the primary victims’, and that the sentencing judge was correct to conclude that general deterrence, just punishment and denunciation were important.
The respondent submitted that the sentencing judge took into account the punitive effects of delay as a mitigatory consideration, but that it was open to the judge to conclude that, as the respondent put it:
[T]he applicant’s psychological treatment was mostly focused on assisting the applicant cope with her (then) current predicament (being the court proceedings), and not designed to treat any underlying conditions relevant to her offending, which the applicant continued to deny.
The respondent submitted that the fact that the applicant had not offended in the five years before sentencing was not evidence of ‘complete reformation which would require a sentencing judge to give full weight to the first limb of delay as enunciated in Rodriguez. Rather, so the respondent submitted, the extent to which an offender has made progress towards rehabilitation requires consideration of at least two factors, remorse and reform. The respondent submitted that both must be present for a sentencing judge to give full weight to this limb,[86] and that abstinence from offending alone was not enough for this purpose.
[86]Citing DPP v Merryfull and Bloomfield [2023] VSCA 244, [46] (Emerton P, Macaulay and Taylor JJA) (‘Merryfull’).
The respondent submitted the sentencing judge was entitled to take into account the applicant’s prior convictions from August 2012 and February 2015 and to place weight on the applicant’s subsequent convictions in determining her prospects of rehabilitation.[87] The respondent submitted that his Honour was correct to conclude that significant weight should be attached to specific deterrence and protection of the community ‘given the protracted nature of the offending and the applicant’s antecedents notwithstanding that the applicant had not committed further offences in the 5-year period before being sentenced’.
[87]Citing Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 and Wilson v The Queen [2022] VSCA 2.

Consideration

It has been said that in order for the ground of manifest excess to succeed, it must be shown that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion.[88] As this Court explained in Clarkson v The Queen:
The ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. 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 the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[89]
[88]See, eg, Rohen v The King [2024] VSCA 1, [123] (Priest, Taylor and Boyce JJA).
[89](2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157. See also R v Abbott (2007) 170 A Crim R 306, 309 [13] (Maxwell P); [2007] VSCA 32; McPhee v The Queen [2014] VSCA 156, [8] (Redlich and Priest JJA); Hayes v The Queen [2017] VSCA 285, [47] (Kaye JA and T Forrest AJA); and Khan v The Queen [2018] VSCA 61, [36] (Weinberg, Beach and Hargrave JJA).
The applicant does not challenge the individual sentences imposed on her. Rather, she challenges the total effective sentence (and the non-parole period) on the basis of manifest excess. In particular, she specifically challenges the orders for cumulation, and would have more weight placed on some mitigatory considerations and less weight placed on other matters.
Current sentencing practices are relevant to the task of a sentencing judge, and therefore the sentencing judge must take them into account in the sentencing process.[90] As already noted, the applicant relied on the Sentencing Advisory Council’s Statistics for the Higher Courts in relation to offences of obtaining financial advantage by deception from July 2017 to June 2022, in support of her submissions that the total effective sentence imposed on her was manifestly excessive. I am not persuaded, however, that this can be inferred by reference to these statistics alone. This is because, as indicated by the cases referred to below, there are a wide range of circumstances that may give rise to the offence of obtaining financial advantage by deception contrary to s 82(1) of the Crimes Act 1958. Statistics may be indicative of some matters, but are not especially helpful in such a case as this. In this case, the particular circumstances of the offending were significant in the sentencing judge’s intuitive synthesis.
[90]See, however, Dalgleish, 444–5; Zhuang, [33]–[34].
It may also be accepted, as the respondent did, that the total effective sentence of 5 years and 3 months’ imprisonment was towards the upper end of sentences for offending of the kind and quantum involved in the applicant’s case. It does not follow from this, however, that the total effective sentence was outside the range open to his Honour. This is because it was open to the sentencing judge to find that the applicant’s offending was serious when considered overall. The offending involved repeated acts of dishonesty over a period of almost three years. The victims, all members of the applicant’s family, evidently placed their trust in her. The offending was, so his Honour found, premeditated, planned, repeated and relatively sophisticated. In addition, his Honour found that while the applicant had many opportunities to desist, she persisted in her offending conduct, and indeed, sought to disguise what she had done when the primary victims (Jessica Lacivita and Peter Koukos) sought her reassurance. It should also be borne in mind that the amount of money involved was not insignificant, and the offending had a serious impact on them.
Of course, reference to other cases can provide a basis for sentencing comparison. The applicant relied on Mastrangelo at the plea hearing. This is not, however, a comparable case. The offender in Mastrangelo had the advantage of an early plea. She was evidently remorseful and sought to make significant restitution to the victim. Further, she had no prior or subsequent criminal history. It was on this basis that her sentence was limited to 6 months’ imprisonment and a Community Corrections Order for two years upon release.
As already noted, at the plea hearing, the prosecutor also relied on a number of cases concerning obtaining financial advantage by deception. These were the cases to which I now turn.[91]
[91]Other cases included Adams and Galleta. The following analysis focusses on the more recent cases.
Taylor is of limited assistance since the sentence in fact imposed would have been set aside by the Court of Appeal but for a concession made by the respondent. Further, there are evident differences in the facts giving rise to the offending in that case and in this. Briefly, in Taylor, the offender had falsely claimed that he had no prior convictions in order to obtain employment as a teacher for some 10 years. He was convicted and sentenced to imprisonment for 2 years and 11 months, with a non-parole period of 2 years and 2 months. He had significant prior and subsequent convictions. The Court of Appeal described the sentence as ‘wholly inadequate’.[92] The Court observed that ‘proper exercise of the sentencing discretion should have led to significantly greater individual sentences being imposed on a number of charges, accompanied by significantly greater cumulation between sentences, thereby leading to a much longer total effective sentence and non-parole period’.[93] The Court continued that ‘[i]f anything ... the sentence might be said to be excessively lenient, given the applicant’s planned and protracted offending, and his substantial prior convictions’.[94] If the respondent had not accepted that the individual sentences, orders for cumulation and total effective sentence disclosed no error, then the Court would have considered a more severe sentence was warranted.[95]
[92]Taylor, [119] (Priest and Beach JJA).
[93]Taylor, [123] (Priest and Beach JJA).
[94]Taylor, [138] (Priest and Beach JJA).
[95]Taylor, [143] (Priest and Beach JJA).
In Friel, the offender obtained $256,158 over an 11-week period in various dishonest ways, including by the use of false loan applications and false identity documents.[96] He was sentenced to imprisonment for 4 years and 4 months. He pleaded guilty at an early stage,[97] however, and, although he committed offences while on bail and subject to a Community Corrections Order, the sentencing judge found him to have good prospects of rehabilitation.[98] Plainly enough, Friel is not comparable to this case, bearing in mind the shorter period of the offending, the offender’s early guilty plea, and that he was found to have good prospects of rehabilitation.
[96]Friel, [7] (Hargrave JA, Priest JA agreeing).
[97]Friel, [47] (Hargrave JA, Priest JA agreeing).
[98]See lower court’s sentencing reasons in DPP v Friel [2016] VCC 1727, [19] (Judge Ryan).
In Kotsifas, a solicitor who operated his own firm, misused and misappropriated trust funds respecting 16 clients over a three-year period. The offending involved $314,000. The offender pleaded guilty at an early stage and demonstrated remorse.[99] He cooperated with the authorities and had no prior criminal history. Delay was considerable and attributable to the prosecution. The offender was sentenced to 6 years’ imprisonment, with a non-parole period of 4 years.
[99]Kotsifas, [41], [46], [66] and [70] (Maxwell P and Emerton JA).
Kotsifas is also different from the present case in a number of respects. Here, the applicant did not have the benefit of an early plea and did not demonstrate remorse. She denied her wrongdoing throughout, had a relevant criminal history, and the sentencing judge was guarded about her rehabilitation prospects. But while the applicant was not a lawyer, whose offending was enabled by professional knowledge and power, she was trusted by her victims as a family member and operator of a relevant business. To this limited extent, the two cases share something in common.
In Cappelli, the offender falsely represented to 12 homeowners, over about a year, that he was a builder and agreed to carry out major domestic building work.[100] In fact, he did not have the appropriate permits to do so. By his deception, he obtained $650,750.[101] He had a number of relevant prior convictions.[102] He pleaded guilty, although not at an early stage, and this was taken into account in mitigation.[103] Further, the sentencing judge recognised that the first limb of Verdins[104] applied, and balanced this against the need for community protection.[105] His Honour also accepted that the offender had ‘a level of remorse and insight with respect to this offending’.[106] The offender received a sentence of imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 3 months.
[100]Cappelli, [3] (Judge Brookes).
[101]Cappelli, [3].
[102]Cappelli, [132].
[103]Cappelli, [117]–[118].
[104]R v Verdins (2007) 16 VR 269; [2007] VSCA 62.
[105]Cappelli, [121]–[130].
[106]Cappelli, [118].
Cappelli is possibly nearer to this case than the others mentioned, but clearly it is not entirely comparable. The quantum of money gained by deception was higher in Cappelli than in this case, although the offender in Cappelli had the benefit of the first limb of Verdins, as well as some insight into his offending and some remorse. He also had the benefit of a guilty plea, even if this was not at an early stage. The applicant had the mitigatory effect of delay but little else.
None of these cases support the applicant’s case that the total effective sentence imposed on her was outside the range open to the sentencing judge, however. If anything, Cappelli is broadly consistent with the manner his Honour exercised his sentencing discretion in her case.
As the respondent submitted, the two most serious offences were charges 5 and 31. Charge 5 related to the payment of $127,500 by bank cheque issued to the applicant on 21 July 2014. Charge 31 related to the payment of $200,000 by bank cheque made out to the applicant’s business, Luxury Home Designs, on 17 June 2016. Charge 31 attracted a sentence of 3 years’ imprisonment and charge 5, a sentence of 2 years’ imprisonment.
Charges 6–30 and 32–37 related to the payment of a total of $44,900, attracting an aggregate sentence of 1 year and 6 month’s imprisonment, about which the applicant made no complaint. While evidently involving a lesser amount than charges 5 and 31, the offending here was part of the continuing deception of the victims by the applicant over the relevant period, where the applicant knew the victims relied on and trusted her and that, by reason of her offending, they would incur a debt they could not readily repay.
Charges 2 and 3 concerned the applicant’s aunt, Antonia Lacivita. The offending occurred some months before the offending against her daughter and her fiancé and involved a smaller monetary amount, but involved the same kind of breach of trust as the offending against the primary victims. Orders for cumulation in relation to charges 2 and 3 were required to reflect these circumstances. It was open to the judge to make the orders he did. It was also open to the sentencing judge to make the orders for cumulation for charge 5 (being one of the most serious charges) and for those charges that resulted in an aggregate sentence (charges 6–30 and 32–37) given the duration of the offending relevant to them.
Having regard to the sentences imposed on the applicant, the nature of her offending, the limited matters in mitigation and the total effective sentence, it cannot reasonably be said that his Honour failed to have proper regard to the totality principle, which, as his Honour clearly appreciated, is designed to ensure that when being sentenced for multiple offences, the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.[107] It was open to him to give effect to the principle in the manner he did.[108]
[107]Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J); [1997] HCA 26 (‘Postiglione’), citing Mill v The Queen (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70 (‘Mill’).
[108]Compare Mill, 63.
As noted earlier, the applicant also challenged the way in which the sentencing judge addressed the mitigatory effect of delay. As the applicant recognised, there are two limbs upon which the effect of delay is considered: unfairness and rehabilitation.[109] The applicant argued in effect that his Honour failed to have sufficient regard to the fact that she had not re-offended after the offending with which this case is concerned and prior to charges being laid. This was a period of some 5 years and 6 months. The applicant’s submission was that the absence of offending in this period supported the proposition that by this time she had overcome the issues that had led her to commit the multiple offences of dishonesty between 2013 and 2018.
[109]See, eg, Merryfull, [44]–[45] (Emerton P, Macaulay and Taylor JJA).
As the Court said in Rodriguez:
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[110]
[110]Rodriguez, 445–6 [36] (Warren CJ and Redlich JA).
As the applicant accepted, the sentencing judge clearly took account of the significant delay between the offending and the imposition of sentence. In particular, his Honour had regard to what he termed the ‘the punitive effects’ of delay on the applicant.[111] As his Honour noted, however, there was limited evidence about the applicant’s progress towards rehabilitation. His Honour concluded that the applicant’s psychological treatment up until then was mostly focused on helping her cope with the court proceedings, rather than treating the conditions relevant to her offending (which the applicant continued to deny). It was clearly open to him to make this finding on the material before him.
[111]Reasons, [109].
Further, to be satisfied that there has in fact been progress towards rehabilitation, there must be some evidence of remorse and reform.[112] The fact that the applicant had not engaged in criminal offending in the five years before sentencing was not enough to establish such progress and to afford the applicant the full benefit of the rehabilitation limb. It is clear that less than full weight will be given where there is merely abstinence from further offending.[113] It follows that it was appropriate in this case for the sentencing judge to give the rehabilitation limb of delay less than full weight. The sentencing judge’s consideration of delay does not assist the applicant’s manifest excess ground.
[112]Merryfull, [46].
[113]Tones v The Queen [2017] VSCA 118, [42] (Maxwell P, Redlich and Jyrou JJA); Merryfull, [46].
Lastly, the applicant contended that the sentencing judge placed too much weight on the applicant’s prior and subsequent criminal history. It does not seem to me that there is much merit in this submission.
First, his Honour distinguished between the weight to be given the applicant’s various prior offences. His Honour gave little weight to the 133 prior offences of obtaining property by deception dealt with in 1993. In relation to these offences, he did nothing more than note in passing that they represented ‘an early start ... to [her] propensity for committing deception offences’.[114] His Honour gave greater weight to the applicant’s convictions in August 2012 and February 2015. It was open to him to do so, given that they were of a broadly similar nature and were relatively proximate in time.
[114]Reasons, [92].
Secondly, his Honour was careful to note that the applicant’s subsequent offending (dealt with in September 2017 and January 2019) could not be taken into account in the same way as his prior criminal history, although this offending might affect his Honour’s assessment of the applicant’s risk of recidivism, which was relevant to the weight to be given specific deterrence and protection of the community. It was open to his Honour to treat the applicant’s subsequent offending in this way.[115]
[115]Wilson v The Queen [2022] VSCA 2, [20] (Priest and Niall JJA).
The applicant proposes to argue on appeal that the sentencing judge placed too much weight on the applicant’s criminal history. It does not seem to me that this argument has sufficient merit to lend sufficient force to the applicant’s manifest excess ground to justify the grant of leave. This is because notwithstanding the applicant had not committed any further offences in the preceding five years, it was open to his Honour to determine that there was a need for specific deterrence and protection of the community and that these considerations should be given significant weight, bearing in mind the nature of the offending, the applicant’s criminal history, her lack of remorse and his Honour’s guarded view of her rehabilitation prospects.

For the foregoing reasons, I am not persuaded that there is sufficient merit in the applicant’s proposed ground to justify the grant of leave to appeal.

Conclusion

Accordingly, leave to appeal is refused.

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[2024] VSCA 263

11 November 2024