McLeod v The Queen
[2018] ACTCA 59
•4 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | McLeod v The Queen |
Citation: | [2018] ACTCA 59 |
Hearing Date: | 12 November 2018 |
DecisionDate: | 4 December 2018 |
Before: | Elkaim, Mossop JJ and Robinson AJ |
Decision: | Appeal dismissed |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in treating the failure to repay the stolen money as an aggravating factor in the assessment of objective seriousness |
Legislation Cited: | Criminal Code 2002 (ACT) s 308 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 and 33(1)(e) |
Cases Cited: | Director of Public Prosecutions v Parker (1992) 28 NSWLR 282 |
Parties: | Timothy Stewart McLeod (Appellant) The Queen (Respondent) |
Representation: | Counsel Ms E McLaughlin (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 21 of 2018 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 26 March 2018 Case Title: R v McLeod Citation: [2018] ACTSC 228 |
THE COURT:
On 26 March 2018, Burns J convicted the appellant on the four counts of theft in an indictment dated 29 May 2017.
His Honour imposed the following sentences for the respective counts:
Count 1: Two years and 10 months’ imprisonment, commencing on 26 March 2018 and expiring on 25 January 2021.
Count 2: Two years and six months’ imprisonment, commencing on 26 January 2019 and expiring on 25 July 2021.
Count 3: Three years and three months’ imprisonment, commencing on 26 October 2022 and expiring on 25 January 2026.
Count 4: Four years and six months’ imprisonment, commencing on 26 March 2021 and expiring on 25 September 2025.
The appellant was sentenced to a total of seven years and 10 months’ imprisonment commencing on 26 March 2018. His Honour set a non-parole period of four years, expiring on 25 March 2022.
The Notice of Appeal, dated 23 April 2018, lists the following four grounds of appeal:
(a)The sentence is manifestly excessive, either as to the total term, or non-parole period, or both;
(b)The sentencing judge erred in treating as an aggravating factor the fact that none of the stolen monies had been repaid;
(c)His Honour also took into account a matter he was not permitted to when he referred to discussions over the telephone between the Appellant and his mother that were intercepted by police when no charges arose from same;
(d)In the alternative to (c) above, his Honour failed to give adequate reasons as to how he took this matter into account.
The appellant abandoned three of the grounds leaving only ground (b) that “the sentencing judge erred in treating as an aggravating factor the fact that none of the stolen monies had been repaid”.
The failure to repay the monies was taken into account by the sentencing judge as one of five matters which dictated his assessment of the objective seriousness of the offences. Commencing at [31], his Honour said the following:
31. In determining the objective seriousness of these offences, I take into account the fact that the value of the property obtained in each case was considerable. I accept that you did not receive all of the proceeds of the offences but you were involved in the appropriation of the whole amount. I also take into account the fact that these offences spanned a five year period, indicating a high level of premeditation. As you have acknowledged, these offences involve a very significant breach of trust because you were only in a position to commit these offences because you were trusted by your employer. You utilised your knowledge of the Public Trustee’s financial systems, which you obtained as an employee in order to commit these offences.
32. In large measure, you were able to continue these offences for such a long period because of the vulnerable nature of the clients of the Public Trustee, because of their infirmity or chronic illness it was unlikely that they would detect the thefts and bring them to the notice of the authorities. I also take into account the fact that you have not repaid any of the monies that you stole, although I acknowledge that you have not been in the position, realistically, to do so. It is, nevertheless, relevant to determining the objective seriousness of the offences that no repayment has been made.
33. The Crown submitted that I should find that you were the mastermind or ringleader with respect of these offences. Your counsel submitted that this was really a plot in which you and your two co-offenders were all involved. For present purposes, I think that it is sufficient to observe that these offences could not have been committed without your involvement. It was only your knowledge of the financial systems of the Public Trustee and your ability to manipulate those systems which allowed these offences to occur.
34. Taking all of these matters into account, I assess the objective seriousness of these offences as in the upper range of such offences.
The appellant’s primary submission is that a failure to repay the monies is not a factor which should be taken into account in assessing the objective seriousness of an offence. Alternatively, the appellant submitted that even if a failure to repay could be taken into account, it ought not to have been considered in this case.
If the appellant succeeded in establishing error, he submitted that he should be resentenced. In anticipation of that result he read an affidavit he affirmed on 12 November 2018 (Exhibit A in the appeal) and also referred to the report of Dr Ellis, a psychiatrist. That report had been in evidence before the sentencing judge. For completeness, because only an excerpt is reproduced in the appeal papers, the whole report became Exhibit B in the appeal.
The Court agrees with the appellant’s primary submission. Initially the respondent submitted that the sentencing judge was not necessarily including the failure to repay as a factor in assessing objective seriousness, but rather he was referring to it as part of the judge’s obligation to apply s 33 of the Crimes (Sentencing) Act 2005 (ACT).
10. After some discussion, however, the Crown effectively conceded the point but then concentrated on the effect of the error rather than the presence of an error. The Crown’s submission was that the failure to repay was a matter that had to be taken into account by the sentencing judge and whether he did it in considering objective seriousness or otherwise was of little ultimate difference. The Crown submitted that on any basis the sentences were appropriate.
11. The Crown even went so far as to suggest that a ‘Parker Direction’ (Director of Public Prosecutions v Parker (1992) 28 NSWLR 282) might be appropriate because on any resentencing, the appellant was exposed to a harsher penalty. The Court informed the appellant that it was not of this view and that he was not at risk of an increase in his sentence.
12. Returning to the fundamental point, the assessment of the objective seriousness of the relevant offence is a fundamental part of the sentencing process. The appellant submitted, correctly, that what is relevant is the offence itself but not the after effects of the offence. The latter may well be relevant, for example under s 33.
13. The High Court, in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, stated, at [27]:
The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.
14. The appellant submitted that the failure to repay did not go to the nature of the offence but rather to the consequences of the offence. It was further submitted that “each offence was completed once the appellant retained the victims’ monies with the necessary intention to permanently deprive them of it in each transaction” (appellant’s written submissions at [45]).
15. The appellant relied on the decision of Simpson J in Thewlis v R [2008] NSWCCA 176 in particular to highlight the distinction with cases where conduct after an offence may be relevant to mitigate a sentence:
38. This is not a circumstance that goes to the evaluation of the objective seriousness of the offences, which, by this time were complete. Nor is it an instance of conduct of the kind explained in R v Ellis (1986) 6 NSWLR 603, (voluntary disclosure of otherwise undetected guilt) warranting leniency in sentence for the reasons there set out. And it goes well beyond throwing light on remorse or contrition, which were also well established. It goes to amelioration of the effects of the applicant’s criminal conduct.
39. This was an unusual case, in that the applicant took immediate, almost instantaneous, steps to ameliorate the consequences of his crimes; and, further, that, in the case of Ms Hodgson, those steps may well have had substantial beneficial, and ameliorative, effects.
40. Although reference was made, both in the facts and submissions, to this circumstance, Morgan DCJ was not asked to take it into account in this way. It appears to me that she did not. But it is something which, I have concluded, the applicant was entitled to have taken into account not as a mitigating factor catalogued in s 21A(3), but as a particular, and unusual, circumstance which may be called ameliorative conduct, justifying a measure of leniency on that particular basis.
41. The notion is not unique. There have been cases, such as property crimes, where leniency is justified because reparation has been voluntarily made prior to any charges being brought or anticipated. That is an appropriate analogy.
42. My researches have yielded no explicit statement of principle to the effect that voluntary rectification can operate in mitigation of sentence. Indeed, in respect of property crimes, it has been held that voluntary repayment of the proceeds of the criminality cannot be used to “purchase mitigation”: R v Phelan (1993) 66 A Crim R 446 at 448, per Hunt CJ at CL. But that very circumstance was accepted on a relevant sentencing factor in R v Conway [2001] NSWCCA 51; 121 A Crim R 177, per Heydon JA, in R v Berlinsky [2005] SASC 316, and in Dowling v Phillips, Supreme Court of WA, 15 August 1995 per Heenan J. (And these were, in contrast to the present, cases where the ameliorative conduct occurred after the offender was charged, or when aware that he or she was to be charged. (That is not here of great importance: there could have been no doubt that the applicant would have been identified as the perpetrator of the attacks, and charged.)
43. In my opinion it ought now be accepted that, in an appropriate case – and, it may be said, there are few examples of appropriate cases, at least that came before this Court – conduct of the kind engaged in by the applicant warrants some consideration in mitigation of sentence. (I stress that I have twice referenced to “mitigation of sentence”. That is different from, and not to be confused with, mitigation of the offence: the latter concept is concerned with the evaluation of objective gravity.)
16. The distinction that it is clear from Thewlis is that objective seriousness should not be confused with facts that may legitimately be raised to mitigate an offence. Thus in the present case the objective seriousness of the offences would not have been affected if the monies had been repaid. That fact, however, would have been taken into account in the ultimate sentence.
17. The next step is to proceed to the resentencing exercise. The discretion must be exercised by this Court even if, as will be the case here, the Court reaches the same results as reached by Burns J. This is because the sentences imposed by his Honour are independently considered to be appropriate. In Kentwell v The Queen [2014] HCA 37; 252 CLR 601, the High Court stated at [42]:
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.
18. The starting point in any resentencing exercise is to consider the facts. The offence of theft is contrary to s 308 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years’ imprisonment and, or, a fine of $150,000. It is important to observe immediately that the four counts reflected many more than four offences. The period of offending extended from September 2008 until November 2013. The total amount stolen was $1,087,227.55.
19. As observed by Burns J, at [1]:
The four counts are what are referred to as rolled up counts, in that each count represents a collection of charges, rolled up into a single charge. The procedure can only occur with the consent of an accused person. Otherwise, the Crown must proceed with each individual charge. The practice simplifies the sentencing process but also operates to the advantage of an accused person pleading guilty. The use of rolled up charges reduces the theoretical maximum aggregate penalty which may be imposed for the overall offending.
20. The effect of ‘rolling up’ charges can be, as is no doubt the case here, to the benefit of an offender. Had this appellant been sentenced in respect of each theft that he had carried out, it would have been an extremely difficult exercise to have avoided a very long total sentence. It is to be noted that aggregate sentencing is not an option available to an Australian Capital Territory court.
21. As already seen, the sum of money stolen was very large. It is not to the point that a portion of the total sum was used to “pay” other persons involved in the scheme. Secondly, the appellant was working in a position of trust at the Public Trustee. This institution manages the financial affairs of people suffering from a legal incapacity. A trust officer, like the appellant, has the duty to manage the resources of a number of persons whose funds are held on their behalf by the Public Trustee.
22. The appellant stole the money by one of four methods, each method being the subject of a separate count:
(a)He generated false cheque requisition forms which resulted in funds being transferred to the accounts of two of his clients. Once the funds arrived in the respective accounts of these clients, the appellant would use their EFTPOS cards and PIN numbers to access the funds. This occurred on 156 occasions reflecting the theft of $104,131.65.
(b)Once again, false cheque requisition forms were prepared for the purpose of purchasing various items from retailers on behalf of the clients. The appellant would obtain the cheque and then use it to purchase products for his own use. Alternatively, if a payment was made by electronic transfer directly to the retailer, he would have the products delivered to an address that he had nominated. There were 26 transactions resulting in the illegal payment of $41,025.95.
(c)70 false check requisition forms were generated for apparently legitimate purposes but nominating a Mr Stephen Evans as the recipient of the cheque. Mr Evans was a friend of the appellant. This fraud amounted to $141,516.80.
(d)The last method, involving 146 transactions, led to the theft of $800,553.15. False cheque requisition forms were again generated by the appellant asking for funds to be paid out on behalf of the client to be attributed to maintenance or capital works on their respective properties. The requisitions were matched to a false invoice prepared by either Mr Stephen Evans or another friendly, but crooked, contractor, Mr Joshua Leighton. Sometimes there would not even be a false invoice. Once the funds were received by either of the above two contractors they would be withdrawn and split with the appellant. In the case of Mr Evans there was a 50-50 split. For Mr Leighton the split was 60-40 in the appellant’s favour.
23. The appellant, when initially confronted by the police, denied the allegations. It was only after Mr Evans made a statement to police implicating the appellant that he commenced negotiations with the Crown, ultimately resulting in the pleas of guilty.
24. Burns J found that the offences were “in the upper range of such offences”. The appellant submitted that it would not be correct to reach a similar assessment. This was because one of the factors used by Burns J in reaching his assessment had been removed. It should follow, if only as a matter of logic, that the removal of a factor should lead to a less severe assessment. The Court disagrees. The assessment made by Burns J placed the offences within a range. That range may still be applicable even though the factors have changed. Having regard to the nature of the offences, as set out above, the “upper range” still represents a correct characterisation of the objective seriousness of the offences.
25. The next point is that even though the Court has agreed that the failure to repay should not have been taken into account in assessing objective seriousness, it does not necessarily follow that the failure is not relevant. To the contrary, s 33(1)(e) demands that “any injury, loss or damage resulting from the offence” be taken into account.
26. The appellant’s written submissions, at [58] suggest, on one reading, that assets to the value of $537,000 have been forfeited to the Public Trustee. While the fact that any amounts forfeited would be to the credit of the ACT Government is probably not relevant, it is clear from Exhibit A, that while the goods may have had the above value, the available equity was substantially less. The affidavit states that after the mortgage on the house which was forfeited had been repaid, only some $71,000 remained.
27. Looking at the appellant subjectively, many of the relevant facts are to be found in the Pre-Sentence Report (Appeal Book B, Tab 5) and in the report of Dr Ellis (Exhibit B in the appeal).
28. The Pre-Sentence Report describes the appellant’s background. He was born in Sydney but came to Canberra at 11 years of age. He had a supportive background although his parents separated when he was 15 years old. He then lived with his father but remained in contact with his mother and sister. The appellant is married and has two children.
29. After completing year 10, the plaintiff worked in various industries. His most recent work was in hospitality which continued until he was placed in prison. He worked in a country hotel owned by his wife.
30. The appellant has used illegal drugs although he seemed to have downplayed its effects upon him when speaking to the authors of the Pre-Sentence Report. He did tell the authors that he had a gambling problem, mainly with the use of poker machines while he was offending.
31. Dr Ellis is a psychiatrist. He saw the appellant for purposes of the criminal proceedings. Dr Ellis was specifically asked whether the appellant had a mental condition and if there was any evidence of suicidal ideation.
32. Dr Ellis identified three disorders: an alcohol use disorder, a cannabis use disorder and a gambling disorder. He also thought a mood disorder was possible. He found that there was “no evidence for a serious or severe personality disorder such as antisocial personality disorder”.
33. Dr Ellis concluded his diagnosis with this opinion:
There is no evidence to suggest any condition, or combination of conditions that might deprive him of an ability to be aware of wrongful or illegal conduct over the period.
34. In relation to his prognosis, Dr Ellis said this depended on the appellant stopping drinking alcohol. He did not think that there was much chance of reoffending provided the appellant dealt with his alcohol and substance abuse. Dr Ellis observed that “the majority of prisoners suffer from mood and substance use disorders. In this manner he is typical of prison populations”.
35. The Court has also taken into account the contents of Exhibit A. It is evident that the appellant’s diabetic condition is making prison difficult for him. As stated in Muldrock, at [28], it is legitimate to consider that “imprisonment will be particularly burdensome because of the offender’s physical condition”.
36. However, his condition is known to the prison authorities and there is plainly an obligation upon those authorities to ensure that appropriate treatment is provided to the appellant. Diabetes is not a rare condition. Many members of the community live with it on a daily basis. It is not suggested that the condition was contracted in prison and it is part of the appellant’s daily life that he deals with it. Notably, Dr Ellis observed that before going into prison the plaintiff’s diabetes was not well controlled.
37. It is also noted, from the appellant’s affidavit, that the appellant’s living conditions in prison have substantially improved since he was moved into protective custody and reclassified as a minimum-security prisoner able to live in “the cottages”.
38. The appellant submitted that a comparison with the sentences imposed upon other persons involved in the same criminal scheme suggested that his subjective factors were such that he was entitled to greater leniency. The difficulty with this submission is that although the offender may not have been a “ringleader” there is no doubt, as stated by Burns J, that:
These offences could not have been committed without your involvement. It was only your knowledge of the financial systems of the Public Trustee and your ability to manipulate those systems which allowed these offences to occur.
39. His Honour also observed that:
Your culpability with respect of these offences is somewhat greater than that of your co-offenders…You also received more of the proceeds of the offences than your co-offenders. Your offending involved a breach of trust whereas that of your co-offenders did not. Both of your co-offenders made offers to assist the authorities.
40. This Court agrees with the above observations made by the sentencing judge.
41. The Court has conducted its own assessment of the various matters relevant to resentencing the offender. This has included consideration of the objects and purposes of sentencing as set out in ss 6 and 7 of the above Act and also the matters required to be taken into account under s 33. Section 10 says that a person should not be imprisoned except as a last resort. There is no other option in this case, nor was any suggested.
42. The Court has independently reached the conclusion that the sentences imposed by Burns J were appropriate and therefore declines to exercise its discretion to sentence the offender differently to the sentencing judge.
43. The order of the Court is: The appeal is dismissed.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Mossop and Acting Justice Robinson. Associate: Date: 4 December 2018 |
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