Melnikas v The Queen
[2016] VSCA 112
•19 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0010
| CHRISTINE MELNIKAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 May 2016 |
| DATE OF JUDGMENT: | 19 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 112 |
| JUDGMENT APPEALED FROM: | [2015] VCC 1763 (Judge Lewitan) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Theft (six charges) – Applicant stole $209,000 from community organisation over 5 year period – Applicant employed in position of trust in community organisation – Applicant sentenced to term of imprisonment of 18 months and CCO of 18 months with 250 hours of unpaid community work – Whether combined term of imprisonment and CCO was manifestly excessive – Not reasonably arguable that sentence manifestly excessive – DPP v Bulfin v The Queen [1998] 4 VR 114, Boulton v The Queen [2014] VSCA 342 and Dyason v The Queen [2015] VSCA 120 referred to – Sentencing Act 1991, s 5(4C) – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M D Stanton | Doogue O’Brien George |
| For the Crown | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
SANTAMARIA JA
BEACH JA:
Introduction
This is yet another application for leave to appeal against a sentence imposed by a sentencing judge that either could have involved, or did involve, the imposition of a community correction order (‘CCO’). In the present case, the application concerns a combination sentence imposed that did involve a CCO as one of its elements.
On 6 October 2015, the applicant pleaded guilty in the County Court to six charges of theft. The maximum term of imprisonment for theft is 10 years.[1]
[1]Crimes Act 1958, s 74.
Following a plea hearing, on 11 December 2015, the applicant was sentenced to an aggregate term of imprisonment of 18 months together with a CCO for a period of a further 18 months. As part of the terms of the CCO, the applicant was ordered to perform 250 hours of unpaid community work, and to undergo mental health assessments and treatment as directed in accordance with the order. Further, pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, the judge would have sentenced the applicant to a term of imprisonment of 27 months followed by a 27 month CCO.
The applicant seeks leave to appeal against the sentence imposed by the sentencing judge. The applicant’s proposed grounds of appeal are as follows:
The sentence of 18 months immediate imprisonment with no non-parole period and a community correction order of 18 months with a condition of 250 hours community work was manifestly excessive.
1.The learned Judge failed to pay any or any sufficient regard to the following:
(i) the value of monies stolen
(ii)the guilty plea and both its value to the community and as an indication of genuine remorse
(iii) the prospects for rehabilitation of the Applicant
(iv) the antecedents of the Applicant
2.Further or in the alternative, the learned Judge erred in imposing an equal term of imprisonment and of a CCO
Particulars of Ground
(i)The learned judge identified the key sentencing considerations to be deterrence, denunciation and just punishment
(ii)By imposing a sentence of imprisonment the learned Judge was of the view that those purposes could not be achieved by a community correction order to which conditions referred to in ss 48F – J (of the Sentencing Act) are attached
(iii)By the imposition of a prison term of 18 months with no non-parole period the learned Judge was reflecting her assessment of the objective gravity of the offending
(iv)The sentencing purposes identified in (i) above were thus served by the imposition of the 18-month term of imprisonment
(v) Such term was sufficient punishment
(vi)There was no identified need or requirement for the further punishment of a community correction order
(vii) There was no identified need or requirement for the further punishment of a community correction order to be of the same length as the term of immediate imprisonment imposed.
Circumstances of the offending
The applicant was employed to run the Banyule and Districts Netball Association (‘BDNA’). She was paid an annual salary of $36,000 in this employment. BDNA was a not for profit organization, the aim and purpose of which was to promote the playing of netball, by people of all ages, within the community.
Between February 2007 and October 2012, the applicant stole from BDNA amounts totalling a little over $209,000. The circumstances of each of the six charges for which the applicant fell to be sentenced were as follows.
Charge 1: court hire charges
Between 5 February 2007 and 3 July 2012, the applicant received payments from competing clubs for the use of various netball courts. These funds were supposed to be recorded in the accounts of BDNA. On many occasions the payments were not recorded and were used by the applicant for her own benefit. Over the period of the offending covered by charge 1, these payments totalled approximately $100,000.
Charge 2: Westpac Visa card
The facts relating to charge 2 were as follows.
On 18 March 2008, the applicant wrote a cheque from the BDNA Competition Account for $1,680.05. There was no cheque butt or invoice. The details of the cheque were entered into BDNA’s accounting system in the name of a fictitious payee (Sharp). However, the cheque was in fact made out to Westpac and was credited to the applicant’s Westpac Visa account on 25 March 2008.
On 19 April 2008, the applicant wrote a cheque from the BDNA Competition Account for $947.66. There was no cheque butt nor any invoice created, but the payment was entered into BDNA's accounting system as ‘BDNA’ for $60. The cheque was made out to Westpac Visa, and was credited to the applicant’s Westpac Visa account on 23 April 2008.
On 20 April 2009, the applicant wrote a cheque from the BDNA Competition Account for $1,756.26. This cheque was also made out to Westpac Visa, and was credited to the applicant’s Westpac Visa account on 29 April 2009. Notwithstanding these facts, the cheque butt stated it was for umpires, and the details entered into BDNA’s accounting system included the text ‘Christine Anne Melnikas for $550.40’.
On 20 April 2009, the applicant wrote another cheque from the BDNA Competition Account for $1,756.26. The cheque butt stated it was for ‘BCC’ (Banyule City Council). No invoice was created, and no details were entered into BDNA’s accounting system. The cheque was, however, in fact made out to Westpac Visa, and was credited to the applicant’s Westpac Visa account on 22 September 2009.
On 24 January 2011, the applicant wrote a cheque from the BDNA Representative Account for $4,445.20. The cheque butt and entry into BDNA’s accounting system was recorded as ‘Comet Netballs’. An invoice relied upon by the applicant stated that the cheque was for the purchase of 100 netballs. However, the cheque was made out to Westpac Visa, and was credited to the applicant’s Westpac Visa account on 27 January 2011. Further, enquiries with Comet Netball revealed that it did not raise the invoice relied upon, nor had it supplied BDNA with the netballs referred to in the invoice.
On 1 March 2011, the applicant wrote a cheque from the BDNA Competition Account for $4,445.20. The cheque butt stated it was a payment to ‘Office Works’ but there was no relevant invoice; nor were the details entered into BDNA’s accounting system. The cheque in fact was made out to Westpac Cards, and was credited to the applicant’s Westpac Visa account on 7 March 2011.
On 15 September 2011, the applicant wrote a cheque from the BDNA court hire account for $4,834.34. The cheque butt stated it was for ‘BLFM rep TIG’. There was no invoice; nor were its details entered into BDNA’s accounting system. This cheque too was made out to Westpac Visa, and was credited to the applicant’s Westpac Visa account on 19 September 2011.
On 19 March 2012, the applicant wrote a cheque from the BDNA Competition Account for $2,044.61. The cheque butt again stated ‘Office Works’, and the details were entered into BDNA’s accounting system as ‘Office Works’. The cheque was, however, made out to Westpac Cards, and was credited to the applicant’s Westpac Visa account on 22 March 2012. Further, enquiries with Office Works revealed no invoices for that amount.
The total value of the funds stolen from BDNA, and paid into the applicant’s Westpac Visa account, was $21,888.64.
Charge 3: Banyule Direct Netball Competitions
In 2005, the applicant registered an entity, Banyule Direct Netball Competitions. Between 4 February 2009 and 3 July 2012, the applicant wrote seven cheques payable to Banyule Direct Netball Competitions from a BDNA account. These cheques totalled $17,167.25. This was the amount stolen by the applicant from BDNA in respect of charge 3.
Charge 4: ANZ Visa card
The facts relating to charge 4 were as follows.
On 24 May 2008, the applicant wrote a cheque from the BDNA Competition Account for $678. The cheque butt was removed and there was no entry in BDNA’s accounting system. The cheque was made out to ANZ Cards, and was credited to the applicant’s ANZ Visa card on 27 May 2008.
On 4 September 2009, the applicant wrote a cheque from the BDNA Competition Account for $1,233.66. The cheque was made out to ANZ Cards and was credited to the applicant’s ANZ Visa card on 7 October 2009.
On 6 January 2011, the applicant wrote a cheque from the BDNA Competition Account for $2,055.92. The cheque butt stated it was for ‘Netball Vic’ and was entered into BDNA’s accounting system as Netball Victoria with a different cheque number. An invoice was created for Netball Victoria and read ‘VNA insurance’. However, the cheque was made out to ANZ Cards, and was credited to the applicant’s ANZ Visa card on 10 January 2011. Further, enquiries with Netball Victoria revealed the invoice was not one of its invoices.
On 24 January 2011, the applicant wrote a cheque from the BDNA Representative Account for $2,255.59. The cheque butt stated it was for ‘Rebel Sports’ and its details were entered into BDNA’s accounting system as ‘Rebel Sports’. However, this cheque too was made out to ANZ Cards, and credited to the applicant’s ANZ Visa card on 27 January 2011.
On 3 May 2011, the applicant wrote a cheque from the BDNA Representative Account for $2,221.06. The cheque butt stated it was ‘BLFM’ (Banyule Leisure Facility Management) and its details were entered into BDNA’s accounting system as ‘B.L.F.M.’ The cheque was, however, made out to ANZ Cards, and was credited to the applicant’s ANZ Visa card on 6 May 2011.
On 3 February 2012, the applicant wrote a cheque from the BDNA Competition Account for $1,759.53. The cheque butt stated it was ‘C Melnikas’ and its details were entered into BDNA’s accounting system as ‘Christine A Melnikas for $1,106.50 and BDNA Competition Account, $650.03’. An invoice was created for ‘Carol Park work over holidays’ for $650.03. However, the cheque was made out to ANZ Cards and was credited to the applicant’s ANZ Visa card on 6 February 2012.
The total amount of the funds stolen from BDNA, and paid into the applicant’s ANZ Visa account, was $10,203.76.
Charge 5: American Express account
The facts of charge 5 were as follows.
On 8 June 2009, the applicant wrote a cheque from the BDNA Representative Account for $2,000. The cheque butt stated it was for ‘Banyule Leisure Facility Management (BLFM)’, but the cheque was made out to American Express and was subsequently credited to the applicant’s American Express account.
On 5 October 2009, the applicant wrote a cheque from the BDNA Competition Account for $12,096.82. The cheque butt had been recorded as ‘BCC’ (Banyule City Council). The cheque’s details were entered into BDNA’s accounting system as BLFM. However, the cheque was made out to American Express and was credited to the applicant’s American Express account on 7 October 2009. Analysis of the applicant’s American Express card account at that time showed an opening balance of $105.57 and the purchase of an overseas holiday. The applicant travelled to Bali with her family from 21 September 2009 to 1 October 2009.
On 4 May 2010, the applicant wrote a cheque from the BDNA Holding Account for $2,933.88. The cheque butt was removed and its details were not entered into BDNA’s accounting system. The cheque was in fact made out to American Express, and was credited to the applicant’s American Express account on 6 May 2010.
On 31 August 2010, the applicant wrote a cheque from the BDNA Competition account for $2,251.09. The cheque butt stated it was for Ocean Software, and it was entered into BDNA’s accounting system as ‘Ocean Software’. An invoice was created for Ocean Software. However, again, the cheque was made out to American Express, and was credited to the applicant’s American Express account on 2 September 2010. Further, enquiries with Ocean Software revealed that it had not raised this invoice; nor had it entered into the claimed transaction with BDNA.
On 6 January 2011, the applicant wrote a cheque from the BDNA Representative Account for $4,170.44. The cheque butt stated it was for ‘Netball Victoria’, and its details were entered into the accounting system as ‘Netball Vic’. An invoice was created for ‘Netball Victoria NMAS contract 2011’. The cheque, however, was made out to American Express and was credited to the applicant’s American Express account on 10 January 2011. Further, enquiries with Netball Victoria revealed that it never invoiced BDNA for the amount claimed.
On 7 March 2011, the applicant wrote a cheque from the BDNA Competition Account for $4,089.35. The cheque butt stated it was for ‘RAM Enterprises’. An invoice was created for RAM Enterprises. Again, however, the cheque was made out to American Express, and was subsequently credited to the applicant’s American Express account.
On 3 May 2011, the applicant wrote a cheque from the BDNA Representative Account for $3,000. Its details were entered into BDNA’s accounting system as ‘Netball Victoria’. The cheque butt was removed and an invoice was created for ‘VNA rego for academy players’. The cheque, however, was made out to American Express and was credited to the applicant’s American Express account on 9 May 2011. Further, enquiries with Netball Victoria revealed that they have never invoiced BDNA for the amount claimed.
On 5 September 2011, the applicant wrote a cheque from the BDNA Competition Account for $5,000. The cheque butt stated it was for ‘Pro Comp-Comp’, and the same details were entered into the BDNA’s accounting system. Again, the cheque was made out to American Express, and was subsequently credited to the applicant’s American Express account. Further, enquiries with the alleged payee revealed that it had never invoiced BDNA for the amount claimed.
On 5 September 2011, the applicant wrote a cheque from the BDNA Competition Account for $5,000. The cheque butt stated it was for ‘NE Blaze September to December contract fee’. The cheque details were not entered into the BDNA’s accounting system. The cheque was, again, made out to American Express, and was credited to the applicant’s American Express account on 8 September 2011.
On 5 November 2011, the applicant wrote a cheque from the BDNA Competition Account for $6,052.36. The cheque butt stated it was for ‘court hire rep trials’ but its details were not entered into BDNA’s accounting system. The cheque was made out to American Express, and was credited to the applicant’s American Express account on 8 November 2011.
On 16 January 2012, the applicant wrote a cheque from the BDNA Representative Account for $4,152.62. The cheque butt stated it was for ‘Pro Comp’. The details entered into BDNA’s accounting system was ‘Prowess competition software and service’. However, the cheque was made out to American Express, and was credited to the applicant’s American Express account on 20 January 2012.
On 5 June 2012, the applicant wrote a cheque from the BDNA Representative Account for $2,680.97. Again, however, the cheque was made out to American Express, and was credited to the applicant’s American Express account on 7 June 2012.
On 2 October 2012, the applicant wrote a cheque from the BDNA Competition Account for $3,193.09. There was no cheque butt. The details entered into BDNA's accounting system were ‘Banyule Leisure Facility Management (B.L.F.M.)’. The cheque was, again, in fact made out to American Express, and was credited to the applicant’s American Express account on 8 October 2012.
The total value of these cheques, constituting the offending in relation to charge 5, was $56,619.80.
Charge 6: Bank of Melbourne Visa account
The facts of charge 6 were as follows. On 21 September 2012, the applicant wrote a cheque from the BDNA account for $3,253.90. The details of the cheque were entered into BDNA’s accounting system as ‘Banyule Leisure Facility Management’. The cheque was, however, made out to the Bank of Melbourne, and was credited to the applicant’s Bank of Melbourne Visa account on 25 September 2012.
Arrest of the applicant
On 19 July 2013, members from the Banyule (Heidelberg) Crime investigation Unit attended the applicant’s home, where a search warrant was executed. Police seized computers, bank records and other relevant documents in relation to the investigation. The applicant was interviewed at the Heidelberg police station on 19 July 2013. During the interview, the applicant denied any wrongdoing.
Applicant’s background
The applicant was born in April 1961, and was 54 years of age at the time of sentencing. The applicant is married with two children who are young adults.
The applicant completed her secondary education at a technical school. She found school difficult. A psychological assessment in September 2015 suggested that the applicant may have been dyslexic. Over the course of her adult life, the applicant has been employed in a number of jobs. These have mainly involved administrative duties and reception work. A feature of the applicant’s life has been her substantial involvement in, and love of, the sport of netball. This manifested itself in a number of ways, including the applicant’s substantial commitment to voluntary work within the sport over many years.
The applicant has no prior convictions and, apart from the offending for which she fell to be sentenced, was a person of previous good character.
Reasons for sentence
The judge commenced her reasons for sentence with a description of the applicant’s offending.[2] The judge then said that the facts of the applicant’s case were ‘very serious and disturbing’. The judge identified, as aggravating features of the applicant’s offending, ‘the gross breach of trust and the element of pre-planning’. Additionally, the judge said:
You offended over a period of more than five years from 2007 to 2012. You were the only person who had access to [BDNA’s] accounting system, MYOB. Over that period you deliberately attempted to hide the discrepancies by falsifying invoices and payments. You stole this money from a not for profit organisation set up to promote the sport of netball for the benefit of young children and the community.[3]
[2]DPP v Melnikas [2015] VCC 1763 [2]–[41] (‘Reasons’).
[3]Ibid [43].
The judge then referred to the victim impact statements that had been filed, and noted the effect of the applicant’s offending on children who had become unable to afford increased fees that needed to be charged to cover shortfalls that had been caused by the applicant’s offending.[4]
[4]Ibid [44].
The judge then referred to the fact that the applicant had pleaded guilty, and said that the applicant was entitled to have that fact taken into account in her favour. The judge also said that she took into account the fact that the applicant ‘intimated early’ her intention to plead guilty, and she accepted that the pleas of guilty indicated remorse on the part of the applicant.[5]
[5]Ibid [45].
The judge then set out a summary of the applicant’s background.[6] The judge said that she would sentence the applicant as a person of previous good character. The judge also said that she was satisfied that the prospects of the applicant’s rehabilitation were ‘reasonably good’.[7]
[6]Ibid [46]–[69].
[7]Ibid [69].
The judge then referred to the fact that she was required to take into account deterrence, especially general deterrence (which the judge said was of considerable importance in a case such as this).[8] Additionally, the judge said that she had to consider the question of protection of members of the community from the applicant, and that she had to manifest the community’s denunciation of the applicant’s conduct, and that she was required to impose a just punishment.[9]
[8]Ibid [70].
[9]Ibid.
The judge then made reference to the authorities of Boulton v The Queen,[10]
DPP v Bulfin,[11] and Dyason v The Queen.[12] Next, the judge referred to the submissions that had been made by the parties. Counsel for the applicant had submitted that a non-custodial sentence would be appropriate; in the alternative a combined term of imprisonment and a CCO was submitted to be appropriate. On the other hand, the prosecutor had submitted that there was a need for an immediate custodial sentence, but that an immediate term of imprisonment combined with a CCO would be within range. The judge noted that the prosecution did not dispute that the applicant’s offending was ‘not sophisticated offending’, but she also noted that the prosecutor had submitted that the applicant’s offending was ‘brazen’ because the applicant had ‘complete control of the books in this community organisation that was not audited’.[13]
[10][2014] VSCA 342 (‘Boulton’).
[11][1998] 4 VR 114 (‘Bulfin’).
[12][2015] VSCA 120 (‘Dyason’).
[13]Reasons [75].
The judge concluded:
These are without doubt serious offences involving a breach of trust of a not for profit organisation seeking to promote sport in the northern suburbs. I have considered s 5(4C) of the Sentencing Act 1991. Having given the matter a great deal of thought and notwithstanding the matters advanced in mitigation, a term of actual imprisonment is required. In my judgment the imposition of a community correction order in this case would not give sufficient effect to the principles of general deterrence, the community's denunciation of your conduct and the need to impose a just punishment.[14]
[14]Ibid [76].
Analysis
In her grounds of appeal, the applicant contended that the sentence imposed upon her was manifestly excessive, and that the judge erred in imposing a term of imprisonment of the same length as the period of the CCO. In oral argument, counsel for the applicant conceded (correctly in our view) that the mere fact that the CCO was for the same duration as the term of imprisonment could not bespeak error on the part of the judge. Instead, the applicant contended that, in the circumstances of this case, the imposition of an 18 month CCO (with a work condition of 250 hours), to follow the serving of an 18 month term of imprisonment, was manifestly excessive. It was then conceded (again, correctly in our view) that ground 2 was in reality a particular of the applicant’s manifest excess ground (ground 1).
In support of her contention that the sentence imposed was manifestly excessive, the applicant submitted that the judge did not give sufficient weight to the total amount stolen; the applicant’s guilty plea, its value to the community and the applicant’s remorse; the applicant’s prospects for rehabilitation; and the ‘antecedents’ of the applicant. Immediately, it should be observed that the sentencing judge’s reasons disclose that her Honour paid close attention to each of the matters that the applicant submitted were not given sufficient weight.
As part of her written case, the applicant contended that the CCO was intended by the judge to be punitive. This intention, it was submitted by the applicant, should be inferred from the judge’s imposition of the condition requiring the applicant to perform 250 hours of unpaid community work. From this modest base, the applicant then contended that the sentence imposed upon her was ‘effectively … a term of punishment for three years with no non-parole period’.
It may be accepted that there are punitive elements of the sentence imposed upon the applicant, which punitive elements will be ongoing after her release from prison and while she is the subject of the CCO. However, whether a CCO (even with a work condition of the kind imposed here) is more onerous in its operation than the serving of a period of parole may be debated.[15]
[15]See Dyason [2015] VSCA 120 [38]. See further, Manariti v The Queen [2015] VSCA 160 [26]–[28] and [36]–[37].
In support of the proposition that the imposition of the 18 month CCO on top of the 18 month term of imprisonment was excessive, the applicant, in her written case, relied upon a passage in Boulton as follows:
The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending.[16]
[16]Boulton [2014] VSCA 342 [141].
The applicant submitted that general deterrence, denunciation and just punishment (as referred to by the sentencing judge) were all properly accounted for by the 18 month term of imprisonment imposed by the judge. It was then submitted that the CCO, which Boulton suggests might be tailored to an offender’s circumstances and rehabilitative needs, was punitive, and was therefore excessive, and therefore should not have been imposed.
The short answer to this submission is that Boulton did not lay down any principle to the effect that sentencing considerations such as deterrence, denunciation and just punishment could (or should) be dealt with by way of a term of imprisonment, with an attendant CCO being limited to dealing with (or responding to) an offender’s personal circumstances or rehabilitative needs. In imposing a combination sentence of a term of imprisonment and a CCO, a sentencing judge is usually imposing a total sentence that will deal with all of the matters required to be taken into account when sentencing an offender. In imposing a combination sentence, no sentencing principle requires a court to dissect the relevant sentencing considerations and then assign them to either the term of imprisonment or the concomitant CCO.
As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[17]
[17]R v Abbott (2007) 170 A Crim R 306.
The present application again raises what are all too commonly questions the subject of an appeal where the objective gravity of the offending is such that a CCO is a sentencing disposition available to a sentencing judge. There are a myriad of offences and circumstances in which a reasonable exercise of the sentencing discretion may involve the making of a CCO on its own, or the imposition of a combination CCO and term of imprisonment, or the imposition of a term of imprisonment without any CCO. Ordinarily where a CCO is a possible sentencing disposition, the sentencing range reasonably open will be between a term of imprisonment at one end of the range to a CCO without a term of imprisonment at the other end. Often, as this Court has said many times before, reasonable minds will differ about which of these dispositions is appropriate or what the length of the term of imprisonment or the duration of the CCO should be.
The fact that a CCO is now a sentencing option does not alter the latitude of the sentencing discretion. Specifically, because a judge might refuse to impose a CCO in a particular set of circumstances where another judge would do so, does not mean that the sentence falls outside the permissible range of sentencing options. Similarly, because a judge thinks that all of the sentencing purposes can be achieved by a term of imprisonment of two years together with a CCO of some length where another judge in the same circumstances might fix a much shorter term of imprisonment and a shorter CCO does not mean that the sentence is outside the permissible range.
In the present case, one of the applicant’s submissions was that a term of imprisonment of 18 months with an appropriate non-parole period would have satisfied all of the purposes for which sentences are imposed. We disagree. But even if it was open to say that such a sentence would have been within range as satisfying all of the purposes for which sentences are imposed, that is not to say that the sentence imposed by the judge in the present case was outside the range.
The applicant’s offending was serious offending. It involved a significant sum of money over a significant number of years. While it may be said that the offending was ‘unsophisticated’, there is force in the respondent’s submission that it was brazen and involved a gross breach of trust. Further, the judge was correct when she noted that the offending affected some children who were unable to afford the increased fees brought about by shortfalls created by the applicant’s offending. While great emphasis was placed by the applicant’s counsel before us on the effect that the applicant’s offending has had, and will have, on her by reason of her now exclusion from the sport that has formed such an important part of her whole life, that fact must been seen in the context of all of the applicant’s offending and the consequences which that offending has had on others who play or wish to play the sport.
In our view, given the nature of the applicant’s offending, and notwithstanding the significant mitigating factors which the sentencing judge took into account, the sentence imposed by the judge was clearly within the range of sentencing options available to her Honour. What has been said by this Court in Bulfin and Dyason about white collar offending of the present kind has application in this case.[18] While, in oral argument, the applicant referred us to a number of recent decisions of this Court concerning sentences imposed in other theft and deception cases,[19] these cases do not assist the applicant in showing that the sentence imposed upon her was manifestly excessive. These cases merely show that different sentences may be imposed in the myriad of different circumstances that face sentencing courts on a daily basis. When one looks at these sentences, however, there is no basis upon which it may be contended that, by comparison, the sentence imposed upon the applicant was outside the permissible range open to the judge.
[18]See in particular Bulfin [1998] 4 VR 114, 131–2; Dyason [2015] VSCA 120 [33].
[19]Roujnikov v The Queen [2015] VSCA 97; Dyason [2015] VSCA 120; Gianello v The Queen [2015] VSCA 205; Bellizia v The Queen [2016] VSCA 21; Brancatella v The Queen [2016] VSCA 94.
Finally, the applicant submitted that, in sentencing her to a term of imprisonment, the judge failed to take into account, and/or apply correctly, s 5(4C) of the Sentencing Act 1991. That submission must be rejected. Plainly, the judge gave careful consideration to s 5(4C) and to the issue of parsimony, before imposing the combination sentence that she imposed upon the applicant.
In our view, there is no substance in any of the applicant’s arguments concerning the sentence imposed by the judge. If anything, we think that the sentence imposed was lenient having regard to the circumstances of the applicant’s offending.
Conclusion
The application for leave to appeal must be refused.
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