Mendoza-Cortez v the Queen
[2016] VSCA 302
•5 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0161
| JOANNE MENDOZA-CORTEZ |
| v |
| THE QUEEN |
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| JUDGES: | SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 December 2016 |
| DATE OF JUDGMENT: | 5 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 302 |
| JUDGMENT APPEALED FROM: | DPP v Mendoza-Cortez [2016] VCC 1026 (Judge Cannon) |
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CRIMINAL LAW – Sentence – Obtain property by deception – Obtain financial advantage by deception – Manifest excess – Whether sentencing judge properly took into account principle of totality and delay – Leave to appeal granted – Applicant resentenced to one year and three months with a 9 month non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr J Jassar | Melasecca Kelly & Zayler |
| For the respondent | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA
BEACH JA:
The applicant has applied for leave to appeal against her sentence on the grounds of manifest excess and on the further ground that the sentencing judge did not consider the imposition of a fully suspended sentence or a community correction order. Fundamental to the application is the fact that, during roughly the same period of time, the applicant had embarked upon a spree of obtaining property and financial advantage by deception. The first group of offences took place between July 2006 and November 2007; the second between November 2007 and late August 2008. Each group of offences employed the same modus operandi.
In December 2011, the applicant was sentenced to a significant period of imprisonment for the first group of offences. Well after her release, she was arrested for and charged with the second group of offences. In July 2016, she received a further custodial sentence. She now contends that the second sentencing judge did not give sufficient weight to the punishment she had already received and to her efforts to rehabilitate herself in the period before the first punishment was imposed and since she was released.
The first group of offences
Between July 2006 and November 2007, the applicant defrauded five investors of $266,400 by falsely representing that she could provide high returns by purchasing large amounts of stock, including perfumes, hair straighteners and clothes, and then selling them to various retailers. No such items were purchased or existed. On 5 December 2011, Judge Maidment sentenced the applicant to a total effective sentence of two years nine months’ imprisonment and ordered her to serve 22 months’ imprisonment before becoming eligible for parole. He also made compensation orders in respect of all of the victims.
On 5 December 2011, the applicant was sentenced (for the first group of offences) as follows:
Charge on indictment Offence Maximum Sentence Cumulation 1 Obtaining property by deception ($25,000) 10 18 months 3 months 2 Obtaining financial advantage by deception ($14,000) 10 18 months Nil 3 Obtaining financial advantage by deception ($17,500) 10 18 months Nil 4 Obtaining property by deception ($3,000) 10 12 months Nil 5 Obtaining property by deception ($9,500) 10 12 months Nil 6 Obtaining property by deception ($6,000) 10 12 months Nil 7 Obtaining financial advantage by deception 10 12 months Nil 8 Obtaining property by deception ($74,400) 10 2 years Base 9 Obtaining financial advantage by deception ($24,000) 10 18 months 3 months 10 Obtaining financial advantage by deception ($2,000) 10 9 months Nil 11 Obtaining financial advantage by deception ($3,000) 10 3 months Nil 12 Obtaining financial advantage by deception ($18,500) 10 6 months Nil 13 Obtaining financial advantage by deception ($45,000) 10 21 months 3 months 14 Obtaining financial advantage by deception ($40,000) 10 21 months Nil Total effective sentence: 2 years and 9 months Non-parole period: 1 year and 10 months Pre-sentence detention N/A Section 6AAA statement: Total effective sentence of 3 years and 6 months with a non-parole period of 2 years and 9 months.
The present matters
On 18 July 2016, following a plea of guilty, the applicant was sentenced (for the second group of offences) by another County Court Judge (Judge Cannon) as follows:
Charge on indictment Offence Maximum Sentence Cumulation 1 Obtaining property by deception ($15,000) 10 6 months Nil 2 Obtaining financial advantage by deception ($40,000) 10 12 1 month 3 Obtaining financial advantage by deception ($12,000) 10 6 months Nil 4 Obtaining property by deception ($12,000) 10 12 months Nil 5 Obtaining financial advantage by deception ($65,000) 10 18 months 4 months 6 Obtaining financial advantage by deception ($35,000) 10 10 months 1 month 7 Obtaining property by deception ($12,000) 10 6 months Nil 8 Obtaining financial advantage by deception ($100,000) 10 2 years and 4 months Base 9 Obtaining property by deception ($14,320) 10 6 months Nil 10 Obtaining property by deception ($12,650) 10 6 months Nil 11 Obtaining financial advantage by deception ($5,000) 10 1 month Nil 12 Obtaining property by deception ($10,500) 10 6 months 1 month Total effective sentence: 2 years and 11 months Non-parole period: 1 year and 2 months Pre-sentence detention N/A Section 6AAA statement: Total effective sentence of 5 years with a non-parole period of 3 years.
Circumstances of the second group of offences
Between 9 November 2007 and 29 August 2008, the applicant together with the co-accused Sherry Payne, using the same modus operandi as for the first group of offences, convinced the complainant to invest a total of $333,470 in the genuine belief that all moneys lent, plus $85,500 interest, was going to be repaid by Payne and the applicant. The complainant was employed by the Australia Taxation Office (‘ATO’) in Melbourne. Payne was a work colleague of the complainant’s who had also been working at the ATO since 1999.
Sometime in 2007, the complainant told Payne that she had approximately $400,000 in a term deposit account which she had received from a family law settlement. In November 2007, Payne told the complainant that a friend of hers (the applicant) was involved in a variety of retail business deals where she would purchase large amounts of stock, such as hair straighteners and the like, and, then, she would sell that stock in bulk amounts for profit to various retail department stores including Dimmey’s, Hairhouse Warehouse, Strandbags, Sportsmart, and also supply kit bags to the Department of Defence.
The complainant, Payne and the applicant signed a total of six handwritten loan contract agreements that were dated and detailed the various amounts of money the complainant lent to Payne and the applicant, in order to finance the proposed business deals, plus the amount of interest would receive.
Charge 1
On 8 November 2007, Payne called the complainant and asked her for $15,000. Payne said that the money was for the applicant. She told the complainant that the applicant had a business deal that needed to be completed the following day. She said that she had known the applicant all her life and trusted her like a sister. The complainant agreed to lend Payne $15,000. The complainant told her that she would transfer the money on the morning of 9 November 2007.
The applicant then told the complainant that she needed the money in cash and that she would repay the $15,000 plus $1000 in interest within a fortnight. Neither Payne nor the applicant specified who the business deal was with. To finance this deal, the complainant transferred $15,000 from one of her bank accounts. She then attended the Westpac Bank at Flagstaff Branch and withdrew the $15,000. She handed this to Payne. In the afternoon of 9 November 2007, at a café near the ATO, the applicant thanked the complainant for the $15,000.
Charge 2
On 14 November 2007, the complainant met with Payne and the applicant at the same café. The applicant showed the complainant a sample of a GHD hair straightener and told her that Hairhouse Warehouse was going to buy a large quantity of them. The applicant asked the complainant to lend her $80,000 in order to buy a large quantity of the GHD hair straighteners that she would supply to Hairhouse Warehouse. The complainant agreed to lend the $80,000 to the applicant to finance the deal. The applicant then suggested to the complainant that she roll over the previous $16,000 that was due to her in two weeks, (that was the $15,000 plus the $1000 in interest) and lend the applicant a further $64,000 for the Hairhouse Warehouse deal. Both parties agreed. A loan contract was drafted and signed by the complainant, Payne and the applicant at the café. The loan contract stated that the applicant had borrowed a total of $80,000 and was that sum was payable to the complainant on 4 February 2008, with $17,500 in interest. (The $80,000 was made up of the initial $15,000 plus the $1000 interest, plus $64,000 that was ultimately handed over.) Later that day, the applicant phoned the complainant and told her that the deal with Hairhouse Warehouse had just been finalised and that she needed to transfer the first portion of the money, (being $40,000) to Payne’s account so that the stock could be secured. The applicant further said that she would let the complainant know when the balance of that particular loan, ($24,000) was required. In order to finance this loan, the complainant transferred the $40,000 from her Westpac account. The complainant then attended the Westpac Bank at Flagstaff where she withdrew the $40,000 and, then, deposited that $40,000 into Payne’s Westpac Bank account.
Charges 3 and 4
On 27 November 2007, Payne told the complainant that the applicant needed the remaining $24,000 to finalise the Hairhouse Warehouse deal for the hair straighteners. She said that the applicant needed the money in cash that day. The complainant contacted her son and arranged for him to repay $18,000 she had previously lent him for a personal unrelated matter. On the same date, the complainant received the deposit of the $18,000 into her bank account from her son. The complainant also transferred $6,000 from her Westpac Bank account into one of her other accounts. She then attended the Flagstaff branch with Payne and withdrew $12,000 in cash. She transferred $12,000 into Payne’s Westpac Bank account and handed $12,000 in cash to Payne. The Hairhouse Warehouse deal made up the total of the $64,000, being $40,000 plus $12,000 transferred to Payne, plus $12,000 given to Payne in cash.
Charge 5
On 4 December 2007, the complainant met with Payne and the applicant at a restaurant in Richmond They showed the complainant a sample dressing gown. The applicant told the complainant that she was purchasing the garments for $30 per item, and, then, selling them on to Dimmey’s at $40 per item. The applicant asked the complainant for a further loan of $65,000 to purchase numerous dressing gowns to sell to Dimmey’s. The complainant agreed to lend the applicant a further $65,000. Payne told her to transfer the money into her account the following day.
In order to finance this loan, the complainant contacted her ex‑husband. She arranged for him to lend her the amount, and asked for the transfer of $65,000 to Payne’s Westpac account. On 5 December 2007, he transferred the $65,000 from his NAB cheque account to Payne’s Westpac account.
Charge 6
A meeting was arranged for late January 2008 to discuss the repayment of the $97,500 that was due from the Hairhouse Warehouse deal. The applicant told the complainant that the cheque was not available for collection until 12 February 2008. The complainant was told that there were further business deals coming up with Strandbags and Sportsmart. The applicant told the complainant that she had other business deals that were due and that she needed $35,000 immediately to secure stock for Strandbags and Sportsmart. She told the complainant that she would have to provide another $35,000 as well as roll over her $97,500 that was already due in respect of making a total of $132,500. She told the complainant that ultimately she would receive $22,000 in interest. Payne also told the complainant that there could be a delay in the delivery of good stock.
In order to finance this deal, the complainant transferred $35,000 from her Westpac account into one of her other accounts. The complainant then attended the Westpac Bank Flagstaff branch in Melbourne with Payne, where she withdrew the $35,000 from her Westpac account and she transferred that money to Payne’s Westpac account.
Charges 7 and 8
On or around 19 March 2008, a further meeting was organised between the complainant, Payne and the applicant. At this meeting, Payne and the applicant told the complainant that orders had been placed with Strandbags and Sportsmart and that the applicant had discontinued Nike and Adidas jumpers, tracksuit pants and other sporting goods that Sportsmart had agreed to take. The applicant told the complainant that the stock had to be paid for within three days and she needed $150,000. She told the complainant that she would be repaid $150,000 plus $22,000 in interest on 16 July 2008.
The complainant told the applicant she only had $120,000 and would not be able to finance the full $150,000 loan. The complainant agreed to make a further loan of $112,000 to Payne and the applicant for what she believed was a business deal with Strandbags and Sportsmart. The applicant told the complainant to transfer $100,000 to Payne and that the applicant needed another $12,000 in cash. The applicant told the complainant that the remaining $38,000 would be sourced by Kevin Roberts, who, she said, was her accountant.
On 20 March 2008, the complainant transferred the $12,000 from her Westpac Bank account. She attended the Flagstaff branch where she withdrew $5,000 from her Westpac account which she handed to Payne. Later that same day, the complainant attended Westpac Bank in Williams Street Melbourne with Payne, and withdrew another $7,000 from the Westpac Bank account which she handed to Payne.
In order to finance the remaining $100,000 loan, the complainant contacted her ex-husband and arranged him to lend an amount to her and transfer $100,000 to Payne. On 20 March 2008, he transferred $100,000 from his NAB account to Payne’s NAB account.
Charge 9
On 29 July 2008, the complainant, Payne and the applicant met at a café. They discussed Payne’s forthcoming trip to the Philippines. At this meeting, the applicant mentioned that she had previously dealt with a sock retailer called Akim Pty Ltd (‘Akim’) and she always paid cash to Akim for products that she purchased from them. The applicant told the complainant she needed $14,320 in cash to finance the deal, and promised the complainant she would receive $2300 in interest and would be paid $16,620 on 20 August 2008. The complainant was also requested to provide $1100 to Payne for her holiday to the Philippines.
On 29 July 2008, the complainant agreed to finance $14,320 towards the business deal with Akim. In order to finance the business deal with Akim, The complainant transferred $14,320 from one of her Westpac Bank accounts to another of her other Westpac Bank accounts. The complainant then attended the Westpac branch with Payne, withdrew $14,320 from that Westpac account, and handed that cash to Payne.
The fictitious repayment
Over the next few weeks, Payne repeatedly told the complainant that repayment of money was delayed due to delays at Strandbags and Sportsmart. She told the complainant that one of the signatories was overseas. Sometime in July 2008, the applicant gave the complainant a copy of an invoice dated 30 July 2008, purportedly from Akim for $16,620.
On 28 August 2008, the complainant met with Payne and the applicant. The applicant gave the complainant an NAB cash cheque for $16,620 for the Akim sock deal. The complainant was also asked to give Payne $1,100 as spending money for her trip to the Philippines. The applicant also said that she was picking up further cheques within the next week or so and had to go to the bank with the cheques and wait for them to clear. She also said she had Nike and Adidas shoes to sell, that Sportsmart wanted her stock and that there was a big profit in the deal. The complainant told her she was not interested in financing any further business deals. However, Payne and the applicant continued to ask her to get money from her son and family in order to finance the business deal.
Charges 10 and 11
As a result of receiving the cash cheque for $16,620, the complainant felt reassured that she would be receiving the remaining money owed to her.
A few days later, Payne called the complainant and told her that the applicant required a further $17,650 for another sock deal with Akim. She told her that the repayment would be $20,500, which included a profit of $2,900. The complainant agreed to finance this deal. The arrangement was made for Payne and the complainant to share the profit and the repayment would be made on 22 September 2008, and the money had to be given to Payne in cash.
In order to finance this business deal with Akim, the complainant transferred $15,650 from her Westpac Bank account into another of her Westpac Bank accounts. The complainant then transferred $5,000 into Payne’s Westpac Bank account. She then attended the Westpac branch in Bourke Street with Payne. She withdrew $10,650 from the Westpac Bank account and handed it to Payne as well as another $2000 in cash that the complainant had already in her possession.
On 29 August 2008, the complainant banked the NAB cheque for $16,620 into a Westpac Bank account and paid Payne $1,100 for her trip to the Philippines.
Charge 12
After returning to work later that day, Payne called the applicant to tell her that she had the cash for the sock deal. A few days later, the complainant received a copy of another invoice from the applicant purporting to be in relation to Akim, dated 27 August 2008, to the value of $20,550. The applicant met with the complainant and told her that the person that she dealt with in relation to the sock deal wanted to be supplied with more socks, and the applicant needed a further $10,500. The complainant said to the applicant she did not wish to finance any further deals. The applicant told the complainant that, if she did not place the order for more socks, it would delay the payment of the $20,550 she was owed, and that the applicant would lose face. She told the complainant to call her parents, her son, or in-laws to get the money. Payne similarly encouraged the complainant to approach her parents, son or in-laws to obtain the money from them.
Sometime after this meeting, the complainant began receiving calls at work from both the applicant and Payne asking her to finance a $10,500 sock deal. Payne told her that they would not be getting their $20,000 as previously promised.
On 29 August 2008 (i.e. the following morning), Payne told the complainant she needed to find $10,500. The applicant attended the complainant’s work and told her the previous transaction for $20,000 deal may not be repaid. She asked the complainant to get the money from her parents. Payne also called the complainant that day and told her the $10,500 had to be obtained that day. Payne said that her brother had agreed to give her $10,500 for the deal, but that the money was with ING, and could not be accessed for three days. Payne then told the complainant: ’If you give me the money I will be able to repay you. I promise you the money will definitely be in your account by 5 September’.
The complainant succumbed to the pressure from Payne and the applicant. She agreed to finance $10,500 in that business deal with Akim, for the supply of socks. The complainant stressed that the money must be repaid by 5 September 2008. On 29 August 2008, the complainant received an email from Payne acknowledging that she had borrowed $10,500 from the complainant and she would be repaid $10,500 plus $500 interest on 5 September 2008.
In order to finance this $10,500 deal, the complainant transferred $11,000 from her Westpac account into one of her other bank accounts. She then attended at the Westpac branch. She withdrew $10,500 from her Westpac Bank account and she gave the $10,500 to Payne.
Dishonoured NAB cheque
After being promised the payment of $10,500, plus the $5,500 in interest (on 5 September 2008), on 8 September 2008, the complainant checked her bank account, and noticed that she had not received the $11,000 payment as promised by Payne. The complainant called Payne at work to enquire why the money had not been transferred to her account. Payne told her: ‘The money will be in your account tomorrow. You have nothing to worry about’.
On 9 September 2008, the complainant checked her Westpac Bank account and noticed that there had been a deposit made at Bulleen for the amount of $11,010. On 10 September 2008, the complainant checked her account and noticed the deposit of $11,010 had been reversed. That day, the complainant made numerous unsuccessful attempts to call Payne and the applicant. She received a letter from the NAB and a cheque in the business name of ‘JS IMIJ’ from Westpac Bank dated 9 September 2008. The letter confirmed that NAB cheque (no 00045) in that name made out in the complainant’s name for $11,010 had been reversed as payment on the cheque had been stopped.
The complainant eventually made contact with the applicant and asked her why the NAB cheque had been stopped. The applicant told the complainant that that she did not know how Payne had been in possession of one of her cheques and told the complainant: ‘[Payne] is confused. I don't know what she has done. As far as I knew the money owing to you was coming from her brother. I will contact [Payne] and find out what was going on’.
On 11 September 2008, the applicant arranged to meet with the complainant and Payne on the following day in Victoria Street, Richmond to discuss why the NAB cheque was stopped by the applicant. However, the applicant cancelled that meeting.
Later that day, the complainant received a voicemail from Payne saying:
Just for your information you better not make trouble and go to the police. [The applicant] had a very good conversation with my friend’s neighbour who is a Detective Sergeant, and told her your story. The police won’t be interested in your story as this will only be a civil case between you and me and [the applicant]. If you make trouble you will regret it.
The complainant called the applicant who told her that the meeting was not going ahead because Payne was still at the doctors and she was not prepared to meet without Payne being present. The complainant told the applicant that: ‘This is not a business partnership between the three of us. This was never a business venture between the three of us. I lent you the money.’ The applicant replied, ‘[Payne] and I are partners. I will not meet you until [Payne] is present’.
On 12 September 2008, the complainant’s Westpac account was credited with statement a $4,000 deposit.
After numerous unsuccessful efforts to recover the outstanding moneys owed, the complainant engaged a solicitor to act on her behalf to recover the moneys owed. The complainant did not receive any further payments from either Payne or the applicant. Police have made enquiries. None of the companies said to be suppliers had ever heard of the applicant or Payne.
In total, the applicant and Payne had defrauded the complainant of $333,470.
Sentencing remarks
In her sentencing remarks,[1] the sentencing judge took the following matters into account:
[1]DPP v Mendoza-Cortez [2016] VCC 1026 (‘Sentencing Remarks’).
(a) the need for strong denunciation. The sentencing judge found the applicant to be ‘a greedy and callous con-woman’.[2] She said:
[2]Sentencing Remarks [60].
your offending is despicable and must be strongly denounced. I must impose a punishment which is just in all of the circumstances. You exploited the trust that [the complainant] placed in you and took her down for every cent that you could. … I regard your moral culpability as high.[3]
[3]Sentencing Remarks [59]–[60].
(b) the impact of the deception upon the complainant. She said:
In sentencing you, I have taken into account the amount of money you took. It was a substantial sum, although the courts have seen larger sums taken over lengthier periods. However, as was discussed at the plea hearing, the impact on this victim is far greater than would have been the case had you taken the money from a bank or organization which would have been able to better absorb such a theft. As you might expect, the impact on the victim has been profound.[4]
[4]Sentencing Remarks [62]–[63].
(c) her deception at her earlier sentencing hearing. The judge said:
I note with great concern that perhaps while and certainly after you had committed your last fraud against your previous victims, you offended against [the complainant]. Further, it is evident from [Judge Maidment’s] sentencing remarks in relation to the other offending, that you presented yourself as someone who had done nothing wrong since September 2007, when you knew very well that you had committed offences against [the complainant] from November 2007 until 29 August 2008 — yet another deception, and one that was put in mitigation at that time before His Honour Judge Maidment.[5]
[5]Sentencing Remarks [64].
(d) despite her lack of remorse,[6] the utilitarian value of her plea of guilty at the committal hearing;[7]
[6]Sentencing Remarks [66]–[67].
[7]Sentencing Remarks [68].
(e) her comparative role in the offending vis-à-vis Payne;[8]
[8]Sentencing Remarks [69].
(f) the effect of delay upon totality. The judge said:
I factor in the delay in this matter being brought to finalisation in circumstances where, unfortunately, the police told the victim to seek civil remedies when she went to see them about you and Ms Payne in 2009. I make some allowance in your favour for the fact that, because of this delay, you have lost the opportunity for partial concurrency in this sentence with the other sentences imposed in 2011. However, if you had been dealt with at that time, I would expect that your sentence in respect of the offending before me would have been a substantial one, as the total sum that you stole from [the complainant] was considerably higher than the amounts taken from any other of your victims.[9]
[9]Sentencing Remarks [70].
(g) delay in bringing the charges, the judge said:
at the end of the day, I make an allowance in your favour for the fact that these matters have been hanging over your head for several years, and also that you have not re-offended since November 2008, which is a considerable period.[10]
[10]Sentencing Remarks [71].
(h) at the time the second group of offences were committed, the applicant had no prior convictions;[11]
[11]Sentencing Remarks [72].
(i) given the steps she had taken to educate and qualify herself when she was in prison and when she was on parole, the applicant had good prospects of rehabilitation;[12]
[12]Sentencing Remarks [74]–[77].
(j) the impact of her earlier sentence. The judge said:
I also factor in that you have already served a term of imprisonment, which was, no doubt, a salutary experience.[13]
[13]Sentencing Remarks [82].
The sentencing judge summed up her views as follows:
In view of the deliberative, repetitive nature of your offending, the fact that you have engaged in like offending at about the same time, and your limited remorse and insight into its impact on the victim, but also factoring in your lack of prior convictions, your steps toward rehabilitation over a number of years without re-offending, your community supports, work history and your past salutary experience of gaol, as well as your successful completion of parole, I rate your prospects of rehabilitation as fairly good. I place less than moderate weight on specific deterrence and protection of the community. However, I place strong weight on general deterrence and denunciation. I must send a strong message to the community that offending such as yours will not be tolerated in a bid to deter others from behaving as you have.[14]
[14]Sentencing Remarks [95].
Proposed grounds of appeal
The applicant proposes two grounds of appeal:
(1)The total effective sentence and the non-parole period are manifestly excessive as the learned sentencing judge failed to appropriately take into account matters of totality and delay.
(2)The failure to consider a wholly suspended sentence or a Community Correction Order.
Contentions of the applicant: ground 1
In relation to ground 1, the applicant contends that the total effective sentence and the non-parole period are manifestly excessive as the learned sentencing judge failed to appropriately take into account matters of totality and delay.
The first group of offences that were the subject of the sentences imposed by Judge Maidment took place between July 2006 and November 2007. The applicant was interviewed by the police in November 2007. In August 2009, she was interviewed for a second time. By the time of that second interview, it appears that the complainant, the victim of the second group of offences, had already complained to the police.[15] On 18 August 2009, the applicant was charged with the first group of offences. On 24 August 2010, a committal hearing took place. On 15 August 2011, her trial was listed for hearing. On 17 August 2011, she pleaded guilty to the 14 charges on the indictment: five charges were in relation to obtaining property by deception; 9 charges were in relation to obtaining financial advantage by deception. There were five different victims in relation to the first group of offences. The total quantum was $287,900. After a plea hearing, on 5 December 2011, she was sentenced to a total effective sentence of two years and nine months with a non-parole period of one year and ten months.
[15]However, police told her it was a civil matter and should be pursued with civil proceedings.
On 10 October 2011, the applicant was released on parole (after serving one year, ten months and six days). During parole, she was required to undertake unpaid community work of 96 hours at the Old Cheese Factory in Berwick. On 3 September 2014, the applicant successfully completed her parole.
The second group of offences which were the subject of the present sentences took place between 9 November 2007 and 29 August 2008. It seems that the modus operandi was much the same as applied in the first offences, save that this time there was only one immediate victim. The total quantum was $333,470.
In July 2016, the applicant received a further custodial sentence. The sentence was for two years and eleven months, with a non-parole period of one year and two months.
The total quantum was for the first group of offences and the second group of offences is approximately $621,370.
The aggregate sentence for all her offending from July 2006 to August 2008 is a total of five years and eight months with a non-parole period of three years.
There was no evidence that the applicant had reoffended after November 2008.
The applicant said that the sentencing judge ought to have considered the total sentence that would have been imposed had all the offences fallen for consideration on the same occasion, i.e. in December 2011. The applicant submitted that the judge had not applied the principle of totality to the current case. Rather, she had placed emphasis on what transpired at the plea in 2011 before Judge Maidment. On that occasion, it had been submitted on behalf of the applicant that she had not committed any further offences. This had been taken into account by Judge Maidment as a mitigation factor when he sentenced her. The sentencing judge in the present case implied that the applicant had already received a discount at her earlier plea and that, as she continued to offend against the complainant, she ought not to have received that discount.[16] The applicant submitted that the sentencing judge did not balance that against the facts that (1) the applicant had not been charged with offending against the complainant at the time of the 2011 plea; (2) The complainant was pursuing a civil case that the moneys were lent to the applicant and had solicitors acting in that regard; (3) there was no offending after the time the applicant was interviewed and charged in 2009 or sentenced in 2011. The applicant submitted that the sentencing judge should have posed the question: what would have been the likely total effective sentence if the applicant had been sentenced at the same time before the same judge? The applicant submitted that the sentencing judge failed to take into account the impact of the delay, the fact that it was not caused by the applicant and the effects of the delay upon the applicant. There has been a substantial delay of nearly eight years from the applicant’s last offending in August 2008 to her sentence in July 2016. In sentencing the applicant, the sentencing judge said that there would be partial concurrency otherwise the sentence would have been higher. The applicant submitted that, while it was true that the applicant displayed a sense of injustice, it was wrong to interpret this as a lack of remorse. The applicant submitted that there was no explanation for the delay in investigating and charging the applicant for the second group of offences. The investigation commenced in May 2012 and the applicant was charged in March 2015, well after she had completed her sentence for the first group of offences. The applicant submitted that the cause of this delay did not lie with her, yet, the sentencing judge held her responsible for it when she noted that the applicant had not taken part in a record of interview in 2013 when she was in custody.
[16]The second set of offences was committed shortly after the first set of offences. At the time of sentencing before Judge Maidment, the applicant had not been charged with the second set of offences. Further, the complainant went to police in 2011 about the second set of offences. She was told that it was a civil matter. She engaged solicitors and sought to recover the money through civil action. Therefore, at the time of sentencing before Judge Maidment, the submission that the applicant had not offended further has to be placed into that context.
The applicant further said that the judge had failed to take into account the substantial process of rehabilitation the applicant had undergone since her release from prison and had undervalued it in the sentencing synthesis. The applicant submitted that the immediate term of imprisonment jeopardised the continued development of rehabilitation.
The applicant said it was clear that she had undergone a lengthy process of rehabilitation both prior to her first sentence and (more importantly) after she completed the whole of her sentence.
The applicant submitted that there was no evidence to indicate a need to protect society from her. On the contrary, the applicant submitted she had:
(k) been rebuilding her life. She had commenced a relationship and was living with her partner. There was stability, a place to stay and a supportive relationship;
(l) commenced a Certificate IV in Beauty Therapy in July 2013 and completed it July 2015;
(m) been running a market stall once a month since February 2014 where she was selling cosmetics and hair products;
(n) been running home services for beauty therapy since January 2016 and had 10 clients; and
(o) been seeing a psychologist, Helen Norman, since October 2013 until July 2014 (she was referred to the psychologist by the Office of Corrections during her parole). That connection had been resumed in September 2015 as the applicant was having difficulties coping with the prospects of being incarcerated.
Contentions of the respondent
In oral argument, the respondent conceded that, when the sentences for both sets of offences were aggregated, the total effective sentence imposed on the applicant for the second set of offences was manifestly excessive. That concession was properly made.
Analysis
Ground 1
The sentencing judge was well aware of the earlier offending. She also took into account delay in the bringing of the charges in respect of the second group of offences. However, in our opinion, she did not give sufficient weight to the delay and to matters of totality.
Totality
In Mill v The Queen, the Court adopted the statement of principle found in D A Thomas’s Principles of Sentencing:[17]
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.[18]
[17]D A Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 56–7.
[18](1988) 166 CLR 59, 62–3.
In Mill v The Queen, the Court held that the principle applied not only where the sentences were being imposed by the same court, but also where an offender comes to be sentenced many years after the commission of an offence, because during the intervening period he or she has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time.[19] Where there are multiple convictions, the principle applies to (a) the fixing of the head sentence; (b) the fixing of amounts of cumulation in respect of other convictions; (c) the total effective sentence; and (d) the fixing of any non-parole period.
[19]Mill v The Queen (1988) 166 CLR 59, 66.
The Court said in Mill v The Queen, that the principle of totality:
is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles … The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence.[20]
[20]Ibid.
In applying the principle of totality, the Court said:
the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.[21]
[21]Ibid.
In Director of Public Prosecutions v Grabovac, Ormiston JA (with whom Winneke P and Hedigan AJA agreed) said as follows:
In general, a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represented separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a ‘crushing’ sentence.[22]
[22]DPP v Grabovac [1998] 1 VR 664, 680.
As stated at [59] above, we think that the sentencing judge did not give sufficient weight to the matter of totality.[23] It is true that she said that the applicant had ‘lost the opportunity for partial concurrency in this sentence with the other sentences imposed in 2011’ and had added that ‘if you had been dealt with at that time, I would expect that your sentence in respect of the offending before me would have been a substantial one’. However, the sentencing judge did not address the question mandated in Mill v The Queen: what would have been the sentence imposed if all offences had been tried at the same time?
[23]Section 5(1) of the Sentencing Act 1991 provides: ‘The only purposes for which sentences may be imposed are—(a) to punish the offender to an extent and in a manner which is just in all of the circumstances’. In Postiglione v The Queen (1997) 189 CLR 295, McHugh J said: ‘The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences’: at 308.
The question whether the sentencing judge needed to address what the likely head sentence would have been, if the applicant were sentenced for all offences at the same time did arise during the plea hearing. At the end of the first day of plea hearing, the sentencing judge asked for assistance in respect of the principle of totality. The transcript of the second day of the plea hearing indicates that she received very little.
In DPP v Perry,[24] this Court said the following:
the High Court in Barbaro reaffirmed that it was the duty of the prosecutor to assist the sentencing court, and that such assistance extended to the provision of comparable cases and other relevant sentencing information.
A prosecutor appearing on any plea, and in particular a plea of this degree of complexity, should be in a position to furnish the judge with the necessary information on relevant Victorian sentencing decisions, and to make an informed submission on which decisions are likely to be of most assistance to the judge.[25]
These comments are apposite in the current circumstances.[26]
[24][2016] VSCA 152.
[25]Ibid [105]–[106] (citations omitted).
[26]Counsel who appeared for the respondent on the present application did not appear before the sentencing judge.
Delay
In Mill v The Queen, the High Court approved[27] the following observations of Street CJ in R v Todd:
where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner and his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.[28]
[27]Mill v The Queen (1988) 166 CLR 59, 65–6 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[28]R v Todd [1982] 2 NSLWR 517 (Street CJ).
In Arthars v The Queen, this Court said:
The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. Chernov JA in R v Cockerell, in a statement subsequently affirmed in R v Tiburcy, expresses these principles thus:
First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger, there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.
Counsel for the applicant, in oral submissions, relied upon Maxwell P’s remarks in R v Merrett, Piggot and Ferrari that the effect of the lapse of time on the accused, ‘however caused,’ is a powerful mitigating factor. Thus, it was contended that regardless of the fact that the delay may have been caused by the appellant’s unwillingness to plead guilty until a trial date was imminent and despite the overwhelming evidence against him, the unfairness associated with having the matter hanging over his head should have been taken into account as a factor in mitigation.
In Merrett, the delay in question was caused in part by an inexplicable tardiness on the part of Victoria Police in bringing charges, combined with the applicants’ decision to contest those charges … Maxwell P’s remarks occurred in the context of discussion as to whether the fact that the prosecution delay was unexplained was of relevance when assessing the degree to which it ought to be taken into account for sentencing purposes. In such a context, it is the effect of any delay on the accused which ought to be considered, rather than whether the delay is explicable. Any delay caused merely by the exercise of the right to contest criminal charges and have the matter proceed to trial will never be regarded as the ‘fault’ of the accused for these purposes.
When considering whether delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. The observation in Merrett is not to be understood as suggesting otherwise. Delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender. In R v Cockerell, Chernov JA (Winneke P and Buchanan JA concurring) referred to delay which was not ‘solely or even partly the fault of the accused’; and in R v Whyte, Winneke P (Bongiorno and O’Bryan AJJA agreeing) refused to disturb the finding of the judge below that delay, where ‘self-inflicted’ by the applicant, will carry little weight as a mitigating factor.[29]
[29]Arthars v The Queen (2013) 39 VR 613, 620–21 [25]–[28] (citations omitted).
The following is a short chronology of what occurred in the applicant’s circumstances:
(p) The first set of offending was from about January 2006 to November 2007;[30]
[30]There was some confusion as to what was the relevant period of offending for the first set of offences at the plea hearing for the second set of offences. It seems that, although the dates of the first set of offences span from 12 January 2006 to 21 August 2007, the prosecution alleged a number of aggravating acts in respect of some of those charges. For example, charges 13 and 14 of the first set of offences was obtaining financial advantage by deception of $45,000 and $40,000. After the victim gave the applicant that money, the applicant gave the victim three cheques drawn in the name of an associate of the applicant. The first cheque was given to the victim on 14 September 2007, the second cheque on 8 October 2007 and the third cheque on 5 November 2007. Each cheque was deposited by the victim and dishonoured. These events were alleged as further aggravating features of charges 13 and 14. At the second plea hearing, it seems that the agreed position was that there was some overlap with the two sets of offences.
(q) In November 2007, the first set of offences was reported to police by one of the complainants;
(r) On 10 November 2007, the applicant was arrested and interviewed by police and made some admissions but denied deceiving one of the complainants. She was released without charge;
(s) The second set of offences was from about November 2007 to August 2008.
(t) On 18 August 2009 (after a delay of one year and nine months), the applicant had a second record of interview in relation to the original complainant and others in respect of the first group of offences. The applicant gave a ‘no comment’ interview, upon the advice of her legal practitioners; In that interview, police mentioned the name of the complainant of the present offending in relation to a cheque for $16,620 dated 20 August 2009 (repayment was made to the complainant). Police did not contact the complainant and there were no charges in relation to her. On 18 August 2009, the applicant was charged with the first group of offences;
(u) On 24 August 2009, a filing hearing was held in respect of the first group of offences;
(v) On 22 October 2009, an extension of time was granted in respect of the first group of offences;
(w) On 28 January 2010, a committal mention was held in respect of the first group of offences;
(x) On 24 August 2010 a committal hearing was held and the applicant was committed on many (not all) charges;
(y) The complainant went to police sometime in 2011. She is told that it was a civil matter and engages solicitors to recover the money through a civil action;
(z) On 15 August 2011, the first set of offences was listed for a trial but resolved to a plea on 14 charges;
(aa) On 17 August 2011, the applicant pleaded guilty before Judge Maidment;
(bb) The plea in mitigation was heard on 24 November 2011 and the applicant was sentenced on 5 December 2011 to serve a total effective sentence of two years and nine months (with one year and ten months non-parole period);
(cc) In early 2012, the complainant makes another complaint to police;
(dd) In May 2012, Detective Senior Constable Gerard Whelan is tasked to investigate the matter;
(ee) In July 2013, Whelan asked to interview the applicant while she was serving her sentence. The applicant declined the interview in accordance with her right to silence;
(ff) On 10 October 2013, the applicant was released on parole (after serving one year, 10 months and six days). During the parole, the applicant was required to undertake unpaid community work of 96 hours at the Old Cheese Factor in Berwick;
(gg) On 3 September 2014, the applicant successfully completed parole and her sentence expired;
(hh) On 24 December 2014, the complainant signed a 52 page statement;
(ii) On 13 March 2015, charges were filed in the Magistrates’ Court respect of the second set of offences;
(jj) On 10 April 2015, a filing hearing was held in respect of the second set of offences;
(kk) On 11 September 2015, a committal was held where the applicant pleaded guilty to all charges;
(ll) On 18 March 2016 and 18 July 2016 a plea hearing was held and the applicant was sentenced for the second set of offending on 18 July 2016.
There was a delay of over four years from initial investigation to completion for the second set of offences. There was a gap of about seven years from the commission of the last offence of the second group of offences to sentencing. The applicant did not reoffend in that time. There was a delay of almost three years from the second complaint being made by the complainant to police laying charges. Discounting the one year and ten months the applicant was imprisoned, this was about five years within which the applicant did not reoffend. Apart from a reference by the prosecutor during the plea hearing to a difficulty the police had in serving warrants and getting bank records, there was no further explanation from police as to the reason for such a lengthy delay.
The delay was not the fault of the applicant. The sentencing judge said that she factored in delay. However, it seems the sentencing judge contemplated that, if the applicant had taken part in the record of interview in 2013, then perhaps the delay might not have been so great and the anxiety in respect of the proceedings would not have hung over the applicant’s head for as long.
The total effective sentence that the applicant received for her two bouts of offending is five years and four months. Given the powerful mitigating factor of delay and the issue of totality in relation to the applicant’s second sentence, it is difficult to understand how the sentencing judge could have imposed a longer total effective sentence than was imposed by Judge Maidment. Considering this length of the total effective sentence in light of the principle of totality, the applicant’s rehabilitation, the delay and lack of offending from about August 2008, the sentence imposed by the sentencing judge for the second set of offending was ‘wholly outside the range of sentencing options available’[31] and leave to appeal will be granted and the appeal against sentence allowed.
[31]DPP v Karazisis (2010) 31 VR 634, 66263 [127].
Sentencing error having been demonstrated, it falls to this Court to re‑sentence the appellant. It is therefore unnecessary to consider the second proposed ground of appeal that the sentencing judge failed to consider a wholly suspended sentence or community corrections order.
Conclusion
As stated above at [73], the sentencing judge failed to give proper weight to the matters of delay and totality which resulted in a sentence that was manifestly excessive in all of the circumstances. Leave to appeal is granted and the appeal is allowed.
The applicant is to be resentenced as follows:
Charge on indictment Offence Maximum Sentence Cumulation 1 Obtaining property by deception ($15,000) 10 years 2 m Nil 2 Obtaining financial advantage by deception ($40,000) 10 years 5 m 1 m 3 Obtaining financial advantage by deception ($12,000) 10 years 2 m Nil 4 Obtaining property by deception ($12,000) 10 years 2 m Nil 5 Obtaining financial advantage by deception ($65,000) 10 years 8 m 1 6 Obtaining financial advantage by deception ($35,000) 10 years 4 m 1 7 Obtaining property by deception ($12,000) 10 years 2 m Nil 8 Obtaining financial advantage by deception ($100,000) 10 years 12 m Base 9 Obtaining property by deception ($14,320) 10 years 2 m Nil 10 Obtaining property by deception ($12,650) 10 years 2 m Nil 11 Obtaining financial advantage by deception ($5,000) 10 years 7 days Nil 12 Obtaining property by deception ($10,500) 10 years 2 m Nil Total effective sentence: 1 year and 3 months Non-parole period: 9 months
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