Monteleone v Vesperman
[2009] WASC 349
•26 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MONTELEONE -v- VESPERMAN [2009] WASC 349
CORAM: HALL J
HEARD: 18 NOVEMBER 2009
DELIVERED : 26 NOVEMBER 2009
FILE NO/S: SJA 1033 of 2009
BETWEEN: DOMENIC ANTHONY MONTELEONE
Appellant
AND
TONY WILLIAM VESPERMAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G A BENN
Citation :MI 1362 of 2009
Catchwords:
Criminal law - Sentencing - Fraud - Delay - Reparation
Legislation:
Sentencing Act 1995 (WA), s 6, s 39
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: Mr S D Freitag
Respondent: Mr G J Huggins
Solicitors:
Appellant: McKenzie & McKenzie
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Deville v WA [2004] WASCA 264
House v The King (1936) 55 CLR 499
Pickett v The State of Western Australia [2004] WASCA 291
R v Schwabegger [1998] 4 VR 649
R v Tognini [2000] WASCA 31
Scook v The Queen [2008] WASCA 114
HALL J: In 2001 Domenic Monteleone committed an offence of fraud. He drew a cheque for $10,000 on a closed account, deposited that cheque into a second account, and then drew a further cheque for the same amount on the second account and gave it to an associate. The fraud related to the deceit involved in presenting the first cheque and thereby falsely inflating his bank balance which enabled him to draw the second cheque. Seven years later, in December 2008, Mr Monteleone was charged. A plea of guilty was entered and on 23 March 2009 he was sentenced to 9 months' imprisonment suspended for a period of six months. He now appeals against that sentence.
The question in this case is whether a suspended sentence of imprisonment was properly open to the magistrate. In that regard, reference is made to the circumstances of the offence and a number of favourable personal circumstances. It is submitted on Mr Monteleone's behalf that when all the circumstances are taken into account the magistrate could not properly have come to a conclusion that a sentence of imprisonment, albeit suspended, was the appropriate disposition. It is also argued that, whilst many of the favourable personal circumstances were specifically referred to by the magistrate, two were not, being an offer of reparation and written character references. In particular, it is said that the offer to make complete reparation of $10,000 was a very significant factor and that, had the magistrate taken this into account or given it sufficient weight, he would not have imposed a suspended sentence.
The issues for determination are:
1.Did the magistrate fail to give proper weight to the delay?
2.Did the magistrate fail to properly characterise the seriousness of the offence?
3.Did the magistrate fail to give proper weight to personal factors?
4.Did the magistrate fail to take the offer of reparation into account?
5.Did the magistrate fail to consider whether a fine was open?
Grounds of appeal
The grounds of appeal are as follows:
1.The Sentencing Magistrate erred in imposing a sentence of 9 months imprisonment suspended for 6 months for the offence of with intent to defraud, by deceit, caused a detriment, namely presented a cheque to inflate his bank balance valued at $10,000.00, to Home Building Society Limited trading as Home.
Particulars
1.1There were a number of significant mitigating factors which reduced the objective criminality of the offending required to be taken into account by the Sentencing Magistrate.
1.2The objective criminality of the offence needed to be viewed in light of:
1.2.1The offending was constituted by a single event whereby the offender wrote a cheque knowing there were insufficient funds to cover it; there was no continuing course of conduct that constituted the offending;
1.2.2The offending occurred in 2001 and there was no further re‑offending in the eight (8) years prior to sentencing;
1.2.3The delay in the charge being made in December 2008 was not caused by the offender;
1.2.4Insufficient weight was given to the unusual and extraordinary circumstances and financial losses that prevailed in the offender's life at the time of the offending;
1.2.5That no pecuniary benefit flowed to the offender by the offence;
1.2.6That there was insufficient weight given to his prior record which consisted of minor traffic offences only and no weight given to the character references produced;
1.2.7That there were other sentences available other than imprisonment which is a sentence of last resort;
1.2.8That insufficient consideration was given to section 45 of the Sentencing Act 1995 regarding the application for a Spent Conviction;
1.2.9That the offender had advised the Court he was able to make full restitution and had put his Counsel in funds to do so.
2.The Sentencing Magistrate erred in failing to give sufficient weight to the Appellant's prior good character and antecedents.
3.The Sentencing Magistrate erred in failing to give sufficient weight to the peculiar circumstances of the case which called for a measure of leniency.
4.The Sentencing Magistrate erred in determining that a sentence of imprisonment was necessary.
At the hearing of this appeal, counsel for Mr Monteleone acknowledged that grounds 2, 3 and 4 were a repetition of ground 1 or elements of it. It was also accepted that the essence of ground 1 is that the sentence is said to be manifestly excessive. It was argued that the accumulation of the particulars numbered 1.1 ‑ 1.2.9 were such that a sentence other than one of imprisonment, or suspended imprisonment, was appropriate in this case. In particular, it was submitted that a fine was open.
Facts of the offending
In 1998 Mr Monteleone joined with a number of others to establish a cheese factory in Perth. He made a significant financial contribution to this business and encouraged his then de facto partner to also commit her own money. The business initially traded successfully but, for reasons which are not presently relevant, administrators were appointed in 2001. Mr Monteleone's de facto partner blamed him for the loss of her investment. In an endeavour to compensate her for her loss he drew the cheques which relate to the fraud.
On 31 August 2001 Mr Monteleone wrote out a cheque on an account in his name at the Commonwealth Bank in the amount of $10,000. The Commonwealth Bank account had been closed since 13 May 1998. The cheque was made payable to himself and Mr Monteleone then deposited that cheque into an account in his name at the Home Building Society. For reasons which are not apparent, the deposit of that cheque immediately caused the inflation of the Home Building Society account balance. Later the same day, Mr Monteleone drew a cheque on the Home Building Society account for $10,000 payable to his de facto partner. That cheque relied upon the credit balance arising from the first cheque. The de facto partner received the cheque on the same day and deposited it into her Westpac Bank account where it was cleared and drawn upon. The first cheque drawn on the Commonwealth Bank was not dishonoured until 5 September 2001. As a consequence the Home Building Society suffered a loss of $10,000.
The law on sentencing appeals
Sentencing involves the exercise of a judicial discretion. In Housev The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (504 ‑ 505).
In Chan v The Queen (1989) 38 A Crim R 337 Malcolm CJ said:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender (342).
Delay
There was a very long delay between the commission of the offence and the charging of Mr Monteleone. The magistrate sought an explanation and the following information was provided. The offence was reported to police on 9 March 2002 but the police were unable to locate Mr Monteleone. In September 2006 information was received that Mr Monteleone was working in the north of the state. Some inquiries at that stage resulted in Mr Monteleone making a telephone call to the Midland Detectives Office on 22 September 2006. A mobile telephone number was left but several attempts to call that number were unsuccessful. On 27 March 2008 Mr Monteleone telephoned the police again and inquiries were then recommenced, resulting in him being charged in December 2008.
In the intervening period much happened in the life of Mr Monteleone. Towards the end of 2001 he was declared bankrupt and remained an undischarged bankrupt for three years. Following his discharge in 2004 he commenced a business. The business involved the building of accommodation facilities at mine sites in the Pilbara and the goldfields. The business was successful and was engaging nine employees by March of 2009.
At the time he came before the magistrate Mr Monteleone was 44 years of age. He was single with no children, but financially supported his sister and her family and also his mother. He had no criminal record of any significance. In particular, it was evident that the personal circumstances that had led to the commission of the offence in 2001 no longer subsisted.
Delay in itself is not mitigatory. However, delay may provide the opportunity for other factors to come into play such as progress towards rehabilitation: Scook v The Queen [2008] WASCA 114 [31] (McLure JA). It may also be mitigatory that a long period has passed during which a person has been led to believe that prosecution will not eventuate and the person has organised their life accordingly: R v Schwabegger [1998] 4 VR 649.
In the present case the magistrate recognised that there had been an 'extraordinary delay'. He then stated:
I think it is reasonable to assume - and I take this into account - that during that long period you would have been in somewhat of a state of uncertain suspense as the authorities have put it and that that would have led to some degree of stress by you over that period waiting for the eventual prosecution of this matter. Certainly the delay has demonstrated your own rehabilitation in terms of the absence, as I have already said, of any further offending.
In some respects this summary of the effects of delay in this case was unduly favourable to Mr Monteleone. There was no submission made that he had suffered any stress as a result of the delay. There was certainly nothing to suggest that he had ever been led to believe that the matter would not be pursued. Indeed, attempts by police to contact him suggested to the contrary and he was aware of these attempts in 2006, if not before. The reasons for delay are not ordinarily relevant, but in any event the magistrate did not make any findings as to the cause of the delay or whether that delay was unjustified.
It was submitted that Mr Monteleone was not a useful vehicle for general deterrence due to, in part, the lengthy delay in the matter reaching the court. This was said to be because general deterrence assumes a temporal proximity between the commission of the offence and punishment for it. In my view that is not necessarily so. If offences of the same general type remain open at the time of sentencing then general deterrence continues to have relevance. Furthermore, the lapse of time does not necessarily diminish the significance of general deterrence, particularly if it sends a message that the authorities will continue to pursue crimes notwithstanding a delay in being able to investigate them or in locating the offender.
The significance of the delay here was that it demonstrated that the offence was out of character and that Mr Monteleone had rehabilitated himself to the extent that the magistrate accepted that he was very unlikely to ever reoffend. This was a significant mitigating factor. Whilst the magistrate appears to have recognised the importance of this factor, the ultimate question will be whether, together with all the other circumstances, it is consistent with a conclusion that a suspended sentence of imprisonment was appropriate.
Seriousness of the offending
In sentencing the magistrate concluded that the offending involved a number of very deliberate and calculated steps. He referred to the drawing and banking of the first cheque and the drawing of the second cheque and the handing of it to his de facto partner. He said 'each step gave you the opportunity to consider your actions and to cease the fraudulent course of conduct you had embarked on'. He noted that whilst Mr Monteleone did not gain personal financial benefit from the commission of the offence he did appear to gain an indirect benefit in that he was relieved to some extent from pressure being placed upon him by his de facto partner.
It is also relevant to take into account that the amount involved, $10,000, was in itself significant and also was the highest amount that could be dealt with summarily in respect of a charge of this nature. The maximum penalty for the offence of fraud under s 409 of the Criminal Code (WA) at the relevant time when dealt with summarily was imprisonment for two years. Had the charge been dealt with on indictment a maximum of seven years was open.
It must also be recognised that fraud is an offence that covers a broad range of conduct. Notwithstanding what the magistrate said regarding the steps involved in the conduct, this was otherwise a relatively simple fraud that did not appear to involve any significant planning or attempts at concealment. Unlike many frauds that involve a course of conduct over an extended period, this was undertaken in a single day. It was not accompanied by any abuse of a position of trust.
Personal factors
In addition to the issue of delay, the magistrate specifically referred to a number of personal factors. These included the fact that Mr Monteleone had entered an early plea of guilty and that this was a demonstration of remorse, acceptance of responsibility and had facilitated the course of justice.
His Honour also recognised that Mr Monteleone had not offended in a similar manner either previously or since and that he was unlikely to do so. In these circumstances his Honour concluded that personal deterrence was not a consideration. His Honour also referred to the fact that Mr Monteleone was now a productive and functional member of the community. This was an appropriate recognition of the personal rehabilitation that had occurred in the lapse of time before the matter came to be dealt with.
His Honour also referred to the personal circumstances that existed at the time the offence was committed. He made reference to a degree of stress in terms of the failure of the business and the break up of Mr Monteleone's de facto relationship. He referred to the depression and insomnia that Mr Monteleone suffered at the time and the 'emotional and mental stresses that go with that'.
It was submitted that no reference was made by the magistrate to the character references that had been tendered. Whilst that is true, there is no reason to think that the magistrate did not have regard to those references which he had been specifically taken to in sentencing submissions. It cannot be assumed that because a matter was not expressly referred to the magistrate did not consider it: Pickett v The State of Western Australia [2004] WASCA 291 [10] (McLure JA).
Furthermore, the magistrate's comments regarding good character since the commission of the offence would appear to be entirely consistent with the character references. His Honour could hardly have formed a more favourable view of Mr Monteleone's character regardless of whether he specifically took the references into account (though I do not accept that he failed to do so).
Reparation
Sentencing submissions were made to the learned magistrate on 19 March 2009. At that time defence counsel submitted that she had been provided with funds of $10,000 by Mr Monteleone in the event that there was any application for restitution. On this appeal it was submitted that the offer to make restitution was a very significant mitigating factor and that the magistrate neglected to take it into account. Though before the magistrate and on appeal 'restitution' was referred to, I will refer to reparation as that is the term used in Part 16 of the Sentencing Act 1995 (WA) to encompass restitution and compensation orders (and this arguable fell into the latter category).
It is true that there is no specific reference to the offer of reparation in the magistrate's sentencing remarks. At the end of those remarks the police prosecutor made an application for reparation and an order was made. However, it is submitted that it does not follow from the making of that order that the magistrate had regard to the offer of reparation in determining the appropriate sentence.
An offer to make reparation for loss caused as a result of a criminal act does not change the nature of that act. Such an offer is relevant because it may alleviate some of the consequences of the act and because it may be an indication of a willingness to accept responsibility on the part of the offender: Deville v WA [2004] WASCA 264 [25]. I accept that it was a relevant factor in this case, however, it does not follow that because the learned magistrate did not specifically refer to it in his sentencing remarks he did not have regard to the offer.
The argument relies upon the assumption that if the magistrate had had due regard to the offer he could not have reached a conclusion that a sentence of suspended imprisonment, rather than some lesser sentence such as a fine, was the appropriate option. Whilst I do not accept that the offer of reparation alone required the imposition of a different sentence, it will be necessary to give this consideration in light of all the circumstances.
It is also appropriate to give some consideration to the significance of the offer of reparation. The fact that the offer was made only after many years had passed counts against it as an alleviation of the consequences of the offending. For those years the financial institution had to carry the loss. Furthermore, it was obviously open to the appellant to have accepted responsibility for his actions and offer to compensate the financial institution for the loss much earlier than he did. It is relevant to take into account that the offer was made only after Mr Monteleone had been charged and pleaded guilty.
Fine
It was submitted that an appropriate disposition in this case was a substantial fine. It was submitted to the magistrate that Mr Monteleone could pay such a fine. It was suggested that because this submission was made the magistrate ought to have specifically referred to a fine and explained why such an option was not appropriate. In my view it is not necessary for a magistrate to specifically refer to other options before coming to the conclusion that a sentence of imprisonment is the only appropriate disposition. Provided that it is apparent from the whole of the reasons that the magistrate has formed a view that the offending is of such seriousness that no other sentence but one of imprisonment is appropriate, it is unnecessary to go through a checklist of other options and explain why they have been discounted. The magistrate stated:
I reach the conclusion that imprisonment is necessary having considered all other sentencing options but come to the conclusion for the reasons I've mentioned, that only a sentence of imprisonment would be appropriate. In turning my mind to whether that sentence should be suspended and turning my mind to all the things I've considered in reaching a decision that imprisonment would be appropriate including all the matters personal to you, I am of the view that this sentence should be suspended and that it would serve no benefit to the community or to your own rehabilitation if after all this time you were required to serve an immediate term of imprisonment.
I am satisfied that the reasons of the magistrate necessarily imply that he considered the option of a fine and rejected it. The question that remains is whether he was correct to do so.
Was imprisonment the only appropriate option?
A court must not impose a sentence of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4) Sentencing Act. A suspended sentence of imprisonment is, for these purposes, a sentence of imprisonment and cannot be imposed if some other disposition is open. Taking into account the circumstances of the offence and the personal circumstances of Mr Monteleone, this was not a case in which it could be said that the only appropriate sentence was one of imprisonment. Whilst the sentence was significantly ameliorated by being suspended and by the fact that the period of suspension was the shortest available, that is six months, it was, nonetheless, a sentence of great gravity and that carried with it serious potential consequences.
Without diminishing the offence, it was not one that in my view necessarily required a sentence of imprisonment. Furthermore, the substantial delay had enabled Mr Monteleone to demonstrate that he had significantly rehabilitated himself and that was an unusual and compelling mitigatory factor.
Section 39 of the Sentencing Act provides for a hierarchy of penalties and requires that a court not use a sentencing option higher in the list unless satisfied that it is inappropriate to use a lesser option. A suspended sentence ranks immediately below a conditional suspended sentence and immediate imprisonment. A range of options are available below that level. One of those is a fine. In my view a fine was an appropriate disposition in the circumstances of this case. Accordingly, I find that the magistrate erred in imposing the sentence that he did.
I accept that the magistrate gave careful consideration to all the relevant factors, but that does not necessarily mean that the outcome is correct. Whilst there was no express error the result was plainly unjust such that it can be inferred that there was a failure to give due weight to all of the relevant circumstances. Accordingly, there was a failure to properly exercise sentencing discretion.
Conclusion
The appeal will be allowed. In my view the appropriate penalty is a fine of $1,500. The sentence imposed on 23 March 2009 is set aside and in lieu therefore I sentence the appellant to a fine of $1,500. I also make an order that the appellant pay compensation of $10,000 to the Bank of Queensland (the successor entity to the Home Building Society). The order of the magistrate to pay costs is unaffected.
I have considered whether a spent conviction order is appropriate. I note that it has been submitted that a conviction has the potential to impact upon Mr Monteleone's business, but there was nothing to substantiate that any adverse affect had been felt since conviction on 23 March 2009. In any event, having regard to the criteria in s 45 of the Sentencing Act, I am not satisfied that this is an appropriate case for the exercise of the discretion to make a spent conviction order. In my view, the offence was not trivial and the circumstances of its commission (including the loss occasioned) preclude such an order, which should only be made sparingly: R v Tognini[2000] WASCA 31 [27] ‑ [28].
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