Mooney v The Queen
[2018] ACTCA 24
•29 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Mooney v The Queen |
Citation: | [2018] ACTCA 24 |
Hearing Date: | 18 May 2018 |
DecisionDate: | 29 June 2018 |
Before: | Mossop, Loukas-Karlsson and Charlesworth JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEALS – CRIMINAL LAW – Sentencing – obtain property by deception – obtain financial advantage by deception – use false document – use of comparable cases as sentencing pattern – accumulation of sentences – concurrency of sentences – non parole period – whether totality of sentence is manifestly excessive – whether individual sentence is manifestly excessive. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 7 Criminal Code 2002 (ACT) ss 326, 332, 347 |
Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Trisha Lee Mooney (Appellant) The Queen (Respondent) |
Representation: | Counsel Ms E McLaughlin (Appellant) Mr J White SC (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Office of the Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 60 of 2017 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 3 November 2017 Case Title: R v Mooney Citation: [2017] ACTSC 358 |
THE COURT:
Sentences
The appellant appealed against sentences imposed by Murrell CJ (the sentencing judge) on 3 November 2017: see R v Mooney [2017] ACTSC 358 (Mooney). The appellant was sentenced on five counts as set out in the following table:
Count
Maximum Penalty
Sentence
Count 1: Obtaining property by deception (s 326 Criminal Code 2002) 10 years imprisonment 8 months’ imprisonment
(1 November 2017 – 31 June 2018)Count 2: Obtaining property by deception (s 326 Criminal Code 2002) 10 years imprisonment 12 months’ imprisonment (1 March 2018 – 28 February 2019) Count 3: Obtaining property by deception (s 326 Criminal Code 2002) 10 years imprisonment 15 months’ imprisonment
(1 July 2018 – 30 September 2019)Count 4: Using false document
(s 347 Criminal Code 2002)10 years imprisonment 15 months’ imprisonment (1 November 2018 – 31 January 2020) Count 5: Obtaining financial advantage by deception
(s 332 Criminal Code 2002)10 years imprisonment 20 months’ imprisonment
(1 March 2019 – 31 October 2020)
The sentencing judge imposed a total sentence of 3 years’ imprisonment (1 November 2017 to 31 October 2020) with a non-parole period of 18 months (1 November 2017 to 30 April 2019).
The sentence for each count reflects a discount of about 15 per cent for pleas of guilty.
The sentencing judge also made a reparation order requiring the appellant to pay reparation in the sum of $157,609.00 by way of instalments of $300.00 per fortnight, commencing 1 August 2019.
Grounds of Appeal
The appellant’s notice of appeal lists twelve grounds of appeal. In written submissions, the appellant abandoned all grounds, except for the ground that the sentence imposed was manifestly excessive. Specifically, the appellant submitted that the total sentence imposed, including the non-parole period, produced an outcome that was “unreasonable or plainly unjust”.
In the written reply and at the hearing, the appellant specifically submitted that in addition to relying on the totality of the sentence, that the individual sentence for Count 4 was manifestly excessive.
Facts
In July 2010, the appellant commenced work as a Financial Manager for Transport Industries Skills Centre Inc. (TISC). TISC is a small not-for-profit organisation that provides training for the transport and motor vehicle driving industry in the ACT and south-east NSW. The appellant was responsible for the financial management of the organisation, including payroll, transaction processing, compliance, general administration and human resources. She remained in that role until her resignation in March 2015, which occurred as a consequence of the detection of some of her offending.
The appellant used her position in order to make unauthorised payments to herself (the subjects of Counts 1-3) and to make unauthorised personal purchases on the organisation’s credit card (Count 5). The appellant also forged a document to cover up an unauthorised “loan” (Count 4).
The facts are covered in detail at [10] - [39] of Mooney, and are summarised briefly below.
Count 1
10. On nine occasions between June 2011 and September 2013, the appellant claimed 376 hours of unauthorised “time in lieu” when she processed payroll payments. This resulted in the appellant overpaying herself by $12,326.92.
Count 2
11. In about November 2013, the appellant and the CEO agreed to a reduction of work hours due to medical advice. It was agreed that the appellant would be paid on a pro rata basis, but it was not agreed that she would receive a 25% casual loading in lieu of benefits such as annual leave and sick leave. Between November 2013 and December 2014, the appellant processed 37 weekly salary payments in which she approved payments to herself at a casual rate, resulting in an overpayment of $29,267.06.
Count 3
12. On 35 occasions between February 2011 and February 2015, the appellant overpaid herself through dishonest transactions. The total overpayment was $34,353.23.
Count 4
13. The appellant created a loan agreement using the electronic signature of the CEO without his permission or knowledge. She used the false document by providing it to TISC’s accountants so as to induce the accountants to continue to process the loan repayment arrangements she had organised without permission. The purpose of the loan was for the appellant to purchase a new Hyundai vehicle, which she purchased using one of the organisation’s company cars as a trade-in vehicle, receiving a trade-in of $7,000 which was offset against the purchase price of a new car.
14. The falsified “loan” was said to total $28,700.00, which was offset against the appellant’s annual “provision” for a fuel card in the amount of $3,535.00, an allowance for a work vehicle of $10,000.00, and missed wage increases for the financial year 2011/2012 of $6,665.00. The balance of the “loan” was said to be $8,500.00, and the repayments were to be deducted from her wages on a tax-free and interest-free basis.
Count 5
15. Between 2010 and February 2015, the appellant used a work credit card given to her by TISC for unauthorised purchases totalling $81,661.85. The appellant fraudulently “reconciled” some of the transactions on her company credit card against legitimate company cost codes.
Detection of Offending
16. In 2014, TISC was struggling financially. In 2014, the new CEO, Mr Brennan, twice approached the appellant requesting to see financial reports. The appellant did not provide the reports. In December 2014, the organisation’s auditor provided the financial reports to Mr Brennan. Mr Brennan subsequently engaged the services of KPMG as an external consultant.
17. Following advice from KPMG, Mr Brennan undertook a close examination of expenditure, where he observed that the appellant had used the organisation’s credit card for personal expenses. The appellant met with Mr Brennan, the former CEO Mr Waldron, and the General Manager Mr Dobie in March 2015, where she conceded she had been using the corporate credit card for personal expenses. The appellant offered to repay the organisation and resigned.
Sentencing Remarks
18. It is appropriate at this juncture to set out the sentencing judge’s remarks on objective seriousness, subjective circumstances, and comparable cases.
Objective Seriousness
19. The sentencing judge made the following remarks on the objective seriousness of the offending at [49] – [55]:
49. Each offence involved a very significant breach of trust. As the person primarily responsible for the company’s day-to-day finances, the offender was afforded a high level of respect, trust and responsibility in relation to financial matters. Mr Waldron had a great deal of confidence in her and permitted her flexibility in the manner in which she undertook her work. Because of her role and the confidence that she had inspired, her work was not closely supervised. Over a long period, the offender abused her employer’s trust.
50. Further, from at least 2014 she did so in circumstances where she knew that the organisation’s financial performance was deteriorating and her criminal conduct could only contribute to that deterioration.
51. The offences were not sophisticated, but they did not need to be sophisticated in order to avoid detection. When suspicions were aroused, the offender attempted to conceal her misconduct, albeit in a relatively clumsy manner.
52. The offender’s misconduct ceased only because it was detected.
53. The organisation is a not-for-profit organisation. I note that it has not been reimbursed for any of the financial loss.
54. In the absence of any other suggestion, I conclude that the offences were motivated by a desire for personal gain. On the other hand, there is no evidence that the offender’s criminality enabled her to lead an extravagant lifestyle or accrue assets.
55. Overall, the gross breaches of trust that were involved, the variety of the means by which the offender defrauded the organisation, the period over which she did so, the number of occasions during that period when she committed dishonest acts, her attempts at concealment, and the total benefit that the offender gained present a dismal picture of largely inexplicable dishonesty by a trusted employee who held a position of significant responsibility.
20. The sentencing judge considered victim impact statements from Mr Dobie (on behalf of Mr Brennan) and Mr Waldron. Her Honour summarised their contents at [43]:
There is no doubt that the offender’s misconduct caused substantial financial and non-financial loss to the organisation and had a significant psychological effect on numerous personnel within the organisation.
Subjective Circumstances
21. In relation to subjective circumstances, the sentencing judge noted the appellant’s family circumstances, childhood, training and employment, and ongoing medical issues including her mental health. Regarding the appellant’s Post-Traumatic Stress Disorder (PTSD) symptoms, her Honour made the following remarks at [66] – [68]:
66. In the opinion of Dr Collins, the offender’s symptoms of PTSD, especially reduced sleep and impaired concentration, would make it difficult for her to function day-to-day. However, Dr Collins felt unable to speculate on any relationship between the symptoms and the offending conduct.
67. The offender’s general practitioner stated that, because of PTSD symptoms, at the time of the offences, the offender may have experienced impaired decision making.
68. The offender’s condition of PTSD is relevant in a general way, but the evidence does not establish (or even go beyond speculation) that it caused or contributed to the offences. The evidence about the offender’s mental health does not significantly inform sentencing purposes.
22. The sentencing judge also noted at [69] that according to the author of the pre-sentence report, the “offender showed limited insight into her misconduct and had demonstrated limited remorse”.
23. Overall, the sentencing judge concluded at [90] that there was a “lack of powerful subjective circumstances” relevant to determining the appellant’s sentence.
Comparable Cases
24. The sentencing judge considered applicable comparable cases, being the decisions in R v NQ [2017] ACTSC 317 (NQ), R v Ok [2016] ACTSC 132, R v Reid [2016] ACTSC 24 (Reid), R v Riordan [2015] ACTSC 26 and R v West [2015] ACTSC 134. In summarising the applicable cases, her Honour stated as follows at [82]-[83]:
82. In four of these sentence decisions, the sentencing court required the service of a relatively short period of full-time imprisonment and suspended the remainder of the sentence. In each case, there may have been a good reason to do so, but I see no reason why, as a matter of principle, white collar offenders should be required to serve by way of full-time imprisonment a shorter period of the whole sentence than other offenders.
83. On the other hand, many first time offenders who receive a sentence of full-time imprisonment may reasonably hope to receive a short non-parole period of about 50 per cent.
Sentencing Purposes and Other Sentencing Considerations
25. The sentencing judge considered the prominence of general deterrence as a sentencing purpose in white collar criminal matters. Her Honour also considered at [87] that despite an assessment of low risk of re-offending, the appellant’s qualified insight and remorse “suggest that specific deterrence is an important sentencing consideration and mean that the offender’s prospects of rehabilitation are uncertain”.
26. Her Honour concluded her remarks at [90] as follows:
I am satisfied that the only appropriate sentence is imprisonment. Further, the maximum available penalties, objective seriousness of the offences (both individually and cumulatively) and lack of powerful subjective circumstances, mean that the sentences must involve a significant period of full-time imprisonment.
Appellant’s Submissions
27. The appellant submitted that both the aggregate sentence of 3 years imprisonment and the non-parole period of 18 months are manifestly excessive given the maximum penalty, subjective factors applicable to the appellant, the objective seriousness of the offences, and the sentences imposed in comparable cases.
28. The appellant submitted that, while recognising the discretion available to the sentencing judge in accordance with House v The King (1936) 55 CLR 499, the sentence was excessive in all of the circumstances, and that the Court’s discretion to resentence is enlivened.
Objective Seriousness
29. The appellant submitted that the following factors should be considered when assessing the objective seriousness of the offences the appellant was convicted of:
a.The amount of money involved;
b.The length of time over which the offences are committed;
c.The motive for the crime;
d.The degree of planning and sophistication;
e.Any breach of trust;
f.The impact on public confidence; and
g.The impact on the victim.
30. The appellant conceded that there was evidence that the impact of the offences was widely felt among management and staff, and that the offences involved a significant breach of trust which had the potential to undermine public confidence in the not-for-profit sector. The appellant submitted, however, that each of these factors are unremarkable and consistent with the majority of offences of this type.
31. The appellant submitted that the mechanics of each fraud were relatively unsophisticated, and able to be detected reasonably easily once attention was drawn to financial irregularities.
Counts 1-3
32. The appellant submitted that the objective seriousness of Counts 1-3 should be considered as a whole, because they amounted to a consistent and single course of conduct. This was because the period of offending for Count 3 completely overlapped the period of offending for Counts 1 and 2, and, because the mechanism of fraud used by the appellant was the same for each of the 81 transactions within these counts.
33. The appellant submitted that the total amount obtained by deception across Counts 1-3 was $76,947.21, and that the total effective sentence imposed for the three periods was 23 months’ imprisonment.
34. The appellant submitted that by comparison, Count 5 was “demonstrably the most serious of the counts yet it received a lesser sentence”. The total amount obtained by deception on Count 5 was $81,661.85 through 529 dishonest transactions over 4.5 years. The sentencing judge imposed a sentence of 18 months’ imprisonment for Count 5, which the appellant submitted was “objectively the most serious of these counts”. The appellant submitted therefore that the objective seriousness for Counts 1 to 3 were overstated by her Honour, and submitted in oral hearing that significant additional concurrency should have been made out in relation to Count 3.
35. The appellant submitted that the existence of “rolled up” charges does not preclude the criminal behaviour contained therein from being characterised as consistent and a single course of conduct.
Count 4
36. The appellant submitted that Count 4 was less objectively serious than Counts 1-3. This was because:
(a)the use of the document was not pre-meditated;
(b)there is no evidence that the Appellant created the loan agreement earlier than when the fraudulent document was made;
(c)the offence was confined to a single act of showing a single document to the TISC accountants;
(d)the financial value of the gain, which was not quantified before the sentencing judge, would have been less than $8,500.
37. The appellant submitted that while it can be inferred that the CEO did not know of the appellant’s purchase of the vehicle, there was no evidence before the Court which would indicate that the appellant’s actions were “flagrantly dishonest”. Further, Count 4 was the only count to relate to the purchase of the car during the period of offending. The appellant submitted that if such evidence therefore existed, it would have amounted to criminal conduct to the effect that the trade-in of the vehicle was done without lawful authority. Any assessment of the objective seriousness of the offence, it was submitted, could not involve consideration of other uncharged criminal acts and the financial benefit gained by the appellant was, accordingly, limited to the amount of $8,500.
38. The appellant submitted that by comparison, in R v Fischetti [No 5] [2016] ACTSC 213 (Fischetti) the offender received 18 months’ imprisonment for each count of using a false document to obtain a gain. The gain sought in that matter was a $1.4 million loan. The appellant submitted that her position was clearly more favourable than that of the offender in Fischetti.
39. The appellant submitted that there was no evidence before the sentencing judge as to the financial advantage sought or obtained by the appellant for the offence contained within Count 4, nor any quantification relied upon by counsel for the Crown.
Subjective Considerations
40. The appellant submitted that the sentencing judge failed to take into consideration a subjective case that warranted specific consideration and weight, particularly with respect to the principles of general deterrence and rehabilitation. In particular, the sentencing judge should have considered the appellant’s childhood experience, loss of family members, and continuing presentation of PTSD symptomology. The appellant submitted that weighing the objective circumstances of the case with individual circumstances of the person being sentenced was critical to the imposition of a sentence in accordance with the fundamental common law principle of individualised justice: R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996).
41. In relation to the appellant’s childhood, it was submitted that the appellant’s experiences of domestic violence and loss of her (violent) father at a vulnerable age was a relevant point of distinction between the appellant and other offenders who come before the Court with an unremarkable childhood.
42. The appellant submitted that the bulk of the subjective case concerned the appellant’s mental health. The appellant submitted that the evidence is sufficient to establish that although the diagnosis of PTSD was made after the offending was detected, the PTSD was in existence before and during the offending, and further, that the PTSD became “significantly worse” between 2009 and 2014. The appellant conceded that there is no causal connection between the PTSD and the offences, but submitted that the appellant’s symptoms during the offending period may have impacted upon her on a daily basis, including making “day to day functioning difficult” and impeding her “understanding of the gravity and consequences of her actions…at the time of the offending” according to the report of Dr Mark Collins.
Comparable Cases
43. The appellant relied upon a table summarising the outcome of 19 cases determined by the Supreme Court or Court of Appeal said to be, to a greater or lesser extent, comparable to the present case. The appellant then focused particularly on the amount of money obtained in the present case and submitted that in cases concerning dishonest obtaining of similar amounts of money (between $100,000 and $200,000), each offender received head sentences of no more than 2.5 years: Samani v The Queen [2017] ACTCA 23; R v Morris [2017] ACTSC 400 (Morris); R v Griffiths [2015] ACTSC 341; R v McGowan [2015] ACTSC 320. In each of these cases, the sentence was structured by way of short term full-time imprisonment or periodic detention followed by the suspension of the remainder of the sentence. The length of time spent in full time custody in each of these cases ranged from 5 to 8 months.
44. The appellant submitted that the overwhelming pattern of sentences imposed for like offences is the use of combination sentences, in which the offender has a longer period of time in the community subject to conditional release and a shorter period of time spent in full-time custody.
45. The appellant submitted therefore that the consideration of like cases reveals that both the total sentence and non-parole period were outside the range of just and appropriate sentences.
46. At the hearing, the appellant drew the Court’s attention to the decisions of Reid, NQ, Morris and R v Evans [2017] ACTSC 218 as having significant use in providing a yard stick for sentences to be imposed.
47. The appellant submitted that the purpose of providing comparable cases was in line with the well-established principle that an appellate court will consider sentencing statistics in order to ascertain the prevailing and general pattern for sentencing particular offences and, if necessary, to correct sentences imposed that are out of line with commonly accepted patterns: R v Visconti (1982) 2 NSWLR 104; SW v R [2013] NSWCCA 103. It is correct therefore to use the comparable cases as a yardstick against which the sentence imposed upon the appellant is to be examined by this Court: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 (Barbaro).
Respondent’s Submissions
48. The respondent submitted that there had been no error in sentencing. The respondent submitted that the appellant takes on a heavy burden in alleging manifest excess of a sentence: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [86]. It will not be enough on appeal that the members of the appeal court would have imposed a different sentence: the appeal will only succeed if it can be shown that no reasonable sentencing judge could have imposed the sentence on the offender for the offence in the circumstances: Balthazaar v The Queen [2012] ACTCA 26 at [61].
49. In relation to the appellant’s argument on the totality of the sentences, the respondent submitted that the burden on the appellant is considerable: R v Wheeler [2000] NSWCCA 34 at [37]; Truong v R ; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] (Truong); R v TW [2011] ACTCA 25; 6 ACTLR 18 at [57] (R v TW). It was also submitted that because there is no correct way to structure a sentence, it is difficult to make out a claim that the structure of a particular judge is erroneous: R v TW at [83]. It should be noted that the citation by the respondent of Truong at [231] is not apposite in this context as the paragraph refers to the statutory regime in NSW of aggregate sentencing.
50. The respondent outlined sentencing principles for fraud offences in written submissions, noting that the appellant has “overlooked one of the most important unifying principles in sentencing white collar offenders: the need for sentences to have a deterrent effect”: The Queen v Allred [2015] ACTSC 327 at [41], R v Pont [2000] NSWCCA 419 at [43], R v Pantano (1990) 49 A Crim R 328 at 330; R v Woodman [2001] NSWCCA 310 at [28]-[29]; R v Mungomery [2004] NSWCCA 450 at [40]-[41].
Objective Seriousness
51. The respondent submitted that the circumstances of the offending, whether or not they can be characterised as “relatively unsophisticated”, entitled the appellant to no leniency and are not “mitigatory”. The respondent submitted that the appellant’s misconduct only ceased because it was detected, and that the appellant made every attempt to conceal her frauds until detection. The respondent submitted that the breach of trust had deleterious consequences both for the viability of the organisation and also the personal welfare of her fellow employees, regardless of the relative lack of sophistication.
52. The respondent submitted that Counts 1-3 did not constitute a “single course of conduct”. The respondent noted that each of Counts 1,2,3 and 5 were “rolled up counts” which encompassed “scores” of individual acts of dishonesty spread over four and a half years. The respondent submitted that rolled up counts represent in themselves significant leniency towards an offender, the applicable principles being summarised in R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164]. The respondent submitted that:
…the sentences fashioned by the sentencing judge, the degree of accumulation, and indeed the totality of the sentences are all unimpeachable. Clearly a degree of accumulation was called for, and is represented in the structure of the sentence. But just as importantly, the overall sentence represents scores of dishonest acts. The submission that counts one to three should be considered as a single course of conduct must be rejected.
53. The respondent submitted that contrary to the appellant’s submissions, the offending encompassed within Count 4 was of high objective seriousness. It was submitted that the appellant used her privileged access within the organisation to perpetrate a significant fraud and evade detection. Therefore, the offending could only be described as objectively very serious.
Subjective Factors
54. The respondent submitted that the proposition that the appellant’s subjective case was not considered by the sentencing judge was not borne out. The respondent submitted that it was clear that her Honour gave specific consideration to the subjective case and considered the weight it should have. Having regard to the fact that the subjective circumstances did not all favour the appellant, the respondent submits that her Honour’s conclusion at [90], that there was a “lack of powerful subjective circumstances”, is unimpeachable and the only possible conclusion available to her Honour.
Comparable Cases
55. The respondent submitted that the High Court has repeatedly recognised that sentencing courts should not be seeking numerical equivalence, but consistency in the relevant legal principles applied: Barbaro at [40]; Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [48]-[49]; [77].
56. The respondent submitted that sentences imposed in individual cases are not precedents (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [57]); the so called comparable cases simply illustrate the range of factors that are relevant in fashioning a sentence for dishonesty offences. The respondent submitted that it is absurd to attempt to argue that a series of individual sentences can be described as forming a “pattern” which somehow fetters the sentencing discretion of another judge.
Consideration
57. A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. However, “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar; Zdravkovic v The Queen [2016] ACTCA 53 (Zdravkovic) at [51].
58. In Lowndes v The Queen [1999] HCA 19; 195 CLR 665 the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [15] expressed the role of an appellate court dealing with a ground such as this in this way:
…a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
59. When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian) at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT)) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range: Zdravkovic at [52].
60. As stated at the outset, to succeed on a ground of manifest excess, the applicant must establish that the sentence is “unreasonable” or “plainly unjust”: Markarian at [25]; Hili at [59]. Consideration of such a ground is undertaken in the context that there is no single correct sentence and that sentencing is not to be understood as a mathematical exercise. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. As Hayne J observed in AB v The Queen [1999] HCA 46; 198 CLR 111, “…there will be a range of possible sentences that could be imposed without error”: Cicero Olivares v R [2016] NSWCCA 270 at [16].
61. A sentence may be stern and at the same time not outside the available sentencing discretion. While the sentence for Count 4 in isolation may be seen as stern, on the other hand, there is no period of custody exclusively referable to Count 3. The sentencing judge was aware of the requirement to impose individual sentences and then structure them to achieve a just totality of all of the sentences.
62. The appellant’s contention that the sentence imposed in relation to Count 4 is manifestly excessive is not made out. Nor is the contention that the sentencing judge erred in assessing the objective seriousness of the offence. The appellant’s moral culpability in relation to Count 4 was not reflected in the net amount of the falsified loan. On the agreed facts, there was no entitlement to a loan at all. The amount specified in the falsified document resulted from the appellant’s own calculations, allowing for offsets to which, on the agreed facts, she was not entitled. The seriousness of the offending lay more in the circumstances surrounding the falsification of the document than in the amount of the ultimate gain.
63. As to the total sentence, questions of concurrency and accumulation are discretionary matters for a sentencing judge and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour. The process is at the essence of intuitive or instinctive synthesis: JT v R [2012] NSWCCA 133 at [73]; Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [42]. In O’Brien v The Queen [2015] ACTCA 47 at [26], this Court set out the principles in relation to sentencing for multiple offences to achieve an appropriate overall sentence: CX v The Queen [2017] ACTCA 37 at [28].
64. As has frequently been observed, the sentences imposed in other cases may show a sentencing pattern and provide a “yardstick”, but they do not establish the outer bounds of the permissible discretion: Barbaro at [41]: see also Zdravkovic at [60].
65. The appellant is correct to say that the particular sentences referred to by the appellant and those cases referred to by the sentencing judge involve a greater proportion of the sentence served in the community than in a form of detention. However, the sentencing judge was correct to identify that there is no principle that white collar offenders should be required to serve a shorter period of a sentence in detention than other offenders. Further, as was made clear in Barbaro, the pattern of somewhat more lenient sentences identified by the appellant is not such as to demonstrate that the sentences imposed on the appellant were outside the available sentencing discretion.
66. Each of the individual sentences could not be said to be manifestly excessive. The question in essence is whether a total sentence of 3 years imprisonment with a non-parole period of 18 months is so long as to be unreasonable or plainly unjust.
67. In all of the circumstances of this case the total sentence may be considered to be somewhat stern from the vantage point of the comparable cases. It cannot, however, be concluded that the total sentence is unreasonable or plainly unjust, or that the total sentence is not just and appropriate having regard to the overall facts of the case, paying due regard to all of the facts both objective and subjective. The total sentence is not manifestly excessive.
68. The matters taken into account as indicating the objective seriousness of the offences in this case includes a significant breach of trust on the part of the appellant, the appellant’s high position within the organisation, and the significant monetary sum dishonestly obtained. Also significant was the lengthy time period over which the offences were committed, of approximately four years, and the systematic dishonesty involved in the offences.
69. Each of the counts for which the appellant was sentenced involved serious criminality. The structure of the sentences reveals that the sentencing judge gave the necessary attention to questions of accumulation, concurrency and totality. The appellant has failed to demonstrate that the total sentence is manifestly excessive or that the sentencing judge erred in relation to Count 4. The appeal is dismissed.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Mossop, Loukas-Karlsson and Charlesworth. Associate: Date: 29 June 2018 |
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