Pedersen v The Queen
[2013] VSCA 321
•19 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0286
| DALE LEIGH PEDERSEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, PRIEST and COGHLAN JJA | |||
| WHERE HELD | MELBOURNE | |||
| DATE OF HEARING | 21 October 2013 | |||
| DATE OF JUDGMENT | 19 November 2013 | |||
MEDIUM NEUTRAL CITATION: | [2013] VSCA 321 | |||
JUDGMENT APPEALED FROM | R v Pedersen (Unreported, County Court of Victoria, Judge Lacava) | |||
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CRIMINAL LAW – Appeal – Conviction – Obtaining property by deception, obtaining financial advantage by deception, furnishing false information (25 counts) – Company director – Misappropriation of company funds – Convicted after trial – Whether charge unbalanced – Ground abandoned during argument – Manifestly hopeless – Ground should not have been advanced.
CRIMINAL LAW – Appeal – Sentence – Obtaining property by deception, obtaining financial advantage by deception, furnishing false information (25 counts) – Company director – Misappropriation of company funds – Convicted after trial – Total effective sentence 10 years’ imprisonment, non-parole period 7 years – Whether manifestly excessive – Relevant prior convictions – Continuing criminal enterprise offender – Subsequent offending of same kind – Delay – Absence of motive of personal gain – Totality – Whether sentence disproportionate to overall criminality – Sentence within range – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Pena-Rees | Slade & Parsons |
| For the Crown | Mr G J C Silbert SC with Mr S P Devlin | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. For the reasons which his Honour gives, I too would refuse leave to appeal against sentence. I respectfully agree with what his Honour has said about the abandoned application for leave to appeal against conviction.
PRIEST JA:
Introduction
The Court initially had before it applications for leave to appeal against both conviction and sentence.
During the course of oral argument, leave was given to abandon the application for leave to appeal against conviction.
Counsel for the applicant did, however, persist with the application with respect to sentence. For the reasons that follow, that application should be refused.
The abandoned application for leave to appeal against conviction
Although, as I have said, the application for leave to appeal against conviction was abandoned in the running, I cannot leave the subject without further comment. The application was, it must be understood, devoid of merit. A single ground claimed that justice miscarried because the judge’s trial charge was unbalanced. Specifically, the ground alleged the prosecution’s case was outlined in detail, but by contrast the applicant’s position was predominantly briefly expressed as ‘he did not do it’.
Within a very short time of oral argument commencing it became clear that this ground was bereft of substance. Indeed, it was utterly hopeless. So much should have been obvious to counsel charged with the responsibility of drawing the written case. Not only was the criticism of lack of balance unjustified, but to the
contrary, the judge’s charge was an exemplar of how to instruct a jury in a case such as this. Thus, at the beginning of his directions the judge exposed the principal issues for the jury and the essential defence case. Later, when directing on the elements of each charge, his Honour isolated the prosecution evidence relevant to each element and the defence answer to it. Defence counsel at trial complained that to approach the matter that way was to cause there to be an ‘avalanche’ of evidence in the prosecution case, which was not matched by similar content in the defence case. The simple answer to that complaint is that there was a wealth of material in the prosecution case establishing the applicant’s guilt, whereas the defence, by and large, involved a ‘broad brush’ approach. Much of that broad brush defence revolved around the central theme that the principal prosecution witness, Maureen Newbound, was an untruthful witness who had told a tissue of lies.
Had the judge not isolated the evidence which went to each charge, the judge would have — as the applicant’s counsel was constrained to concede — fallen into appealable error. By isolating the prosecution and defence evidence and arguments relevant to the elements of each count, the judge did what the law required of him. His charge was a model of perfection. So much should have been self-evident to the applicant’s legal advisors well in advance of the hearing.
Such a late abandonment of a manifestly hopeless appeal (or, for that matter, ground of appeal) is to be deprecated. It is intolerable that a great deal of the Court’s time was taken up with reading and analysing the judge’s charge to the jury to determine whether there was any substance in the complaint that it was ‘unbalanced’, when it should have been manifest to the applicant’s legal advisers that it was not so. Far more care should have been taken, and far more responsibility exercised, to ensure that only reasonably arguable grounds were agitated.
Convictions and sentences
Before turning to the application for leave to appeal against sentence, I should outline the convictions and sentences, and the factual background underpinning them.
Following a 36 day trial in the County Court, the applicant was found guilty of 25 offences of dishonesty. Five others (charges 19, 22, 23, 25 and 26) were the subject of directed acquittals. He later pleaded guilty on a separate indictment to a single charge of obtaining property by deception.
Of the charges which were the subject of jury verdict, four were of obtaining property by deception[1] (charges 6, 11, 20 and 27); four were of making a false document[2] (charges 2, 3, 21 and 24); five of obtaining financial advantage by deception[3] (charges 4, 8, 9, 14 and 16); and 12 charges of furnishing false information[4] (charges 1, 5, 7, 10, 12, 13, 15, 17, 18, 28, 29 and 30).
[1]Crimes Act 1958, s 81(1).
[2]Crimes Act 1958, s 83A(1).
[3]Crimes Act 1958, s 82(1).
[4]Crimes Act 1958, s 83(1)(b).
On 27 July 2012 a total effective sentence of 10 years’ imprisonment was imposed on the applicant, upon which the judge fixed a non-parole period of seven (7) years. It should be noted that he fell to be sentenced as a continuing criminal enterprise offender[5] on 14 counts (charges 1, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18 and 27), so that the maximum penalty for these charges was 20 years’ imprisonment.[6]
[5]Sentencing Act 1991, s 6H and s 6I.
[6]By s 6I of the Sentencing Act 1991 a continuing criminal enterprise offender ‘is liable, for a continuing criminal enterprise offence, to a maximum term of imprisonment of 2 times the length of the maximum term prescribed for the offence or 25 years, whichever is the lesser’.
Factual background to offences on the trial indictment
All of the offences in the trial indictment occurred between 5 May 2004 (charge 1) and 1 February 2005 (charge 30).
At relevant times the applicant was employed by Independent Truck Bodies Pty Ltd (‘ITB’). ITB also operated under the business name VTB Coachworks (‘VTB’). ITB was involved in the fit out of fire trucks and other emergency vehicles.
The applicant commenced work with ITB in 1997 as the State Sales Manager. He was appointed director on 16 September 2000, and remained so throughout the relevant period. Other directors were ITB’s founder, Robert Spicer, together with Anthony Robinson and Andrew Osborne. After a time the applicant came to own fifty per cent (50%) of ITB’s shares. A trust controlled by Robert Spicer owned the other fifty per cent (50%).
Maureen Newbound began employment with ITB in 1999 as the administration clerk. She gave evidence in the prosecution’s case at trial as an indemnified witness.
ITB had, since 1996, had an overdraft facility, in one form or another, from the National Australia Bank (‘NAB’). In March 1999 the overdraft took the form of a ‘NAB Debtor Finance Facility’ of $400,000 (‘NDFF’), and operated through a designated account with NAB. The purpose of the NDFF was for the company to present invoices to the NAB which would, on certain terms and conditions, pay ITB eighty per cent (80%) of the invoice value up to $400,000. Customers of ITB were required to pay any amount invoiced within 90 days. If it was not paid on time, NAB would require ITB to repay any amount it had previously advanced.
At different times the NDFF’s amount increased, so that in November 2000, it increased from $400,000 to $800,000; in September 2002, it increased to $1,500,000; and in April 2004, it increased to $1,600,000. The NDFF was partially secured with a mortgage debenture over ITB’s assets; and partially by personal guarantees from the directors, that were from time to time secured by mortgages over the directors’ homes (including the applicant’s).
ITB made various warranties to the NAB in security documents about the debts factored under the NDFF. In particular, a debt was required to be bona fide, owing by a customer, and ‘valid, enforceable and subsisting for the face invoice value’. The debt could not be voidable, and the company was to have good and valid title to the debt.
So as to maintain the NDFF, ITB was from time to time required to disclose its financial position to the NAB. Naturally, the NDFF account balance would fluctuate according to ITB’s expenses, or where more invoices were factored to the NAB. Invoiced customers were to pay one hundred per cent (100%) of the invoice value into the NDFF account. NAB would then make eighty per cent (80%) of the value available to the company, and the remaining twenty per cent (20%) was held by NAB as security. Once payment was received from the customer, the twenty per cent (20%) retention was recalculated and released monthly to the company. NAB charged a fee. After the 90 day payment time limit expired, NAB would claim back from ITB the amount initially funded, reducing the limit available in the NDFF account. In January and February 2004 the applicant obtained a variation of the NDFF terms from NAB to increase the time limit from 90 to 120 days.
Maureen Newbound was responsible for supplying invoice details to NAB. She did so monthly, at first with spreadsheets on Quickbooks software used by ITB, and later on Excel software not linked to it. At some point Ms Newbound began to maintain three separate spreadsheets in relation to debtors. The first recorded the true position; the second recorded those debtors factored through the NDFF; and the third recorded debts removed from the NDFF but not paid by the debtor. Debtors whose invoices were not factored through the NDFF were advised to pay into another account initially set up with the Bank of Melbourne but then merged into Westpac (the ‘Westpac account’).
In the middle of 2004 ITB was experiencing cash-flow problems, and had reached the NDFF account limit. Adding to its woes was a considerable liability for unpaid tax. Mr Osborne, who was the accountant, director and a shareholder, was dismissed. External accountant Michael Williams was retained for advice. It was against this backdrop that the applicant’s offending occurred.
I will turn shortly to the basic facts of each offence. Before doing so, however, it should be noted that the prosecution alleged that the applicant acted alone in the commission of the offences the subject of seven charges (charges 3, 6, 11, 20, 21, 24 and 27); that, as the trial judge put it, he used Ms Newbound ‘effectively as an innocent agent, or a dupe’, with respect to 11 offences (charges 1, 2, 4, 5, 7, 8, 9, 10, 12, 15 and 16); and, with respect to seven offences, ‘whilst engaged in a joint criminal enterprise’ with Ms Newbound (charges 13, 14, 17, 18, 28, 29 and 30).
In April and May 2003, ITB made some vehicles for the ACT Department of Justice and Community Safety (‘the Department’). A quote was obtained for a Mercedes Sprinter vehicle for radio relay and forward command, but no purchase order was made for supply of the van to ITB or to the Department. Despite this, for the purpose of having NAB release funding, on or about 5 May 2004 the applicant instructed Ms Newbound to prepare two bogus invoices — D3205 for supply of the van for $63,482.65, and D3206 for the van’s fit-out, totalling $64,968.20, (charge 2 — make false documents). Ms Newbound also sent an invoice statement to the NAB attaching these invoices, and included the quotation to explain the invoices (charge 3 — make false document). The invoice statement contained the certification: ‘I M T Newbound on behalf of the vendor hereby certify that the goods shown on the attached invoices have been delivered and accepted by and that the services shown on the attached invoices have been performed to the satisfaction of the customer shown therein’ (charge 1 — furnish false information, a continuing criminal enterprise offence). I should pause to note that all invoices sent by Ms Newbound contained the same certification. NAB accepted the invoice statement and attachments as legitimate, and increased the funding available to the company by $110,375.53 (charge 4 — obtain financial advantage by deception, a continuing criminal enterprise offence). Further, on 28 May 2004 Ms Newbound forwarded a summary for ITB to NAB which showed that $162,215.35 was owing to the company by the Department (charge 5 — furnish false information). On the basis of this summary, the NAB increased the funding limit by $39,114.29.
A month later, on 2 July 2004, Ms Newbound furnished the monthly certificate for June 2004, which attached an accounts summary.The summary showed that $162,215.35 was owing by the Department, and $128,450.85 was recorded as outstanding in the 31 to 60 day category. On this basis, NAB increased the available funding to the company by $138,118.44 (charge 7 — furnish false information, a continuing criminal enterprise offence).
In April and May 2004, applicant sent by email three invoices, D3187, N2873 and N2874, totalling $268,500, to the Victorian State Emergency Service (‘SES’), for 14 Hino cab chassis. The SES paid $286,500 to ITB. The invoices were not factored. An identical sum was paid into the NAB account (charge 6 — obtain property by deception, a continuing criminal enterprise offence). Invoices directed to the SES, D3306 and D3307, were issued by the company and factored to the NAB by Ms Newbound. They were not paid by the SES. The NAB increased the available funding to the company by $372,290.36 (charge 8 — obtaining financial advantage by deception). An invoice statement was sent by Ms Newbound to NAB on 27 July 2004, attaching copies of invoices to the SES that were not paid by the SES. The NAB increased the funding available on the basis of the invoice statement (charge 9 — obtaining financial advantage by deception, a continuing criminal enterprise offence). An end of month statement was furnished to the NAB in July 2004. It showed that $162,215.35 was still owing by the Department, when in fact $128,450.85 related to earlier false invoices. It also showed an amount of $429,335.25 owing by the SES, which was partly false (charge 10 — furnish false information, a continuing criminal enterprise offence). The applicant represented to the SES that the company had received 14 Hino cab chassis, that the company had paid for those chassis by bank guarantee, and upon payment of invoices ownership and title of the chassis would transfer to the SES. Thus the SES paid $447,500 into the company’s Westpac account on 1 September 2004 (charge 11 — obtaining property by deception, a continuing criminal enterprise offence).
A certificate of debtors and monthly accounts summary was furnished to the NAB on 31 August 2004. It showed a sum of $162,215.35 owing by the Department, including $128,450.85 (the subject of charges 2 and 4). It also showed $981,113.70 owing by the SES, being an increase from $429,335.25 the previous month, since it included the chassis invoice payments (the subject of charge 11). On this basis, NAB increased the funding by $53,882.47 (charge 12 — furnish false information, a continuing criminal enterprise offence).
On 3 September 2004, Ms Newbound furnished an accounts summary to the NAB showing payments purportedly received from 120 day debtors. The amounts on the summary had not in fact been received. If amounts were not received from a 120 day debtor, the NAB was entitled to ask for repayment from the company. On the basis of the summary the NAB increased the available funding to $148,231 (charge 13 — furnish false information). A few days later, on 7 September 2004, Ms Newbound sent a list of 90 and 120 day debtors to the NAB. She asked for an early release of retention from the bank. Further funding was released by the NAB, although it was unclear how much funding (charge 14 — obtain financial advantage).
On 28 September 2004, Ms Newbound sent an invoice statement to NAB attaching a false invoice to the Department of Defence for $280,498.70. This invoice was factored with the NDFF (charge 15 — furnish false information, a continuing criminal enterprise offence). (The offending in charge 15 arose out of the offending in charge 27, which will later be described). The NAB made available $226,396.05 in funding (charge 16 — obtain financial advantage by deception, a continuing criminal enterprise offence).
A little over a week later, on 6 October 2004, a certificate of debtors was furnished by Ms Newbound to NAB which included the Department for $128,450.85 (relevant to charges 1 to 4); the SES for $935,110.96, notwithstanding its previous payment of $447,500; and the RAAF for a fire truck for $280,498.70 (relevant to charge 16). The funding limit was increased by $29,153.15 by the NAB on this bases (charge 17 — furnish false information).
The next month, on 6 November 2004, Ms Newbound gave NAB a certificate of debtors which named the same debtors as in that of the previous month, and included a new debtor, Barwon Water, for $62,666. The NAB increased funding to $110,700.19 (charge 18 — furnish false information, a continuing criminal enterprise offence).
An invoice was sent to the SES for 14 bull bars for $43,890 on 29 October 2004. The amount was paid on 22 November 2004. The SES paid the invoice into ITB’s Westpac account (charge 20 — obtaining property by deception).
Two invoices purported to be from a supplier of parts and equipment, Australian Tipping Systems, were included in a letter sent by the applicant to the Department of Defence on 19 November 2004, so as to induce payment of $420,420 to ITB (relevant to charge 27) (charge 21 — make false document).
Documents from another supplier of parts and equipment, Kempe Tri Valve, were sent to the Department of Defence by the applicant to induce payment of $420,420 to the company (charge 24 — make false document).
On 3 December 2004, the applicant made representations to the Department of Defence seeking payment in advance for two fire trucks that ITB was to supply and fit. A contract was entered into in writing between ITB and the Department of Defence for the company to supply and fit two fire trucks. It was signed on 20 July 2004 by the applicant on behalf of ITB. Nine days after the contract was signed, and before any trucks were delivered to the company or any work on them had commenced, the applicant had Ms Newbound issue invoice N200 for a total sum of $429,000 for the cost of the two cab chassis and the two Darley pumps and Hatz engines. The invoice was soon after rejected by the Department of Defence because the contract did not provide for milestone payments. Thereafter there were negotiations pressed by the applicant on behalf of the company to have the Department of Defence agree to the payment of milestone payments notwithstanding what was provided for in the original contract. Having secured from the Department of Defence agreement for milestone payments, the applicant agreed to a reduction in the amount of the original invoice and an amended invoice bearing the same number as the original invoice, N200, was issued by the company but dated 18 November 2004. On 25 November 2004 the Department of Defence transferred an agreed sum of $420,420 into the Westpac account. Payment of the amended invoice to ITB was obtained by the applicant’s deception, including by false representations made in letters and correspondence and discussions with various persons from the Department of Defence that ITB had paid for two Hino Cab Chassis when it had not done so. The applicant also represented that on payment of the amended invoice property to the cab chassis and various other parts and equipment to be fitted to them would pass to the Department of Defence. The amount of money obtained was $420,420.00 (charge 27 — obtaining property by deception).
Three charges of furnishing false information relied on the same factual evidence, only their dates differing. Each related to the giving of an end of month certificate of debtors and an Accounts Receivable Ageing Summary to NAB, being the end of November summary lodged on 7 December 2004 (charge 28); the end of December summary lodged on 23 December 2004 (charge 29); and the end of January summary lodged on 1 February 2005 (charge 30).Each of these documents embraced by the charges was false because each aged debtors’ listing continued to carry forward as debtors ACT Department of Justice for $128,451.85, the RAAF Department of Defence for $280,498.70, SES for $935,110.96 and Barwon Water in the sum of $62,666.00, when the debt recorded for each respective debtor was in fact based on a false invoice or the amount recorded as owing had in fact been paid and the cheque banked into the Bank of Melbourne account.
NAB paid out with respect to the offending in charges 1 to 4, at least $101,000; with respect to charges 8 and 9, a further sum in excess of $170,000.00; and on charges 15 and 16, a further sum in excess of $220,000.00. SES, by reason of the offending, paid out with respect to charge 6, $268,500; charge 11, $447,500.00; and charges 19 and 20, $43,890. The Defence Department, by reason of the conduct on charge 27, paid out $420,420.00. Further, the furnishing false information charges also resulted in large sums of money being advanced by the NAB to the company in the NDFF.
Circumstances of the charge on the plea indictment
I have discussed in some detail — perhaps more detail than necessary — the background of the offences embraced by the first indictment upon which the applicant stood his trial. As I earlier observed, the applicant also pleaded guilty to a charge of obtaining property by deception contained in a second indictment.
On 8 August 2007 a company called Suttee Global Pty Ltd (‘Suttee’) was incorporated and the applicant became its director and general manager. Suttee manufactured tilt trays for trucks.
In July 2008 Falconet Pty Ltd placed an order with Suttee for manufacture of two tilt trays to be fitted to chassis owned by that company. The costs of each tilt tray was $75,000, and a deposit of $37,950 was paid. Suttee commenced the manufacture but was delayed. Before the trucks were completed the applicant instructed an employee, Joiner, to tell the customer the trucks were complete and to request payment. Invoices were issued and the applicant contacted the customer and represented the trucks were complete and would be released upon payment. Payment was made by the customer of $130,603.00 to Suttee which was soon after placed into administration before the trucks were completed. The customer would not have paid over $130,603.00 were it not for the applicant’s deception that the trucks were in fact complete.
Applicant’s submissions on the plea
It was submitted that one of the important aspects of the offending is that it was not for personal gain. There has been no suggestion that the applicant lived a lavish lifestyle or that he was personally enriched to a point where it was greed and nothing less that created the offending.
Counsel argued that there should be some cumulation for charges involving one type of offending or a particular party. The totality principle must be applied so that the sentence is not a crushing. It was acknowledged that general deterrence was a major factor as is specific deterrence.
Verdins[7] principles were not invoked. The report from a psychologist Salli Trathen details the breakdown of the applicant’s marriage of 28 years. His wife also suffered financially having given a guarantee in a transaction relating to the company the subject of the offence to which the applicant pleaded guilty. The applicant has an extraordinary ability to coach basketball having coached basketball teams from local competitions all the way through to state level competitions. The report from Ms Trathen noted that the applicant had grown up in a fatherless home (his father having died when he was young) and that he was dyslexic.
[7]R v Verdins (2007) 16 VR 269; (2007) 169 A Crim R 581; [2007] VSCA 102.
The reasons for the offending come about through some want or desire to keep 30 staff employed, two factories running, a commitment to the clients, and a desire to keep the face of the company, and its respectful position within the industry, alive. The company had no financial basis to support itself, it grew too quickly and was overcommitted. There has been considerable delay due to a number of factors. Delay plays on a person’s mind. If a person is under the threat of charges, that that itself is a punishment. The effect of delay in conjunction with the breakdown of the applicant’s marriage and the effect on his personal life is significant.
Counsel pointed out that the applicant has been appointed head of his billet and peer group educator at Melbourne Assessment Prison. He will be unable to visit his 86 year old mother who is about to move into some form of accommodation. She is not well enough to visit him. The family home was sold for $1.27 million yielding some dividend to creditors in his Part X arrangement after the mortgage was paid out to NAB.
It was submitted that any non-parole period should be such that he can enter back into the community at some point without it being so overwhelming and crushing.
Prosecution submissions on the plea
The prosecution indicated it was in a position to offer a sentencing range, but the trial judge indicated he would not trouble the prosecution as to range.
Delay over the period between the record of interview of 17 December 2008 and the issue of the charges on 1 October 2009 was explained by the informant being transferred over to a taskforce that was addressing bushfire related issues.
Sentencing remarks
The judge made plain that the applicant was not being penalised for pleading not guilty; and it was to the applicant’s credit that he did plead guilty to one charge. The plea not only saved the costs of the trial, and saved a number of witnesses from appearing, but it was also an expression of genuine remorse in respect of that offending.
There were relevant prior convictions. In 1994 the applicant pleaded guilty to three counts of obtaining property by deception, one count of falsifying books and records, and one count of failing to act honestly as a director of a company. For that he was sentenced to a term of imprisonment of two years and was directed to serve a minimum term of one year. That offending, the judge noted, had a striking similarity to the present offending. The applicant had not been deterred from re-offending by the sentence previously imposed. The present offending was similar in nature, but was on a larger scale, causing a great deal of loss. It involved large amounts of money. Proper regard need be had to the principle of specific deterrence.
By his offending the applicant managed to keep what appears to have been a company with a good business product but which was hopelessly managed and lacking in equity capital solvent for longer than it should have. This was partially to the applicant’s benefit because he continued to draw a good wage and, whilst the company remained operating, the appointment of a receiver and ultimately an administrator and a liquidator was forestalled and his personal guarantee was not called upon until the company collapsed.
The judge expressed the view that the applicant would lie at any time it suited his purposes. His Honour considered that the applicant’s evidence was a litany of lies, many of them made up in the witness box.
It was accepted that the need for cash flow motivated the offending not a lavish lifestyle, and that the applicant was generally hard working (although not responsible). The judge accepted that the applicant was motivated to succeed, but that insofar as that motivation lead to the offending it was misplaced.
The judge noted that as a result of the failure of the company the applicant had entered Part X bankruptcy. His Honour also accepted evidence that until a few years ago the applicant was a good family man who contributed to the community especially involving himself in coaching his sons and other children in basketball at a high competition level; that at times he had been prepared to help others when needed; that he accepted that he had made poor moral and ethical choices over some years and this has had a demoralising impact on him and his family.
As to prospects of rehabilitation, the judge expressed the view that the fact that the applicant had offended in a similar way on three separate and discrete occasions, means that the best that can be said is that his prospects for rehabilitation must remain guarded.
The judge noted that it had not been suggested Verdins principles applied.
Any allowance by way of reduction in sentence on account of delay, the judge thought, could only be minimal. The delay was in part caused by the nature of the offending and the resources required to investigate it. Further, the effect of any delay was ameliorated to some extent because of the fact that the applicant re-offended during the course of the delay. It cannot be said, the judge observed, that any the delay had prevented the applicant from getting on with a normal life. The applicant used the delay to re-offend and that is a significant factor. Thus any reduction on that account should only be modest.
His Honour observed that the sentence imposed must express the court’s denunciation of this type of offending. This kind of offending is very serious and the sentence imposed must reflect a proper application of the principle of general deterrence. Because of the prior offending in 1994, and the offending subsequent to that in the trial indictment, the sentence imposed must give proper application to the principle of specific deterrence. The judge also had regard to current sentencing practices for this kind of offending. In particular, he had regard to Sentencing Snapshots 18 and 19 published by the Sentencing Advisory Council dealing with sentencing trends for the offences respectively of obtaining financial advantage by deception and obtaining property by deception for 2001/2 and 2005/6. His Honour also took into account a chart, ‘Fraud Sentences Involving $1M+’, provided as part of the prosecution submissions.
Grounds of appeal against sentence
There were three grounds of appeal against sentence:
1. The sentencing judge took insufficient regard as to the personal circumstances of the Applicant causing the sentence to be overwhelming and crushing on the Applicant.
2. The sentencing judge failed to give proper mitigatory weight to the period of delay in the matter being brought to trial. The sentencing judge misstated the Applicant’s position as to the delay and indicated that the Applicant as a means to re-offend deliberately used the delay.
3. The sentences imposed by the sentencing judge were manifestly excessive or infringed the principle of totality.
In the course of oral argument, however, counsel for the applicant accepted that grounds 1 and 2 were in reality ‘particulars’ of ground 3.
The applicant’s submissions: application for leave to appeal against sentence
Counsel confirmed that no attack was made on the individual sentences on each charge, and conceded that the individual sentences were within the range open to the judge in the proper exercise of the sentencing discretion. Rather, the applicant’s counsel contended that, when the offending is viewed overall, the head sentence and non-parole period were, as a result of the orders made for cumulation, manifestly excessive.
Put at the forefront of counsel’s submissions were the contentions that the judge had not sufficiently taken into account that the applicant was not motivated by personal gain, or the delay attending finalisation of the charges. Totality, it was submitted, had been infringed, so that the sentence was ‘disproportionate to the applicant’s overall criminality’.
The application relating to sentence cannot be upheld
A head sentence of 10 years’ imprisonment, with a non-parole period of seven (7) years, is certainly stern. I remind myself, however, that although I might not have imposed a sentence of the same order if sentencing at first instance, that is not to the point. Before appellate intervention is warranted, the applicant must demonstrate that the sentence passed is manifestly excessive. After much hesitation, although in my opinion the sentence must be seen at the very upper limit of the available range, I have been unable to conclude that either the head sentence or non-parole period are manifestly excessive.
Whether a sentence is or is not manifestly excessive, it has frequently been observed, does not admit of much argument.[8] A sentencing judge instinctively synthesises all relevant features and arrives at a sentence which he or she thinks appropriate. An appellate court approaches the task of assessing whether a sentence is manifestly (as opposed to merely arguably) excessive in much the same way. The members of the appellate court synthesise all relevant factors.[9] In doing so, however, even should the appellate court regard the impugned sentence as stern, or even if the members of the court would not themselves have passed the same sentence, appellate intervention is not justified unless the sentence under consideration is so outside the range of those open in the sound exercise of discretion as to bespeak error.[10] As I have said, although the sentence is stern, I am unpersuaded that it is manifestly excessive.
[8]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v The Queen [2013] VSCA 4, [12]; Allen v The Queen [2013] VSCA 44, [51]–[52]. See too Dinsdale v The Queen (2000) 202 CLR 321, [6].
[9]Ibid.
[10] Lowndes v The Queen(1999) 195 CLR 665, 671–672 [15].
Whilst regard must be had to current sentencing practices,[11] it is unprofitable in this case to spend too much time comparing sentences passed by judges at first instance, or reviewed by this Court, in other cases of dishonesty. Each case must, of course, turn on its own particular facts. Thus, it is not difficult to find cases where the sentences approximate that passed in this case, yet the amount peculated has been far in excess of the sums involved in the applicant’s offending.[12] A significant distinguishing feature common to most of those cases, however, is that, unlike this case,[13] the sentences were imposed after a plea of guilty.
[11]Sentencing Act 1991, s 5(2)(b). See Ashdown v The Queen (2011) 219 A Crim R 454; Stalio v The Queen [2012] VSCA 120.
[12]R v De Stefano [2003] VSC 68 (10/7; $8.6m); R v Fernandez [2006] VSCA 38 (10/7; $13m); cf v Walsh (2002) 131 A Crim R 299 (10/7; $60m). See also R v Roussety (2008) 24 VR 253 (11.2/8; $15m); R v Yusuf [2010] VSCA 266 (12/9; $7m); Day v The Queen [2011] VSCA 243 (11/8; $13m); Koch v The Queen [2011] VSCA 435 (9.10/7.6; $922k); Hoy v The Queen [2012] VSCA 49 (13.9/9; $16m); Hemsley v The Queen [2013] VSCA 114 (9.4/7).
[13]Save for the plea on the second indictment.
That does not mean, of course, that the applicant is to be punished for pleading not guilty,[14] or that the sentences are aggravated on that account.[15] It is merely a recognition that an important mitigating feature — a plea of guilty — which ordinarily leads to significant amelioration of sentence, was absent from this case. Frauds of this nature are difficult to investigate and difficult to prosecute. Frequently large volumes of documents are involved and, where a person exercises his or her right to trial, often a great deal of court time is occupied in bringing the case to verdict (this case, for example, occupying 36 sitting days). Sentencing courts usually reflect the undoubted utilitarian benefits of guilty pleas in such cases by substantially moderating any sentence to be imposed. Indeed, pleas of guilty in cases such as this should result in real and palpable discounts. The applicant did not have available to him, however, the mitigation that flows from a plea of guilty. Thus, although many of the cases involving larger frauds have resulted in not dissimilar sentences, simply to focus on the sums involved does not take one too far.
[14]R v Gray [1975] VR 225; R v Marijancevic (1991) 54 A Crim R 431; R v Yam (1991) 55 A Crim R 116; R v Watkins (2001) 120 A Crim R 565.
[15]Siganto v The Queen (1998) 194 CLR 656.
As I have said, delay was put to the fore by the applicant’s counsel. Ordinarily the importance of delay lies in any observable steps towards rehabilitation, and in the offender having the Damocletian sword hanging over his or her head, during any period of delay.[16] In this case the judge took into account the ameliorating effects of delay, but thought that they had to be tempered by the applicant’s offending during the period of the delay. I detect no error in the judge’s approach, and cannot see that the sentence passed reflects a failure to afford the delay adequate weight. Indeed, given that the applicant took the opportunity to commit another offence of dishonesty during the period intervening between the commission of the offences on the trial indictment and their resolution, at best the prospects of rehabilitation were, as the judge observed, ‘guarded’.
[16]R v Tiburcy (2006) 166 A Crim R 291; R v Merrett (2007) 14 VR 392, 400–1 [34]–[38].
Moreover, the applicant did not have good character which he could call into play. In 1994 he had been imprisoned for two years (with a non-parole period of one year) for strikingly similar offences. That period of imprisonment had not deterred him from the commission of the instant offences. Plainly the need for specific deterrence loomed large in this case, and had to be given significant weight in the
exercise of the sentencing discretion.
Further, it was not an irrelevant consideration that on many of the charges the applicant fell to be sentenced as a continuing criminal enterprise offender,[17] so that the maximum penalty available on those charges was 20 years’ imprisonment. That maximum was a guide to the seriousness of those offences,[18] and needed to be taken into account when arriving at a proper sentence.
[17]R v Roussety (2008) 24 VR 253; R v Faneco [2009] VSCA 110; Cay v The Queen (2010) 29 VR 560.
[18]Markarian v The Queen (2005) 228 CLR 357.
Finally, there is nothing in the applicant’s personal circumstances which suggests that the sentence passed upon him is outside the range of those properly open. Although at one point the applicant’s counsel submitted that the sentence was ‘crushing’, given that the applicant is now 56 years of age, with no known physical ailments likely to curtail his life span, a suggestion that the present sentence is crushing in the relevant sense[19] simply cannot be sustained.
[19]R v Yates [1985] VR 41; R v Bazley (1993) 65 A Crim R 154; R v Cumerbatch (2004) 8 VR 9, 13 [11]–[12].
In light of these factors, in my opinion the sentence imposed was one that was open to the sentencing judge in the proper exercise of discretion.
Conclusion
For these reasons the application for leave to appeal against sentence must be refused.
COGHLAN JA:
I too agree that leave to appeal against sentence should be refused for the reasons expressed by Priest JA and otherwise join in with his Honour's remarks.
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