Petkov v The State of Western Australia - [2019] WASCA 171

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PETKOV -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 171
CORAM:   QUINLAN CJ
BUSS P
MITCHELL JA

HEARD:   9 AUGUST 2019
DELIVERED          :   5 NOVEMBER 2019
FILE NO/S:   CACR 196 of 2018
BETWEEN:   DANIEL PETKOV
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number             :   IND 685 of 2018

Catchwords:

Criminal law - Appeal against sentence - Stealing as a servant - Appellant a bank manager - Total amount of about $3.7 million stolen over a period of more than 18 months - Plea of guilty - Undiagnosed mental illness - Causal connection between the mental illness and the offending - Sentence of 5 years 6 months' imprisonment - Manifest excess

Legislation:

Criminal Code (WA), s 378(7)

Result:

Leave to appeal granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr T F Percy QC
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	Director Of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Brennan v The State of Western Australia [2010] WASCA 19
Collins v The State of Western Australia [2007] WASCA 108
Dimanopoulos v The State of Western Australia [2011] WASCA 62
Grubb v The Queen [2002] WASCA 158
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pflug v The State of Western Australia [2018] WASCA 65
Pollock v The State of Western Australia [2011] WASCA 133
R v Black [2002] WASCA 26
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Reynolds v The State of Western Australia [2010] WASCA 60
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Bianco [2007] WASCA 197
The State of Western Australia v Chapman [2012] WASCA 203
The State of Western Australia v Doyle [2017] WASCA 207
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Wilkie v The State of Western Australia [2005] WASCA 156
Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted, on his plea of guilty in the District Court, of one count in an indictment.
The count alleged that between 1 July 2016 and 14 February 2018 at Cloverdale, the appellant, being a servant of Westpac Banking Corporation (Westpac), stole the sum of $3,674,495.92, which came into his possession on account of his employer, contrary to s 378(7) of the Criminal Code (WA) (the Code).
On 28 September 2018, Prior DCJ sentenced the appellant to 5 years 6 months' imprisonment, with eligibility for parole. The sentence took effect from 28 September 2018. His Honour also made an order for compensation in the sum of $3,674,495.92.
The appellant has appealed on the ground that the sentence of 5 years 6 months' imprisonment was manifestly excessive, having regard to four considerations. Those considerations are: the plea of guilty, the appellant's personal circumstances and antecedents; the appellant's mental health; and sentences imposed in broadly comparable cases. Originally, the appellant relied on another ground of appeal, but that ground was abandoned at the hearing on 9 August 2019.
On 24 December 2018, Mazza JA referred the appellant's application for leave to appeal to the hearing of the appeal.
We would grant leave to appeal. However, the ground of appeal has not been made out and the appeal must therefore be dismissed.

The facts and circumstances of the offence

The facts and circumstances of the offence are set out in a statement of material facts dated 7 May 2018. The prosecutor read aloud the statement at the sentencing hearing. The sentencing judge incorporated the statement into his sentencing remarks. The material facts, as set out in the statement, are as follows.
The appellant had been employed by Westpac since September 2007. He held various positions within the bank until 2010 when he became a bank manager. In April 2013, he was appointed as bank manager at the Belmont branch of Westpac. He held this position until 27 February 2018.
As bank manager, the appellant supervised other staff and the daily running of the Belmont branch. He held a position of responsibility, having access to financial records and cash reserves.
The appellant developed a gambling addiction. In July 2016, he began to steal from Westpac. Initially, the appellant stole amounts of about $50,000 at a time. However, during the last 6 months of 2017 and in early 2018, the amount stolen increased to about $200,000 at a time.
The appellant hid cash in unauthorised locations within the Belmont branch and removed the cash after hours when other staff and customers had left. He falsely balanced the treasury holdings of the branch to conceal his actions. Later, the appellant electronically transferred funds to the automatic teller machine (ATM) at the branch, entered false balance entries into the ATM and stole the cash. The appellant also transferred funds from internal suspense accounts at the branch in order to balance the ATM. The appellant used his knowledge of Westpac's internal systems and accounting procedures to conceal his actions. The appellant engaged other staff to assist him in these procedures. The other staff were unaware of his offending behaviour and believed they were carrying out legitimate duties under his direction as bank manager.
On 13 February 2018, the appellant's manager noticed that the ATM balances at the Belmont branch were unusually high. The following day, the appellant took leave and obtained legal advice. On 15 February 2018, the appellant provided police with a signed statement through his lawyer in which he admitted having stolen about $3.7 million from Westpac.
In his statement to the police, the appellant said that he 'took advantage of a flawed system within Westpac'. He disclosed his gambling addiction and that he was an alcoholic. He said that he had experienced considerable stress in his employment at Westpac, and had been involved in a toxic personal relationship involving emotional and physical abuse.
On 23 February 2018, Westpac terminated the appellant's employment. On 1 March 2018, the appellant was charged with the offence. At the time of sentencing, Westpac had not recovered any of the stolen money, the appellant having lost it all through gambling.

The sentencing judge's sentencing remarks

After summarising the facts and circumstances of the offending, the sentencing judge made other findings and observations in his sentencing remarks as follows.
The appellant was aged between 35 and 37 years at the time of the offending and was 37 when sentenced.
After leaving school, having completed year 10, the appellant worked as a kitchenhand at a fast food chain. He continued to hold positions in the hospitality industry until he commenced employment with Westpac at the age of about 27. At Westpac, his first position was as a teller and a personal lending officer. Later, he became a team leader, and then a branch manager at various locations. He was seconded as an area manager, managing up to 13 Westpac branches for 8 months, before beginning working as the manager of the Belmont branch where the offence occurred.
The appellant lived with his parents at the time of sentencing. He is single and has no dependants. Prior to the offending, he had been in a relationship for about a year in which his partner was emotionally and physically abusive towards him. As a result, the appellant sought psychological treatment in relation to his leaving this relationship and was diagnosed with post‑traumatic stress disorder (PTSD).
At the time of his offending, the appellant had a significant gambling addiction and was an alcoholic. The appellant's gambling began at the age of 21. He went to casinos. This behaviour was triggered by work and personal stresses. The appellant gambled on slot machines for periods of up to 16 hours and, on occasion, over a number of consecutive days. After admitting the offence, the appellant excluded himself from the Crown Casinos in Melbourne and Perth.
After being charged with the offence, the appellant sought psychiatric assistance. He spent four weeks as an inpatient at the Marian Centre, where he was diagnosed with bipolar affective disorder. At the time of sentencing, the appellant was in remission, and was taking prescribed antipsychotic and mood stabilising medications.
The sentencing judge had before him two psychiatric reports and a psychological report. The appellant's treating psychiatrist at the Marian Centre, Dr Lynette Bennett, was of the view that the appellant was suffering from 'bipolar affective disorder, with some periods of psychosis, PTSD, generalised anxiety disorder and [consumption of] alcohol to excess'. Dr Bennett expressed her opinion that the appellant was suffering from bipolar affective disorder at the time of the offending, and that there was a 'clear causative link between [the appellant's] offending and his psychiatric condition'. The appellant was 'disconnected with [his] thoughts … imagining [he] was different people … doing different things'. Dr Bennett's report also referred to the appellant's history of self-medicating with illicit substances and his experience in an abusive relationship, which in her view exacerbated his bipolar affective disorder. Dr Bennett was of the view that the appellant was not at risk of re-offending in a similar manner in the future, provided he continues to be treated for bipolar affective disorder.
Another psychiatric report was provided by Dr Stephen Proud, who had conducted a clinical interview with the appellant. Dr Proud was also of the view that the appellant suffers from bipolar affective disorder, and requires ongoing treatment for it. As regards the relationship between the appellant's mental illness and his gambling addiction, Dr Proud said it was difficult to know 'whether his gambling disorder is independent or secondary to his untreated bipolar disorder'. Dr Proud did not give an opinion as to whether the appellant's mental illness was causative of his offending, but said that '[b]y far the biggest risk for him reoffending is him being non-compliant with bipolar treatment or consuming alcohol again'.
A psychological report was provided by a clinical psychologist, Ms April Kane. When the report was written in September 2018, the appellant had been a patient of Ms Kane for approximately 6 months on a weekly to fortnightly appointment basis. Ms Kane outlined the appellant's family history of mental illness. Ms Kane was of the opinion that the appellant was 'certainly suffering from a manic episode (with probable episodes of psychosis) at the time of his offending' and that his offending was 'directly related to his manic episode'. Ms Kane was also of the opinion that the appellant was likely suffering at the time from PTSD and generalised anxiety disorder symptoms in relation to the abusive relationship, although in her opinion these disorders were less relevant to his offending.
The sentencing judge made findings as to the connection between the appellant's bipolar affective disorder, his gambling addiction and his offending as follows.
His Honour found that the appellant's gambling addiction was due to his undiagnosed and untreated bipolar affective disorder, and his being in a manic phase of that disorder (ts 31). To fund his gambling, the appellant started stealing from Westpac. This occurred shortly after the breakdown of the abusive relationship. His Honour also found that the appellant's 'mental illness… had a direct impact on [his] offending behaviour' (ts 34).
His Honour noted that the appellant was obsessive about exercising at the gym and at the time of the offending was taking a stimulant known as creatine. He was working 10 to 12 hours a day and was using various supplements to boost his energy.
Since receiving treatment and medication from February 2018, the appellant no longer felt the need to gamble or consume alcohol.
The sentencing judge referred to character references from close friends of the appellant, which described the appellant as hard working, diligent and honest. Letters written to the court from members of the appellant's family described mental health issues within his family.
His Honour said the following circumstances were aggravating:
(a)the offending occurred over 20 months, and was persistent and planned;
(b)the offending involved a significant and continuing breach of trust, the appellant being a long‑serving employee of Westpac and in a position of seniority and trust as 'the most senior person in [the] branch' (ts 15, 33);
(c)the appellant actively manipulated Westpac's systems to conceal his theft;
(d)the appellant involved staff members of the branch in his offending and as a result they were interviewed and investigated about various transactions they had been involved with; and
(e)the total amount of money stolen was 'very substantial' (about $3.7 million) and none of the money had been recovered by Westpac from the appellant (ts 33).
The sentencing judge said the following circumstances were mitigating:
(a)the appellant's cooperation with the investigating authorities, in particular his statement to the police in which he admitted the offence and outlined how he had stolen the money in an attempt to assist Westpac to remedy defects in its procedures;
(b)the appellant's demonstration of genuine remorse through his plea of guilty at the earliest reasonable opportunity, his statement to the police, the medical reports, and letters provided to his Honour by members of his family, friends and people with whom he had worked;
(c)the appellant was suffering from an undiagnosed mental illness (bipolar affective disorder) and this illness had a 'direct impact' on his offending (ts 34);
(d)the appellant's efforts to rehabilitate himself since his arrest;
(e)the appellant's low risk of re‑offending if he continues to be treated for bipolar affective disorder, as indicated by the medical reports provided to his Honour and accepted by the prosecution (ts 24, 34); and
(f)the appellant's relative lack of a criminal record (he had two previous convictions for drink driving, which the sentencing judge '[put] … aside' (ts 32)) and he was therefore of prior good character.
His Honour gave the appellant a 25% discount for his plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).
The sentencing judge noted that the very substantial amount of money stolen put the appellant's offending in 'a very serious category' (ts 36). His Honour referred to the victims of his offending, being Westpac, the bank's shareholders, the bank's customers and, to an extent, his fellow employees. It was unlikely that Westpac would ever recover the money.
The principal sentencing considerations included appropriate punishment, personal and general deterrence, and the appellant's rehabilitation. General deterrence was given lesser weight in the appellant's case. As to this issue, his Honour said:
I'm satisfied on the material that … the mental illness that you've been diagnosed of has had a direct impact on your offending behaviour. It was not self induced. It lowers your moral culpability or blameworthiness for your offending.
General deterrence which is usually a paramount sentencing consideration for these types of offences can be given lesser weight in your case. You are considered, as I've stated before, now a low risk of reoffending (ts 34).
The sentencing judge concluded that the seriousness of the offending was such that a sentence of imprisonment was the only appropriate sentence. This was accepted by defence counsel. His Honour found that the offence was too serious for any sentence of imprisonment to be suspended. The appellant was then sentenced to 5 years 6 months' imprisonment with eligibility for parole.

The ground of appeal

As we have mentioned, the appellant's sole remaining ground of appeal alleges that the sentence imposed was manifestly excessive having regard to his plea of guilty; his personal circumstances and antecedents; his mental health; and sentences imposed in broadly comparable cases.

Counsel for the appellant's submissions

Counsel for the appellant submitted that the sentence imposed was 'outside the bounds of a broad discretionary judgment for offences of this type and having regard to matters personal to the [appellant]'.
As to the appellant's mental health, counsel argued that '[d]espite the learned sentencing Judge having made some allowance for the mental health condition of the [appellant] … the nexus between the mental health of the [appellant] and the offence was neither adequately acknowledged by the learned sentencing Judge nor adequately reflected in the … sentence imposed'.
Counsel for the appellant referred to Wilkie v The State of Western Australia,[1] The State of Western Australia v Chapman[2] and Pollock v The State of Western Australia[3] in support of the ground.
[1] Wilkie v The State of Western Australia [2005] WASCA 156.
[2] The State of Western Australia v Chapman [2012] WASCA 203.
[3] Pollock v The State of Western Australia [2011] WASCA 133.
In Wilkie, the offender was the manager of a business involved in shipping services. He was convicted on his fast‑track pleas of guilty of 102 counts of stealing as a servant, amounting to more than $1.65 million stolen during a period of 7 years 10 months. There were no drug, alcohol or gambling problems; rather, the funds were used to fund an extravagant lifestyle. He co-operated with police, was a person of prior good character and was remorseful for his offending. His sentence of 5 years' immediate imprisonment was upheld on appeal.
In Chapman, Mr Chapman was convicted after trial of 15 counts, including seven counts of stealing as a servant, seven counts of fraud, and one count of dishonestly obtaining Commonwealth property. He and his co-offender, Ms Johnston, were public servants and used their positions to enrich themselves over a period of eight years. Ultimately, the joint offences of both offenders realised a total sum of more than $1.7 million. The money was used to fund an affluent lifestyle and Mr Chapman was not remorseful for his offending. On appeal by the State, his sentence of 6 years' imprisonment was increased to 8 years' imprisonment. Ms Johnston, who was convicted after trial of 12 counts, was less culpable and had more favourable personal circumstances and antecedents and other mitigation. Her sentence of 2 years 8 months' immediate imprisonment was increased on appeal to 4 years' immediate imprisonment.
In Pollock, the offender was convicted after trial of nine counts of fraud (which carried a lesser maximum penalty of 7 years' imprisonment under s 409 of the Code). The total amount defrauded was more than $3 million and the offending occurred over a period of almost two years. The offender was the managing director of a group of companies. On behalf of the companies, he entered into hire purchase agreements with a bank. His offences involved producing false invoices to the bank, resulting in money being paid to the companies. The offender had a minor history of dishonesty offences under the Corporations Act 2001 (Cth). His sentence of 5 years 4 months' imprisonment was upheld on appeal.
In the present case, at the hearing of the appeal, counsel for the appellant recognised that a 'curious feature' of the appellant's offending is that, unlike in other cases, the appellant was charged with one count rather than multiple counts in relation to each instance of stealing (appeal ts 4). Counsel accepted that although this case involved one count, it was appropriate to examine the total effective sentences imposed in other cases involving multiple counts. Counsel acknowledged, however, that there are no decisions of this court that have involved truly comparable offending (appeal ts 6).

Counsel argued that the appellant's offending was not within or near the worst category of offences of this type, such that a sentence at or close to the maximum penalty of 10 years' imprisonment under s 378(7) of the Code for the one count, before taking into account mitigating factors, would be justified (appeal ts 5 ‑ 6).
Counsel also submitted that sentencing in cases involving stealing as a servant should not be linear in relation to the total amount of money stolen. Where the total amount of money stolen in a particular case is greater than other cases of stealing as a servant, there should be 'a modest increase [in the sentence] having regard to all the circumstances of the case' (appeal ts 14).
Counsel argued that, in the present case, the most that could be said about the seriousness of the appellant's offending is that there was a serious breach of trust, but there was 'nothing which puts [the appellant's offence] in an elevated category of criminality' (appeal ts 6).

Counsel for the State's submissions

Counsel for the State submitted that the appellant had grossly abused the trust that was reposed in him as a branch manager of Westpac.
Counsel referred to Zande v The State of Western Australia[4] as authority for the proposition that, in cases involving stealing as a servant, less weight is generally given to an offender's favourable personal circumstances and antecedents. Counsel submitted that the appellant's prior good character could not properly afford him much mitigation, given the ongoing and persistent nature of his offending.
[4] Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123 [33] (Mazza JA; McLure P & Murphy JA agreeing).
As to the appellant's mental illness, counsel for the State argued that the relevance of the mental illness and its causal connection with the offending were reflected in several findings of the sentencing judge. Counsel did not dispute that there was a causal connection between the appellant's offending and his then undiagnosed and untreated bipolar affective disorder. However, counsel emphasised that the thefts were carried out with such deliberation and planning that the appellant was able to steal very large sums of money without detection for almost two years. Further, counsel contended that the bipolar affective disorder did not prevent the appellant from understanding the moral wrongness of what he was doing.
Counsel submitted that the cases referred to by the appellant reinforced the proposition that the sentence imposed in this case was well within a sound exercise of the sentencing discretion.
In Wilkie, the offender was also a manager who used his position to steal a substantial amount of money. However, he stole less than half the amount stolen in the present case and the offender received a sentence of 5 years' immediate imprisonment.
Similarly, in Chapman, the amount stolen was substantially less than in the present case and Mr Chapman received a sentence of 8 years' imprisonment.
Counsel submitted that Pollock was not comparable to the present case, given that it involved the offence of fraud (which, as we have said, carries a lesser maximum sentence) rather than stealing as a servant, and the fraud was not committed against the offender's employer.
Counsel for the State contended that R v Faithfull[5] bears some similarity to the present case. In Faithfull, the offender was convicted on his pleas of guilty of two counts of stealing as a servant. The total amount stolen was just under $19 million and was stolen over a period of more than five years. The offender's total effective sentence of 5 years' immediate imprisonment was upheld on appeal. Mr Faithfull, like the appellant, was a branch manager of a bank and stole the money to fund his gambling addiction. He had a major depressive disorder with fluctuating symptoms during the period of the offending. Mr Faithfull voluntarily disclosed his offending to his employer and assisted the bank in its investigations and attempts to recover the money. However, counsel submitted that the present case can be distinguished from Faithfull in two key respects. First, it was a State appeal decided when the principle of double jeopardy constrained resentencing if an error in discretion was demonstrated. Secondly, Mr Faithfull voluntarily disclosed his offending to his employer, whereas the appellant in the present case only ceased offending when it was inevitable that his long‑running theft and deception were about to be uncovered.
[5] R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554.

The merits of the appeal

The appellant does not challenge any of the sentencing judge's findings of fact or allege that his Honour made any other express error.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is a yardstick for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Consistency in sentencing means that like cases must be treated alike and different cases must be treated differently. See R v Pham.[6] However, the scope for material differences in each case in relation to relevant sentencing factors, and the weight to be given to them, must be borne in mind. The limits of the guidance afforded by comparable cases are therefore flexible rather than rigid.
[6] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28] (French CJ, Keane & Nettle JJ).
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of a sentencing range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[7] The State of Western Australia v Doyle.[8]
[7] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[8] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[9]
[9] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act.
The statutory principle embodied in s 6(1) of the Sentencing Act that a sentence must be commensurate with the seriousness of the offence reflects the common law principle which requires that a sentence be proportionate to the offence. See Veen v The Queen[No 2].[10]
[10] Veen v The Queen[No 2] [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ), 484 - 486 (Wilson J), 490 - 491 (Deane J).
If offending falls within the 'worst category' of the offence it is an instance of the offence which is so grave that it warrants the imposition of the maximum penalty. Both the nature and facts of the offending and the circumstances of the offender must be considered in deciding whether the case falls within this 'worst category'. If offending falls within the 'worst category' it is immaterial that it may be possible to conceive an even worse instance of the offence. Accordingly, an offence may be so grave as to warrant the maximum penalty even though it is possible to imagine an even worse instance. See R v Kilic.[11]
[11] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18] (Bell, Gageler, Keane, Nettle & Gordon JJ).
Where offending, although a grave instance of the offence, is not so grave as to require the imposition of the maximum penalty, the sentencing judge is obliged to consider where the nature and facts of the offending and the circumstances of the offender lie on the 'spectrum' that extends from the least serious instances of the offence to the 'worst category'. See Kilic [19].
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[12]
[12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
The maximum penalty for the offence of stealing as a servant under s 378(7) of the Code is 10 years' imprisonment. The maximum penalty for the offence of stealing simpliciter is 7 years' imprisonment (s 378 of the Code).
The offence of stealing as a servant is ordinarily more serious than stealing simpliciter because it involves a breach of the trust created by the relationship of employer and employee.[13] Consequently, significant weight is ordinarily accorded to general deterrence with a related reduction in the weight ordinarily given to personal circumstances and antecedents. Ordinarily, as a matter of fact, the appropriate sentence is a term of immediate imprisonment, particularly where the total amount stolen is substantial and involves multiple offences.[14]
[13] Collins v The State of Western Australia [2007] WASCA 108 [24] (McLure JA; Steytler P agreeing).
[14] Pflug v The State of Western Australia [2018] WASCA 65 [55] (Buss P, Mazza & Mitchell JJA); Dimanopoulos v The State of Western Australia [2011] WASCA 62 [19] (McLure P; Buss JA agreeing); Zande [33] (Mazza JA; McLure P & Murphy JA agreeing).
There is no generally appropriate sentencing range for stealing as a servant because of the very wide variety of circumstances in which offences of this kind are committed.[15] It is important, nevertheless, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of ensuring broad consistency.[16]
[15] Chapman [88] (Beech J); see also Pollock [42], [71] (Mazza J; Martin CJ & McLure P agreeing); Brennan v The State of Western Australia [2010] WASCA 19 [32] ‑ [33] (Owen JA; Wheeler & Newnes JJA agreeing); Grubb v The Queen [2002] WASCA 158 [28] (Parker J; Murray & Steytler JJ agreeing); Reynolds v The State of Western Australia [2010] WASCA 60 [10] (McLure P; Owen & Newnes JJA agreeing) and Pflug [56].
[16] Pflug [56].
We have had regard to numerous sentencing dispositions for offences of stealing as a servant, including those cases referenced by the parties,[17] as well as The State of Western Australia v Bianco,[18] R v Black,[19] Brennan, Pflug and Dimanopoulos. However, there are no decisions of this court that have involved truly comparable offending. The appellant was charged with one count rather than multiple counts in relation to each instance of stealing.
[17] Chapman, Wilkie, Faithfull.
[18] The State of Western Australia v Bianco [2007] WASCA 197.
[19] R v Black [2002] WASCA 26.
In the present case, the appellant's offending was very serious. It comprised numerous thefts between July 2016 and February 2018. The offending was premeditated and planned. The appellant used his knowledge of Westpac's internal systems and accounting procedures to conceal his actions. He created false records. The appellant engaged other staff to assist him in his criminal conduct. The other staff were unaware of his offending behaviour and believed they were carrying out legitimate duties under his direction. None of the stolen money has been recovered. The appellant's objective criminality was egregious and a serious abuse of the trust reposed in him by Westpac.
The appellant's offending does not fall within the 'worst category' of the offence of stealing as a servant, so as to warrant the imposition of the maximum penalty. However, his offending, in the context of a single count with numerous thefts over a period of more than 18 months and a very substantial total amount stolen, was so grave that it warranted the imposition of a sentence very close to the maximum penalty before reductions to recognise the mitigating factors.
The appellant was aged between 35 and 37 when he committed the offences and was 37 when sentenced. He was not youthful or inexperienced for sentencing purposes.
The principal mitigating factors were the appellant's plea of guilty (for which he received a 25% discount under s 9AA of the Sentencing Act); his co-operation with the police and with Westpac; his genuine remorse; his undiagnosed bipolar affective disorder which had a direct impact on his offending; his efforts to rehabilitate himself since his arrest; his low risk of reoffending if he continues to be treated for bipolar affective disorder; and the absence of any relevant prior criminal record.
The effect of mental illness or psychological difficulties (falling short of insanity) as a relevant sentencing factor (including the effect of mental illness or psychological difficulties on the kind or length of sentence to be imposed) has been considered by the Court of Criminal Appeal and this court on numerous occasions. See, for example, Smith v The State of Western Australia.[20] It is unnecessary to repeat the applicable principles. It is sufficient to note that, in the present case, the trial judge took into account as a mitigating factor the appellant's mental health, including the appellant's undiagnosed bipolar affective disorder and its causal connection with his offending.
[20] Smith v The State of Western Australia [2010] WASCA 176 [70] - [75] (Buss JA; McLure P & Mazza J agreeing).
Appropriate punishment for the appellant's offending was an important sentencing consideration. Personal and general deterrence were also significant although they carried less weight than ordinarily would be the case because of the appellant's undiagnosed mental illness. The prospect of the appellant's rehabilitation was of some significance.
We are not persuaded that the sentence of 5 years 6 months' imprisonment was manifestly excessive. The sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, the vulnerability of Westpac to offending of this nature, the sentencing dispositions in previous cases with at least some features comparable to the present case, the appellant's personal circumstances and antecedents (including his mental health), and all aggravating and mitigating factors. The sentence was reasonably open to the sentencing judge on a proper exercise of his discretion. The sentence was not unreasonable or plainly unjust. Error cannot be implied from the sentencing outcome.

Conclusion

We would grant the appellant leave to appeal. However, the ground of appeal has not been made out and the appeal must therefore be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable Justice Buss
5 NOVEMBER 2019