R v Benning
[2005] VSCA 240
•6 October 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 186 of 2004
| THE QUEEN |
| v. |
| KEITH LESLIE BENNING |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 October 2005 | |
DATE OF JUDGMENT: | 6 October 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 240 | |
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Criminal law – Sentence – Theft – Non-parole period – No standard gap between head sentence and non-parole period – Bank manager stealing from employer and customers – Discount for disclosing offence – Head term of six years and a minimum term of four years manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr M.E. Dean, S.C. with Ms A.L. Harris | Septimus Jones and Lee |
CALLAWAY, J.A.:
I invite Buchanan, J.A. to deliver the first judgment.
BUCHANAN, J.A.:
The applicant is 49 years of age. When he left school the applicant commenced employment with the National Australia Bank ("the Bank") and worked there for some 30 years. In 1991 the applicant was appointed as a business banking manager at the Kilmore branch of the Bank. As a business banking manager the applicant was required to manage the borrowing, depositing and investment of money by customers of the branch.
In 1998 the applicant commenced to exploit his position by manipulating the accounts of customers of the Bank for his own purposes. The applicant's usual practice was to transfer moneys from customers' accounts into accounts called Vulture Park Pty Ltd or ESJ Investments Pty Ltd and then withdraw money from the accounts for his own use. The applicant raised bank cheques and transferred funds from customers' accounts to restore the deficiencies he had created in other accounts. One series of transactions will serve as an example of the applicant's offending. The applicant transferred $23,000 from the account of Ban (Victoria) Pty Ltd to the account of Vulture Park Pty Ltd. Subsequently the applicant drew a bank cheque to replenish the account of Ban (Victoria) Pty Ltd. The offences spanned a period of about four years, and only came to an end when an internal bank audit disclosed the transactions.
The explanation given by the applicant to the police for his offending was that he had given advice to members of his family concerning the purchase of shares. His advice caused loss to his brother and father when the stock market collapsed in 1997. The applicant said he had borrowed money to reimburse his family. He found it difficult to service the debt and turned to the funds he was administering at the bank. The applicant also said that he applied funds he misappropriated to gambling, share trading and general living expenses.
The applicant was arraigned in the County Court and pleaded guilty to a presentment containing 20 counts of theft. After a plea the applicant was sentenced to terms of imprisonment ranging from 18 months to three years on each of the counts. A measure of cumulation produced a total effective sentence of six years' imprisonment. A non-parole period of four years was fixed.
The total of the counts amounted to $5,725,255.08. The overall shortfall was $1,052,752.41. The Bank compensated the customers for their losses. The applicant in turn made substantial efforts to reimburse the Bank. He paid the Bank various sums: a $50,000 bank cheque, $83,921 being the proceeds of the sale of shares, $31,000 from a deposit account, $359,000 the proceeds of the sale of a block of land and the proceeds of the sale of another block of land, the amount of which is unknown. In addition, the Bank withheld $194,085 from the applicant's superannuation.
The applicant seeks leave to appeal from the sentence.
The first ground of the application is as follows:
"The learned sentencing judge misdirected himself that 'special circumstances' were a prerequisite to the imposition of a non-parole period that disclosed a 'greater disparity than may well be considered the norm between the head sentence and the non-parole period' and that he thereby erred in imposing a non-parole period of four years' imprisonment."
The sentencing judge's statement on which this ground is based was:
"I remain unpersuaded that there are special circumstances which may require a greater disparity than may well be considered the norm between the head sentence and the non-parole period."
Counsel for the applicant submitted that there was no fixed or standard relationship between a head sentence and a non-parole period. He also submitted that the sentencing judge erred in fixing a starting point and then considering whether there were special circumstances that required a different result. The position, of course, is that all relevant sentencing factors are taken into account in fixing the head sentence and in settling upon a minimum term. As Callaway, J.A. said in R. v. VZ[1]:
"[A] non-parole period cannot be fixed unthinkingly by some such method as taking two years or one-third or one-quarter of the head sentence. All the relevant factors have to be taken into account. They are many and varied."
His Honour cited the following passage from the judgment of the High Court in Power v. R.[2], that the purpose of fixing a non-parole period is:
" ... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
[1](1998) 7 V.R. 693 at 697-8.
[2](1974) 131 C.L.R. 623 at 629.
Notwithstanding the language which he employed, I consider that this very experienced sentencing judge did not fall into the elementary error contended for on behalf of the applicant. In my view his Honour was not determining whether he was persuaded by the factors that the applicant could pray in aid to vary a normal non-parole period. Rather, his Honour meant that the period he fixed of four years' imprisonment was the appropriate non-parole period in all the circumstances and it ought not to be shorter notwithstanding the mitigating factors present in this case. In my view counsel for the applicant placed too much weight on the phrase "special circumstances". Special circumstances, in the sense of circumstances which are exceptional or not usually encountered, are not required to fix a non-parole period. All the circumstances relevant to the fixing of a non-parole period are to be taken into account, whether they are routine or exceptional. In my view, however, the sentencing judge did not decide upon the minimum term on such a narrow basis. His Honour fixed the term he thought proper in all the circumstances, and his remark amounted to no more than a statement that the factors upon which the applicant relied did not in this case lead to the imposition of a minimum term bearing a different relationship to the head term than those which are often encountered.
The second and third grounds of appeal are in effect particulars of the fourth ground, that the sentence is manifestly excessive. The second ground pleaded that the sentencing judge failed to give sufficient weight to a large number of factors which were said to be mitigatory in fixing the non-parole period, and the third ground made the same attack upon the total effective sentence.
The grounds require consideration of the applicant's history and personal circumstances. The applicant left school at the age of 16 years, without having matriculated, although he later obtained a Diploma of Business Management. The applicant has been married for 24 years. His wife works as a librarian. The applicant and his wife have three children aged 14, 19 and 21 years. The applicant grew up in a happy family environment consisting of his parents, two sisters and two brothers. After he ceased to be employed by the Bank, the applicant was employed as a labourer until he was sentenced. A large number of witnesses gave character evidence at the plea. The sentencing judge said:]
"I also accept that you have been a hard-working and industrious member of the Kilmore community in addition to being a dedicated family man. A bevy of witnesses spoke highly of you, and I am well satisfied that you bore a high reputation in the community in which you lived and worked."
There were other significant mitigating factors upon which the applicant could rely. The applicant made complete admissions to those investigating the offences and volunteered information which led to the discovery of offending which was not previously known to the investigators. This last matter alone entitled the applicant to a discount. See R. v. Ellis[3]. The applicant made an early plea of guilty to all the counts. He had no prior convictions. His prospects of rehabilitation were excellent. He had displayed remorse, which was accepted by the sentencing judge, and had made significant efforts to repay the Bank from his own resources.
[3](1986) 6 N.S.W.L.R. 603 at 604.
The crimes themselves were serious. They involved premeditated wrongdoing over a substantial period of time, an abuse of the trust which the Bank and its customers reposed in the applicant, and it robbed the Bank of a significant sum of money. While specific deterrence was not an important factor in this case, as the sentencing judge here acknowledged, general deterrence was of particular significance having regard to the nature of the crimes themselves, which required strong denunciation by the sentencing court. Further, the applicant was to be sentenced as a continuing criminal enterprise offender pursuant to the provisions of Part 2B of the Sentencing Act 1991, which doubled the maximum sentences for the offences. Nevertheless, when all the relevant factors are considered, in my view this sentence was beyond the range which was appropriate to punish this offender for these crimes. His conduct particularly after the detection of the crimes put him in a position which in my view was out of the ordinary. I consider that the sentencing judge did fail to give sufficient weight to the powerful mitigating factors which were identified.
Accordingly, I would grant the application and allow the appeal. In re-sentencing the applicant, I would adopt the individual sentences imposed by the sentencing judge, and vary the amount of cumulation. Accordingly, I would affirm the individual sentences. I would direct that three months of each of the sentences imposed in respect of counts 6, 9, 10, 16, 17 and 18 be served cumulatively on each other and on the sentence imposed on count 20, creating a total effective sentence of four-and-a-half years' imprisonment. I would fix a non-parole period of two-and-a-half years' imprisonment.
CALLAWAY, J.A.:
I invite Eames, J.A. to follow.
EAMES, J.A.:
In my opinion full weight should be given to the seniority and experience of the learned sentencing judge when addressing the contention in ground 1 that he fell into sentencing error when fixing the non-parole period in this case. For the reasons given by Buchanan, J.A., I agree that the complaint under ground 1 has not been made out.
I would also reject the complaints raised in the other grounds of appeal. In particular, as to the contention that the sentence was manifestly excessive, I am unpersuaded that, on a proper analysis of the mitigating and aggravating factors in this case, the sentencing judge imposed a sentence which fell outside the appropriate sentencing range.
In my view, none of the grounds of appeal have been made out and I would dismiss the application for leave to appeal against sentence.
CALLAWAY, J.A.:
I agree with Buchanan, J.A.
In fixing a non-parole period there is no a priori norm from which the judge must be persuaded to depart. Nevertheless, it is an everyday occurrence to speak of a "shorter than usual" or "longer than usual" non-parole period. To do so does not betoken error. Paragraph [93] of the sentencing remarks was unfortunately expressed, but I think the judge meant only that a four-year non-parole period (which is not at all unusual in relation to a six-year head sentence) was the minimum term that justice required the applicant to serve notwithstanding the powerful mitigatory factors on which he could rely.
Turning to the other grounds, I differ with unfeigned respect from the learned and very experienced sentencing judge, especially as two judges of appeal - the judge who heard the s.582 application and my brother Eames - have considered that the sentence was within the range; but in the end it is my duty to give effect to my own opinion. My first impression on reading the papers, and my conclusion having heard the argument, accords with Buchanan, J.A.'s view of the case.
The formal orders of the Court will be as follows:
The application for leave to appeal against sentence is granted.
The appeal is treated as instituted and heard instanter and is allowed in part.
The sentences imposed on the individual counts are affirmed.
The direction for cumulation is set aside.
In lieu thereof it is directed that three months of each of the sentences imposed on counts 6, 9, 10, 16, 17 and 18 be served cumulatively upon each other and upon the sentence imposed on count 20, making a total effective sentence of four-and-a-half years' imprisonment.
A non-parole period of two-and-a-half years is fixed.
The appellant has been sentenced for a continuing criminal enterprise offence in respect of the offences the subject of counts 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19 and 20. It is ordered that that fact be entered in the records of the Court.
It is declared that the period of 463 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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