R v Boyes

[2004] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 27 of 2003

THE QUEEN

v.

DAVID ERIC MONTAGUE BOYES

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JUDGES:	CHERNOV, J.A., SMITH and COLDREY, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2004
DATE OF JUDGMENT:	28 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 97

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CRIMINAL LAW – Sentencing – Obtaining financial advantage by deception (36 counts) and obtaining property by deception (1 count) – Offender incomplete paraplegic – Hardship – Plea of guilty – Whether imprisonment more burdensome due to disability – Criteria for determination of such increase of hardship – Evidence of events subsequent to sentence – Whether admissible – Totality – Whether principle breached – Sentence of 5 years and 3 months’ imprisonment with a non-parole period of 3 years and 9 months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr G.M. Hughan	Victoria Legal Aid

CHERNOV, J.A.:

1. The appellant, David Eric Montague Boyes, who is now aged 50, appeals against the total effective sentence of 5 years and 3 months’ imprisonment (with a non-parole period of 3 years and 9 months) imposed on him on 5 February 2003 by a judge of the County Court sitting in Melbourne in respect of the following offences to which he pleaded guilty: 36 counts of obtaining a financial advantage by deception contrary to s.82 of the Crimes Act 1958 and one count (count 20) of obtaining property by deception contrary to s.81 of the Crimes Act. These offences were committed between May 1997 and June 1998.  The maximum penalty for each offence is 10 years’ imprisonment.  The appellant admitted having been convicted in the District Court at Hamilton in New Zealand on 17 November 1993 of 18 counts of false pretences, one count of theft by failing to account and a further count of obtaining credit by fraud, in respect of which he was sentenced to 3½ years’ imprisonment.  In October 2001 he pleaded guilty in the District Court in New South Wales to being in possession of stolen goods – a truck and two trailers – and was sentenced for that offence to imprisonment for a period of 28 months, with a minimum term of 10 months.

1. On 24 October 2003 a judge of this Court granted the appellant leave to appeal against the sentence pursuant to s.582 of the Crimes Act.  The notice of application for leave to appeal against sentence, dated 19 February 2003, contains only one ground, namely, that the sentence imposed is manifestly excessive.  Two more grounds were added by leave of the Registrar on 6 November 2003 and further grounds were sought to be included during the hearing of the appeal.  I will deal later with the grounds of appeal that were argued for the appellant. First, I will summarise the relevant background events and the circumstances of the offending.

Background circumstances

1. The appellant was born in New Zealand, into a farming family, and after completing his schooling he started, but did not complete, a course in farming at a tertiary institution.  He married while still studying and later, he and his wife had two children.  Throughout most of his adult life in New Zealand he worked in various businesses in the agricultural sector.  During the early 1980’s he became involved in a scheme whereby deer were leased to farmers, but in 1986 the scheme collapsed, seemingly because of the global financial crisis which resulted in a rapid increase in interest rates in New Zealand.  As a result, the appellant lost his farm, and later, his marriage.  In the late 1980’s and the early 1990’s, while still a bankrupt, he operated in New Zealand a business that was concerned with selling hay and livestock to farmers.  In the course of that operation, he obtained much of the produce and livestock by fraudulent means, thereby securing benefits in the order of $150,000. It was in respect of that offending conduct that the appellant was, as I have mentioned, convicted and sentenced on 17 November 1993.  He appealed to the Court of Appeal against his convictions and the sentence imposed but the appeal was dismissed, the Court noting that the appellant had exhibited no remorse for his offending.  He was released from the New Zealand prison in early 1995.

1. Not long thereafter the appellant came to Australia and, in February 1996, he suffered a fall in an orchard, sustaining spinal injuries that left him with incomplete paraplegia. This injury prevented him from performing manual work.  Following his hospitalisation, the appellant completed a course of study for a Certificate of Rural Office Practice and, not long thereafter, he was engaged as a consultant by Crawford and Susanne White who had recently purchased a farming property in Victoria.  In early 1997, the appellant proposed to the Whites that the three of them set up a business whereby they would purchase hay from various locations throughout Australia and sell it to farmers in drought stricken areas, in particular the Gippsland region.  The parties agreed that the Whites would take orders from farmers for hay and then pass them to the appellant who would purchase the hay while he was “on the road” in various parts of Australia.  He would then arrange for its pick up and delivery.  The agreement also involved the construction, at the White’s property, of an office and storage facilities for hay or other feed acquired in the course of the business.  Later, there was a dispute between the appellant and the Whites as to the corporate structure that was eventually established to operate the business and whether the Whites consented to being directors of it.  It is only necessary to note that the business was dissolved and the Whites resigned as directors of the company on 12 May 1997.

1. After that the appellant carried on business alone from the property of one Margaret Interlandi, who also became his office manager, and it was in the course of conducting it that he committed the offences to which he pleaded guilty.  The circumstances in which the offending occurred were these.  The business proved to be a failure but notwithstanding this the appellant sought to continue its operation by engaging in fraudulent conduct, including the drawing of cheques in payment for products, which the appellant procured from suppliers, when he knew that there were insufficient funds in the corresponding bank accounts to meet them.  Thus, over a period of some 13 months, the appellant drew 37 worthless cheques in favour of various suppliers, falsely representing to each that the cheques would be met when he knew or was reckless to the fact that there were insufficient funds in the bank accounts to meet them.  In this way, said the Crown, the appellant gained a financial advantage for himself or his company and these transactions formed the basis of all but one of the counts.  The remaining count, count 20, involved the appellant fraudulently obtaining a cheque by deception from Victoria WorkCover Authority in the sum of $9,630.00 in the following circumstances. On the recommendation of the Repatriation Centre, which the appellant attended because of his spinal injury to which I have referred, the Authority authorised the purchase for his use of a four-wheel motor cycle in order to enable him to return to farm work.  The appellant placed an order for it and, without taking delivery, persuaded the supplier to issue him with an invoice which showed that the motor cycle had been paid for.  He then used that invoice to support his fraudulent representation to the Authority that he had paid for the equipment and, as a result, was given a cheque for the above amount.  The appellant did not complete the transaction with the supplier, but paid the $9,630 into his account and used it for his own purposes. 

History of proceedings

1. One unusual aspect of the hearing below was that the sentencing judge had the opportunity to become familiar with the credibility of the applicant and his case much more so than if he heard a plea in mitigation in the usual course.  The proceedings that were brought against the appellant in relation to his fraudulent conduct were dragged out for almost four years, due largely to adjournments that were necessitated by his absence from the jurisdiction while serving the New South Wales sentence and other reasons, which I set out below, and the learned sentencing judge presided over most of the interlocutory hearings and the plea in mitigation and was thus able to gain considerable insight into the relevant aspects of the appellant’s case.  Thus, in May 1999 the appellant was committed for trial and, not long thereafter, a trial date was fixed for the first week in 2002.  In preparation for such a hearing, a number of case conferences were fixed for 2001 but, because the appellant was imprisoned in New South Wales for part of that period and due to his non-attendance at a number of those conferences for other reasons, the trial date had to be vacated and, eventually, the trial was listed for hearing on 30 September 2002.  In the first half of 2002 the appellant claimed that he could not take part in the hearings because he was unrepresented and was seeking to raise funds to pay lawyers.  Eventually, on 27 June 2002, the appellant was told by the judge, who was later to sentence him, that the trial would proceed on 30 September 2002 unless some good reason to the contrary was advanced prior to that date.

1. In the event, further mentions were listed for 16, 17 and 22 July, 2, 18 and 25 September and 1 and 9 October 2002 but, for one reason or another, the appellant failed to appear or was unprepared and the proceeding was adjourned each time.  Ultimately, the case was adjourned to commence on 21 October 2002.  On 1 October 2002, however, the appellant’s then counsel returned his brief because, he said, he could not obtain instructions from the appellant due principally to his failure to attend a number of appointed conferences.  Eventually, another counsel was briefed to appear for the appellant at his forthcoming trial. 

1. At approximately 10 p.m. on Sunday 20 October 2002, being the day before the appellant’s trial was to begin, he drove from his home (in Williamstown) to the Alfred Hospital and collapsed there claiming spasms and pain in his right leg and related areas.  Thus, the appellant was in hospital when his trial was called on for hearing on Monday, 21 October 2002.  The presentment, as then framed, alleged 48 counts of dishonesty.  His counsel explained to his Honour the reason for the appellant’s non-appearance and said that the appellant was now prepared to plead to 20 of the counts and to make a number of admissions in relation to some of the remaining counts.  Counsel then sought an adjournment of the trial on the basis of his client’s illness.  The Crown not only opposed the application, claiming that the appellant’s alleged illness was feigned, but sought a warrant for his arrest.  His Honour, however, adjourned the matter to the following day saying that, unless there was medical evidence produced by the appellant, he would issue a warrant for the his arrest.

1. On 22 October 2002 the Crown called Professor Storey, a neurologist, as to the state of the appellant’s physical condition.  Professor Storey told his Honour that, having examined the appellant at the hospital, he considered that the appellant’s claimed new injury did not have an organic basis.  Professor Storey said that, in any event, there was no reason why the appellant could not attend court in a wheelchair or trolley.  In the result, the judge revoked the appellant’s bail and adjourned his trial to the following day.  The appellant was taken into custody on 22 October, his bail having been revoked.

1. On 23 October 2002, counsel told the judge that the appellant had agreed to plead guilty to a new presentment which contained 37 counts.  He then applied for an adjournment of the proceeding and sought an order that the appellant be released on bail.  The appellant gave evidence in support of this application, in the course of which he explained that he took a range of prescribed medicines by way of pain relief, including Neurontin and claimed that this medication was not available to him at the Melbourne Custody Centre.  He also asserted that neither the Centre nor the prison could meet his requirements for a doctor.  He further said that his enquiries revealed that the medicine that was prescribed for him was not on the “health list” and that, therefore, the prison system could not purchase it and that payment had to be obtained through WorkCover, with the result that there would be delays in his obtaining his medication.  He also told his Honour that he had an epileptic seizure during the past twelve weeks when he ran short of the required medicine, including Neurontin, and that he required a wheelchair to move about and needed to shower at least two to three times per day, essentially because he could not control the position of his legs, which led to flesh on flesh contact that produces an odour.

1. The Crown opposed the application and called Dr Morgan, who worked with an organisation that provides health care services to a number of Victorian prisons.  He told the judge that, whilst in custody, the appellant would be provided with the medication he required.  He also said that if the appellant were to remain in custody for some weeks there would be no difference in the level of health care provided to him in prison as compared to that which was available to him while he was in the community.  He further said that there were facilities and equipment, including wheelchairs, available within the custodial setting to accommodate the appellant’s medical needs.  Port Phillip Prison, said the witness, where he expected the appellant to be placed, had a hospital unit with nursing staff and disabled cells set up for paraplegics.

1. His Honour refused to grant bail to the appellant, saying, in effect, that he was satisfied that he would receive the appropriate medical treatment while in custody and adjourned the further hearing of the matter to the following day.  On 24 October the Crown filed over a new presentment containing the counts to which the appellant pleaded guilty.  It was apparent that the plea in mitigation would be adjourned to another day, and in that context, the applicant’s counsel applied again for the appellant to be released on bail.  This application was also refused because the judge said that he could not be satisfied that, having regard to the appellant’s history of non-appearances, he could be relied upon to be present at the adjourned hearing.  His Honour then adjourned the matter to 19 November 2002.

Plea in mitigation

1. At the hearing of the plea in mitigation, on 19 and 20 November 2002, the appellant’s counsel contended that, because of the appellant’s personal and medical histories, his Honour should suspend the whole, or at least most, of any sentence of imprisonment that might be imposed on him, noting that, by then, the appellant had already spent 35 days in detention.  In support of the claim for a suspended sentence, counsel sought, inter alia, to demonstrate to his Honour the appellant’s serious medical condition.  In that context he referred to medical reports that were tendered for the appellant, particularly that of Dr Rawicki, a neurologist, dated 15 November 2002, which described, with some particularity, the appellant’s injuries and the impairment, disability and handicap that he suffered as a result of those injuries and concluded that he required ongoing medication, supervision, and attention.  The report said that, as a result of his fall, the appellant sustained a crushed fracture of the thoracic 12^th vertebrae which effectively left him with incomplete paraplegia.  He suffered not only pain, said Dr Rawicki, for which he had to take medication, but his general lifestyle had been adversely affected so that, for example, due to poor mobility and pain, he required assistance in performing simple household tasks such as vacuuming and required walking sticks, and often a wheelchair, to move about.  Counsel highlighted to the judge that the report showed that the appellant had “fairly extreme medical needs” and that, although there was no criticism of the “resources” that were provided to him while he was in custody, they “might not meet all of his needs as best as possible”.  It should be noted, however, that notwithstanding his injuries the appellant was able to conduct his business, first with the Whites, and then in his own right, in the course of which he committed the offences in question.

1. The appellant gave evidence in support of the plea in mitigation, but most of it was concerned with attempting to excuse his fraudulent conduct and to lay the blame on others for the lack of funds that resulted in his cheques being dishonoured.  Almost no mention was made of the state of his health or of his concern that imprisonment will or might have an adverse effect on it or that it will or might be a greater burden on him by reason of his injuries.  Essentially, the same can be said of submissions made by counsel, in the sense that the thrust of them sought to put a gloss on the appellant’s presentation of the worthless cheques.  Counsel did, nevertheless, press the claim, as I have said, that there should be mitigation of the sentence on the basis of the appellant’s poor health.  In that context, and after taking his Honour in some detail through the contents of Dr Rawicki’s report, as I have mentioned, counsel emphasised that his Honour should take into account for sentencing purposes not only the appellant’s pain and suffering but also that “he will be doing it hard” whilst in prison.  He submitted that “a man of [the appellant’s] injuries is going to do it harder than an able bodied man of his age”, to which his Honour responded (not surprisingly, I think,):  “Sure….compared to someone else who is fit, in the prison system between the two of them, he’s going to have greater difficulty.”  The appellant also relied on the psychiatric report of Dr Ruth Vine, dated 15 November 2002, which noted that the appellant presented as a person who believed that he was innocent of the charges and who sought to shift the blame for the offending to the Whites.  He claimed that they had wrongly removed the money from the accounts thereby causing them to be without funds when the cheques were presented for payment.  It seems that the appellant also claimed to Dr Vine that, because he was “on the road” when the cheques were given to the victims, he was unaware that there was a lack of funds to meet them.  His Honour also heard oral evidence from Ms White and Ms Interlandi, who were called by the prosecution in rebuttal of the appellant’s contentions made during his evidence, as to the circumstances in which the worthless cheques were circulated by him.

1. On 5 February 2003, the appellant was sentenced as I have already explained.  More particularly, the following sentences were imposed:

(a)On each of counts 2, 4, 6 and 26 - 2 years’ imprisonment with 2 months of the sentence imposed in relation to counts 4, 6 and 26 to be served cumulatively on the sentence imposed on count 2.

(b)On each of counts 1, 3, 13, 15, 16, 17, 20, 27, and 33 – 9 months’ imprisonment with 1 ½ months’ imprisonment on each count to be served cumulatively with the sentence imposed on counts 2, 4, 6, and 26.

(c)On each of counts 5, 7, 8, 10, 11, 12, 14, 18, 21, 22, 24, 25, 34 and 35 – 4 ½ months’ imprisonment with 1 months’ imprisonment on each count to be served cumulatively or the sentence already imposed.

(d)On each of counts 19, 23, 28, 29, 30, 31, 32, 36 and 37 – 1 months’ imprisonment with one-half of 1 months’ imprisonment on each count to be served cumulatively with a sentence already imposed. 

Thus, the total effective sentence imposed on the appellant was, as I have said, 5 years and 3 months’ imprisonment.  His Honour fixed a non-parole period of 3 years and 9 months.

1. I now turn to consider the submission made on behalf of the appellant in support of the grounds of appeal and I do so in the order in which they were argued. 

Ground 3 – failure to give any or any sufficient weight to the hardship caused to the appellant by the sentence

1. It was argued for the appellant, under cover of this ground, that his Honour erred in failing to treat the appellant’s incomplete paraplegia as a mitigating factor for sentencing purposes.  In support of his argument Mr Hughan, for the appellant,

   
   

   pointed to the well known observations of King, C.J. in R. v. Smith[1]:

“Generally speaking ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a greatly adverse effect on the offender’s health.”

Counsel claimed that his Honour should have concluded on the evidence that the first limb of this “test” was satisfied and that, therefore, the appellant’s disability should have been treated as a mitigating factor.  Instead, it was contended, the judge did not even consider whether the first limb had operation, rejecting the claim that the appellant’s disability was a mitigating circumstance simply on the basis that the second limb of the test in Smith had not been made out.[2]

[1](1987) 44 S.A.S.R. 578, at 589. This and other passages from his Honour’s judgment on this issue have been followed in numerous cases in this and other jurisdictions. See, for example, Bailey v. R. (1988) 35 A.Crim.R. 458 at 462 per Lee, J., Eliasen (1991) 53 A.Crim.R. 391 at 396 per Crockett, J. (with whom McGarvie and Phillips, JJ. agreed); Morgan (1996) 87 A.Crim.R. 104 at 107-108 per Southwell, A.J.A. (with whom the President and Charles, J.A. agreed); R. v. Babic [1998] 2 V.R. 70 at 81 per Brooking, J.A. (with whom the President and Ashley, A.J.A. agreed); R v. Frawley [2000] NSWSC 1128 at [27]-[30] per Studdart, J.; R v. Pilarinos [2001] VSCA 9 at [10] per Chernov, J.A. (with whom Callaway and Buchanan, JJ.A. agreed) R v. Ta [2002] VSCA 142 at [22]-[31] per Phillips, C.J. (with whom Ormiston and Eames, JJ.A. agreed) and R. v. Miranda (2002) 128 A.Crim.R. 362 at 367-368 per Dowd, J. (with whom Sheller, J.A. and Kirby, J. agreed).

[2]The appellant did not challenge his Honour’s conclusion that imprisonment will not have a material effect on his health and that, therefore, the second limb of the test did not apply.

1. His Honour’s approach, said counsel, is illustrated by the following two passages in his sentencing remarks.  The first was:  “Whilst it is true that your physical handicaps are of great significance, on the evidence before me your incarceration will not further burden your physical handicaps”.  A little later the judge said:  “Though you have a serious and permanent physical disability, I can attach little weight to that condition for the purpose of reducing the sentence which I would otherwise impose, because a term of incarceration would not add to, by way of exacerbation, your personal circumstances”.  It was then said for the appellant that, had the judge given consideration to the issue of whether the first limb of the test applied, he should have concluded that imprisonment will impose a greater burden on the appellant because of his incomplete paraplegia, given particularly that his Honour accepted that incarceration will be more burdensome for the appellant than for an ordinary prisoner.  Thus, it was claimed, his Honour’s failure to treat the appellant’s disability as a mitigating factor was based on error, which vitiated the sentencing discretion.  Mr McArdle, who appeared for the respondent, submitted that his Honour plainly had regard to whether the burden of imprisonment on the appellant was increased by reason of his impairment but concluded that the appellant had not discharged the burden of proof on this issue.  Such a conclusion, said counsel, was clearly open to his Honour on the evidence.

1. In support of his argument that his Honour should have found that the first limb of the Smith test applied, Mr Hughan placed great emphasis on his Honour’s acceptance that the appellant’s injury resulted in his suffering “physical handicaps ... of great significance ...” and on the judge’s agreement with counsel for the appellant that “[c]ompared with someone else who was fit, in the prison system between the two of them, he is going to have greater difficulties”.  Counsel claimed that the judge’s findings necessarily demonstrated that imprisonment would impose a greater burden on the appellant because of his impairment and that, therefore, his incomplete paraplegia constituted a mitigating factor that should have been taken into account for sentencing purposes. 

1. In my view, however, whether imprisonment will be more difficult for the appellant than for an ordinary inmate is not the relevant criteria for determining if the first part of the test in Smith has operation.  Without seeking to treat the above passage from the judgment of King, C.J. as if it were a piece of legislation, it is nevertheless clear from its terms that the first limb is concerned with whether the burden of imprisonment on the offender will be increased because of his disability.  Thus, the analysis focuses on the impact that the offender’s disability has on his ability to cope with the prison system in light of his disability.  Consequently, before the disability can be treated as a mitigating factor under the first limb, the offender must establish that it will result in imprisonment being a greater burden on him.  Thus, the relevant question for present purposes is whether the appellant’s incomplete paraplegia will make imprisonment more burdensome for him and not whether he will find imprisonment more difficult due to his disability than an ordinary prisoner. 

1. In any event, I doubt whether the mere fact that imprisonment will be more difficult for the offender with a disability than for an ordinary prisoner necessarily establishes that imprisonment will be a greater burden on the disabled offender because of his impairment.  It may be that, in most cases, the fact that it will be more difficult for such an offender to serve his sentence than for an ordinary prisoner will also demonstrate that the first limb of the test in Smith operates. But that will not necessarily be so in every case.  For example, an offender who has lost one arm may find that, because of this, it is more burdensome for him to cope with prison than for an inmate with two arms.  Yet such an offender may have no more difficulty in coping with the consequences of his impairment in prison than outside it, so that his disability would not cause the burden of imprisonment to be greater from his perspective.  Relevantly, he could cope with prison life in much the same way as he coped with life outside prison.  Compared with ordinary inmates, of course, his burden of imprisonment would be greater, just like his burden of coping with life outside prison with only one arm would be greater by comparison with able-bodied people.  In the context of this example, therefore, it does not follow that imprisonment will be a greater burden for him because of his loss of one arm and thus, it would be inappropriate to treat his disability as a mitigating factor. 

1. Whether imprisonment will be a greater burden on an offender because of his disability will depend on the applicable circumstances.  In some cases it may be obvious enough that the impairment is such that it will cause the burden of imprisonment on the offender to be greater.  In other cases, however, in order to determine if that is the case, it may be necessary, for example, to compare the advantages of the prison system, in so far as they relate to the disability, with corresponding disadvantages to the offender to see if, on balance, the burden on him of imprisonment will be increased by his disability.  Such an analysis was undertaken in Eliasen where the applicant sought to have his sentence reduced on the basis that he was diagnosed as HIV positive, a condition that, although present at the time of sentence, was then undiagnosed and became known only thereafter.  Crockett, J. considered[3] that the evidence before the appellate court demonstrated that the burden of the sentence to be served by the applicant would be increased because of the disease from which he suffered, and that his “condition [would] be worsened by the incarceration”.  In the circumstances, therefore, his Honour concluded that both limbs of the Smith test were made out by the evidence.  In the context of considering if the first limb applied, however, his Honour analysed, inter alia, the advantages and disadvantages of the prison system to the applicant.  As to the former, he took account of the availability in prison of medical facilities dedicated to the treatment of AIDS sufferers and the better acceptance by prisoners of persons suffering from the disease.  In considering the disadvantages to the applicant of the prison system, however, Crockett, J. compared his position in a number of respects – his access to the general prison system and to low security prison – with that of a prisoner without such a disease.  Essentially, on the basis of that comparison, his Honour concluded that the applicant’s burden of imprisonment would be increased by reason of the disease.  There was no suggestion by his Honour, however, that this issue was to be resolved on the sole basis that the burden of imprisonment on the applicant would be more onerous than on an ordinary prisoner.

   [3]At 396-397.

1. It is true that in Bailey, Lee, J. said[4] that the courts take into account, for sentencing purposes, circumstances that make imprisonment of the offender with a disability more burdensome than for an ordinary prisoner.  This observation could be taken to suggest that, once such a situation is established, the burden of the offender’s imprisonment is necessarily treated as being greater and as having been brought about by his disability, and thus, his disability is to be treated as a mitigating factor.  In my view, however, his Honour did not seek to lay down any such rule.  That is apparent when his Honour’s statement is viewed in context.  Prior to making the observation, the learned judge cited with approval the test in Smith for determining if an offender’s ill health mitigates punishment and, although he said that “considerations of health are in this category”, he illustrated what he said, not by reference to disability constituted by ill health, but by reference to situations where the offender’s disability was created by other circumstances that were likely to increase his burden of imprisonment, such as having to serve the sentence under protective custody because of the nature of the offence, for example, child sexual abuse, or because it has or may become known that the offender has helped police.  It is understandable that, in those situations, the increase in the burden of imprisonment of such an offender occurs only because he is required to serve his term of imprisonment in conditions that are necessarily more onerous than those applicable to ordinary prisoners.  Where the offender’s disability is his ill-health, however, as I have explained, the mere fact that this makes it more burdensome on him to serve the sentence when compared with other prisoners does not necessarily mean that his ill-health has made the burden of imprisonment greater for him.  Importantly, Lee, J. did not say that, for the purpose of establishing the first limb of the Smith test, it is not necessary to demonstrate that the burden of imprisonment to the offender will be greater because of his state of health. 

   [4]At 462.

1. In the present case, as I have explained, the judge was not satisfied that it will be more difficult for the appellant to cope with his incomplete paraplegia whilst in prison than “if [he] were living in [his] own residence”.  This finding, taken together with the judge’s other conclusions, to which I have referred, makes it apparent that he considered whether the first limb of the test in Smith operated here but found that it did not.  In the circumstances, therefore, I consider that his Honour did not err as was contended for by the appellant under this ground. 

1. Consequently, I think that ground 3 should fail. 

Ground 2 – failure to apply principle of totality

1. It was submitted under cover of this ground that the total effective sentence of five years and three months’ imprisonment offends the principle of totality.  Mr Hughan argued that his Honour’s reference to that principle in his sentencing remarks was made only to reflect the objective, or the requirement, that the sentence not be crushing and that, notwithstanding this observation, and contrary to the principle of totality, his Honour imposed a total effective sentence that is disproportionate to the criminality of the offences committed by the appellant.  It is apparent from the sentencing remarks, however, that the judge both understood and applied properly, I think, the principle of totality when determining the appropriate sentence.  It is plain that his Honour followed the correct sentencing procedure by first imposing such individual sentences as he considered appropriate and then making orders for cumulation so as to produce a total effective sentence that was “just and appropriate” and reflected the totality of the appellant’s criminal behaviour.[5]

   [5]See, for example, Mill v. The Queen (1988) 166 C.L.R. 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron, JJ.;  Director of Public Prosecution v. Grabovac [1998] 1 V.R. 664 at 676 to 680 per Ormiston, J.A. (with whom the President and Hedigan, A.J.A. agreed). See also Director of Public Prosecutions v. G.J.L. [2004] VSCA 35 at [30] per O’Bryan, A.J.A. (with whom Charles, J.A. and Bongiorno, A.J.A. agreed).

1. In any event, there can be no error in his Honour’s recognition that the sentence should not be crushing.[6]  One aspect of the principle of totality is that the sentence be not crushing[7] and it is plain from his Honour’s sentencing remarks that he so approached the sentencing task.  He said, relevantly, “... I must when considering the totality of the sentences, reflect [the objective that the sentence not crush the appellant]”.

   [6]The concept of “crushing” which was explained in R. v. Yates [1985] V.R. 41 at 48 per Starke, Crockett and Hampel, JJ. and at 49 per Murphy, J. It was more recently discussed in Director of Public Prosecutions v. Cumberbatch [2004] VSCA 37 at [12] per Chernov, J.A.

   [7]Grabovac at 680 per Ormiston, J.A.

1. Thus, I consider that ground 2 has not been made out. 

Ground 2A – his Honour erred in the orders for cumulation

1. This ground was added by leave in the course of the hearing before us, there being no objection to such an amendment by the Crown.  For the purpose of structuring the sentences, his Honour divided the offences into groups by reference to the monetary amounts involved in the impugned transaction.  More particularly, the learned sentencing judge divided the offences into the following categories:  those  involving $10,000 or more (four counts), those that involved amounts between $5,000 and $9,999 (nine counts), offences that involved in excess of $1,000 but under $5,000 (15 counts) and those that involved sums less than $1,000 (nine counts).

1. It was said for the appellant that it was inappropriate to order cumulation of the sentences imposed on each count within a particular group because the counts essentially arose out of the one enterprise.  By way of example, the appellant pointed to the orders for cumulation of part of each of the sentences imposed on counts 16 and 17 on the sentence imposed on count 2, which was treated as the base count.  It was said, in essence, that since the offences that formed the basis of those counts involved the “evasion” by the appellant of the same debt, no cumulation order should have been made with respect to the sentences that were imposed on counts 16 and 17. 

1. Before proceeding further to analyse the appellant’s arguments in that regard, I should say that I consider that it cannot be properly claimed that his Honour imposed artificially inadequate individual sentences in order to accommodate the requirements of cumulation.  As I have mentioned, in accordance with what was said in Mill[8], as applied by this Court in Grabovac[9], his Honour first imposed a sentence in respect of each count before considering cumulation.  Moreover, in the context of the above example, the judge correctly, in my view, made count 2, being the most serious count,[10] the base count.

   [8]At 63 per Wilson, Deane, Dawson, Toohey and Gaudron, JJ.

   [9]At 680-681 per Ormiston, J.A. with whom the President and Hedigan, A.J.A. agreed.

   [10]See Grabovac at 680 per Ormiston, J.A. and R. v. MDB [2003] VSCA 181 at [13], [14] per Batt, J.A.

1. I do not consider that the relevant transactions that were the subject of the grouped offences in respect of which cumulation was ordered were, as the appellant claims, part of the same or the one enterprise.  Rather, they were, in my view, separate transactions notwithstanding that some of the cheques may have been handed over by the appellant on the same day and in respect of the same debt.  But, in any event, this was not always so.  By way of example, in respect of the offences that were the subject of counts 2, 16 and 17, there was a gap of almost four months between the date of the cheque that is the subject of count 2 (29 May 1997) and the date when the other two cheques were provided to the victim (12 September 1997).  Furthermore, the two sets of cheques were written on accounts that were located at different banks.  In each case, the appellant falsely represented to the supplier that the cheques were good and would effectively cover the outstanding debt but that does not mean that the offending was, relevantly, part of the one transaction. 

1. I mention for completeness that it was claimed for the appellant that his Honour erred in using only the face value of the cheques as a basis for grouping the various offences.  Counsel said that the offences were discrete and were committed against several individuals and that it would have been more appropriate to group the counts accordingly, namely, by reference to the several victims.  This aspect of the appellant’s complaint is, therefore, directed essentially to the criteria by which the learned sentencing judge chose to group the offences for sentencing purposes.  But there were a number of bases on which a sentencing judge, in a case such as the present, could have properly grouped the counts for sentencing purposes and although it could be argued that the criterion suggested by the appellant would have been appropriate, it does not follow that the basis on which his Honour combined the several counts for sentencing purposes was erroneous.  In my view it was not and, as I have said, the cumulations cannot be said to have been excessive in the relevant sense.  I would go further and say that the extent of cumulation ordered by his Honour in respect of the various counts was balanced and appropriate. 

1. Thus, I consider that ground 2A must fail. 

Ground 1 – the sentence is manifestly excessive

1. Not surprisingly, this ground was not pressed with vigour.  It was said in support of it, for example, that his Honour erred in characterising the plea of guilty as a late plea given that the appellant so pleaded not long after the Crown withdrew 11 counts on 23 October 2003.  It is not clear, however, when the appellant first told the Crown that he would be prepared to plead guilty if it abandoned these counts.  Be that as it may, even if the appellant had indicated on an earlier occasion that he was prepared to plead guilty to the remaining counts, there was little else that could be advanced by way of mitigation of sentence other than his physical disability.  The fraudulent conduct was serious and persistent.  It was calculated and involved the commission of 37 offences over a considerable period – 13 months – against a number of people who could ill-afford to lose, in total, approximately $110,000.  Moreover, it was practised on those who trusted the appellant to provide good consideration for their products and, as the victim statements show, his fraudulent conduct had a significant detrimental effect on most of the victims.  In his sentencing remarks, the judge acknowledged that the appellant had pleaded guilty and that, consequently, he was entitled to a sentencing discount that reflected the utilitarian value of the plea and the appellant’s preparedness to facilitate the course of justice.[11]  But his Honour also found that the appellant had shown no remorse for his offending conduct and that he sought to lay the blame for the offences on others.  Further, the learned sentencing judge concluded that the appellant did not have reasonable prospects of rehabilitation, particularly in light of his criminal history.  These findings were clearly open to his Honour. It should also be noted that the judge took the view that, while the appellant’s offending in New Zealand and New South Wales could not constitute prior convictions for sentencing purposes, such conduct was relevant to the consideration of the appellant’s prospects of rehabilitation and it was not contended before us that his Honour erred in that regard.  The judge further emphasised the importance in the sentencing disposition of specific and general deterrence and the need to impose just punishment.  Importantly, as I have said, his Honour also sought to give effect to the principle of totality, saying in that regard:  “the punishments which I must impose are to a large extent cumulative; but having due regard to the imperative that the sentence not crush you, I must, when considering the totality of the sentences, reflect that objective.”  Finally, the sentencing judge also took into account the contents of the five victim impact statements, which outlined the primary claims made by the victims that, as a result of the appellant’s fraudulent conduct, they suffered, variously, financial hardship, stress, anger, embarrassment and, in the case of Ms White, the dissolution of her marriage and loss of her home and farm. 

   [11]Cameron v. The Queen (2002) 209 C.L.R. 339 at 343 per Gaudron, Gummow and Callinan, JJ.

1. I consider that, in the circumstances, the individual sentences were well within the range available to his Honour and were appropriate.  Further, for the reasons I have given, the total effective sentence was within range. 

1. Consequently, I consider that ground 1 has no substance. I add for completeness that even if the appellant had established relevant error on his Honour’s part under any of the grounds, on re-sentencing him I would not impose a sentence less than that imposed by the primary judge. 

Ground 4 – in light of the fresh evidence now available concerning the care and treatment of the appellant in custody a different sentence should be passed upon him because of the burdensome nature of his incarceration.

1. At the hearing before us the appellant sought leave to add a new ground in the above terms.  The supposed “fresh evidence” on which he sought to rely was  said to be constituted by his affidavit, sworn 2 February 2004, and copy documents from his prison file.  We received the material, subject to objection from the Crown, and deferred ruling on their admissibility and on the proposed amendment until the publication of our reasons.  The material so put to us was directed essentially to establishing the extent of the burden of the sentence on the applicant, given his disability.  In particular, it was argued on the basis of this material that the delay experienced by the appellant in obtaining medical and other assistance at the prison showed that the burden of imprisonment on him due to his disability was greater

than his Honour had envisaged at the time of sentence.  In my view, such evidence is inadmissible. It is not “fresh evidence” because it is not evidence of events or circumstances that existed before, or at the time of, the hearing of the plea in mitigation.  Rather, it is evidence of subsequent events on which the appellant seeks to rely to show that the sentence, which was appropriate when passed, turned out to be excessive.  Such evidence is clearly not admissible, as Brooking, J.A. explained in R. v. Babic[12].  In any event, I consider that it does not materially add to what was before his Honour in support of the claim that imprisonment will be a greater burden on the appellant because of his ill-health.  Moreover, it is difficult to take this claim far because, as the material shows, the alleged inability of the prison system to satisfy the appellant’s particular needs depends in large part on which particular prison houses him.  Finally, the appellant’s complaint as to lack of adequate medical facilities in prison is a matter for the Executive and not this Court and should therefore be directed to prison authorities.

[12][1998] 2 V.R. 79 at 80-82.

1. Consequently, I consider that the appellant’s affidavit and the other material to which I have referred should not be admitted and that the proposed amendment should not be allowed. 

1. In the circumstances, I would dismiss the appeal.

SMITH A.J.A.:

1. I agree that the appeal against sentence of David Boyes should be dismissed, substantially for the reasons given by Chernov, J.A. 

COLDREY, A.J.A.:

1. I agree for the reasons advanced by Chernov, J.A. that this appeal should be dismissed.  I would just like to add some comments of my own.

1. The seminal statement on the impact of an offender's ill health upon the duration of any prison term to be imposed, was made by King, C.J. in R. v. Smith[13].  The judge, with whom Cox and O'Loghlin, JJ. agreed, said:

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender.  The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process.  Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.  It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners.  Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

[13](1987) 44 S.A.S.R. 587 at p.589

1. Subsequently, in R. v. Bailey[14] Lee, J., in a judgment in which other members of the Court of Criminal Appeal (N.S.W.) concurred, stated (per headnote):

"It has, for a long time been the practice to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate.  Accordingly the court should allow evidence of the appellant's medical condition to be given on appeal and should re-open the matter of sentence."

[14](1998) 35 A.Crim.R. 458

1. Although this pronouncement was referred to by Crockett, J. in R. v. Eliasen[15], his Honour went on to put it this way (at 396):

"Again, I think I should emphasise what King, C.J. in Smith's case is recorded as saying [citation] (which was adopted by Lee, J. in Bailey at 462) namely:

'Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health'."

This test, which embodies two distinct situations or limbs, has been adopted in a number of subsequent cases.[16]

[15](1991) 53 A.Crim.R. 391 at 395

[16]R. v. Morgan (1996) 87 A.Crim.R. 104 at 107;  R. v. Lear [1998] 1 V.R. 285 at 300; and R. v. Babic [1998] 2 V.R. 79 at 81.

1. What must be noted, however, is that the real question with which a sentencing judge must grapple is not whether the circumstances of the offender will make his or her incarceration more burdensome than that of a notional ordinary gaol inmate but rather whether the circumstances of incarceration will impose a greater burden on that offender because of such person's state of health.  Obviously some persons will find prison more onerous than others;  the fit as against the unfit, the young as against the old, the sanguine as against the anxious.  That, however, is not the test.  What must be determined is whether the impact of the prison regime will be more burdensome upon a specific prisoner because of his or her particular disability.  I interpolate that this may manifest itself in areas other than ill health.  For example, the hardship of isolation for prisoners such as informers or paedophiles who must serve their sentences in protection or the additional psychological stress of the cultural singleton..

1. Accordingly, in the instant case the issue which the sentencing judge had to decide was whether, given the physical disabilities associated with partial paraplegia under which the appellant laboured, the normal burdens of imprisonment would, in his case, be magnified.

1. As Chernov J.A. indicates in his judgment, the judge heard considerable evidence upon this issue (including evidence from the prisoner) and had a medical report from a Dr H. Barry Rawicki, an Associate Professor of Medicine at Monash University.  This was material that the judge took into account when sentencing the appellant.  His Honour remarked:

"It was submitted on your behalf … that this condition is highly significant for sentencing purposes.  Whilst it is true that your physical handicaps are of great significance, on the evidence before me your incarceration will not further burden your physical handicaps."

Later, his Honour said this:

"In summary, therefore, I conclude that, whilst you are entitled to every sympathy for your physical disability, incarceration will not place upon you any greater imposition than that which you would be subjected to if you were living in your own residence."

His Honour also remarked:

"Though you have a serious and permanent physical disability, I can attach little weight to that condition for the purpose of reducing the sentence which I would otherwise impose, because a term of incarceration would not add to, by way of exacerbation, your personal circumstances."

1. In my view the final factual conclusions to which his Honour came were open to him and he correctly applied what has been described as the first wing of the Eliasen test to those facts.

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