R v Friend
[2004] VSCA 76
•29 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 33 of 2004
| THE QUEEN |
| v. |
| SANDRA MAI FRIEND |
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JUDGES: | WINNEKE, P., CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 April 2004 | |
DATE OF JUDGMENT: | 29 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 76 | |
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Criminal law – Sentence – Theft – Obtaining property by deception – Manifest excess – Plea of guilty – Appellant with no prior criminal history – Co-offenders sentenced separately – Duty of sentencing judge – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr B.J. Bourke | Brugman Mellas |
WINNEKE, P.:
I will invite Vincent, J.A. to give the first judgment in this appeal.
VINCENT, J.A.:
The appellant pleaded guilty before the County Court on 17 February 2004 to two counts of theft (counts 5 and 7 on the presentment in which she had been brought before the court) and one count of obtaining property by deception (count 6). She was acquitted on the remaining counts on the presentment in circumstances to which I shall return.
After hearing a plea in mitigation of penalty, the sentencing judge, on 27 February 2004, ordered that she be imprisoned for a period of two years and six months on count 5, imposed a fine of $300 on count 6 and imprisonment for three months on count 7. He ordered that two months of the sentence imposed on count 7 be served cumulatively upon that imposed on count 5, thus creating a total effective sentence of imprisonment of two years and eight months. He directed that the appellant serve an immediate period of six months of that term, and that the service of the balance of the term be suspended for a period of three years from that date.
Having been granted leave to do so, the appellant has appealed against the sentences.
The appellant was, at the time of the commission of the offences, aged 40 and 41 years and without any prior criminal history. After leaving school she worked in a variety of occupations, including the management of a youth shelter. In 1991 the appellant commenced employment as a housing support worker with the Barwon-Glenelg Regional Tenants' Association, a body designed to assist tenants in government housing. In late 1997, consequent upon a shift in government policy with regard to funding of such activities, that organisation was, for practical purposes, superseded by a body known as the Housing Support Works ("HSW"), which submitted a successful tender to provide services as the rental housing support provider for the Barwon South West Region. HSW was incorporated as a company limited by guarantee, and had been established through the Tenants' Association to service the requirements of the tender. The Tenants' Association continued to operate, although playing a reduced role.
HSW was a small organisation governed by a board of directors, at least some of whom had been recruited by the appellant. She was employed by the company as a tenant worker and manager, with a number of specified tasks that included the provision of written Manager's reports to what were supposed to be monthly Board and Directors’ meetings. According to the evidence given by one of the witnesses at the appellant's plea hearing, and consistent with the general fashion in which the organisation was run, regular meetings were not held.
Between October 1997 and March 2000, Richard David Donehue was employed as the administration manager and housing support worker of HSW. He also had been formerly employed with the Tenants' Association. As administration manager, his role was to pay accounts, attend to the payroll, and generally maintain the books of the organisation. He was a co-signatory to the two bank accounts of HSW and another in the name of the Tenants' Association, and he was responsible for the preparation and presentation of the financial statements for company board meetings.
The company, which as I have indicated was obviously very poorly run from the outset and was under the practical control of persons who, it would seem clear, were quite ill-equipped for the task, ceased trading in early 2000. When this occurred, an auditor was appointed by the Department of Housing to examine its affairs. He found that HSW had been funded for fewer employees than it engaged and that the accounting practices and procedures of the organisation were very poor, with cash books only maintained until 30 June 1999. Thereafter it appears that there were no accounting records at all. Those which had been prepared prior to that time were found to be misleading and unreliable. There were no payroll records, with salaries being paid in cash, and little information had been retained on employees' records. No tax had been withheld.
Remarkably, although the sources of income of the two organisations were relatively clear, the auditor noted that amounts totalling $25,148 from some unidentified source or sources had been deposited into the three accounts. The explanation for this can be found in evidence that part of the funding paid to HSW was diverted by Donehue to the account of the Tenants' Association to cover outstanding liabilities. It could also be accepted that, in order to ensure the liquidity of HSW, the appellant advanced money to that organisation.
Towards the end of 1998, the appellant and her husband were in the process of purchasing a property. At that time she was experiencing serious personal difficulties. Among other issues, she was suffering from a gambling problem and had, in consequence, lost some $30,000 of the settlement money. Against that background, she sought to recover the amount that she felt was owed to her by HSW. As I indicated, there were unexplained deposits in the accounts of the two bodies that can be assumed to represent advances made by her. In view of the absence of any records, the possibility that, as she claimed, she had provided other amounts also cannot be ignored. The appellant estimated that she had advanced, in total, approximately $45,000 to the organisation. Donehue stated that she had instructed him to make a number of cheque payments totalling $48,400. The appellant in count 5 admitted to the theft of $23,400 of that amount, the balance representing the $25,148 earlier mentioned and which could be identified.
Count 6 related to the purchase of a Cross Medallist pen from Office Works, valued at $224, which was used as a personal gift to another from the appellant.
Count 7 related to a cheque drawn on the HSW Colonial Bank account in the sum of $3,500. This was paid to an organisation known as the International Education Forum and used to cover the cost of an educational placement in Italy for the appellant's daughter.
Following the auditor's investigation, Donehue and the appellant were each charged with the commission of a large number of offences of theft and a committal hearing was conducted on 26 February 2002. Both were directed to stand trial in the County Court at Geelong. Subsequently an order for separate trials was made. This ultimately became one of the sources of difficulty in the matter as it resulted in separate plea hearings which were conducted a fortnight apart.
On 4 February 2004, Donehue pleaded guilty to 15 counts of theft and one count of obtaining property by deception. He claimed, and the sentencing judge accepted, that for practical purposes he had derived no financial benefit from his actions and that, save for an amount of $500 which was used to pay maintenance to his former wife and the cheques drawn in favour of the appellant, the moneys were diverted to cover wages and to make what were referred to as legitimate agency expenses. He explained that he was under great pressure, created to a significant extent by the appellant, to commit these various offences, fearing that if he disclosed the extent of the financial irregularities and the general situation of HSW, he would lose his employment.
On 17 February 2004, the appellant was arraigned before the same judge on a presentment containing seven counts of theft and obtaining property by deception. She entered pleas of not guilty to four of them, as I have indicated, and guilty to the remainder (the counts in respect of which the sentences presently under consideration were imposed).
By the end of the Crown case, his Honour, who had already withdrawn one count from the jury, directed acquittals on the other contested charges.
When regard is had to the various comments made by his Honour in the course of the appellant's plea hearing, his findings of fact as indicated in his sentencing remarks and the actual sentences imposed, there would seem to be little room for doubt that, by the time of the commencement of the hearing of the appellant's plea on 24 February 2004, the sentencing judge had developed a quite unfavourable view of the appellant and her role, not only in relation to the offences for which she was to be sentenced, but also by reason of his perception of the extent to which she had contributed to the circumstances under which Donehue had offended.
Unfortunately, at no stage during the hearing, did he articulate in any clear fashion the basis for this view and, specifically, its factual foundation. Had he done so, it may have been possible for counsel to deal with the individual matters of concern in order to ensure fairness to the appellant.
For a number of reasons, and although endeavours are regularly made to avoid having to do so, sentencing judges are on occasions called upon to sentence, at different times, persons whose offences, circumstances or conduct may be related. Obviously, in such cases, care is required to ensure that an impression formed or a finding of fact made on the basis of the limited, and possibly selectively presented, material before the judge when dealing with the case of one offender, does not result in unfairness to a person who comes before the court at a later time. That person must, at minimum, be afforded the opportunity to attempt to persuade the judge that a different view of the circumstances should be adopted. The absence of the provision of such an opportunity must, in my opinion, be regarded as vitiating the exercise of the judge's sentencing discretion in this case.
Accordingly, I would allow this appeal, set aside the sentences imposed in the court below and re-sentence the appellant.
Turning then to that matter, although the amounts involved in the appellant's offences could, when regard is had to some of the cases that come before this Court, be perceived as relatively small, it must also be remembered that she was in a position of trust and that the funds taken had been provided from public sources for the assistance of persons in need. So assessed, the thefts encompassed by counts 5 and 7 respectively can be seen as sufficiently serious to attract the imposition of a sentence of imprisonment.
However, regard must also be had in the determination of an appropriate sentence to a number of matters which can be seen to militate in favour of mitigation of penalty in this case. They include the absence of any prior convictions, the appellant's plea of guilty, her accepted intention to repay the amounts taken, her history of prior good character and community service, the circumstances of personal distress under which she was functioning at the time of the commission of the offences, and her serious endeavours towards rehabilitation in the period of more than three years that she was at liberty following the commission of the various offences.
Bearing all of those considerations in mind, I would propose that the appellant be re-sentenced as follows:
On count 5 - imprisonment for two years.
On count 6 - I would re-impose the fine of $300.
On count 7- I would re-impose the sentence of imprisonment of three months, but direct that it be served concurrently with the sentence imposed on count 5.
This disposition would create an effective period of imprisonment of two years, the service of which, save for the period already served, I propose, should be wholly suspended for an operative period of two years from this date.
WINNEKE, P.:
I agree with my brother Vincent that this appeal should be allowed and the sentencing discretion re-exercised in the manner which he proposes.
CHERNOV, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be –
The appeal against sentence is allowed.
The sentence imposed on count 5 by the trial judge is set aside, as are his Honour's orders for cumulation and the total effective sentence.
In lieu of the sentence imposed on count 5, the Court substitutes a sentence of two years.
The Court also orders that the sentences imposed on the other counts be as imposed by his Honour and be served concurrently with the two years imposed on count 5. The total effective sentence is therefore two years.
We order that such part of the sentence beyond that which has already been served be wholly suspended for a period of two years from today's date. The effect of the sentence is therefore that the appellant is entitled to her freedom as from today.
We simply note, for the purpose of the record, that the return of prisoners is inaccurate in the sense that it records that the fine imposed on count 6 is $500, when it should be $300. We have been informed by the representative of the Director of Public Prosecutions, Ms Powell, that that matter has been referred to the trial judge and will be remedied in accordance with this Court's direction.
Mr Bourke, I really have an obligation to inform your client about the effect of the suspended sentence. As I understand it, that is an obligation. She is not here for me to do that, but I take it that you will do it on our behalf.
MR BOURKE:
I will do that. She is up at Maldon, your Honour, and I will ring her and let her know.
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