R v Malcotti
[2001] VSCA 97
•24 May 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 269 of 2000
| THE QUEEN |
| v. |
| MICHAEL MALCOTTI |
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JUDGES: | ORMISTON, CALLAWAY and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 May 2001 | |
DATE OF JUDGMENT: | 24 May 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 97 | |
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CRIMINAL LAW - Sentencing - Obtaining property by deception - Attempting to obtain property by deception - Eight counts over period of four years - Pressure to perform exerted by family - Early plea of guilty and restitution - Total effective sentence of five years' imprisonment with non-parole period of two and a half years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman | Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Stephen Andrianakis & Associates |
ORMISTON, J.A.:
I will ask Callaway, J.A. to give the first judgment.
CALLAWAY, J.A.:
The appellant, who is now aged 29, pleaded guilty in the County Court to six counts of obtaining property by deception and two counts of attempting to obtain property by deception between October 1994 and December 1998. The maximum custodial penalties for those offences were 10 years' and 5 years' imprisonment respectively. After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on each count to terms of imprisonment ranging from 12 months to 2½ years. Most of them were, or were of the order of, 18 months. Carefully chosen directions for cumulation resulted in a total effective sentence of 5 years' imprisonment, in respect of which his Honour fixed a non-parole period of 2½ years and made a declaration regarding 17 days' pre-sentence detention. Leave to appeal was granted on 8th December 2000.
There are three grounds of appeal: first, that the sentence imposed is manifestly excessive in all the circumstances; secondly, that the learned sentencing judge erred in failing to find that the appellant committed the offences in circumstances of reduced moral culpability; and, thirdly, that his Honour erred in his assessment of the appellant's moral culpability.
Before turning to counsel's submissions I shall say something briefly about the way in which the offences were committed. The appellant was employed by the Sunraysia Rural Water Authority as a diversions administrator. His responsibilities included the processing of sales and the transfer of water licences and he had control of the Authority's water entitlement records. It was his position at the Authority which enabled him to carry out a dishonest scheme of creating and selling, or attempting to sell, false water entitlements or licences during the relevant period.
In or about October 1994 a Robinvale real estate agent was telephoned by a man who identified himself as Michael Surace and claimed to have an entitlement to 185 megalitres of water for sale. The agent contacted a Mr Crawford, who was a director of CMV Farms Pty Ltd trading as Pistachio Producers of Australia. He informed Mr Crawford of the entitlement that was purportedly on offer and the company agreed to purchase it for $55,500, that price being calculated at the rate of $300 per megalitre. The agent reported the company's agreement to the appellant and the appellant sent both the agent and Mr Crawford a facsimile copy of a purported licence to divert water and cut race in the name of M. Surace. A few days later the company entered into a contract of sale with Michael Surace to purchase the entitlement.
A cheque for 10% of the purchase price was sent to the agent and banked in his trust account. In early December the appellant informed the agent that the Authority had approved the transfer. The agent advised Mr Crawford to that effect and Mr Crawford was sent a letter purporting to come from the Authority and confirming that advice. The agent deducted his commission from the deposit that had been paid and remitted the balance by cheque to M. Surace at a post office box number that had been issued to the appellant's wife's family. A month later the company sent a cheque for the remaining $49,950 to the supposed vendor. Both cheques were deposited in the appellant's bank account after he had typed his own name on to them.
Although there were variations on the theme and, in respect of some counts, an alleged co-offender, those facts, which formed the basis of count 1, are sufficient to illustrate the appellant's modus operandi and the extent to which it involved his taking advantage of, and abusing, his position with the Authority.
The sums of money involved were:
Count 1 - $ 55,500
Count 2 - $ 55,500
Count 3 - $140,625
Count 4 - $ 84,800
Count 5 - $392,000
Count 6 - $314,500
Count 7 - $ 40,000
Count 8 - $400,000
Counts 5 and 6 were the attempts. The total amount actually obtained by deception was $776,425, of which the appellant received about $325,000. Almost all of the balance is said to have gone to the alleged co-offender, but, it should be noted, he did not become involved until October 1997 at the earliest. He has not been charged and the papers are to the effect that he will not be charged.
Mr Holdenson argued grounds 2 and 3 first, submitting that there was material on the plea that was explanatory and mitigatory of the appellant's engaging in the criminal conduct the subject of the eight counts to which he pleaded guilty. That material appeared particularly in the viva voce evidence of Mr Cummins, a clinical psychologist called on behalf of the appellant.
The appellant's family have for many years conducted one or more fruit blocks in the Mildura area. That has not been easy, because the appellant's father has suffered several nervous breakdowns that have required hospitalisation and a younger brother is mentally impaired. It had been, Mr Cummins explained as the result of discussions he had had, the appellant's mother who had become the driving force in the management of the family business. It was she, the witness said, who had "really called the shots" and the appellant had felt obliged to fall into line with her wishes. As the elder son, he had acquired what Mr Cummins described as a misguided sense of loyalty and responsibility to his parents, younger brother and one of his sisters, who was still living at home. In addition to the personal difficulties the business faced, it had undertaken loans the interest and repayments on which it was struggling to meet. On both fronts, personal and financial, there was pressure to perform exerted on the appellant by his mother and to a lesser extent his father, so that, for example, some of the moneys fraudulently obtained had gone into improving the irrigation system of the properties with a view to improving their productivity.
The witness concluded this part of his evidence, directed to the family expectations which it was said had led the appellant into temptation, by giving the following answer to the second last question asked in examination-in-chief:
"[The appellant] didn't give me the impression that his parents had really any knowledge at all of the extent to which additional income or additional money or capital was being injected into the businesses, rather the impression he gave me, Your Honour, was that they basically expected certain things to happen, and because he was then the de facto manager of these properties - if his mother said 'This should happen' or if his father said 'This should happen', he would make it happen. And in that sense he did gain their further approval."
Mr Cummins's presentation of this evidence was regarded as a convenient course and he was not cross-examined. The judge referred to his testimony in the course of his sentencing remarks. His Honour's summary shows that Mr Cummins's portrayal of the family was accepted. Specific reference was made to the witness's acceptance of the appellant's misguided sense of responsibility to his family. Reference was also made on an earlier page of the sentencing remarks to the use of proceeds of the deceptions in improving the properties and paying off debt.
Mr Holdenson's complaint was not that his Honour paid no heed to this aspect of the case but rather, so it was submitted, that he had not used this evidence in the right way. It went, counsel said, to the assessment of the appellant's moral culpability and affected the sentencing task in a number of ways, having a bearing on both subjective and objective aspects of criminality and affecting the weight to be given to the sentencing objectives of retribution and general and specific deterrence.
In support of this branch of his submissions counsel referred the Court to the well known passage in the judgment of Brennan, J. in Neal v. The Queen[1]. That passage is usually cited for the bearing that emotional stress may have on moral culpability, but Brennan, J. had said that a sentencing court takes account of emotional stress in evaluating the moral culpability of an offender "just as it is entitled to have regard to the motive for the offence". Accordingly, so the submission proceeded, just as emotional stress might mitigate sentencing objectives such as retribution, the same could be said, in an appropriate case, of motivation. I say "in an appropriate case" because, as counsel properly conceded, motivation could also be an aggravating factor.
[1] (1982) 149 C.L.R.305 at 324-325. See also 309 per Gibbs, C.J. and 315 per
Murphy, J.
As I understood the submission, it entailed both that the judge should have expressly referred to the way in which the appellant's family position impacted on subjective and objective aspects of criminality and relevant sentencing objectives and also that it could be inferred that his Honour had not used Mr Cummins's evidence in the appropriate analytical way. That inference was to be drawn from its merely having been summarised and from the ultimate sentence imposed.
The short answer to these submissions is, in my opinion, that his Honour took the relevant facts into account in his synthesis. He was not asked to do more or to engage in any particular process of analysis. Neither the expression "moral culpability" nor any cognate expression was used in the course of the plea. The relevant evidence was not merely summarised by way of background in the sentencing remarks or mentioned and forgotten. On the contrary, as Mr Hillman pointed out, the judge expressly said, immediately before pronouncing sentence, that he had kept in mind the matters in favour of the appellant which he had earlier mentioned. Those matters included the way in which the money had been used and the appellant's misguided sense of responsibility. To my mind this case affords a straightforward example of taking into account relevant factors in arriving at an appropriate sentence. If it were necessary - and I do not think it is - to couch my conclusion in language drawn from Neal's Case, I would not infer that his Honour omitted to consider motivation as a mitigating factor in assessing the gravity of the appellant's conduct[2].
[2] Compare 325.
Accordingly I would not uphold either of grounds 2 and 3, but I would, as Mr Holdenson invited us to do, bear the relevant material in mind in considering ground 1.
Counsel placed at the forefront of his submissions under that ground the appellant's plea of guilty, its concomitant circumstances and the conclusions to be drawn from it. Although there had been some early negotiations as to the number of counts to which he would plead guilty, they had been resolved by the time of the committal proceeding. The plea had utilitarian value and betokened remorse. There was other evidence of remorse adduced on the plea which his Honour expressly accepted. Plainly a discount had been given, but, it was contended, the discount was insufficient.
It is to be remembered, however, that this is not a case of five years' imprisonment for a single offence. The total effective sentence was made up of the individual sentences imposed on the eight counts. None of them exceeded two-and-a-half years' imprisonment and, as I earlier said, most of them were, or were of the order of, 18 months' imprisonment. Remembering that that is so and taking into account all the factors of mitigation and aggravation, I would not be prepared to draw the conclusion that his Honour gave insufficient weight to the early plea of guilty or to its utilitarian value or to its bearing on remorse.
There were, of course, other factors on which counsel relied, and in the end it is the combination of factors that is to be borne in mind in considering a ground such as manifest excess. Having dealt with a specific complaint and rejected it, one does not then put from one's mind the topic to which it was directed.
Mr Holdenson adopted the plea in mitigation that had been advanced below but proceeded to stress some particular aspects. There was the response of the appellant to his being charged. He had, for example, agreed to make full restitution to the Authority in the sum of $300,000. (We were informed that full payment has since been made.) He had also offered to assist the authorities in any prosecution of, and the Authority in its proposed civil claim against, the alleged co-offender. Mr Holdenson submitted, correctly, that they were significant matters in mitigation and gave promise of rehabilitation. Another group of factors had to do with the effect of the crimes and their detection on the appellant himself. His employment had been terminated and it was unlikely that he would ever again be employed in a similar position of trust. He knew that he had let his family down and disgraced himself in the community where he and they were well known. Finally, Mr Holdenson reminded us, the appellant fell to be sentenced as a first offender having no previous convictions. There was unchallenged evidence from Mr Cummins that he was unlikely to re-offend, although that must always be, in the end, a matter for the judge.
Mr Hillman responded to those submissions in two ways. First, he pointed out that the judge had specifically referred to the appellant's plea of guilty, its timing, his remorse, his agreement to pay restitution and his offers of assistance both to prosecuting authorities and to the Sunraysia Rural Water Authority in its proposed civil claim. His Honour had given weight to the appellant's prospects of rehabilitation, as evidenced among other things by the non-parole period that had been fixed. He had referred to the appellant's being a first offender, to Mr Cummins's evidence of what was likely in the future, and had accepted that specific deterrence was less important than it might otherwise be. Other factors had been mentioned on the plea and there was, counsel submitted, no reason to think that they had not been taken into account.
Secondly, Mr Hillman said, the formulation of an appropriate sentence involves not only the synthesis of mitigating factors but due weight being given to matters of aggravation. In the present case there were eight separate offences. They involved substantial amounts. They were carefully planned and took advantage of
the appellant's position of trust with the Authority. They continued over a period of four years, and, whatever might be said about specific deterrence, general deterrence remained an important consideration.
As Batt, J.A. observed in the course of argument, the question raised by ground 1 is not whether the judge took relevant factors into account but whether the sentence itself is manifestly excessive. In the absence of specific error, that is ultimately a matter of impression, taking all the circumstances favourable and unfavourable to the appellant into account. In my view this was a stern sentence, but I am not persuaded that it was beyond the range properly available to the judge.
Accordingly I would dismiss the appeal.
ORMISTON, J.A.:
I agree.
BATT, J.A.:
I also agree.
ORMISTON, J.A.:
The order of the Court is that the appeal is dismissed.
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