R v McPhee - [2014] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v MCPHEE
[2014] SASCFC 107
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)
27 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - FRAUDULENT CONVERSION BY PERSONS ENTRUSTED WITH PROPERTY - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The appellant was sentenced in the District Court to a period of 13 years imprisonment with a non-parole period of ten years after having pleaded guilty to 181 counts of theft contrary to s134 of the Criminal Law Consolidation Act 1935. The appellant misappropriated funds totalling $1,949,827.43 over which she had control by virtue of her position as a court appointed trustee. The offending was aggravated by the appellant’s abuse of a position of trust. On the appeal the appellant raised various bases in support of her contention that the sentence was manifestly excessive: that the head sentence (13 years with a starting point of 16 years) was too high; that the Judge failed to apply an appropriate discount given the appellant’s guilty pleas; that the non-parole period of ten years was too high; and that the Judge erred by sentencing against an incorrect factual background.
Held by the Court:
1. The appeal is allowed.
2. The sentence imposed in the District Court is set aside.
3. The appellant is re-sentenced to imprisonment for a term of nine years and two months and a non-parole period of six years both backdated to commence on 23 July 2013.
Criminal Law Consolidation Act 1935 s5AA, s134. s353; Criminal Law (Sentencing) Act 1988 s10, s10C, s18A; Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 s7, referred to.
R v Reiner (1974) 8 SASR 102; House v The King (1936) 55 CLR 499; R v Chisholm (1985) 122 LSJS 230; R v Ainsworth [2008] SASC 67; R v Kreutzer [2013] SASCFC 130; R v Telford [2005] SASC 349; R v Cavanagh [1999] SASC 418; R v Willoughby DCCRM-07-976, sentencing remarks of Rice DCJ, 21 January 2011; R v Fuss DCCRM-11-350, sentencing remarks of Griffin DCJ, 8 July 2011; Subramaniam v R [2013] NSWCCA 159; R v Kinnear & Thomas [2009] VSCA 104; R v Jorquera [2013] SASCFC 145; R v Davies (1996) 88 A Crim R 226; M, MA v Police [2013] SASCFC 140; R v Shannon (1979) 21 SASR 442; Cameron v The Queen (2002) 209 CLR 339; R v Place (2002) 81 SASR 395; Markarian v The Queen (2006) 228 CLR 357, considered.

R v MCPHEE
[2014] SASCFC 107
Court of Criminal Appeal: Vanstone, Blue and Nicholson JJ
VANSTONE J.

This appeal is against a sentence imposed in the District Court, after pleas of guilty to 181 counts of theft, each of which was aggravated by the appellant being the court appointed trustee of the funds. The single sentence was imprisonment for 13 years with a non-parole period of 10 years.
One of the arguments advanced by the appellant is that the sentence was imposed on an incorrect factual basis. The amount the subject of each charge was not specified in the information. However, the Director of Public Prosecutions provided what it called a “Prosecution Outline of Submissions Regarding Quantum”. There, it was expressly alleged that the “total quantum of the charged conduct is $1,949,827.43”, $1.95m in round figures. That amount was not disputed before the sentencing judge.
Rather than using that figure, the judge seems to have started with what was said to be the total trust monies spent by the appellant in the relevant period, being $4,358,263 (found in Schedule 2 of the prosecution’s forensic analysis document) and then deducted amounts which had demonstrably been applied for the purposes of the applicable trusts. The judge went on to discuss the application of other amounts of the total. The judge then observed that:
The approximate remaining 87% or so of the funds have been expended and dissipated by you, not for the benefit of the beneficiaries. It is likely therefore that it was for your own interests and for your own purposes. Much of it has been identified as specific expenditure that you spent on yourself.
In my opinion, notwithstanding that the judge several times observed that the appellant was only to be sentenced for the crimes to which she had pleaded guilty, the combination of the close analysis of the total amount spent by the appellant in the relevant period, added to the fact that the judge did not ever specify the actual loss alleged (the $1.95m) means that the appellant is entitled to apprehend that she was sentenced on an incorrect factual basis.
However, it is unnecessary to finally determine the true basis, since, in my opinion the sentence – both the head sentence and the non-parole period – is manifestly excessive. I say that notwithstanding the magnitude of the offending, its seriousness, and the length of time over which it continued.
More detailed facts relevant to sentence are set out in the judgment of Nicholson J. Taking everything into account, I would have said that a starting point in the range of about 12 to 15 years was appropriate. I would have given very close to the full amount of available discount to reflect the timely entry of pleas of guilty. I am content to agree with the fresh sentence as detailed by Nicholson J.
For these reasons I agree with the orders proposed by Nicholson J.
BLUE J.
I agree with Nicholson J.
NICHOLSON J.
Introduction
The appellant was sentenced in the District Court to imprisonment for 13 years with a non-parole period of ten years after having pleaded guilty to 181 counts of theft, contrary to s134 of the Criminal Law Consolidation Act 1935. The sentence commenced on 23 July 2013, being the date on which the appellant was arrested and remanded in custody. Each of the offences was aggravated because the appellant abused a position of trust.[1] Accordingly, the maximum penalty for each offence is 15 years imprisonment.[2]
[1] Section 5AA of the Criminal Law Consolidation Act 1935.
[2] Section 134(1) of the Criminal Law Consolidation Act 1935. This remains the maximum penalty for each offence notwithstanding that of the 181 counts, 175 were charged as minor indictable offences with six as major indictable offences and bearing in mind that, had the minor indictable offences been finalised in the Magistrates Court, the maximum that could have been imposed for each such offence is five years imprisonment.
The appellant complains that the sentence is manifestly excessive as a consequence of one or more (in combination) of: the head sentence (13 years with a starting point of 16 years) being too high; the failure by the Judge to apply an appropriate discount on account of the appellant’s guilty pleas; the non-parole period of ten years being too high; and an error committed by the Judge in sentencing against an incorrect factual background.
The appellant conducted her own business as a financial adviser and under an agency relationship with the Australian Mutual Provident Society Ltd. Kevin Trahar had been seriously injured in a motor vehicle accident as a result of which he suffered, inter alia, permanent brain damage. He was unable to manage his affairs and, on 22 April 2005, an order was made in the Supreme Court appointing the appellant as trustee to control and manage a substantial settlement sum ordered in favour of Mr Trahar. Melanie McGuire suffered a severe brain injury whilst a patient in a South Australian hospital, becoming permanently incapacitated. She also was not capable of managing her own affairs and, on 17 February 2006, an order was made in the District Court appointing the appellant as trustee to control and manage a substantial settlement sum ordered in favour of Ms McGuire. On 8 May 2006, orders were made in the District Court appointing the appellant as trustee to control and manage settlement sums payable to four minors, the Warren family children, following the death of their mother and a sibling in a car accident.
The appellant, in her capacity as trustee and manager, had unrestricted access to the funds placed under her control. She was, of course, obliged to manage and invest the funds solely in the interests of the beneficiaries and to dispense the funds solely for their benefit and in accordance with each of their respective entitlements.
Over a period of more than six years, between 14 August 2006 and 16 October 2012, the appellant committed 181 defalcations whereby she withdrew and spent on her own purposes funds totalling $1,949,827.43. Most of the money was dissipated on lifestyle expenses. An amount of $440,000 was used (together with mortgage funds) to purchase a home unit. Steps are in train by the mortgagee for the property to be sold. It is likely that there will be a surplus after sale which will be available to assist with, partial, restitution. However, the loan has been in default for quite some time and once sale costs, accumulated interest and legal fees are accounted for, it is highly likely that significantly less than the $440,000 originally contributed by the appellant will be available for this purpose. It is highly likely that this will be the only means by which the appellant would be able to repay any of the almost $1.95M stolen.
The amount of money stolen, the persistent and repeated nature of the offending, the lengthy period over which the thefts occurred, the gross breaches of the positions of trust occupied by the appellant, and the fact that the motive was simply greed not need, render the offending as comprising very serious examples of the offence of theft and as offending which, on any analysis, deserves condign punishment.
The effect on the victims has been significant. They will not be able to recover their losses from the appellant and there is real uncertainty as to whether they will have a right of recovery against anyone else including, for example, the AMP. In addition, the victims are all particularly vulnerable: they had no capacity to watch over the appellant as their trustee or to protect in any way their own interests; they have a more limited capacity than most to cope psychologically and emotionally with the losses they have suffered; and they have an extremely limited, if any, capacity to rebuild their position financially. Sub-sections 10(1)(d) and (e) of the Criminal Law (Sentencing) Act 1988 require a sentencing court to have regard to the personal circumstances of any victim of the offence and to the injury, loss or damage resulting from the offence, respectively. On the facts of this case, these considerations materially add to the culpability of the appellant’s conduct.
I would allow the appeal on the basis that the Judge sentenced on an incorrect factual basis which had, or must be understood to have had, a material impact on the sentence imposed. I would proceed to re-sentence the appellant on this basis alone. In addition, and notwithstanding that a substantial prison term is called for, I also take the view that a combination of the starting point (16 years) being too high and the discount applied (18.75 per cent) being too low has resulted in a head sentence that was manifestly excessive in all the circumstances.
Incorrect factual basis
In the sentencing remarks, the Judge referred to the appellant having pleaded guilty to 181 counts of theft but did not identify the total amount stolen pursuant to those 181 defalcations as being in the amount of $1,949,827.43.[3] However, by reference to the financial records that formed part of the materials that were before him, his Honour found that the appellant had spent a total of $4,358,263 of trust monies. Some 5.48 per cent of this amount ($238,766) comprised expenditure on behalf of the beneficiaries and another 5.4 per cent related to something called “movements in the investment accounts and amounts”. About 2 per cent of “that sum”, totalling $84,000, was spent on travel agents. However, because the degree to which that latter money was spent on the appellant or on behalf of the beneficiaries was unclear to the Judge, his Honour went on to say “I do not hold those monies against you”.
[3] This is the amount stolen (give or take some cents) relied upon by the prosecution, accepted by the defence and as established on the evidentiary material that was before the Judge.
Still unaccounted for was a little more than 87 per cent of the $4,358,263 (approximately $3,791,690) which, according to the Judge, was:
expended and dissipated by you, not for the benefit of the beneficiaries. It is likely therefore that it was for your own interests and for your own purposes. Much of it has been identified as specific expenditure that you spent on yourself. I will deal with some of that a little later.
His Honour stated on a number of occasions that the appellant was to be sentenced only for the offences to which she had pleaded guilty but that the available financial material, including that just referred to, “forms relevant background”.
By way of example, towards the end of the sentencing remarks the Judge said:
[A]lthough the background information indicates that significantly larger sums have been lost and that together with the monies that the lost trust monies would have earned [sic], you expended a very large amount of money on yourself and for your own purposes. I regard that simply as background information, however, and I repeat that you are being penalised only for the offences to which you have pled guilty.
The appellant admitted to 181 particularised counts of theft totalling $1,949,827.37. These were the only charges laid by the Crown. The prosecution did not seek to rely on any additional monies having been improperly dealt with. This would need to have been charged and pleaded to or expressly raised by the Crown and consented to by the defence before it could have a role in the sentencing process.[4] The 181 counts were not presented by the prosecution or accepted by the defence as counts representative of a wider course of conduct. The prosecution accepts that the sentencing material before the Judge did not permit findings to be made (beyond reasonable doubt) that the appellant had stolen moneys in excess of the amounts proved with respect to the 181 charged offences.
[4] See generally, for example, R v Reiner (1974) 8 SASR 102.
The Judge erred in having regard to a total amount thought to have been stolen in the order of $3,791,690 rather than the approximately $1.95M charged and proved, whether by way of “background” or otherwise.
The role this “background” played in the sentence ultimately arrived at by the Judge is not clear from the sentencing remarks. However, given the prominence accorded by the Judge to this background material in his remarks and the failure to identify the total amount proved as stolen, I am satisfied that, at the least, it had an influence on the Judge’s consideration of leniency.
Ordinarily, where a Judge sentences on a mistaken view of the facts, the sentence should be set aside and the appellant re-sentenced[5] unless the mistake had no material impact on the sentence imposed. In addition, even where error is shown, an appeal should be dismissed unless the appeal court thinks a different sentence should have been imposed.[6] Counsel for the Director conceded that there was an error in the factual basis of sentencing. However, counsel submitted that the sentence arrived at by the Judge was appropriate, in any event, and that were this Court to re-sentence it should arrive at the same result as did the Judge. I disagree. I am satisfied on a reading of the sentencing remarks as a whole that the error of fact was material to the sentence imposed by the Judge. Furthermore, the matter is one where a different (and lower) sentence should have been imposed.
The starting point was too high and the discount allowed too low such that the sentence imposed was manifestly excessive in any event
[5] House v The King (1936) 55 CLR 499 at 504-505.
[6] Criminal Law Consolidation Act 1935, s353(4). See generally, R v Ainsworth [2008] SASC 67; R v Kreutzer [2013] SASCFC 130.
King CJ in R v Chisholm[7] described, in general terms, the approach to be taken by a Court when sentencing for criminal conduct involving serious and repeated acts of dishonesty.
The systematic course of dishonesty undoubtedly calls for a substantial sentence and there is, moreover, the important aspect of deterrence. The courts have a responsibility to impose sentences upon those who abuse the trust which is placed in them which will operate as a deterrent to others in a position of trust who might either for psychological or any other reason experience the temptation to take what does not belong to them.
The appellant accepts that this general approach is applicable to her case.
[7] (1985) 122 LSJS 230 at 232.
The appellant was 33 when she started to offend. As at that time, she had been a person of good character. She has no prior convictions. However, the appellant also accepts that where systematic fraud is involved, previous good character and lack of prior convictions must carry less weight than they might otherwise.[8]
[8] R v Jorquera [2013] SASCFC 145; R v Davies (1996) 88 A Crim R 226.
Even so, the appellant contends that the starting point of 16 years imprisonment was, in all the circumstances, too high and the discount given for the guilty pleas was too low. The combined effect was a head sentence that was manifestly excessive.
In order to assist with this argument, counsel for the appellant drew the Court’s attention to a number of decisions dealing with the sentencing of offenders who engaged in large scale and repeated dishonesty, including R v Telford,[9] R v Cavanagh,[10] R v Willoughby,[11] R v Fuss,[12] Subramaniam v R[13] and R v Kinnear & Thomas.[14]As in any area of sentencing, a consideration of other cases can only be of quite limited assistance. The circumstances of the offending and the circumstances personal to the offender will always be different and usually materially so. At best, one might get a feel for the range of penalty imposed in other cases with respect to broadly similar offending.
[9] [2005] SASC 349 ($22.5M; 16 years before discount for plea).
[10] [1999] SASC 418 ($240,000 between 1991 and 1995; 8 years after 10 per cent discount).
[11] R v William Brenton Willoughby DCCRM-07-976, sentencing remarks of Rice DCJ, 21 January 2011 ($3M over 6 and a half years; 10 years before discount for plea).
[12] R v Christopher Wayne Fuss DCCRM-11-350, sentencing remarks of Griffin DCJ, 8 July 2011 ($27M over 2 years; 12 years before discount for plea).
[13] [2013] NSWCCA 159 ($45M over 5 years; 11 years after 25 per cent discount).
[14] [2009] VSCA 104 ($2.2M over 7 years; 8 years after plea).
Comparing cases is particularly problematic here. There are relatively few cases within this genre. Of the six relied on by the appellant, two were relatively old Full Court decisions in this State, two were first instance sentences and two were from interstate.
When considering the starting point for a head sentence, a court must look at not only the seriousness of the offending and the need for deterrence but also the personal circumstances of the offender. In this case, the appellant’s personal circumstances, as identified by the Judge in his sentencing remarks, were quite favourable in the sense that they provided scope for the exercise of leniency and allowed for an inference that the appellant had reasonable prospects for rehabilitation. I will come back to the appellant’s personal circumstances, briefly, when I come to re-sentence.

In my view, a starting point of 16 years was arguably outside the range available for this offending and given the circumstances of this offender. I would have started at 13 years before discount for the plea of guilty.
The Judge reduced his starting point for the head sentence by three years, a reduction of approximately 18.75 per cent, on account of the appellant’s pleas of guilty. The question of any reduction for pleas of guilty is governed, in this case, by s10C of the Criminal Law (Sentencing) Act 1988. Section 10C applies to proceedings, such as the present, instituted on or after 13 March 2013.[15] Section 10C was not drawn to the Judge’s attention during the sentencing submissions and it is not referred to in his Honour’s sentencing remarks. There is a reference to s10C in the record of proceedings prepared by the associate for Friday 16 May 2014 (the date of sentencing).[16]
[15] Section 7 of and schedule 1 to the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012.
[16] AB73.
The Judge justified the reduction granted in the following way.
You are entitled to credit for your plea of guilty and indeed you entered your pleas early. On the other hand the case against you was, in my view, strong and virtually unanswerable.
From a starting point of 16 years imprisonment I reduce that to 13 years for your early plea of guilty.
Section 10C not only provides for a regime which serves to place a cap on the extent of any discount that may be allowed (which cap varies according to the timing of any guilty plea) but also identifies a number of considerations to which a court “must have regard” when determining the precise discount within the available range that is to be allowed.[17] Sentencing remarks are not reasons for judgment. Remarks do not need to contain specific or detailed references to the particular sentencing principles relied on when arriving at a sentence, including the commonly applied statutory provisions such as s10 and for that matter s10C of the Sentencing Act. However, it is important that the remarks as a whole demonstrate, if only by (clear) inference, that the necessary sentencing principles have been applied.[18]
[17] Sub-section 10C(4).
[18] Cf; M, MA v Police [2013] SASCFC 140 at [12] (The Court: Gray, Anderson and Blue JJ).
There is nothing in the sentencing remarks from which it can be inferred with confidence that the Judge adverted to and applied s10C, including the mandatory requirements of s10C(4). Furthermore, the actual discount allowed, of itself, suggests that s10C was overlooked.[19] A proper application of s10C to the facts of this case inevitably leads to a discount significantly higher than that given.
[19] Cf; M, MA v Police at [18].
The material parts of s10C are in the following terms.
10C—Reduction of sentences for guilty plea in other cases
(1)...
(2)If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(e)     ...
(f)    ...
(3)...
(4)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a)     whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b)     the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c)     the circumstances surrounding the plea;
(d)     in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e)     if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;
(f)    whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
(5)...
(6)...
The appellant was arrested on 23 July 2013 and appeared for the first time in court on 2 August 2013 at which time a first information containing 134 counts (approximately $1.4M) was presented. On 17 September 2013, the appellant again appeared in court and further declarations were provided. On that same day a new information was filed, being the information containing the 181 counts with respect to which the appellant ultimately pleaded. It is not clear whether this new information was filed prior to or after the appellant’s appearance in court on that day. What is known is that the new information was first provided to the appellant (in fact, to her solicitor) by email on 9 October 2013. Some 12 or so days later, on 21 October 2013, formal notification was given to the Director (by email) that the appellant would plead guilty to all 181 counts on the new information. The appellant next appeared in court on 8 November 2013 (some 30 days after being served with the new information filed on 17 September 2013). The appellant pleaded guilty to all 181 counts on the new information.
In these circumstances, the appellant pleaded guilty more than four weeks after she first appeared in a court in relation to the first information (containing 134 counts) but before she was committed for trial. As such, the maximum discount of 30 per cent (s10C(2)(b)) applies, at least with respect to the 134 counts in the first information and replicated in the new information. However, it does not necessarily follow that the 30 per cent cap also applies with respect to the additional 47 counts first pleaded in the new information, filed on 17 September 2013. As far as these counts are concerned, the appellant pleaded guilty at her first appearance in court after being put on notice of these additional counts.
The critical phrase used in both paragraphs (a) and (b) of s10C(2) is “in relation to the relevant offence or offences”. The phrase “relevant offence or offences” is not defined in the legislation. However, in my view, when considered in its context, its meaning is clear. To give the phrase its plain meaning does not in any sense run counter to the main purpose underlying the enactment of s10C. To the contrary, such a construction would encourage early resolutions.
The appellant pleaded guilty to the first 134 counts more than four weeks after she first appeared in court “in relation to the relevant... offences”, that is, the offences charged by the 134 counts on the first information. Accordingly, the maximum discount available with respect to her pleas of guilty to those counts is 30 per cent (s10C(2)(b)). However, insofar as the later charged 47 counts are concerned, the appellant pleaded guilty not more than four weeks after she first appeared in court “in relation to the relevant... offences” (being the 47 offences of theft the subject of the later charged counts). Indeed, with respect to these 47 offences, the appellant pleaded guilty at her first appearance in court. Accordingly, as far as these 47 offences are concerned, the maximum discount allowable is 40 per cent (s10C(2)(a)).[20]
[20] In cases where more than one paragraph in s10C(2) applies and the discretion to allow different discounts is exercised, it may be appropriate, notwithstanding the use of s18A, to indicate notional sentences and the extent to which each notional sentence has been discounted. For reasons I explain when I come to re-sentence this issue does not arise in this case.
The legislation refers to maximum discounts only. It is conceivable that a discount of anything between nil and 30 per cent or nil and 40 per cent might be allowed in a particular case. However, it is to be noted that the discount actually given (18.75 per cent) falls under the maximum allowable (20 per cent) for a plea of guilty during a period between committal for trial and 12 weeks after the first date fixed for arraignment (s10C(2)(c)). Indeed, even such an accused who can demonstrate the extenuating circumstances as envisaged in s10C(2)(d) may still enjoy a discount of up to 30 per cent.
At common law, a plea of guilty is a circumstance in mitigation of sentence[21] and such a plea will often demonstrate contrition on the part of a defendant and a level of cooperation with the authorities in the investigation of the offence which factors must be taken into account when sentencing.[22] A plea of guilty can reflect a level of genuine remorse, contrition or repentance which is relevant to arriving at a just proportion between the sentence imposed and the crime committed. Such underlying motives are also significant to the assessment of rehabilitation prospects. However, and in addition, a plea of guilty serves a public interest quite independently from and even in the absence of any such underlying motives.[23]
[21] Cameron v The Queen (2002) 209 CLR 339; R v Place (2002) 81 SASR 395.
[22] Criminal Law (Sentencing) Act 1988 s10(1)(g) and (h).
[23] See generally the well known exposition of the many benefits to a plea of guilty by King CJ in R v Shannon (1979) 21 SASR 442.
As to the utilitarian value of a plea, King CJ in R v Shannon said this.[24]
The conditions under which justice is administered change and the emphasis to be placed upon the various purposes to be achieved in shaping sentences changes accordingly. There are features of the current conditions which emphasis the need for practical encouragement for guilty persons to admit their guilt. Legal aid for as many as possible of those charged with serious offences should be a high social priority, and, indeed, it is not too much to say that its availability to persons having a genuine defence to criminal charges is indispensible to the proper administration of justice. The consequences of the general availability of legal aid must, however, be recognised and coped with. It must be recognised that guilty persons can put forward false stories and be defended without cost to themselves. The result is the depletion of funds available for legal aid and congestion and delay in the criminal courts.
. . . .
If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty, for an offender to admit his guilt. And experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to cooperate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence.
These comments are as apt today as they were in 1979, if not more so.
[24] (1979) 21 SASR 442 at 451.
The utilitarian value to the administration of justice in this State of timely pleas was a driving consideration behind the enactment of the recent changes to the Sentencing Act which included s10C. In his second reading speech, the Attorney-General stated:[25]
The main objective of the Bill is to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty to do so in a timely way.
. . . .
At present, it is clear that far too many offenders plead not guilty at committal, only to plead guilty later in the proceedings. The encouragement and expectation should be for those defendants who are likely to plead guilty in respect of major indictable offences, to do so, before or at committal and not at some later date.
[25] Hansard, House of Assembly, Wednesday 11 July 2012, p2426.
The appellant’s pleas in this case were attended by the following features: the pleas were to all of the 181 charges as laid; they were entered prior to committal and indeed before all declarations were received; they plainly facilitated the course of justice in that they allowed for an efficient, timely and relatively cheap resolution of the matter; they precluded the need for a trial and the stress and inconvenience that would cause to the various Crown witnesses including, perhaps, some of the victims; and at least one of the victims expressed relief that the matter had resolved in this way.[26] None of the factors provided for in s10C(4) militated against the granting of a substantial discount. In the circumstances of this case, and whether or not there was some doubt as to the genuineness of the appellant’s contrition (as to which the trial Judge appeared to have a concern) and whether or not the Crown case was fairly to be described as “strong and virtually unanswerable” as the Judge was prepared to find, the appellant’s pleas and the circumstances in which they arose, fall squarely within the expectations underlying s10C(2)(a) and (b) and should have attracted close to the maximum discount available.
[26] Victim impact statement of Melanie McGuire, AB83.
I add one more observation. In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.
In essence, the question of whether or not a sentence is manifestly excessive is to be determined by asking the question whether, upon the facts, the sentence imposed was unreasonable or plainly unjust.
As with other discretionary judgments, the enquiry on an appeal against sentence is identified in the well known passage in the joint reasons of Dixon, Evett and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described in an offender’s appeal, as “manifest excess” or in a prosecution appeal as “manifest inadequacy”.[27]
In this case, specific error has been shown (incorrect factual basis) but in addition, the combination of the starting point being too high and the discount allowed too low has resulted in a head sentence that, in my view, is unreasonable or plainly unjust and therefore manifestly excessive.
[27] Markarian v The Queen (2006) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (citation omitted).
The appellant has also complained about the non-parole period. The non-parole period of ten years represents a relatively high proportion (77 per cent) of the head sentence of 13 years ultimately arrived at for a first offender. However, given that I would allow the appeal on other grounds, the complaint about the non-parole period falls away. I would set a new non-parole period in any event.
Re-sentencing
I have already briefly canvassed the undoubted serious nature of the offending and the need, as King CJ pointed out in R v Chisholm,[28] for a sentence, where a systematic course of dishonesty is involved, to operate as a deterrent to others in a position of trust who might be tempted to behave in a similar manner. However, before coming to sentence, I should also say something about the appellant’s personal circumstances.
[28] (1995) 122 LSJS 230 at 232.
The appellant had a happy childhood and was well brought up by her parents. The appellant continues to enjoy a good relationship with her parents and her sister. The appellant did well at school and at university and plainly is intelligent and capable. She became a financial adviser at the AMP but, after some years in that role, left to set up a business called Juice Revolution. The appellant is entrepreneurial, has always been gainfully employed and has the ability to earn a reasonable, if not substantial, income. The appellant has a lengthy history of involvement with and contribution to voluntary organisations. She has raised money on behalf of a number of charities.
According to the psychologist who reported on the appellant for sentencing purposes, the appellant does not possess any of the traditional criminogenic risk factors often seen in offenders. She does not suffer from any psychotic disorder, intellectual disability, drug or alcohol abuse or serious personality disorder. Whilst the appellant has a number of positive personal attributes, the psychologist did identify poor coping skills, a past eating disorder, mood dysrhythmia and tendency to depression and anxiety. As earlier indicated, the appellant has no prior criminal record.
In my view, the appellant’s prospects for rehabilitation must be considered as reasonable, if not good, particularly, if when ultimately released the appellant were to spend a substantial period of time in the community on parole under the supervision of the Parole Board.
In exercising the discretion under s18A of the Sentencing Act to impose the one penalty for all 181 offences, I would start with a head sentence of 13 years. However, I would reduce that to nine years and two months on account of the appellant’s early pleas of guilty. This reduction of three years and ten months represents a shade under 30 per cent. I am mindful that pleas to a number of the offences on the information were so early as to render the maximum permitted discount of 40 per cent potentially available with respect to those pleas. However, the appellant had had ample time to consider her position generally and the presentation of the additional counts simply reflected further accounting work on the part of the prosecution, demonstrating a capacity to prove further particulars of the appellant’s acknowledged dishonesty. In the circumstances, a discount for the new offences greater than that to be given for the old offences is not warranted. I would set a non-parole period of six years. Both the head sentence of nine years and two months and the non-parole period of six years should be backdated to commence 23 July 2013.
Conclusion

I would allow the appeal, set aside the sentence imposed in the District Court and re-sentence the appellant as indicated.