R v Morris
[2004] VSCA 135
•29 July 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.381 of 2003
| THE QUEEN |
| v. |
| DEBRA LAINE MORRIS |
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JUDGES: | BATT, VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 July 2004 | |
DATE OF JUDGMENT: | 29 July 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 135 | |
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Criminal law - Sentence - Obtaining financial advantage by deception - Manifest excess - Offences committed over considerable period of time involving large sums of money - Whether sentencing judge failed to take into account or misapplied relevant sentencing considerations - Open to sentencing judge to find applicant tried to minimise her level of culpability by shifting responsibility to her employer and fellow employee - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr L.C. Carter | Victoria Legal Aid |
BATT, J.A.:
I will ask Vincent, J.A. to give the first judgment.
VINCENT, J.A.:
The applicant pleaded guilty in the County Court sitting at Wangaratta to 17 counts of theft and three counts of obtaining financial advantage by deception. After hearing a plea in mitigation of penalty, the learned sentencing judge on 19 December 2003 imposed upon her the following terms of imprisonment:
On count 1 - 15 months
On each of counts 2 and 3 - 6 months
On count 4 - 18 months
On each of counts 5 and 6 - 6 months
On each of counts 7 to 17 inclusive - 3 months
On each of counts 19 and 20 - 12 months
On count 21 - 6 months.
Her Honour directed that four months of the sentence imposed on count 1, two months of that imposed on count 5, three months of the sentence imposed on count 19 and three months of that imposed on count 20 were to be served cumulatively upon each other and the sentence imposed on count 4. This created a total effective sentence of two years and six months' imprisonment in respect of which a non-parole period of 18 months was fixed. The applicant now seeks leave to appeal against that sentence on three grounds, namely:
"1.That the sentence imposed is manifestly excessive in all the circumstances;
2.That the learned sentencing judge erred in finding that the applicant was unremorseful;
3.That the learned sentencing judge erred by making findings of fact adverse to the interests of the applicant that were erroneous, not supported by the evidence or unfair to the applicant, namely:
(a)that the applicant stole all the money for her own use;
(b)that the applicant was not affected by lack of competence in the performance of her work;
(c)that the applicant's instructions were not reliable;
(d)that the applicant was not remorseful;
(e)that the applicant had not provided full disclosure of why she had committed the offences;
(f)that the conclusions of the psychiatrist [the ground should read, I think, "psychologist"] were not to be accorded weight because they were founded upon the applicant's unreliable account; and
(g)that the applicant tried to shift blame to her employer."
Although a number of the findings of fact made by the sentencing judge have, as I have indicated, been impugned in this proceeding, there would appear to be little dispute as to the general background and the activities in which the applicant engaged.
Following the closure of a travel agency in Wangaratta operated by her parents and in which the applicant had been employed from 1992, she commenced working for Jack and Joyce Cullen, the proprietors of the Wangaratta Travel Centre, in early 1999 as manager of that business. She was at that time aged 33 years and without any prior criminal history. It appears that it was contemplated that in due course the applicant would purchase the business from them. In this context the sentencing judge observed that there was evidence from a chartered accountant that he had been consulted by the applicant in 2001 about this possibility and that she was advised by him that she did not have enough assets to proceed with its acquisition at that time. This aspect assumes significance for reasons which will later emerge. The Wangaratta Travel Centre ceased trading on 1 February 2002, at which time an examination of its financial situation revealed the misappropriation by the applicant of substantial sums of money. The various offences were committed over a period of approximately 15 months between October 2000 and 24 December 2001.
Despite the fact that Mr Cullen had on two separate occasions, during that period, deposited substantial amounts in the client travel account of the enterprise in order to maintain the financial viability of the business, there seems to be little doubt that the conduct of the applicant contributed very substantially to its collapse.
The following description of the offences is based upon the sentencing remarks of her Honour. Save with respect to her finding concerning the purposes for which the sums covered by counts 1 and 4 were taken, I do not understand there to be any controversy concerning her findings at this level.
During the applicant's employment with the Wangaratta Travel Centre her duties included the banking of all cash payments received by the business as well as payments made by clients to the business by cheque and credit card. The correct procedure was to deposit the payments, however made, into an account known as the client travel account, where it would be retained until disbursed for accommodation, flights and other expenses on behalf of the clients as required. The balance would then be transferred into a trading account and represented the commission of the business.
I now turn to the various offences.
Count 1
This is a rolled-up count involving a total of $37,604.05. It relates to various amounts received by the applicant, in cash, from clients of the travel centre and which were not banked by her.
Counts 2, 3, 5 and 15 to 17 inclusive
By reason of the misappropriation of funds that should have been deposited into the client account, the balance of that account reduced significantly such that there were, on occasions, insufficient funds available for the day-to-day operation of the business. Consequently on 15 occasions, between 15 May 2001 and 11 February 2002, the applicant stole funds from clients which were transferred to the travel centre client account. The method employed was to retain credit card details, procured from the client concerned, in relation to legitimate transactions and then, using that information, withdraw funds, marking the documentation "per phone" in order to create a deception that authorisation had been given to do so over the telephone. The funds were then kept in the travel centre client account for a short time and then refunded. The applicant would then steal from another client in the same way in order to maintain the necessary balance in the client account.
Count 4
This count related to 11 further occasions, between 4 July 2001 and 7 February 2002, on which the applicant stole cash payments, made by clients to the travel centre, that were not banked. These payments were entered into the computer records of the business to conceal that fact and there was a further subterfuge in that amounts were entered in relation to the previous financial year. The total amount stolen or misappropriated was $71,406.40.
Counts 19, 20 and 21
These counts related to the obtaining, by the applicant, of a financial advantage by deception. The applicant transferred into the travel centre client account from the American Express cards of two clients, William George Russell and Claire Mary Russell, sums of $23,419, $22,228 and $24,100 respectively. Those clients had booked and paid for a trip to Egypt but, after the events of 11 September 2001, they cancelled and booked a holiday to Malaysia. The applicant informed them that as the trip to Malaysia was being organised at short notice it would be necessary for them to pay in cash. As a consequence she secured the sum of $18,511 from them. It was agreed that upon their return she would allow them to pay by way of the use of their green American Express charge card. She would then refund the cash payment in order to enable them to receive bonus points on it. On 5 November 2001 she completed a manual transaction for $23,419 but on another American Express credit card held by them. Those funds were then transferred into the client account which was overdrawn. The payment by Mr and Mrs Russell was not refunded. Those activities were encompassed by count 19.
On 19 November 2001 she completed a manual transaction for the sum of $22,228 on their American Express green charge card which was also paid into the client account. Those activities were encompassed by count 20.
On 12 November 2001 the applicant paid $24,100 from the Wangaratta Travel Centre client account to the charge card of Mr and Mrs Russell. Twelve days later she completed a manual transaction for the same amount on the American Express charge card. The total amount ultimately outstanding to American Express, in relation to counts 19 and 20, was $45,647.
Save that the applicant indicated that a relatively small amount of the money stolen was given to her parents, she provided little in the way of any clear explanation as to the use to which the amounts encompassed by counts 1 and 4 were applied.
Ground 1
In support of the complaint that the individual sentences, the total effective sentence and the minimum term fixed by her Honour were manifestly excessive in all of the circumstances, Mr Carter on behalf of the applicant has asserted that the offences committed by his client must be regarded as quite unusual. There were, he argued, a number of mitigating factors, of a powerful character, which had to be taken into account. They included her early admission of guilt and plea of guilty, the absence of any prior convictions and her prior exemplary good character which included evidence of significant and voluntary contributions made to the community in which she resided. He described her as having a difficult and unusual background which left her vulnerable in the situation in which she found herself. I would interpolate that that background was accepted by the learned sentencing judge. Mr Carter drew attention to the absence of any evidence of betterment, in terms of her standard of living or the use of the funds, and submitted that in that circumstance it was at least unfair for the sentencing judge to have rejected her explanation as to the reason for her conduct. He drew attention to the evidence contained in an assessment by Nicole Gill, a psychologist, which directed attention to the applicant's chronic depression and the presence of a significant personality disorder. With respect to the opinions of the psychologist, the learned sentencing judge said in the course of her sentencing remarks:
"The psychologist Ms Gill has drawn a number of conclusions based on her acceptance of your version of events surrounding these offences, which I have not accepted. Consequently I do not accept those conclusions." Sentence T.175.
Mr Carter submitted that there was a great deal of material in that report relating to the applicant's personality problems and her unfortunate history, which her Honour did accept, and that in the circumstances, again, the finding that the opinion of Ms Gill should not be accepted was, at least, unfair and inordinately harsh in all of the circumstances.
Grounds 2 and 3
The contention contained in ground 2 has been repeated in ground 3, which contains a number of assertions in relation to what are alleged to be erroneous or unfair findings of fact made by the sentencing judge, and it is to ground 3 that I now turn.
It is, I consider, evident and understandable that her Honour was less than impressed by the version of the circumstances of her offending given by the applicant to the police and to the psychologist. The applicant did not provide any explanation of a remotely satisfactory kind concerning the theft of the funds encompassed by counts 1 and 4. With regard to the finding of the sentencing judge that the applicant took the money for her own purposes, I observe that the Crown from the outset of the proceeding submitted that they were unable to identify the use to which that money was put. Her Honour did not accept the explanation proffered by the applicant concerning those circumstances, and it is in this context, I think, significant to note the manner in which she approached this question. In her sentencing remarks the judge stated:
"As to counts 1 and 4 you say that very little of the amount stolen was actually used by you, only about $2,500 or $3,000 which you gave to your parents and that you later repaid that sum. You say that the remainder of the moneys were used to cover up mistakes made by you and others, given your inexperience, lack of training and volume of work. Further, you say situations arose where you needed cash from the business out of expediency." Sentence T.171.
A little later, her Honour remarked:
"On your behalf it is submitted that you stole the money from counts 1 and 4 as you were out of your depth in your job, you were under pressure at work and personally, and that you made errors as a result which led you to steal these funds." Ibid.
She then went on to say:
"It is significant that you have not provided any documentation at all, nor called any evidence, where one would generally have expected that to have been done, and you did not give evidence as to your own version of events, in particular the following: allegations you have made against Jack Cullen that he kept the deposit of $5,000 in relation to your proposed purchase of his business and that he refused to pay you reasonably large sums, $1,580 and $4,200, which you say he owed you in relation to unpaid work." Sentence T.171.
Her Honour then drew attention to other assertions made by the applicant. She then said:
"I accept that the Crown had difficulties analysing the books of account but you were one of those who had the day-to-day control of those books and I do not accept that you are unable to locate support for any of your instructions because you cannot make sense out of the entries. I do not accept as plausible that you stole money from the Wangaratta Travel Centre to cover up the mistakes made in relation to providing clients the wrong quotation and you did so even when you say it was not you but another person who made the mistake. I do not consider your instructions to counsel reliable in the circumstances, as at this stage your instructions that have been put to the court include details of clients and monetary amounts but you have not provided any documents, nor have you given evidence about those matters.
Further, your assertion that around the time you committed these offences you felt you were not sufficiently trained or experienced to carry out your duties at the Wangaratta Travel Centre is implausible, given that it is not in issue that in January 2001 you negotiated with Jack Cullen to purchase that business and consulted an accountant, John Griffin, in relation to the proposed sale." Sentence T.172.
In my view, having regard to the material before this Court, her Honour was entirely justified in reaching those conclusions. Her Honour accepted that the remaining offences were committed by the applicant to hide her depredations by keeping the client account sufficiently in credit. Again that finding would seem to be unchallengeable.
After perusal of the material before this Court, I think that it is clear enough that the sentencing judge was entitled to find that the applicant did endeavour to minimise her level of culpability by shifting responsibility to her employer and fellow workers. Against that background the rejection by the sentencing judge of the applicant's claim to be remorseful was also open to her, in my opinion. In summary, it has not been demonstrated, in my view, that the sentencing judge failed to take into account or misapplied any relevant sentencing principle in this case, or that sufficient regard was not had to any of the factors or circumstances to which she was obliged to give consideration. Nor do I consider that the individual sentences, the total effective sentence or the non-parole period fixed in this matter can be properly regarded as being outside the range of sentences available to the learned sentencing judge in the circumstances. It must not be forgotten that the offences committed by the applicant involved a considerable period of time, substantial sums of money and the commission of serious breaches of the trust reposed in her.
I would dismiss this application.
BATT, J.A.:
I agree that this application should be dismissed for the reasons given by Vincent, J.A. . I wish to mention a further consideration in support of Vincent, J.A.'s rejection of the first ground, the ground that the sentence was in its several components manifestly excessive. Her Honour sentenced the applicant on the basis that the compensation order sought by the Crown had been made, when that had not yet occurred, even if it has by now. That was, as her Honour recognised, unduly favourable to the applicant.
I add one other comment on another aspect of the case in light of the argument that we heard this morning. In my view, her Honour, on 10 December 2003, during a mention, made it very clear, whether or not she had done so earlier, that she would require proof of the purposes to which, according to the contention of the applicant, the applicant had applied moneys stolen.
EAMES, J.A.:
For the reasons given by Vincent, J.A., I agree that this application should be refused.
BATT, J.A.:
The order of the Court is -
Application for leave to appeal against sentence dismissed.
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