R v O'Brien
[2001] VSCA 157
•13 September 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 416 of 2000
| THE QUEEN |
| v. |
| JOHN FRANCIS O'BRIEN |
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JUDGES: | WINNEKE, P., BROOKING and BUCHANAN, JJ.A. | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 16 August 2001 | |
DATE OF JUDGMENT: | 13 September 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 157 | |
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CRIMINAL LAW – Sentencing – Theft and obtaining money and cheques by false pretences – Whether conduct by judge during the course of the plea caused the exercise of sentencing discretion to miscarry – Whether Court entitled to form its own view of adequacy of sentences imposed or should remit the matter to trial court – Crimes Act 1958, s.568(4)(5) and (6).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and | Ms Kay Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr P.F. Tehan, Q.C. | Mulcahy Mendelson & Round |
THE COURT:
The appellant, John Francis O’Brien, who is 47 years of age, has spent a significant part of his life in the meat and live-stock industry. He is an acknowledged expert in beef, whether on the hoof or on the table, and it was his passion to improve the quality of prime beef in this country. To this end it was his aim to build up a herd of prime beef Angus cattle by importing semen straws recovered from quality stock in America. In 1998 and 1999 he was instrumental in the promotion of a “managed investment scheme” known as “O’Brien’s Prime Black Angus Pty. Ltd.” in which the public were to be invited to subscribe in accordance with an approved prospectus. On a view of the evidence open to be accepted, the appellant had a belief that the prospectus would be approved, and the scheme operational, by April 1999. The appellant was wholly committed to this scheme and devoted much of his time and attention towards achieving its success His friends and acquaintances regarded him as a “driven” man who lived for his work in this specialized field.
Yet from 1996 onwards, there was another side to the appellant. He used his contacts and standing in the industry to defraud friends and cattle owners of substantial amounts of money. In 1996, an elderly dairy farmer from the western district (Robert Melross) wished to retire and sell his herd. He placed the sale in the hands of the appellant who was then a consultant engaged by Elders, and who was well known to Melross. Before making payment of the balance to Melross, the appellant – by fraudulent representations – procured Melross to advance, by way of loan to him or the Masbir Pastoral Co. (a trading name used by the appellant), a sum of $35,000. The false representations were that he, the appellant, would provide security for the loans in the form of 100 Holstein heifers and that the loan would be for 6 months at 15% p.a. By these false representations the appellant obtained the $35,000 which he has never repaid and which, with interest, now totals more than $57,000. Although the loan was initially due to be repaid by January 1997, the appellant had secured extensions until June 1999 upon the faith of representations that it and accruing interest would be repaid. Melross has been deprived of a substantial part of his “retirement fund” and has suffered significantly. Between July 1999 and September 1999, the appellant had unsuccessfully endeavoured to persuade Melross to accept an interest in his Angus Prime Beef venture in lieu of repayment of the loan.
In February 1999 Terry Dove also worked in the livestock industry through his own stock agency “Dove Livestock Pty. Ltd.”. He was a long time acquaintance, and former partner, of the appellant. In February 1999 the appellant went to Dove requesting him to act as his agent in the sale of a large number of heifers to purchasers described as “Pat and Neil Rochford”. He falsely represented to Dove that there were heifers for sale, that the “Rochfords” were purchasers and that the purchase price would be paid by 30 April 1999. Dove acted on the representations and arranged for $50,519.70 to be paid to the appellant on 26 February 1999. For the purpose of effecting this fraudulent scheme, the appellant made and used false documents and passed them off as genuine to Dove. Dove has been the personal victim of this crime. As in the case of Melross, the appellant told Dove that he intended to pay him, but would only be able to do so when another business transaction was “in place”.
Donald Graham was in 1998-1999 a farmer on King Island. He was involved in the cattle industry and traded under the name of Dinibili Pastoral Co. He had known the appellant since 1998. In early 1999 the appellant told Graham that he had clients interested in purchasing Graham’s heifers for breeding purposes. An agreement was made whereby the cattle were transported from King Island to the appellant in Victoria on 29 March 1999 and 12 April 1999. The appellant stole the stock by having them slaughtered and thereafter sold to retail outlets. He, thus, failed to pay Graham for them, causing a loss to him of $79,591.40. This loss has caused severe hardship to Graham.
The circumstances which we have outlined became the basis of five counts on a presentment to which the appellant pleaded guilty at the Geelong County Court in December 2000. Counts 1, 2 and 3 alleged offences of dishonestly obtaining money from Dove Livestock, and making and using false documents in the course of doing so. Count 4 alleged the offence of theft of the $79,591.40 belonging to Graham; and count 5 alleged the offence of dishonestly obtaining the $35,000 cheque from Robert Melross.
On 15 December 2000, after a lengthy plea in mitigation of penalty, the learned judge sentenced the appellant as follows:
Count 1- 18 months
Count 2- 6 months
Count 3- 6 months
Count 4- 24 months
Count 5- 15 months
His Honour ordered that 18 months of the sentence on count 4 and 12 months of the sentence on count 5 be served cumulatively on each other and upon the sentence imposed on count 1. The total effective sentence was therefore 4 years. His Honour fixed a non-parole period of 2 years 3 months.
The appellant, pursuant to leave granted, has appealed against those sentences on four grounds:
“1.The plea hearing of the applicant miscarried in that the judge did not approach the exercise of the sentencing discretion in a fair and balanced way.
2. The judge erred in making erroneous findings of fact.
3.The judge erred in finding: ‘I am satisfied beyond reasonable doubt that you have a high degree of culpability and that there are no substantial mitigating circumstances’.
4. The sentences imposed are manifestly excessive.”
Ground 1 relates to the manner in which the learned judge conducted himself during the hearing of the appellant’s plea on the 12 December. Mr. Tehan who has appeared for the appellant before this Court has referred us to various passages in the transcript upon which he bases his submission that the learned judge did not permit the appellant’s trial counsel to develop the plea on behalf of his client in the way in which he desired; and that the judge had “closed his mind” to the prospect of the existence of mitigating circumstances of the type contended for by the appellant’s counsel. Thus it was contended that the sentences imposed were the product of a discretion exercised in an unfair and unbalanced manner.
To appreciate the nature of counsel’s argument under ground 1, it is necessary to have regard to passages in a lengthy transcript of the plea. In doing so, it is necessary for this Court to bear steadily in mind that we have access only to the written words detached from the atmosphere of the hearing and the contextual setting in which they were spoken. Insofar as the context of the plea can be drawn from the whole of the transcript, it would appear that the appellant was seeking to make the point that the crimes to which he had pleaded guilty were serious aberrations in an otherwise blameless life of a man who had worked long hours and earned for himself a reputation of high standing in a specialized area of the live-stock industry. It was also being put on the appellant’s behalf that, whilst he had pleaded guilty to counts alleging that he had intended to “permanently deprive” the victims of their money, he had always entertained a hope – even expectation – of being able to trade his way out of difficulties so that he could ultimately recompense his victims. It was the thrust of the appellant’s plea that the crimes committed were to be explained, although not excused, by his desperation to “remain financial” until the “O’Brien’s Prime Black Angus” scheme, which was being put together by Landy D.F.K. Securities Pty. Ltd., was “up and running”. This was, as we have said, a “managed investment scheme” in which the public was to be invited to invest by way of payments for units. The object was to develop genetically superior beef herds from overseas stock or by the importation of semen straws from select cattle which would ultimately provide quality beef for Australian consumption. So devoted was the appellant to the scheme, so it was put, that he became immersed in its implementation to the detriment of his personal finances and acquired assets. It had been expected that the prospectus would be registered by April 1999 with public participation and subscriptions by that date. That, however, did not occur, and events happened which pushed the commencement of the scheme further and further away. It was in these “desperate” financial circumstances that the crimes occurred; but that their commission had been stimulated by the “expectation” that ultimately the scheme would be implemented and the fraudulently obtained monies repaid. It was submitted that, although the nature of the offences required the imposition of a sentence of imprisonment, the circumstances warranted a sentence which could, and should, be wholly suspended.
Mr. Tehan submits that the thrust of the appellant’s plea in mitigation – which was supported by much oral and documentary material – was treated with repeated contempt and disdain from the outset by the sentencing judge whose comments indicated that he had a “closed mind” to the existence of mitigating factors; an attitude reflected in his ultimate conclusion that “there are no substantial mitigating circumstances”. Mr. Tehan did not suggest that the appellant had been prevented from putting before the judge all the material which he needed to determine an appropriate sentence. Rather, his submission was that – because the judge had developed a “closed mind” to the existence of the factors of mitigation upon which the appellant relied – unfairness had crept into the sentencing discretion and had resulted in a total effective sentence which was manifestly excessive. He contended that, if this Court agreed with that proposition, it could at its option either re-sentence in the light of the material which was before the judge (and is before this Court) or remit the matter for a re-hearing in the County Court pursuant to the special powers invested in this Court by s.568(5) of the Crimes Act 1958.
Mr. Tehan referred the Court to a large number of passages in the transcript which he contended supported his proposition that the judge was not prepared to listen to the witnesses called by the appellant. In particular, Mr. Tehan relied upon the following matters:
Very early in the evidence of the first witness called on behalf of the appellant – Mr. Bell, a grazier – the witness said that he had known and trusted the appellant for 8 years, and had many dealings with him. His Honour said:
“And you’ve been lucky; you’ve always got your money … .”
When counsel asked Bell how he regarded the appellant as opposed to other stock agents, the following exchanges occurred:
H.H.: “What’s the relevance of that?”
Counsel: “The character of O’Brien.”
H.H.:“What, that in general stock agents can’t be trusted, but he can?”
Counsel: “No … I’m not saying that at all …”
H.H.:“You seem to be getting yourself into a situation where you’re trying to put your client as a victim.”
Counsel:“With respect, … I’m not seeking to do that and … I am not doing that.”
H.H.: “Go on, you run it your way.”
Then later, when counsel asked Bell:
“in your conversation with him, did he [say] anything about intending to repay the funds?”
Bell: “Yes”.
Counsel: “What did he say?”
H.H.:“Just a minute. You’re getting into an area, where you’re disputing his guilt.”
Counsel:“We’re not … it’s the expectation …; it’s a relevant factor.”
H.H.: “No, are you saying he was not acting dishonestly?”
Counsel:“No, his plea of guilty acknowledges every element that’s required …”
H.H.:“Yes, I know it does normally but I’m getting a bit confused … as to what counsel think a plea of guilty is.”
Counsel:“… Your Honour, under s.73(12) of the Crimes Act – that deals with the Melross situation – it’s the expectation – and I readily acknowledge the expectation was ill-founded – but there was an expectation to repay the people the money.”
H.H.:“You can lead what evidence you want of that, but how can he say what the state of mind was?”
Counsel: “He can’t, except for conversations he has had …”
H.H.: “Self-serving.”
Counsel: “With respect … it’s not.”
H.H.:“Go on. You are obviously intent on directing your submissions to the back of the Court, rather than the front of the Court.”
Mr. Bell was the first of 6 character witnesses called on behalf of the appellant on the plea hearing. Mr. Tehan took the Court to interjections made by the judge during the examination of succeeding witnesses which, so he submitted, similarly indicated a cast of mind on the part of the judge adverse to the appellant and which demonstrated a reluctance to accept that there was any factor in mitigation of the crimes to which the appellant had pleaded guilty. Thus when the witness Glenys Rochford said that she had been employed by the appellant and that she was the daughter of parents, whose names were similar to those said to have been given to Mr. Dove as “the purchasers” in the fraudulent transaction alleged in count 1 on the presentment, his Honour immediately asked counsel whether he “ought to warn” the witness on the basis that she might have been implicated in a “conspiracy”. His Honour said:
“Now what troubles me is the choice of names in count 1. Just coincidence is it?”
When the witness said that she was “not really aware” of the transaction, his Honour in fact “warned” her. The warning certainly does not appear to have resulted in the witness being constrained from giving the character evidence which she had been called to give, but when counsel sought to adduce through her a number of documents confirming the nature of the business which the appellant had transacted and the nature of the investment project which he was proposing to introduce, his Honour remarked that he was concerned “whether some of them will be advocacy which I’ll reject, or whether they’ll be self-serving, inadmissible, in all sorts of ways”. When counsel referred his Honour to the investment project which was contemplated, and the seminars which the appellant had conducted in support of it, his Honour remarked that it was a project in which “everybody could make money … all those sorts of things. People get ripped off no end. Go on.” When the witness said that the banks were exerting pressure on the appellant because of delays in getting approval for the project and were “applying pressure and threatening …”, his Honour intervened, saying:
“Threatening, banks threatening? You see, I deliberately did that to you because, do you realize how partisan you’re appearing; how much of an advocate? Now go on Mr. Szabo [counsel for the appellant]. The banks are threatening.”
A Mr. O’Halloran was called to give character evidence for the appellant. He had known the appellant as a man who had “no peer in his field”; was a “workaholic” and was entirely committed to getting his “prime beef project” approved and operational. He said that the project had “stalled” because of Landy’s incompetence, and that he had “felt bad about it” because he had introduced the appellant to them. At that point, his Honour interrupted and said:
“I gather from what you have just said … that Landy’s turn out to have told lies to other people”;
and then said:
“That’s what [the appellant] did in these crimes isn’t it; told lies and made money?”
When the witness said that he did not know whether the appellant had made money, his Honour replied:
“I think the barrister will tell you he made money; go on Mr. Szabo …”
Shortly after, when the witness said that the “computer figures” for the proposed project looked “very realistic”, his Honour intervened to say:
“Isn’t there an ad. which someone used … of putting things upon computer and the customer saying ‘OK yeah, that’s marvellous’. You’re smiling, you remember it.”
When the witness said “No, I can hear what you’re saying”, his Honour replied:
“Now, what’s the difference between that and what this mob were doing?”
Later, when the witness proffered the view that the appellant was “remorseful”, and that he appeared to be in a state “of despair”, the judge interjected:
“What you mean is he’s fearful of what the consequences of his actions might be.”
It became apparent, as the plea proceeded, that his Honour was not much drawn to its central theme; namely that the crimes committed by the applicant against the background of his otherwise good character were to be explained by and viewed against the existence of his unshakeable belief in the value of his “prime beef project” being promoted through Landy’s; a belief which had engendered in him, despite his pleas of guilty, an expectation that he would be able to “trade his way out of his financial difficulties” and make restitution to the victims of his crimes. The witness O’Halloran expressed a belief in the viability of the project and the appellant’s commitment to it. When the prosecutor suggested that the project was a “tax-dodge for rich people”, and objection was taken, his Honour commented that he was “beginning to form the view that ‘tax-dodging’ could well be the appropriate description” of it. When one Roache, a businessman, was called to say that he had known the appellant for a long time and was proposing to use the appellant’s expertise and to employ him in a project similar to that upon which Landy’s advice had been sought, his Honour asked:
“What’s the relevance of that?”
Counsel replied that, if given the opportunity, the appellant would be employed in an enterprise through which it was anticipated that restitution could be made to the victims of the appellant’s crimes. To this his Honour commented that counsel was trying to:
“put [the appellant] into a situation where you, in effect bring in a class bias into the administration of the criminal law.”
When counsel protested that the comment was “uncalled for”, the judge said:
“It is not, it is quite common in white collar crime and you seem to be doing it.”
Counsel persisted in his objection and stated that the comment was “uncalled for”. The judge replied:
“Good. Now we will discuss the seriousness of your client’s crimes by comparison with other types of crimes later on.”
The witness expressed the view that he was confident that the business which he had in mind, provided that he could employ the services of the appellant, could be successful. He described the appellant as “being thoroughly ashamed” of what he had done and anxious to have the opportunity of making restitution to those whose money he had taken. When the judge asked him whether he would carry on with his proposed project if the appellant was incarcerated, the witness said that the business would “cease” because he himself did not have the necessary expertise.
One Ian Ross, who had spent his working life in the “live-stock industry”, and who had formerly been the Product Development Officer in the Victorian Department of Agriculture, said that he regarded the appellant as an expert in the development of prime quality beef and that he regarded the prospects of his project of importing semen of quality stock as “very sound”. He, too, said that the appellant had spoken to him about his current predicament which, in the witness’s view, had “devastated” him. When the witness expressed the view that he understood the appellant’s current living conditions as “fairly humble”, his Honour interjected:
“I suppose that’s a matter of comparison if you live in Torresdale Road.”
This was an allusion to the address of the witness which had been given to the Court as “Unit 4, 7 Torresdale Road, Toorak”. When the witness responded that he had known the appellant when he (the appellant) was living in an apartment in Lansdale Road, Toorak, and that he “certainly was not living a high-life there”, his Honour said:
“… when he had that address, it was a good address to have on your literature when you are trying to attract money …”.
As we have said, Mr. Tehan submits that the passages to which we have referred disclosed a “dismissive attitude” on the part of the judge to the central theme of the plea being made on behalf of the appellant; an attitude which went beyond merely “testing” the nature of the propositions being put. Indeed, it was contended that statements made by the judge to counsel following the receipt of oral evidence confirmed what was said to be the “lack of balance” in the sentencing process:
(a)When counsel tendered material from Elders suggesting that the appellant had been an exemplary consultant to them from 1993 to 1997, his Honour remarked that it was “advantageous” to the appellant to have provided his services through a “service company”. In fact the appellant had given his services to Elders through a company called John O’Brien Livestock Consulting Services Pty. Ltd. When counsel submitted that such arrangement was a legitimate one, his Honour said that he “[did not] hold it against your bloke for doing it”; but that he was pointing out “as a matter of public interest” that the appellant had given his services to Elders through a service company, a procedure which “sooner or later this community will not tolerate”;
(b)When trial counsel had submitted that the appellant was of good character with a reputation for probity, his Honour had replied:
“I hear what you say about that, … but the weight to be given to it is a matter in time for me”;
(c)Again, when counsel submitted that the appellant’s plea of guilty was an “early one” and, thus, should be taken into account in his favour, the judge replied that appellate courts had suggested that the “weight of the plea of guilty” may be reduced by the fact that conviction was inevitable;
(d)When counsel was making submissions to his Honour about the desire of the appellant to make restitution; and referred to the total loss as $128,000, his Honour responded by asking “… how long does it take a modern armed robber to get that sort of money”; saying that, in substance, he wished to make it clear that the appellant’s crimes were serious ones.
It should not be overlooked that the passages to which we have referred have been extracted from a very lengthy transcript of a hearing which took up most of a day’s hearing. To that extent they are necessarily divorced from their full context. We have referred to them in some detail because it is substantially upon them that appellant’s counsel in this Court has relied in support of his ground of appeal that the plea hearing miscarried leading to an unfair and unbalanced exercise of the sentencing discretion. Indeed, counsel has gone further and, in support of grounds 2 and 3 of the grounds of appeal, has submitted that the lack of fairness to which he refers has directly impacted upon his Honour’s reasons for sentence and is reflected in what are contended to be erroneous findings of fact (ground 2) and the erroneous conclusion, which his Honour reached, that he was satisfied beyond reasonable doubt that the appellant had “a high degree of culpability and that there are no substantial mitigating circumstances” (ground 3).
To the contrary of the submissions made on behalf of the appellant, Mr. Coghlan – who appeared with Ms. Judd on behalf of the respondent – has submitted that the various comments made during the hearing of the plea – and to which we have referred – do not disclose any “closed mind” on the part of the judge in respect of the appellant’s crimes, but were legitimate means of exploring the strength of a plea which had at its heart submissions which clearly called for elucidation to determine whether the matters being put and relied upon were, in fact, matters which called for leniency in the sentencing process. These matters, Mr. Coghlan submitted, were matters which the judge was entitled to closely explore with appellant’s counsel, more particularly because counsel had not, in advance of calling witnesses, “opened” the case which he intended to make on the plea, or given to the judge any over-view of the basis upon which it would be suggested that there were extenuating circumstances which mitigated the offending. Viewed against this background, it was submitted, the various comments made by his Honour – whether taken individually or cumulatively – would not support an allegation of actual or ostensible bias. It was further submitted on behalf of the respondent that the findings of fact which appellant’s counsel alleged to be erroneous, were not in fact so and that, even if they were, they played no significant role in the sentencing process. Additionally, Mr. Coghlan submitted that the finding which his Honour made of “no substantial mitigating circumstances” was a finding made solely in relation to the circumstances of the offending as distinct from matters upon which the appellant was entitled to rely in mitigation of penalty. Those matters were specifically dealt with, and taken into account, in other parts of his Honour’s reasons. Finally, it was contended on the part of the respondent that the sentences which his Honour imposed were, if anything, lenient when viewed against the character of the offending. Indeed the sentences which his Honour imposed “put paid” to any suggestion that his Honour’s sentencing discretion was infected by any animus against the appellant.
Grounds 2 and 3
Before we turn to Mr. Tehan’s submissions in respect of ground 1 of this appeal, it seems to us to be desirable to consider the arguments put in support of grounds 2 and 3 which were advanced as raising discrete sentencing errors. In our view, there is nothing in either of the grounds.
So far as ground 3 is concerned, being the ground which was argued at the forefront of his submissions, Mr. Tehan contended that his Honour was in error in finding that he was:
“Satisfied beyond reasonable doubt that [the appellant had] a high degree of culpability and that there are no substantial mitigating circumstances.”
Mr. Tehan submitted that this should be taken as meaning that there were no “substantial mitigating factors” which should be brought to bear upon the sentences to be imposed. Such a finding, he said, was insupportable. He pointed to the circumstances that the appellant had no prior convictions, was regarded (at least until this point in his life) as a man of good reputation, and had made an early plea of guilty. However, this contention, we think, fails to put in context the finding which his Honour made. All his Honour was saying – and this can be gleaned from the entirety of his sentencing remarks – was that there was little to be found in the circumstances of the offences themselves which could mitigate them. His Honour was bound to give that matter separate consideration because, as we have been at pains to point out, that issue had been the central theme of the plea made on behalf of the appellant. His Honour gave separate consideration to the other factors upon which Mr. Tehan relied elsewhere in his sentencing remarks; and it would appear to us from the sentences which he ultimately imposed that he has given them significant weight in the exercise of his sentencing discretion. In our view, the judge was not in error in concluding that the circumstances in which the offences were committed revealed a high degree of criminality on the part of the appellant and that there was nothing about those circumstances which substantially mitigated the offences to which the appellant had pleaded guilty. On the material before him, such a view was well open. We would, accordingly, reject ground 3.
Ground 2 is also, in our view, not made out. It alleges that the judge made material factual errors which caused his sentencing discretion to miscarry. These alleged errors included the following:
(a)that the judge found that the loan transaction, entered into with Melross, was made in advance of the agreement to sell the victim’s cattle;
(b)that the appellant had told Melross many lies to avoid re-paying him;
(c)that the appellant had procured over $50,000 from Dove when the evidence showed that only $20,549 had been paid to the appellant;
(d)that the effect of the transaction upon Dove was to increase the stress upon Dove in the conduct of his business; and that such finding had been made in ignorance of the fact that the appellant had paid Dove $25,000 in May 1999;
(e)that the judge had referred to the amount stolen from Graham as “amounting to some $79,500” when, in fact, it was $74,500;
(f)that the judge had wrongly characterized the advice received from Landys without referring to evidence touching upon the misleading assurances given by that firm;
(g)that the judge wrongly found that the appellant had made “conscious decisions” as to the disposal of the monies received, when in fact he was committed to repay the banks who were claiming upon him;
(h)that the judge failed to pay proper regard to the appellant’s intention to trade his way out of financial difficulty;
(i)that the judge had failed to pay proper regard to the character evidence put before him;
(j)that the judge had paid too little weight to evidence of remorse and the evidence relating to proposals for restitution.
Some of these alleged “erroneous findings of fact” go beyond what they are described to be, and thus fall outside the ground of appeal. Rather sub-paragraphs (f) to (j) referred to in para [22] challenge his Honour’s interpretation of evidence (which was, to some extent, vague and inconclusive) or the weight which his Honour gave to aspects of that evidence. For instance, it is clear that his Honour did not regard the assertion made on behalf of the appellant that he believed that he could “trade his way out of his difficulties” as a compelling explanation for his frauds. Such a view, as we have said, was well open to him. Likewise it was open to his Honour to find that the appellant had made “conscious decisions” as to the disposal of the funds, whether or not the banks were pressing for payment. With respect to the argument that the judge had paid too little regard to the appellant’s remorse and the prospects which there were of restitution, Mr. Tehan submitted that it had been unfair to conclude that:
“The restitution proposal was dependent entirely on you not being sentenced to immediate imprisonment. I do not regard the restitution proposal as realistic and, indeed, it has some aspects of an attempt to buy the criminal’s way out of just and appropriate punishment.”
Mr. Tehan contended that this conclusion was inappropriate. However, it had been the subject of discussion during the plea when the proposal was put that Mr. Roache would employ the appellant in the business which he intended to establish – to the claimed benefit of the victims of the appellant’s crimes – but only on the proviso that the appellant was at liberty to work in that business. It was, thus, the fact that the “offer of restitution” was made conditionally; the condition being that his Honour imposed a non-custodial sentence. Indeed Mr. Roache, through whom the conditional offer was made, said that it could not be fulfilled unless the appellant was free to work in the business which he proposed. In those circumstances, it seems to us that his Honour’s comments were justified; and that he was entitled to regard the offer as “unrealistic”.
The matters to which we have referred in sub-paragraphs (a) to (e) of paragraph [22] are not, when analysed, material errors of fact. Indeed, most of them are not errors at all. It is true that the judge described the Melross transaction in terms that suggest that the loan agreement was made in advance of the “sale agreement”, but that was not a matter material to the sentencing discretion. Furthermore, it was not a misrepresentation of the evidence for his Honour to have found that the appellant had told many lies to avoid re-paying Melross. It is the fact that Melross had extended time for re-payment but such extensions were founded upon representations that the principal and interest were secure and would be re-paid on due date. The truth was, as the appellant well knew, that his fortunes were rapidly declining during this period, a fact which he never made known to Melross. Rather he told Melross that his “beef project” was shortly to commence and requested Melross to “take up an interest” in satisfaction of the appellant’s obligation under the loan.
It is not correct to assert – as Mr. Tehan did – that his Honour incorrectly described the sum of money of which Dove was defrauded; or that he “overlooked” the fact that the appellant paid Dove $25,000 in May 1999; or that his Honour sentenced the appellant on the basis that the appellant had stolen $79,000 from Graham, when it was in fact $74,000. The appellant pleaded guilty to the offences on the basis that Dove was defrauded of some $50,000, and on the basis that $79,000 was stolen from Graham. As was made clear during the plea, the fact that about half the amount of which Dove was defrauded was used as a “contra” to expiate a debt owed to the appellant does not reduce the extent or gravity of the fraud practised upon Dove. Furthermore, the evidence put before his Honour during the plea did not indicate that the appellant had repaid to Dove, in May 1999, some $25,000 of the monies of which he had been defrauded earlier in the year. The sum to which Mr. Tehan alluded was related to an entirely different transaction.
Grounds 1 and 4
It is appropriate for us now to return to the arguments made in support of ground 1; namely that the sentencing discretion had miscarried due to his Honour failing to approach the matter in a fair and balanced way. There is no doubt that principles of fairness apply to the sentencing process as much as they do to the process of determining guilt[1]. The sentencing task is committed to the judge who is required to exercise it by applying sentencing principles to facts which are established to his or her satisfaction. It will often be the case, particularly where an accused person pleads guilty, that material will be put before the court – whether in the form of evidence, agreed facts, or submissions – to assist the judge in the performance of this task. As with all judicial proceedings, the prisoner is entitled to a fair and impartial hearing as distinct from one in which the judge, through words or conduct, creates an appearance or impression of having formed pre-conceived views adverse to the prisoner. Of course the judge is not required to sit silent in order to maintain an appearance of neutrality. Not to raise matters, relevant to the sentencing process, which are of concern to the judge can, or might, be equally unjust to the accused[2]. It has often been said that the line between “inquisitive neutrality” and “excessive judicial inquisition” is a fine one. To the uninitiated that may be so; but to judges and the legal profession it is one which has been clearly recognized. Whether there has been a denial of justice must, in the end, depend upon the number and nature of the judge’s interventions and whether, as a result, it might reasonably appear to the objective, but informed, observer that the judge might have cast aside the mantle of neutrality and assumed a prosecutorial role[3].
[1]cf. Fox & Frieberg, “Sentencing”, 2nd Edition, para 2.104.
[2]cf. Chow v. D.P.P. (1992) 23 N.S.W.L.R. 593 at 606 per Kirby, P.
[3]cf. Chow, supra at 606; R. v. Agostinelli & Lewis (1995) 82 A.Crim.R. 326 at 337-8 per Nyland, J.; Galea v. Galea (1990) 19 N.S.W.L.R. 263 at 280-2.
In this case, as we have noted, Mr. Tehan submits that his Honour “crossed the line” by interjecting and making the various comments to which we have referred in paragraphs [11]-[17] of these reasons. Although the comments display irritation, many of them raise queries which, we think, the judge was entitled to raise having regard to the nature and structure of the plea. It is not easy, at first blush, to see why or how a desire to maintain a personal cash flow in the hope that a projected scheme can be “floated to the public” should explain or justify – or mitigate the gravity of – the frauds committed by the appellant. It would appear from reading the whole of the transcript that many of his Honour’s questions of witnesses and counsel were the consequence of his desire to understand how that matter could be of significance in the sentencing process, either in the sense that it demonstrated a lack of deliberation on the part of the appellant in committing the offences or created a legitimate expectation on his part to repay his victims. However, his Honour’s desire to understand how these matters were being put could scarcely justify some of the comments which he made. There would seem to be no justification for suggesting to the witness Bell that he was “one of the lucky ones who always got his money”; or for the apparently sarcastic comments made to counsel and witnesses about the worth of the appellant’s “beef project” (namely that it was a “tax-dodge”; that it was a scheme in which “people get ripped off no end”; and supported by computer projections, for which a gullible public might “fall”, similar to a “T.V. advertisement”); for the unfavourable comments made about the appellant’s use of a “service company” when acting as a consultant to Elders; for his allusion to the fact that the appellant maintained an “address” to provide an advantage in producing promotional material; or for his comment that counsel was intending to “address his comments to the back of the Court”; or for the suggestion that the appellant, or his counsel, was seeking to introduce a “class bias” into the administration of the criminal law.
Mr. Tehan submits that this Court should conclude that the sentencing discretion miscarried because it can be properly inferred that the judge had, in passing sentence, brought to bear pre-conceived views about the appellant’s conduct and had “closed his mind” to the factors put before him on behalf of the appellant. On the other hand Mr. Coghlan submits that, whilst there were some remarks which “the judge probably wishes he had not made”, the Court should not conclude that the sentencing discretion had miscarried on account of unfairness. The fact that the judge had not “closed his mind” to the matters raised on the plea was demonstrated by his comment at the conclusion of the hearing when adjourning the matter for consideration. He said that he needed time “to reflect on this matter and the submissions [counsel] made”. He added “It might have been a vigorous discussion but that doesn’t mean that your submissions don’t get considered”.
There is, we think, much to be said for counsel’s submissions in support of ground 1 of the appeal. Some of the judge’s comments – and particularly those to which we have referred in paragraph [27] – do give rise to an uncomfortable feeling that the judge had acted in a way calculated to create in the mind of an objective observer an impression that he had formed a concluded and adverse view as to the merits of the submissions being put on behalf of the appellant, no matter how much he might have thought that they were merely aspects of a “vigorous discussion”. No matter how experienced judges are in the administration of the criminal law – and this judge was very experienced – they should never lose sight of the fact that they are administering justice in the face of litigants and the public who are entitled to expect that justice will be delivered in an even-handed way. Some of the comments made on this plea were not likely to inspire such confidence. However, whilst we think that there is force in Mr. Tehan’s submission, it is unnecessary for us to finally determine whether or not the judge had “crossed the line” to which we have earlier referred. Certainly, it was not suggested by counsel upon the plea that the judge had disqualified himself, although it may be that, on a sentence appeal of this nature, an appellant is not to be deprived of his rights as a consequence of a failure by counsel below to ask the judge to disqualify himself. Again that is a matter which we do not have to decide. Under s.568(4) of the Crimes Act 1958, this Court is only required to quash a sentence passed “at the trial”, if it thinks that “a different sentence should have been passed”. In this case, we are quite satisfied, no matter what might be said of the judge’s conduct during the plea, that no other sentence or sentences should have been passed. As we have already noted, all the material which the appellant wished to put before the judge was in fact put before him. Furthermore, it is accepted that this Court is in possession of all that material; and it was not suggested that there is any further material upon which we should act in the event that we formed the view that the sentencing discretion had miscarried, or that we are at a disadvantage by reason of not having seen or heard the witnesses. Even on the assumption that the sentencing discretion miscarried, it is therefore open to us to objectively determine for ourselves whether, upon the material which we have, any sentence or sentences other than those passed should have been passed[4]. In the circumstances described, we do not think it is appropriate and in the interests of justice to remit the matter to the County Court for re-hearing pursuant to s.568(5) of the Crimes Act. Such a course might have been appropriate if there was a basis for concluding that there is, or might be, some material, not available to us, which would preclude us from forming a view whether sentences, other than those imposed by his Honour, should have been passed, or if our not having seen and heard the witnesses presented some difficulty.
[4]cf. R. v. Palmieri [1998] 1 V.R. 486 at 492 per Brooking and Hayne, JJ.A.
It was not contended by Mr. Tehan that the individual sentences imposed by his Honour were manifestly excessive on the material available. He could scarcely have done so, having regard to the fact that each of the offences alleged in counts 1, 4 and 5 were calculated frauds committed against persons who had obviously placed their trust in the appellant. Like his Honour, we see little in the material put before him, which mitigates the gravity of that serial offending. Unlike the victims whom he chose, the appellant knew the parlous state of his finances and was well aware, at the time when he approached them, that his capacity to repay was dependent upon events beyond his control. That, no doubt, was the reason why he indulged in the subterfuge which he did. Indeed, in a report made available to the judge, the forensic psychologist, Mr. Joblin, expressed the view that the appellant was “motivated by a degree of impulsive arrogance” engendered by the pursuit of his ambition. Counts 1, 4 and 5 carried maximum penalties of 10 years; and the penalties imposed of 18 months, 24 months and 15 months respectively can only be seen as at the lower end of the range of penalties available. Mr. Tehan submitted, however, that the orders for cumulation made by his Honour were beyond the exercise of a fair discretion and led to a total effective sentence which can be seen to be manifestly excessive. We do not agree. The offences alleged in counts 1, 4 and 5 were discrete frauds practised upon three separate victims. In our opinion, the nature of these discrete crimes, the circumstances in which they were committed and the effect which they had upon their chosen victims entitled the judge to cumulate the penalties in the manner in which he did. The total effective sentence of 4 years is indeed, we think, as low as it justifiably could have been when viewed against the criminality of the overall offending. The minimum period fixed – namely 2 years and 3 months – is well below what his Honour could justifiably have fixed and indicates that his Honour was well alive to the mitigating circumstances which had been advanced on behalf of the appellant.
The appeal should be dismissed.
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