R v Stewart
[2001] VSCA 102
•27 June 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 341 of 2000
| THE QUEEN |
| v. |
| NINA STEWART |
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JUDGES: | PHILLIPS, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 June 2001 | |
DATE OF JUDGMENT: | 27 June 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 102 | |
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Criminal law – Sentencing – Theft – Bogus repairers preying on elderly householders – Two victims paying more than $95,000 – Co-offenders treated leniently – Applicant’s claim to parity – Other specific error identified – Applicant’s sentence of 12 months’ imprisonment suspended as to 4 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P.A. Coghlan, QC | P.C. Wood Solicitor for Public Prosecutions |
| For the Appellant | Mr. B. Lindner | Victoria Legal Aid |
PHILLIPS, J.A.:
This is an application for leave to appeal against sentence imposed in the County Court on 24 October 2000. The applicant was charged on two counts of theft. Count 2 charged the theft of $40,000 from the victim between 26 October 1999 and 28 October 1999, and count 1 charged the applicant, in conjunction with two co-offenders, Mark Yelding and Ellen May Yelding, with the theft of $55,150 from another victim during the period between 2 December 1999 and 3 February 2000.
The applicant and the two co-offenders pleaded guilty and all three were sentenced on 24 October after pleas in mitigation on their behalf by counsel. The two co-offenders, one of whom had prior convictions, albeit of little direct relevance, were both sentenced on count 1 by way of intensive correction order, Mark Yelding to 12 months' imprisonment to be so served, and Ellen Yelding to 10 months’. Both were in their sixties and in only moderate health. The judge expressed himself as satisfied that the conduct of all three warranted an immediate term of imprisonment, but for reasons personal to the two Yeldings, was prepared "as an act of clemency" to allow the sentences to be served by way of intensive correction order. His Honour said that in his view the applicant, who was 25 years old at the time of these offences, did "not qualify for the clemency shown to the Yeldings" and sentenced her to nine months' imprisonment on count 1 and to six months' imprisonment on count 2, ordering that three months of the latter be served cumulatively on the former. The total effective sentence was then 12 months' imprisonment. When asked whether he had given consideration to the fixing of a minimum term, his Honour said, "Yes, in my view it is a relatively short period of imprisonment and I do not fix any minimum period."
The applicant now seeks leave to an appeal on a number of grounds. Ground 1 is that the sentence was manifestly excessive. Ground 2 is that the judge erred in failing adequately to consider the imposition of a sentence other than imprisonment, and ground 4 alleges error in his Honour's failing properly to exercise his discretion to fix a minimum term. Ground 5 is that the judge had insufficient regard to the principle of parity in sentencing, given that the co-offenders were ordered to serve their sentences by way of intensive correction order. Grounds 3, 6 and 7 are that the judge erred in failing to have any or any sufficient regard to the applicant's rehabilitation, her lack of prior criminal history, her background and personal circumstances, the adverse influence on her of her then partner, David Warrilow, her role in the commission of these offences, the absence of any evidence of personal gain monetarily, her early plea of guilty, her co-operation with police and her remorse. On 25 June last, ground 8 was added, that the judge erred in applying the wrong test in determining whether to order the applicant to prison.
The circumstances of the applicant's offending are unfortunately not uncommon in our community, the victims being householders who, from their circumstances and usually their age, are seen by the offenders as particularly vulnerable to deception. In this instance the victim of the later but larger theft, count 1, was a 63 year old woman whose husband had recently died, in September 1999. She had lived in her home for 38 years and her 93 year old mother lived in a granny flat at the back. The son of the two Yeldings, it is alleged by the Crown, and two others were involved in a series of deceptions on this victim and her late husband that began in mid-1999, whereby they obtained more than $40,000 from her by contracting to carry out unwanted house repairs which they had no intention of effecting. In November 1999, one Darren Warrilow, with a series of convictions already behind him, took over the conduct of the continuing deception and the prosecutor described him as the principal offender in relation to both the present counts. At the time he was the de facto husband of the applicant who had recently separated from her husband. Warrilow was known to the Yeldings. He deceived the victim into making payments from her own and her mother's bank accounts and he arranged for one or other of the three accused to escort the victim to her local bank to withdraw the money and hand it over. There were eight such visits and in that way a total of $55,150 was paid over by the victim. The applicant accepted the money in her fraudulent role as secretary of a fictitious company, Nina Correa, the married name of the applicant. Nina Correa was represented to the victim as the name of a building company entitled to receive the payments.
All three accused were described by the sentencing judge as having played active parts in the continuing deceptions. For example, the judge said, Mark Yelding told the victim on one occasion that the "big boss" of the Sydney company, Nina Correa, was coming to Melbourne that night and that the victim's money would be handed by Yelding personally to the "big boss". On another occasion Ellen Yelding came to the victim in tears and said that her car had been repossessed because her wages had not been paid by Nina Correa, and by that deception she obtained $1800. The applicant in numerous telephone conversations represented herself as secretary to the building company Nina Correa, thereby appearing to substantiate the verbal representations to made by Warrilow. The applicant painted the verandah of the victim's house and later demanded $1600 for two hours’ work. On one occasion she arranged for $14,000 to be transferred into her own account, apparently acting contrary to the instructions given her by Warrilow. Count 1 encompasses a large number of separate deceptions that were made the subject of one global count and, according to the judge, each accused "was closely associated with many of those deceptions". His Honour regarded them as acting "as a team of conspirators".
As for count 2, which was the earlier theft in point of time, the victim here was an elderly woman, 92 years old. The Yeldings were not involved in count 2. Warrilow and another persuaded her to let them paint the roof of her house and over three days four withdrawals totalling $40,000 were taken from the victim's bank account supposedly to pay for work done, though the work was never done. The applicant was the one who escorted the victim to the bank each time and later handed the money to Warrilow. She told bank staff that the victim was her grandmother and that the money was to be used to by her, the applicant, a car.
In late February 2000 the police became involved and all three of the accused left Melbourne to avoid police inquiries. On the plea the judge was told that the applicant lived for months in motels and that much of the money paid over by the victims was spent. In May 2000 all three offenders surrendered to police and co-operated in records of interview, confessing their guilt. The expense and inconvenience of a trial was thereby avoided and of course it was proper that the applicant, like her co-offenders, should receive due credit for her plea of guilty.
The contrast between the position of the Yeldings and that of the applicant was marked in more ways than age and health. As I have said, the Yeldings were not involved in the offence charged in count 2 and, despite their active participation in the deceptions underlying count 1, the Yeldings said that Warrilow had not told them why the victim was giving them money. The judge accepted this, though noting that they none the less received in all some $26,000, some of which they spent on legal fees for their son. On the other hand, the applicant was living with Warrilow: she said that he was violent towards her and he collected all the money paid by the two victims. But, said the judge, as Warrilow's partner and an active participant, she must have had full knowledge of what was taking place and it was likely that she derived some benefit of the offending, however indirect. Warrilow it appears, is now serving a prison sentence as a result of earlier offending in New South Wales and the Yelding's son is awaiting trial in relation to the deceptions carried out before December 1999. In sentencing the applicant, the judge rejected the submission that, in offending as she did, the applicant had been acting under duress. Though perhaps a minor player in relation to the offence charged in count 1, she was a much more important player in respect of count 2.
In setting out the circumstances of the offending, I have drawn heavily upon the learned judge’s sentencing remarks. In view of what His Honour said, it is scarcely surprising that he regarded a prison sentence as amply justified for all three caused. As he said: "Offences of this nature are prevalent and cause distress and suffering to many vulnerable members of the community. Deterrence of other potential offenders is an important consideration." With respect, I agree. The victim impact statements make all too plain the very real misery for the two victims and their families in the loss of hard won savings and the destruction of trust. These crimes were despicable, the strong - for the offenders were relatively strong - deliberately preying on the relatively weak and vulnerable. To my mind, sentences of 10 months’ and 12 months’ imprisonment were, if anything, lenient. Certainly the total effective sentence of 12 months ordered in respect of the applicant cannot be said to have been manifestly excessive. Had the effective sentence been double that, it would still I think have been within range.
Indeed, on the pleas that were made in mitigation it seems that counsel for all parties were in agreement that terms of imprisonment were called for, the question on the pleas being whether in one way or another such terms should be served without requiring immediate incarceration. At the conclusion of the plea, His Honour called for a report on intensive correction orders for all three of the accused and remanded them on bail accordingly. It was a month later that they were sentenced. Even the prosecutor appeared to regard a non-custodial disposition as open in the proper exercise of discretion. Hence, no doubt the intensive correction orders that were made in respect of the Yeldings, who, as I have said, were not only not charged on count 2, but were in their sixties and in only moderate health.
Nonetheless, Mr Lindner now claims, and with some force, I think, that the applicant is left with a sense of grievance because of the very different sentences meted out; effectively a non-custodial disposition for the Yeldings and 12 month's incarceration for her with no minimum term. That that sense of grievance is justified is a view with which I have some sympathy, whatever may be said of the intensive correction orders made by the judge. Whether or not they should have been made is not before us: whether right or wrong, they form the basis of the comparison being made by the applicant.
Although in his very helpful outline of argument Mr Lindner said that grounds 2 to 7 would be argued as particulars of ground 1, alleging manifest excess, the newly added ground 8 alleged specific error and orally counsel relied also upon some of the other grounds as establishing specific error. Thus, he contended that the judge adopted the wrong test in considering whether to order the applicant into gaol and erred in failing to have regard to the applicant's very good prospects of rehabilitation. He relied also upon parity, or what he said was the lack of it, as establishing specific error.
As for this last, I have already remarked on the strikingly different sentencing dispositions adopted by the judge. To this I add that in the sentencing remarks, these different dispositions were adopted without any explanation for the difference, save to say that the applicant did not "qualify for the clemency shown to the Yeldings". Whether this was because her personal circumstances contrasted with those of the Yeldings or because she was guilty on two counts while they were guilty on only one was not stated. Nor was it discoverable.
As for the applicant's prospects for rehabilitation, these do seem to be very good. As noted by his Honour, the applicant's primary education was severely disrupted because she suffered serious illness as a child and recently, since splitting up with Warrilow, she had "made a commendable effort to learn to read and write". But that was all that his Honour said about possible rehabilitation and as Mr Lindner pointed out there was much more in her favour. After she separated from Warrilow, her conduct was indicative of remorse, he said, for she voluntarily surrendered herself to police, was extradited from Queensland to Victoria by consent, and made a record of interview in which she not only confessed that her own conduct was wrong and dishonest, she also provided the police with some assistance in their continuing inquiries. At the time she was not under arrest. On the plea the applicant's mother gave evidence, speaking of her daughter's genuine remorse and confirming that she had the continuing support of both her parents. She also described her daughter's criminal conduct as out of character. At the time of the plea the applicant was herself in receipt of a job search allowance and everything pointed to her seeking to make a better fist of her life than hitherto.
But while all this could be put in the applicant's favour, it was scarcely emphasized on the plea. Applicant's counsel seems to have made but passing reference to her prospects of rehabilitation and, as this court is wont to point out from time to time, if counsel does not draw the judge's attention on the plea in mitigation to what is being relied upon, the judge can scarcely be criticized for failing to have regard to it. Yet in this instance, I agree with counsel that there was every reason to expect that the applicant's prospects of rehabilitation merited a little more in the sentencing remarks, if the judge relied upon them at all, than the applicant’s seeking to learn to read and write.
However, I need not pursue this, or indeed the other criticisms made by counsel of his Honour's sentencing remarks. It is true that those remarks are very brief - and that is the principal difficulty that they occasion for us: for it is very hard then to be sure that in rejecting any sentence other than one of immediate incarceration and in declining to set a non-parole period, the judge did have regard to proper sentencing principles. We are spared the need for any closer examination of these points because in argument Mr Coghlan, very fairly and frankly, agreed that it was difficult to see that the judge had properly exercised his sentencing discretion in relation to the minimum term. Had his Honour, for instance, ordered imprisonment for 18 months with a non-parole period of 12 months, it would have been much easier to imply the proper application of sentencing principles without much by way of further explanation. But given that the order for 12 month's immediate incarceration, especially with no minimum term, was so very different from the intensive correction orders made for the co-offenders, and given also the applicant's comparative youth and her apparently good prospects for rehabilitation and, as Mr Coghlan said by reference to the record of interview, her naivety in many respects, more was needed in the sentencing remarks to explain the sentence which was imposed. In my opinion the applicant has established specific error with regard to the minimum term. It cannot be said that the sentencing remarks disclose that his Honour had regard to proper sentencing principles when declining to fix a minimum term. Taken at face value, there was error. The difficulty with such brief remarks is that we cannot tell what else might have been considered.
It follows that the application for leave to appeal should succeed, the appeal should be treated as instituted and heard instanter and then allowed and we must
exercise for ourselves the sentencing discretion. Had I been exercising that discretion for the first time, I would have considered imposing a longer term of imprisonment than 12 months for these two offences, but given that this is an exercise in resentencing on the prisoner's own application, and given the lenient sentences imposed on the co-offenders, I think that the term imposed below of 12 months’ imprisonment should stand. However, given the personal circumstances of the applicant and given that she has now served eight months in gaol, there seems no warrant for further extending her period of incarceration. I do not seek in any way to diminish the criminality attaching to this offending; as I said earlier, I think that these are despicable crimes. None the less, there is much to be put in favour of the applicant in relation to the exercise of the sentencing discretion and, given all of the circumstances, I think that justice would best be served if we were to suspend the balance of her term. In other words, I would suspend the remaining four months, or all but four months, of the prison sentence, and suspend it for 12 months from this day. That means that the applicant could now be released from prison as soon as the paperwork is seen to; but she should clearly understand that if at any time during the next 12 months she commits any further offence which is punishable by imprisonment, she may be required to go back into prison and serve the balance of the term which is now being suspended. I emphasize that and I ask that her counsel explain that to her also. Will you do that Mr Lindner?
MR LINDNER:
I certainly will, Your Honour.
HIS HONOUR:
Very well, that is the disposition I propose.
CHERNOV, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, J.A.:
Accordingly, the orders made today are as follows:
1. Order that the applicant have leave to appeal.
2 Order that the appeal be treated as instituted and heard instanter and that the appeal be allowed.
3.Order that the sentences imposed in the County Court on 24 October 2000 be confirmed, but it is further ordered that the balance remaining this day (27 June 2001) of the term of imprisonment of 12 months which was ordered to be served on 24 October 2000 be wholly suspended forthwith and suspended for a period of 12 months from this day.
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