R v Tomich

[2002] NSWCCA 175

Reported Decision: (2002) 127 A Crim R 234

New South Wales

Court of Criminal Appeal

CITATION:	R v Tomich [2002] NSWCCA 175
FILE NUMBER(S):	CCA 60449/01
HEARING DATE(S):	13 May 2002
JUDGMENT DATE:	13 May 2002
PARTIES :	Heather Leigh Tomich v Regina
JUDGMENT OF:	O'Keefe J at 44; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0440; 00/31/043; 00/31/0243
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL :	(A) T S Corish (C) G I O Rowling
SOLICITORS:	(A) D J Humphreys (C) S E O'Connor
CATCHWORDS:	Sentencing - global sentencing impermissible - misdescription of offences - need careful adherence to provisions of Crimes (Sentencing Procedures) Act 1999 when dealing with Form 1 offences - need for deterrent sentences when dealing with financial frauds on an employer and breaches of trust - compelling subjective features
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Nil
DECISION:	See paragraphs 43 and 44

IN THE COURT OF
CRIMINAL APPEAL


60449/01

O'KEEFE J

SMART AJ

Monday 13 May 2002

REGINA v HEATHER LEIGH TOMICH

JUDGMENT

1. SMART AJ: Heather Leigh Tomich seeks leave to appeal out of time against the asserted severity of sentences of imprisonment imposed upon her in the District Court on 8 June 2001 consequent upon her plea of guilty to each offence. As the application was filed but nine days late, the applicant did not realise that she was required to lodge her appeal within 28 days and there are matters of substance to be argued an extension of time should be granted.

2. On the charge of on 14 October 1998 at Bateau Bay, then being a clerk of St George Bank Limited stealing $15,000, she was sentenced to a fixed term of three years commencing on 12 April 2001. On two charges of larceny as a clerk of the bank, being $1,000 on 14 July 1999, and $1,000 on 26 July 1999, she was sentenced to a fixed term of two years commencing on 12 April 2001. It is not clear whether the judge intended to impose that sentence on each count. Having regard to what she did on the next group of charges it may well have been a group sentence for the two offences. The maximum penalty for larceny as a clerk under s 156 of the Crimes Act1900 is ten years imprisonment

3. Rectifying the judge's description of the offences on:

(i) Ten counts of larceny as a clerk of the bank extending over the period 15 October 1998 to 2 February 2000, on different days mainly in 1999, and involving amounts ranging from $500 to $3,000 (Crimes Act, s 156);

(ii) Four counts of intentionally and without authority or lawful excuse inserting data stored in a computer, namely term deposit accounts of Mr and Mrs Wymark (15 February 1999 and 14 July 1999), and Mrs K Cracknell (12 April 1999 and 9 September 1999) (Crimes Act, s 310 (a) - now repealed - maximum custodial penalty ten years);

(iii) Six counts of intentionally and without authority or lawful excuse altering data stored in a computer, namely the term deposit accounts of Mrs Cracknell, between 9 January 1999 and 9 February 2000, on 12 April 1999 and 9 September 1999; and of Mr and Mrs Wymark on 15 February 1999, on 14 July 1999 and 28 January 2000 (Crimes Act, s 310 (a) - now repealed - maximum custodial penalty ten years); and

(iv) One count of make false instrument with the intention of using it to induce another person to accept the instrument as genuine, and because of that acceptance to do or not to do some act to that other person's prejudice (Crimes Act, s 300 (1) - maximum custodial penalty ten years). The applicant was sentenced to a term of four years to commence on 12 April 2002, with a non-parole period of three years, taking into account the offences on the Form 1. The Form 1 contained 94 offences of larceny, one offence of obtain money by deception, two offences of intentionally and without authority or lawful excuse insert data stored in a computer and two offences of intentionally and without authority or lawful excuse alter data stored in a computer.

4. The sentence last mentioned was a global group one. The judge did not impose a sentence on each of the 21 individual counts, nor did she state on which particular count the offences were being taken into account. Global or group sentences are not permissible. The judge did not approach the offences on the basis of imposing the correct sentence for each offence. This Court is compelled to re-sentence. As all the matters were dealt with together and interlocking sentences were imposed, it is necessary to reconsider all sentences.

5. In her remarks on sentence the judge, after imposing the sentence on the count of larceny of a clerk on 14 October 1998 and the two counts of larceny as a clerk committed on 14 and 26 July 1999, said:

“On the 21 counts of larceny as a clerk, one count of make false instrument, and five counts of alter data and destroy/erase data you are sentenced to a term of imprisonment of four years to commence on 12 April 2002 and to expire on 11 April 2006, the term of imprisonment of four years is to be served partly concurrently and partly consecutively with the sentences imposed for the first two counts and for that reason it is to commence on 12 April 2002 and expire on 11 April 2006.

In relation to this count I have taken into account the Form 1 offences, and it is for that reason and also to mark the accelerating and ultimately the total criminality that I have significantly enlarged the sentence on this count and direct that it be served as ordered.

I fix a non-parole period of four years, in fixing the non-parole period I've had regard to the interests of the offender and of the community in providing an adequate period for post release supervision.

Significant period of post release and supervision on parole is justified, however, that does not justify reducing the non-parole period to one that fails to appropriately reflect the criminality for which the offender is to be sentenced.

You are to be considered eligible for release to parole on 11 April 2005".

6. The solicitor appearing for the Crown explained to the judge that the non-parole period was part of the total period of the sentence, that there could not be a global non-parole period, and that any non-parole period must pertain to a specific sentence and not to a group of sentences. The solicitor also reminded the judge that she had not attached the largest sentence to the biggest theft, namely that of $15,000 the subject of the first count. The judge replied that she wanted to impose the heaviest sentence on the last group of offences because of the accelerating and greater criminality.

7. After a lengthy discussion between the legal representatives of the parties and the judge, finally on the group of 21 charges she imposed a sentence of imprisonment of four years with a non-parole period of three years starting from 12 April 2002. It was the judge's stated intention that overall the applicant would serve a non-parole period of four years. The three year sentence of the applicant on count 1 started on 12 April 2001.

8. It is not easy to reconcile the judge's statement that a significant period of post release supervision on parole was justified with her fixing a non-parole period of less than three quarters of the accumulated sentences. One year is not a significant period of post release supervision in the circumstances of this case.

9. The applicant complained that the judge had erred in the way in which she dealt with the 1999 offences to be taken into account. The Form 1 (list of additional charges) signed by the applicant on 12 April 2001 provided for the 99 charges to be taken into account on the offence of larceny as a clerk of $15,000 on 14 October 1998. The judge took the 99 offences on the Form 1 into account on the third group of offences when she delivered her remarks on sentence and finalised the sentences. When it was pointed out to her that the Form 1 envisaged that the offences listed would be taken into account on the charge of larceny as a clerk of $15,000 on 14 October 1998, the judge replied that she had structured her entire sentence on the basis that the Form 1 attached to the 21 counts (the third group of offences).

10. The solicitor for the Crown applied for leave to amend the Form 1. The legal representative for the applicant stated, "I've no objection to the amendment of that document". The solicitor then amended the Form 1 by striking out "$15,000" and substituting another set of figures, so that the opening words of the Form 1 read, "To Heather Tomich, charged with the offence of larceny as a clerk of 00/31/0243, 15/10/99, before the Gosford District Court". 00/31/0243 was apparently the District Court file number of the third group of charges. While there is a charge relating to 15 October 1998, there does not seem to be one relating to 15 October 99.

11. The applicant correctly submitted that s 32 (4) of the Crimes (Sentencing Procedure) Act 1999 requires the Form 1 to be signed by the offender. However, she did not sign the amended form providing for the list of offences being taken into account on a group of charges. The applicant submitted that the judge did not comply with s 33 (1) of the Act in that the judge did not ask her whether she wanted the Form 1 offences taken into account on the third group of offences. There would be a resultant non compliance with s 33 (2) (a) (ii). Sections 32 and 33 are designed to ensure that the offender is made fully aware of what is proposed or happening so that mistakes are unlikely to occur. These are procedural steps of some consequence as they are capable of bearing upon the liberty of the subject.

12. The applicant also complained that the judge incorrectly described (and possibly incorrectly understood) the offences in the third group. She incorrectly stated:

“On the 21 counts of larceny as a clerk, one count of making false instrument, and five counts of alter data and destroy/erase data, you are sentenced...".

13. There were 21 counts in total made up of ten counts of larceny as a clerk, four counts of inserting data, six counts of altering data, and one count of making a false instrument. The judge has erroneously stated the counts with which she was dealing. In her endorsement on the indictment she has stated:

“00/31/0243
51 A
...
On the 21 counts larceny as a clerk,
One of make false instrument
Destroy data
Five counts insert/alter data
Convicted
...
On this sentence I take into account the
matters on the Form 1...".

14. Strictly speaking, matters on a Form 1 are taken into account on dealing with the offender for what is described as the "principal offence" (s 33 (2).

15. The applicant raised other grounds of complaint, but it is unnecessary to deal with these. The matters so far considered establish error. The errors are of such a kind that it cannot be held that no lesser sentence is warranted in law pursuant to s 6 (3) of the Criminal Appeal Act 1912. Valid sentences on the individual offences comprised in the third group of offences have not been passed. There is a global sentence in respect of the 21 offences (albeit that it purports to apply to more than 21 offences).

16. Before proceeding to re-sentence, this Court thought it desirable to clarify with the applicant that:

(a) She confirmed that she admitted her guilt on the 99 offences on the Form 1 and still desired them to be taken into account; and

(b) The 99 offences be taken into account by this Court on count 1 of the indictment, that is the offence of larceny as a clerk of $15,000 on 14 October 1998.

17. The applicant confirmed that she admitted her guilt on the 99 offences and that they were to be taken into account on count 1. She re-signed the Form 1. This Court has accordingly taken the offences listed on the Form 1 into account when dealing with the offence the subject of count 1 of the indictment.

18. In 1998 the applicant was employed as a Customer Service Officer with St George Bank Limited. She was an experienced officer. She relieved in management positions and assisted in the training of staff. She dealt with customers and attended to their banking needs. She had an individual employee number which was used to access the bank's computer system on which details of the customers' accounts and deposits were kept.

19. As to count 1, on 14 October 1998 the applicant, using her access to the bank's computer system, withdrew $15,000 from the term deposit account of Mr and Mrs Wymark and used the moneys as her own. The applicant entered a false withdrawal. She later took steps to cover this up.

20. As to the second group of offences, namely two offences of larceny as a clerk, the applicant on 14 and 26 July 1999 used the same method to withdraw on each occasion $1,000 from the Furchman accounts.

21. As to the third group of offences:

(i) On the ten offences of larceny as a clerk she used her access to create withdrawals on three term deposit accounts of three customers of the bank and applied the moneys withdrawn to her own use, taking the moneys from the bank float. Details are as follows:
Date Account Name Amount

15/10/98 Wymark $1,000

12/06/99 Wymark $3,000

17/12/99 Wymark $2,000

02/02/00 Wymark $2,000

16/09/99 Cracknell $2,000

10/12/99 Cracknell $2,000

29/01/99 Cracknell $2,000

16/06/99 Cracknell $2,000

18/06/99 Tarlington $3,000

30/06/99 Tarlington $2,000

(ii) As to the four offences of insert false information into a computer, she used the bank's computer to access two term deposit accounts. On 15 February 1999 and 14 July 1999 she inserted false deposits of respectively $34,000 and $44,447 into the Wymarks' account. This was done as the term deposit was due for renewal. She printed out a new term deposit certificate and issued it to the customers who would be unaware of the amounts withdrawn and that the account had been manipulated to hide the moneys she had stolen from the bank. On 12 April 1999 and 9 September 1999 she similarly inserted false deposits of $28,745.22 and $44,216.03 respectively into the term deposit account of Mrs Cracknell.
(iii) On the six counts of alter data stored in the computer, she used the bank's computer to access the term deposit accounts of two customers and altered the data stored in the computer. As to the Wymarks' account on 15 February 1999 and 14 July 1999, she created withdrawals of $34,482.96 and $44,447.04 respectively so as to neutralise the earlier deposits made on those days so that the bank's records balanced at the end of the day. This hid from other bank officers that she had manipulated this account and stolen moneys from the bank.

On 28 January 2000 she used the computer to access and change the personal contact records of the Wymarks. She changed the home address of the Wymarks to her own home address, thus ensuring any renewal notifications sent out by the bank's head office would be sent to her.

As to the Cracknell account, the applicant followed the same course save that the dates of the withdrawals were 12 April 1999 and 9 September 1999, and the amounts were respectively $28,745.22 and $44,216.03. The applicant changed the home and business contact phone numbers of Mrs Cracknell to the applicant's own home telephone number.

22. As to the count of making a false instrument, the applicant on 15 February 1999 used the computer to access and change the records of a term deposit account of the Wymarks. She created and issued a false term deposit certificate. This hid the manipulation of their account and that she had stolen moneys.

23. The bank has compensated each of the customers for their loss. The applicant stole a total of $186,812.06 from the bank. The applicant maintained that all moneys were to support a gambling addiction and used for that purpose.

24. On 9 February 2000 the Wymarks made enquiries about abnormalities in their term deposit account. They concerned a balance in the account of $1,852.44 instead of at least $45,000 and interest. The staff at the Bateau Bay Branch was asked to investigate and locate the withdrawal vouchers and receipts which would usually be completed by a customer. They did not exist.

25. Shortly after the search commenced the applicant told the Customer Service Manager that she, the applicant, had stolen the moneys from the accounts. On 10 February 2000 police contacted the applicant and she voluntarily attended The Entrance Police Station and was interviewed at some length. She again voluntarily attended for a second interview when asked to do so by the police.

26. She admitted stealing monies from the bank by manipulating a number of term deposit accounts by creating false withdrawal entries. The applicant further admitted making false entries in the computer to change the accounts when the term deposits were due for renewal. She created what she termed a "phantom deposit" into the account to make it appear as if all moneys were still present. She then issued a new term deposit certificate. After its issue she either withdraw the "phantom deposit" or reversed it. Thus the accounts balanced at the end of the day. The applicant also admitted changing the contact address of the Wymarks to her address and the home and business contact phone numbers of Mrs Cracknell to her phone number.

27. The applicant, who was born on 12 January 1959, gave evidence and was cross-examined. She said that she felt very sorry for what she had put the customers through and very ashamed of her behaviour. She told the Probation and Parole Officer that she was disgusted with her behaviour and took full responsibility for her offences. She was so ashamed that she did not tell her parents or her sons of the Court proceedings. She told the judge that since February 2002 she had given up gambling.

28. She said that for many years she gambled $20 to $30 weekly each Saturday. However, after her sons, then aged about 15 and 13 who had lived with her since 1994, telephoned her in about August 1998 when on an access visit to her former husband and said that they would not be returning as they wanted to live with their father, she was devastated. There had been no warning that this might happen. She started to spend a lot of time at a local club and began gambling a great deal. She found it difficult to spend periods at home. The club issued her with a frequent gamblers card to facilitate her use of the poker machines.

29. She told the judge that she initially embarked upon her offending as her de facto partner, who was a plumber, was off work due to injury. They had fallen behind in the rent and she had bills to pay. This appears to have happened about the same time as her sons left her. Indeed, in her affidavit she insisted that she did not offend until after her sons left. These two factors contributed to her offending behaviour. She stated to the judge that at the time she first took some moneys she intended to repay them. This did not occur. She was required to pay $270 per week to her former husband for the maintenance of her two sons.

30. The applicant came from a stable and happy family although there was never much money available. She completed Year 10 at a Sydney High School. She had to and did leave school aged 15 and a half to assist with the family finances. She started work straight away in Sydney and went to Technical College at night to learn typing and shorthand. She started off in the mail room of a well-known trustee company and worked her way up through the ranks and was in charge of share accounts. She married when she was aged about 18. She had been with the trustee company for just under ten years when she left to have her first child.

31. After the birth of the children she returned to the workforce, eventually full-time. The marriage lasted about 18 years but it was not a happy one. She left her husband with the two children in 1994. She worked full-time to support them and herself. She described her husband as domineering. It seems that he was unemployed for substantial periods and that she had to support the family. She was very lonely after she left her husband and after a period she commenced to live with a de facto partner as well as her two sons. Unfortunately her partner suffered shoulder injuries. He had to have operations and the problems continued for a considerable period. He then developed cancer. It was diagnosed as terminal cancer in approximately February/March 2000, and he died in about November 2000.

32. The diagnosis of cancer apparently came after her services with the Bank had terminated. When she appeared before the judge she was unemployed and in receipt of sickness benefits. She was seriously depressed. She was living with her parents. Her only asset was a motor vehicle which she had won. It was valued at about $11,000.

33. The applicant has no prior convictions. The judge held that the applicant was entitled to a discount for her early admissions and pleas. The early admissions shortened and focused the investigation, and the pleas saved what could have been quite a long trial. There was a substantial facilitation of the administration of justice. The Judge accepted as genuine the applicant's expression of remorse and contrition. The discount of 15 percent allowed was inadequate.

34. The judge correctly found that it was probable that the applicant would never be able to repay the sum taken. The Judge emphasised the seriousness of the offences including the breach of trust. She noted the extended period of time over which the breaches continued, namely, mid October 1998 to 9 February 2000, a period of nearly 16 months; and the size of the amount taken. Fortunately that falls below many of the amounts taken in the cases which have come before the Court in this area. Nevertheless, it is a significant sum. The Judge held that the applicant had gone to great lengths to plan a systematic stealing of funds and altering of records to cover her tracks. I would not dissent from the judge's remarks on these points.

35. She stressed the need for public deterrence and the need for the sentences to act as a powerful deterrent.

36. There is much evidence as to the effect upon the applicant of her sons leaving her. They preferred their father to her de facto partner. Nevertheless, it must have been very painful and stressful when she had been their main provider for many years and looked after them. It is understandable how these matters could contribute to her losing her sense of direction and propriety. The gambling binge was in part a reaction to her troubles. She tried to bury herself in gambling to overcome her troubles. That created a need for funds. Of course, nothing can excuse her offending behaviour.

37. The judge correctly held that full time custodial sentences had to be imposed and that the sentences had to reflect adequately the serious criminality involved in the offences. There are special circumstances. The applicant had no previous convictions and she will need extended support and supervision on her release from prison to complete the rehabilitation which she has commenced. Her application, industry and conduct while in prison have been very good and bode well for her future. She is presently taking medication for depression.

38. The affidavit of the applicant's father states that straight after the boys went to live with the father the family noticed a big change in the applicant. She drank a lot more and seemed to be gambling badly. She was always crying about the loss of the boys and seemed down and depressed. He pledged his support and that of his wife in support of his daughter in the future.

39. I add a word about the detailed reports of Dr B Waters, psychiatrist, and Ms A Robilliard, psychologist. While they provide much useful material and put matters on a well reasoned basis, the basic facts which had contributed to the applicant's dishonesty, were before the judge. In the circumstances, the sons suddenly leaving their mother was likely to have been important in her losing her way and continuing to lose her way.

40. Notwithstanding all the circumstances that have hitherto been related, the Crown submitted that the offences were so serious that in the end the Court should impose head sentences totalling 5 years. The Crown said the matter of the non-parole period was pre-eminently a matter for the Court.

41. I have taken into account the objective seriousness of the offences and the applicant's subjective features. The sentence has had a marked impact upon her. Her criminality arose out of her very difficult circumstances. In normal circumstances I do not think that she would have offended.

42. In the sentences which I am about to announce non-parole periods have not been fixed on some of the sentences because of the accumulation of sentences. This accumulation has also led to a relatively short non-parole period on the last sentence.

43. I propose the following orders:

(a) Extend the time within which the applicant may seek leave to appeal against sentences.

(b) Leave to appeal against sentenced granted.

(c) Appeals allowed, sentences quashed.

(d) In lieu of the sentences imposed the applicant is sentenced as follows:

(i) On each of the two offences of larceny as a clerk of the Bank, being $1,000 on 14 July 1999 and $1,000 on 26 July 1999, the applicant is sentenced to imprisonment for a fixed term of 1 year to commence on 12 April 2001 and to expire on 11 April 2002.

(ii) On each of the ten offences of larceny as a clerk, four offences of insert false information, six offences of altering data stored in a computer, and one count of make false instrument as particularised earlier in these reasons (being those in the third group of offences), the applicant is sentenced to imprisonment for a fixed term of 2 years to commence on 12 April 2001 and expire on 11 April 2003; all sentences to be served concurrently.

(iii) On the count of larceny as a clerk on 14 October 1998 of $15,000 and taking into account the 99 offences on Form 1 the applicant is sentenced to 3 years imprisonment commencing on 12 April 2002 with a non-parole period of 12 months starting that day and expiring on 11 April 2003.

44. The applicant thus has effective head sentences totalling 4 years and an effective non-parole period of 2 years. She will be eligible for release on parole on 11 April 2003.

45. O'KEEFE J: I agree. The orders of the Court will be as proposed by Mr Justice Smart.

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