R v Warburton
[2005] VSCA 242
•10 October 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 324 of 2004
| THE QUEEN |
| v. |
| WENDY ANN WARBURTON |
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JUDGES: | CHARLES, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 October 2005 | |
DATE OF JUDGMENT: | 10 October 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 242 | |
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SENTENCE – Theft and false accounting – Delay – Rehabilitation – Manifest excess - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| The Applicant in Person |
CHARLES, J.A.:
The applicant, Wendy Warburton, seeks leave to appeal against a total effective sentence of three years and six months' imprisonment, with a non-parole period of two years fixed, imposed in the County Court on 11 November 2004 in respect of two counts of theft and one count of false accounting to which she pleaded guilty. Each offence carried a maximum penalty of ten years' imprisonment. The applicant sought leave to appeal under s.582 of the Crimes Act 1958 on the ground that the sentences imposed were manifestly excessive, and secondly, the judge failed to take into account or give proper weight to the applicant's rehabilitation achieved at the time of sentencing and prospects of rehabilitation. Chernov, J.A. rejected the application for leave under s.582 on 20 May 2005. The applicant now pursues the application for leave in this Court on like grounds, to which has been added a ground that the judge erred by failing to take into account or give sufficient weight to the delay in disposing of the case.
The circumstances of the offending are set out in detail in the comprehensive sentencing remarks of the sentencing judge. The applicant pleaded guilty to the theft of $37,025.90 between 14 November 2000 and 27 June 2001, and, in count 2, to the theft of a further sum of $12,512.25 between 10 February 2001 and 2 May of that year. She pleaded guilty to false accounting between November 2000 and June 2001.
The applicant had approached one Brian Crowe, the managing director of Victory Funding Services Pty Ltd, a company dealing in insurance policies and domestic alarm systems, with a plan to open a business which would install security systems. As a result, in October 2000, a company "24-7 Security Services Pty Ltd" was established with funding provided by Victory Funding Services. The applicant was employed as marketing director of this firm. She had access to cheque books associated with accounts at both the Bank of Melbourne and the National Australia Bank and had authority to write cheques for wages.
In January or February 2001 Mr Crowe became aware of a discrepancy under which a customer claimed to have paid a cheque for an invoice from Victory Funding Services but where that cheque had not been paid into the company's bank account. Investigation showed that the cheque had been paid into the applicant's bank account. Mr Crowe confronted the applicant, who admitted taking the cheque but cited desperate personal circumstances and promised not to do such a thing again. Mr Crowe took no action but, after some time, the applicant misappropriated other cheques. Again Mr Crowe took no action, as the applicant again pleaded desperation and made a promise of reparation; but, after several months, the applicant again misappropriated cheques. Mr Crowe confronted her for the third time and told her he would report the matter to the police. He then commissioned an audit of the company's accounts, as a result of which it was discovered that the applicant had adopted three methods by which she had secured for herself a total of nearly $50,000.
Before Chernov, J.A. it was argued that the judge had paid insufficient regard to the delay in disposing of the case against the applicant and to the degree of rehabilitation the applicant achieved during that period. Reliance was placed on the fact that the offences were committed from November 2000 to June 2001 and the further offending conduct occurred in October 2001, at the end of which the applicant made a written admission to Mr Crowe of her conduct. The police, however, did not interview her in respect of the first offending until May 2003 and the sentence was not imposed for some 18 months after that. It was argued by counsel for her that she had not committed any further offences over the period of three years from October 2001, and it was contended that the sentencing judge's conclusion that less weight was to be attributed to her prospects of rehabilitation was in these circumstances unreasonable and against the weight of the evidence.
In my view, delay is not made out as a ground of appeal. The major delay appears to have been in part the result of the delay between the time the matters were detected and the police interviewing and charging the applicant, but delay was not by any means entirely the fault of, or caused by, police inactivity. The written admission of the applicant in October 2001 was not, in terms, an admission of a criminal offence. The applicant on 2 October 2001 admitted "responsibility for the amount of $65,428.37 owing to 24-7 Security Services Pty Ltd and/or Victory Funding Services Pty Ltd ... as a result of borrowings and financial indiscretions whilst working as an executive of 24-7 Security Services Pty Ltd" and she stated her intention to repay the amount of her debt upon receipt of a payment from her husband. The police commenced their investigation in July 2002. The matter was complicated and there was a delay in relation to bank subpoenas to obtain documentation. The address of the applicant was not known for some time. Furthermore, the applicant laid the blame for these offences largely on difficulties with her son, who suffered from Attention Deficit Hyperactivity Disorder. She was still seeking an adjournment of the hearing and the sentencing when the matter came on for hearing on 26 August 2004. In these circumstances I do not think that this ground has been established. The fact remains that a period of three years passed between the date of her last offence and the time of sentencing.
The third ground complains that the judge failed to take into account the degree of rehabilitation which the applicant had achieved during the delay and her prospects of rehabilitation. The evidence of Mr Ian Causer, the owner of a business called Earth Force Personnel, was that after the applicant had tried to steal money from his company and had then attempted suicide late in 2001, he viewed her actions as a call for help and had re-employed her as the administrative manager and credit controller of his office, ensuring that she had no access to cheques and money. He said that for the last three years she had handled this position remarkably well, reliably and efficiently, travelling four hours a day. He regarded her as a very loyal and excellent employee. Notwithstanding these matters, it is clear that the sentencing judge did not accept the applicant's entire explanation for committing these offences. As her Honour said in sentencing reasons -
"You have not provided to the police, to this court or to the forensic psychiatrist any details of moneys used by you. You have given a very vague and generalised account. As you have not come to terms with why you have committed these offences, it is incumbent upon me to accord a great deal of weight to specific deterrence."
Reference was made to the report of Mr Jeffrey Cummins which was made after he had spoken to the applicant on 7 May 2004. Mr Cummins recorded the applicant as saying that -
"Concerning her offending behaviour, she emphasised that at the time of taking money from her employer she had regarded these acts as representing her being lent money by her employer under circumstances where she was experiencing a range of hardships."
Her Honour also took into account the fact that the applicant had continued to offend, notwithstanding two chances from Mr Crowe. Her Honour said -
"I do not accept as genuine any of the assurances you made to him, including the lame offer to repay by relying on the document from your husband, which takes into account the fact that he had never paid you a cent and the due date for payment was some weeks before you made that promise to Mr Crowe."
Her Honour also took into account, in considering rehabilitation, that the applicant had continued to commit offences after the offences the subject of sentencing had been committed. In all those circumstances, in my view it cannot be said that her Honour was in error in according less weight to the applicant's prospects of rehabilitation. Plainly the sentencing judge did not discount altogether the applicant's efforts at rehabilitation.
In my view the sentence cannot be said to be manifestly excessive. Accordingly, I do not think that any error has been shown in the sentencing reasons of the judge, and I would dismiss the application for leave to appeal against sentence.
BUCHANAN, J.A.:
I agree.
VINCENT, J.A.:
I agree.
CHARLES, J.A.:
The order of the Court is, accordingly, that the application for leave to appeal against sentence is dismissed.
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