R v Weir

[2003] NSWCCA 204

CITATION:	R v WEIR [2003] NSWCCA 204
HEARING DATE(S):	17 July 2003
JUDGMENT DATE:	31 July 2003
JUDGMENT OF:	Sheller JA at 1; James J at 48; O'Keefe J at 49
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal Law - appeal against severity of sentence - fraudulent misappropriation - where applicant pleaded guilty - where trial Judge said to have erred in calculation of amount misappropriated
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	AB v The Queen (1999) 198 CLR 111 Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2003 [2002] NSWCCA 518 House v The King (1936) 55 CLR 499 Phelan (1993) 66 A Crim R 446 R v Burke [2002] NSWCCA 353 R v Cappadona (2001) 122 A Crim R 52 R v Egerton NSWCCA 8 August 1997 R v Falzon (unreported) CCA 20 February 1992 R v McDonald (1994) 71 A Crim R 370 R v Pantano (1990) 49 A Crim R 328 R v Power [2002] NSWCCA 244 R v Simpson (2001) 53 NSWLR 704 Readman (1990) 47 A Crim R 181
PARTIES :	Pauline Dorothy Weir - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 60127/03
COUNSEL:	H Dhanji - Applicant D Frearson - Crown
SOLICITORS:	Giddy & Crittenden - Applicant S E O'Connor - Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0551
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

60127/03

SHELLER JA
JAMES J
O’KEEFE J

R v Pauline Dorothy WEIR

The applicant pleaded guilty to four charges of fraudulent misrepresentation, one of using a false instrument and one of passing a valueless cheque. The total effective sentence handed down was one of seven years with a non-parole period of four years.

On appeal, it was submitted that there had been an error in the trial Judge’s assessment of the net loss to the victims such that the amount lost was just over $823,000 rather than over $1,000,000. It was also submitted that the trial Judge had neglected to address the possibility that one of the victims, who had a caveat over the applicant’s home, might upon the sale of the home recover some of the money he had lost.

(Per Sheller JA; James and O’Keefe JJ agreeing):

1. The Court must form a positive opinion that some other sentence is warranted in law and should have been passed before exercising its power to quash the sentence and pass such other sentence in substitution thereof: R v Simpson (2001) 53 NSWLR 704 applied.

2. If the amount of the loss was overstated, the error did not result in any miscarriage of the sentencing discretion. On any view the loss to the applicant’s victims was substantial and that conclusion is not undermined by the asserted error, even if it was an error.

3. If the applicant wished to rely upon some possible further repayment to one of the victims, this should have been placed in proper and exact terms before the sentencing Judge, which it was not: R v Phelan (1993) 66 A Crim R 446 referred to.

Legislation:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases cited:

AB v The Queen (1999) 198 CLR 111
Attorney-General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2003 [2002] NSWCCA 518
House v The King (1936) 55 CLR 499
Phelan (1993) 66 A Crim R 446
R v Burke [2002] NSWCCA 353
R v Cappadona (2001) 122 A Crim R 52
R v Egerton NSWCCA 8 August 1997
R v Falzon (unreported) CCA 20 February 1992
R v McDonald (1994) 71 A Crim R 370
R v Pantano (1990) 49 A Crim R 328
R v Power [2002] NSWCCA 244
R v Simpson (2001) 53 NSWLR 704
Readman (1990) 47 A Crim R 181

ORDERS
Leave to appeal granted.
Appeal dismissed.
**********

60127/03

SHELLER JA
JAMES J
O’KEEFE J

Thursday, 31 July 2003

R v Pauline Dorothy WEIR

Judgment

1 SHELLER JA: The applicant, Pauline Dorothy Weir, pleaded guilty in the Local Court to six charges: four of fraudulent misrepresentation (s178A of the Crimes Act 1900 (the Act)), charges 1, 2, 3 and 5 in the charge sheets attached to the certificate of committal; one of using a false instrument (s300 of the Act), charge 4 of the attached charges; and one of passing a valueless cheque (s178B of the Act), charge 6 of the attached charges. The applicant was committed for sentence to the District Court where she adhered to her pleas of guilty. On 6 September 2002 she was sentenced by his Honour Judge Dodd on the first charge (taking into account matters on a Form 1) to imprisonment for five years with a non-parole period of two years to date from 6 September 2002, on the fourth charge (taking into account matters on a Form 1) to imprisonment for five years with a non-parole period of two years to date from 6 September 2004, a sentence cumulative upon the sentence imposed on the first charge, on charges 2, 3 and 5 to a fixed sentence of two years from 6 September 2002 and on charge 6 to a fixed term of nine months to date from 6 September 2002. The total effective sentence was one of seven years with a non-parole period of four years dating from the date of sentence.

2 Section 178A of the Act provides, so far as presently material:

“Whosoever having collected or received any money or valuable security upon terms requiring him or her to deliver or account for or pay to any person the whole or any part of:
(a) such money or valuable security or the proceeds thereof, or
(b) any balance of such money, valuable security or proceeds thereof after any authorised deductions or payments have been made thereout,
fraudulently misappropriates to his or her own use or the use of any other person, or fraudulently omits to account for or pay the whole or any part of such money, valuable security, or proceeds, or the whole or any part of such balance in violation of the terms on which he or she collected or received such money or valuable security, shall be liable to imprisonment for seven years.”

3 Section 178B provides:

“Whosoever obtains any chattel, money or valuable security by passing any cheque which is not paid on presentation shall, unless he or she proves:
(a) that he or she had reasonable grounds for believing that that cheque would be paid in full on presentation, and
(b) that he or she had no intent to defraud,
be liable to imprisonment for one year, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed.”

4 Section 300 of the Act, so far as presently material, provides:

“(1) A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person:
(a) to accept the instrument as genuine, and
(b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,
is liable to imprisonment for 10 years.
(2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person:
(a) to accept the instrument as genuine, and
(b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,
is liable to imprisonment for 10 years.”

5 Relevantly, s299 of the Act defines ”instrument” to mean:

“(a) any document, whether of a formal or informal character, or
(b) a card by means by which property or credit can be obtained, or
(c) a disc, tape, sound track or other device on or in which information is recorded or stored by mechanical, electronic or other means.”

6 The first fraudulent misappropriation charged occurred between 27 May 1999 and 5 July 1999. The victim was Paul Brandling. The amount fraudulently misappropriated was $242,682.31. The Form 1 offences to be taken into account occurred on 18 May 1998, 1 October 1998 and between 31 May 1999 and 5 September 1999. In each case Mr Brandling was the victim. The amount of the fraudulent misappropriation in the first was $100,000, in the second $35,000, and in the third $45,000.

7 The second fraudulent misappropriation charged occurred between 15 May 2000 and 12 June 2000. The amount involved was $25,000 and the victim Melissa Jane Gillies. The fraudulent misappropriation, the subject of the third charge, occurred between 19 April 2001 and 15 June 2001. The amount involved was $50,035 and the victim Ken Goff.

8 The fourth charge was that the applicant between 1 March 2001 and 20 March 2001 used a Westpac Banking Corporation application for irrevocable documentary credit for $495,000, which the applicant knew to be false, with the intention of inducing another person to accept the instrument as genuine and because of that acceptance to act to that other person’s prejudice. In sentencing on that charge the Judge took into account twenty-seven offences on a Form 1, fifteen of fraudulent misappropriation, four of passing a valueless cheque, five of making a false instrument and three of using a false instrument. The amounts fraudulently misappropriated under the fifteen charges of fraudulent misappropriation taken into account exceeded $500,000.

9 The twenty-seven offences occurred between 16 June 2000 and 27 November 2001. The victims were Ms Gillies six times, Christopher Stevens once, Kenneth Brittliff fourteen times and Bunty Carolyn Avieson six times. The fifth charge for fraudulent misappropriation occurred between 5 May 2001 and 10 July 2001. The sum involved was $50,000 and the victim Kenneth Brittliff. Kenneth Brittliff was also the victim of the sixth charge, passing a valueless cheque in the sum of $82,764 which occurred between 19 March 2001 and 12 July 2001. The total of the sums involved in the offences charged and offences taken into account exceeded $1,000,000.

Remarks on sentence

10 The sentencing Judge set out the terms of the six charges and the three offences on the Form 1 taken into account in respect of the first charge. Of these he said that Mr Brandling had received nothing in return for the amounts misappropriated. He then summarised the twenty-seven offences listed on the other Form 1 schedule and continued:

“The matters of fraudulent misappropriation under s178A of the Crimes Act carry a maximum penalty of seven years imprisonment. The offences of make and of use a false instrument under s300 of the Crimes Act each carry maximum penalties of 10 years imprisonment and the offences of pass valueless cheque under s178B of the Crimes Act each carry maximum penalties of one year’s imprisonment.”

11 Dealing with the first charge the sentencing Judge said that from 1990 the applicant or her partner prepared Mr Brandling’s wife’s tax returns. Mr Brandling met the applicant in 1995. From 1995 the applicant prepared his tax returns. Mr Brandling received the sum of approximately $500,000 from a transaction in 1997. After discussion with the applicant about the appropriate details to be disclosed in the tax return in respect of that transaction the return was prepared on the basis that an amount of $242,682.31 was due to the Commissioner of Taxation. The applicant advised Mr Brandling to borrow the full amount, which he, by a loan from the St George Bank, did using his house as security. Mr Brandling agreed to the applicant’s suggestion that she invest it on his behalf before payment to the Tax Office on the due date. His Honour said:

“You drafted a loan agreement for an amount of $243,000. You suggested that a prepaid interest component be added to the loan, taking the amount due back to him as $259,000. Part of the agreement was for a caveat in [Mr Brandling’s] favour over [the applicant’s] property at 42 Garden Street, Eastlakes. The document offered the interest rate of 13.8 per cent per annum.
Mr Brandling’s understanding was the money would be placed on the short-term money market. In short, [the applicant] misappropriated the money and did not pay either Mr Brandling or the Australian Taxation Office the amount of Mr Brandling’s tax bill.”

The sentencing Judge added:

“That is a much shortened version of what actually occurred, because from the time the money was given to you, to the time that Mr Brandling eventually found out that he was not to ever see it again, there were many discussions between you and Mr Brandling and many attempts by him to obtain satisfaction and the return of his money. He was put off by you on a number of occasions until eventually Mr Brandling paid the outstanding bill owing to the Australian Taxation Office after borrowing further money.”

12 So far as charges 2, 3 and 5 were concerned, the sentencing Judge said that the applicant represented to the victims on various occasions that she was able to avail them of investment opportunities, whereby they would obtain high rates of return on short-term investments which did not exist. Nevertheless the applicant was able to persuade them to hand over to her large sums of money. None of them ever saw those amounts of money or the interest return on them again. The event of the fourth charge was that persons involved handed over to the applicant large sums of money on multiple occasions.

13 Judge Dodd said that in summary Mr Brandling had lost an amount of approximately $402,000. The other three persons whom the applicant defrauded lost a total amount of approximately $623,000. About $700,000 of this went into the Star City Casino’s coffers. The applicant sent an amount of approximately $500,000 to Nigeria to be invested in some widely advertised scheme or scam to which several people had fallen prey. According to the sentencing Judge the amounts defrauded from the victims came to a total of just over $1,000,000. The balance of the $1.2 million from the two amounts referred to came from borrowings made by the applicant against the security of her own house and the security of her brother’s house to an amount of approximately $120,000. That amount had not been repaid and in the result the applicant’s brother had had to sell the house. So far as the applicant’s gambling and so-called Nigerian investment were concerned, the return to her had been nothing.

14 The applicant was born on 16 September 1943. She had three previous convictions for fraud matters, the first at Castlereagh Street Local Court on 26 July 1989 on a charge of obtaining money by deception when she was placed on a good behaviour bond for two years, the second on 27 November 1988 at the Downing Centre Local Court when she was convicted on two counts of obtaining money by deception, for the first of which she was ordered to perform community service of one hundred hours and for the second community service of two hundred hours cumulative upon the first. In both those matters she gave evidence that she had obtained the money to support a gambling habit.

15 At the time of the commission of some of the offences, and particularly the offences involving Mr Brandling, she was subject to the community service orders, which the sentencing Judge noted was an aggravating feature. She had also been charged in respect of some of the Brandling offences, itself an aggravating feature. The sentencing Judge said:

“These are very serious offences. They involve breach of trust with persons who gave you their money for investment purposes and whose trust you had obtained by acting as an accountant. In effect, these people were clients who trusted you. The sheer amount of money involved overall indicates the scale of the offences and their seriousness. The crimes were committed in a pattern of consistent behaviour over a long period of time, you fully knowing what you were doing.
The courts have repeatedly said, including the Court of Criminal Appeal, that in such cases whether a gambling addiction is part of the cause or not, there is a need for sentences to reflect both specific and general deterrence.”

16 Judge Dodd referred to a pre-sentence report from Anna Robilliard, a psychologist, and a number of testimonials including one from the applicant’s sister, Susan Donovan, and one from her daughter, Janine Gale. Two of the applicant’s daughters had been in court throughout the sentencing exercise. The applicant gave evidence. His Honour said that it was clear that she had had a gambling problem or addiction for a long period of time and that the crimes were committed to satisfy that gambling addiction.

17 Her attempts to invest in the Nigerian scheme were apparently designed to recoup her losses. It was a desperate scheme, which she acknowledged any intelligent person, such as herself, should have realised. The sentencing Judge said:

“It also seems to me that anyone who chooses to gamble at an institution such as the Star City Casino over any consistent period of time, and who has any intelligence, would also know that the odds are deliberately stacked against the gambler and in favour of the house. Indeed it is explicitly part of the business plan of such casinos. Nevertheless you continued to gamble at the Star City Casino.”

18 His Honour acknowledged that to an extent her gambling had been encouraged by the staff of the Star City Casino.

19 As a result of what she had done, the applicant had no assets and no money. She had gained absolutely nothing from what she did in monetary terms. She had lost her own house, which was in her name and which had been sold. She had split up with her husband. Her brother’s house had been sold and she had caused a lot of grief, not only for the victims of her crime and herself, but also for family members. She was aware of all this.

20 She said that, since a newspaper article had been published bringing home to her the exact nature of the crime she had committed, her attitude had changed. She wished she could take back what she had done but, realising she could not, she was ready to accept her punishment. She indicated in evidence that she was very, very sorry and never intended to do what she did. His Honour observed:

“In one sense that cannot be true. Obviously you did intend to take the money, use it unlawfully and deprive your clients of it. I do accept, however, that in the nature of a gambling addiction you continued to hope, even expect, that you would be able to recoup your money and repay it to your victims despite your intelligence indicating to the contrary.”

21 The applicant had support from her family, in particular her daughters. The Judge accepted that she was genuinely remorseful in respect of her crimes. Her future employment prospects were bleak. It was unlikely on her release from prison that anyone would be eager to employ her in a position of trust.

22 The applicant had told Anna Robilliard that she was enjoying a sense of relief and liberation at being charged because she had been able to terminate the well-established pattern of addictive gambling that governed her for over twenty years. The applicant said that she now liked being open about what she was and what she was doing rather than having to construct excuses. She saw the charges as being an opportunity to face up to what she had done and to get on with her life. She remained optimistic, energetic and positive. Judge Dodd added that the applicant did appear to be prepared to face her punishment acknowledging that she would spend time in prison. She was adamant that she would never consider borrowing money again to gamble and was indeed perhaps a little over-confident about that, indicating to Anna Robilliard that she doubted that she would need any intensive rehabilitation programme for her gambling addiction. The sentencing Judge said:

“In my view, in order to maximise your prospects of rehabilitation, a longer than normal period of supervision will be necessary so that your behaviour can be monitored by the officers of the New South Wales Probation and Parole Service and to ensure that for a reasonable period after release from prison you are able to avail yourself of their assistance and guidance and to remain subject to their directions including any directions to attend gambling rehabilitation programmes. On that account I find special circumstances.

I also find special circumstances by virtue of your age and by reason of your likely inability, upon release, to obtain ready employment in your specialist field of accountancy.”

23 His Honour gave the applicant the full discount of 25 per cent for her plea of guilty at the earliest opportunity. He said:

“Taking into account all of those matters, and indicating that I have taken into account whether or not I have specifically referred to them, all the matters specified under s21A of the Crimes (Sentencing Procedure) Act and in particular taking into account the principle of totality, I have come to the conclusion that the appropriate penalty overall is one where the total head sentence is seven years imprisonment with a four year non-parole period.”

24 In the result, the applicant will be eligible for release on parole on 5 September 2006.

Grounds of appeal

25 Judge Dodd said that Mr Brandling had lost $402,000 and three other persons a total of $603,000. In the applicant’s written submissions, the net loss to all six victims was said to be just over $823,000, which had not been recovered. This was particularised in a table which was part of the submissions. The first ground of appeal was that the sentencing Judge erred in his assessment of the net loss to the victims.

26 Ground 2 was that the sentencing Judge failed to take into account the prospect of some repayment to Mr Brandling.

27 It was said that Mr Brandling had a caveat over the applicant’s home in which there was an equity of some $360,000. The applicant’s husband, from whom she has separated, also has an interest in the home. At the time of sentence it was unclear how the proceeds of the sale of the house would be divided. There was no suggestion that the applicant would not be entitled to a share which would mean there would be at least some repayment to Mr Brandling. Despite this, the sentencing Judge made no reference to the prospect of Mr Brandling recovering some of his money.

28 In Phelan (1993) 66 A Crim R 446 Hunt CJ at CL said:

“In many of these cases, some emphasis has been placed upon the fact that the amount involved has voluntarily been repaid, but in my view it would be wrong to interpret those cases as supporting any proposition that an offender is able to purchase mitigation. Where there has been a substantial degree of sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation. Otherwise, in my view, it is more a matter of aggravation where there has been a loss which is effectively irretrievable than a matter of mitigation when the loss has simply been made good.”

See also R v Burke [2002] NSWCCA 353.

29 It was submitted that there was evidence that there would be some, albeit unquantified, repayment to Mr Brandling. This was said to involve a very considerable sacrifice by the applicant. She would lose her home and faced the prospect of ultimate release from gaol as a woman in her sixties with no home, money, or other assets and limited prospects in the workplace. In the circumstances, the likely repayment of some money was relevant in reducing an aggravating feature and as a mitigating feature. The failure of the sentencing Judge to refer to it would lead the Court to draw the inference that it was not taken into account.

30 It was submitted that if specific error was established the Court would intervene. In AB v The Queen (1999) 198 CLR 111 Hayne J at 160 said by reference to the well known passage in House v The King (1936) 55 CLR 499 at 505 that if there is specific error in the sentencing process which the appellate court identifies,

“the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.”

31 The applicant submitted that in the exercise of this discretion the Court should impose a lesser sentence. It was conceded that there were some serious aggravating features in the applicant’s case. The crimes were serious both in number and magnitude. They involved the ongoing deception of persons with whom a relationship of trust had been built. Some of the offences were committed whilst on bail in relation to the Brandling matter. Some were committed while subject to a community service order in relation to prior offences of dishonesty. The applicant was not assisted by her prior record.

32 On the other hand, as against this, the fact of imprisonment itself was likely to bear heavily on the applicant. She faced the prospect of ultimate release from gaol as a woman in her sixties with no home, money or other assets and limited prospects in the workplace. In R v McDonald (1994) 71 A Crim R 370 at 379 it was observed that a first incarceration may have a very salutary effect and the prospect that it may do so should not be left out of account when its length is fixed. To some extent, though not in mitigation, the applicant’s gambling addiction explained her offending. Ultimately she obtained no benefit from her crimes, which resulted both in personal loss and loss to her brother.

33 Reference was made to R v Power [2002] NSWCCA 244, where an effective sentence of eight years with a non-parole period of five years was imposed in relation to a fraud on the applicant’s employer of over $5 million. This Court reduced the non-parole period to four years. It was conceded that Power had more favourable subjective circumstances but the scale of the fraud was in an altogether different category.

34 In R v Cappadona (2001) 122 A Crim R 52 a husband and wife were convicted of fraud on the Taxation Office involving a loss of about $3.5 million. The offences involved a systematic fraud over a period of five years. At first instance the husband received a sentence of twelve months imprisonment and the wife a twelve months suspended sentence. On a Crown appeal the husband’s sentence was increased to a fixed term of eighteen months. The Crown’s appeal against the wife’s sentence was dismissed.

35 In R v Egerton NSWCCA, 8 August 1997, a fraud in excess of $3 million was committed. The accused pleaded not guilty and after trial was sentenced to two years with a minimum term of eighteen months. Although Smart J said the Judge had imposed “the most lenient sentence which the circumstances allowed”, there was no suggestion it was inadequate.

36 It was submitted that these cases supported the proposition that a lesser sentence could properly be passed in the present matter. Taking into account all the matters referred to above and in particular the personal circumstances of the applicant and the fact that it was her first sentence of imprisonment, it was submitted the Court would intervene.

37 In its submissions the Crown pointed out that each of the offences the applicant committed were committed by her as the tax agent of the victims. The amount involved was said to be not less than $820,000. The offences were committed by the applicant in breach of the trust reposed in her by reason of her professional relationship with her clients to whom she gave investment advice. Reference was made to R v Pantano (1990) 49 A Crim R 328 at 330. In that case the applicant sought leave to appeal. The effective sentence for nine counts of larceny as a servant was twelve years penal servitude with a non-parole period of four and a half years. The offences involved a total of $417,628. The majority of the Court dismissed an application for leave to appeal against sentence. Wood CJ at CL, with whom Carruthers J agreed, said at 330:

“In my view, the sentences and non-parole period were well within a proper exercise of his Honour’s sentencing discretion. While the applicant’s infatuation with his former girlfriend provided an explanation, at least in part, for what he did, it constitutes no justification, and it is not a circumstance attracting leniency. The simple fact remains that the offences involved very large sums of money, spanned an extended period, and involved separate and gross breaches of trust.
As was observed in McKechnie (unreported, Court of Criminal Appeal, NSW, 1 October 1987), those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial loss by the public.
…
The magnitude of the offences required a substantial head sentence. Against that head sentence a non-parole period slightly in excess of one third was light, and was clearly selected by his Honour to take into account all of the favourable subjective circumstances, including the applicant’s age and the fact that he was, for the first time, facing a prison sentence.”

38 In R v Falzon (unreported) CCA 20 February 1992, a Crown appeal, Loveday J, with whom Carruthers J agreed, said that he accepted there was a wide-ranging scale in relation to white collar crime and that breaches of trust by professional people are at or near the top of that scale. The Crown appeal was upheld and an aggregate sentence of five years imposed, in one case with a minimum term of two and a half years and in the other a minimum term of three years.

39 The Crown emphasised the factors of aggravation, the applicant’s criminal record, which consisted of convictions for dishonesty, the fact that at the time of the commission of the offences for which she was sentenced she was on conditional liberty under a community service order imposed for offences of dishonesty and at the time of the commission of some of them was on conditional liberty on bail after having been charged with others of them: see Readman (1990) 47 A Crim R 181.

40 The applicant had asked that the offences referred to in the Forms 1 be taken into account under the provisions of s33 of the Crimes (Sentencing Procedure) Act 1999. In Attorney-General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 the Chief Justice said (para 42):

“The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused is engaged. The second is the community’s entitlement to extract retribution for serious offences … for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

41 The Crown submitted that the amount set forth in the table in the applicant’s submissions represented the net losses suffered rather than the amounts the subject of the offences. Judge Dodd said that the amount of the loss to the victims he mentioned was over $1,000,000. If the amount of the loss was overstated the error did not result in any miscarriage of the sentencing discretion. On any view the loss to the applicant’s victims was substantial and that conclusion is not undermined by the asserted error, even if it was an error.

42 Further, so far as the prospects of any repayment to Mr Brandling were concerned the evidence was that the applicant’s home had been sold by the mortgagee under its power of sale and that, quite apart from the applicant and Mr Brandling, the applicant’s husband and a Mr Knudd had some interest in the proceeds of sale. There was evidence that a balance was held by a solicitor but no evidence as to who the solicitor was or how much or on what terms. There was no evidence as to what interest in the proceeds was protected by the caveat. If the applicant wished to rely upon some possible further repayment to Mr Brandling this should have been placed in proper and exact terms before the sentencing Judge, which it was not.

43 Before this Court the applicant relied upon the affidavit of her husband, Mervyn Patrick Weir, of 9 July 2003, to be taken into account if the Court were to re-sentence the applicant. From this it emerges that the applicant became bankrupt on 15 March 2000. There is an ongoing dispute as to the division of the surplus proceeds of the sale of the property. Mr Brandling is obviously a creditor of the applicant. There was nothing in the material before the sentencing Judge nor is there anything before us to suggest that the sale of the house was not the inevitable consequence of the applicant’s insolvency and that Mr Brandling stands in no better position than any other of her creditors. The possibility that at some stage Mr Brandling as a creditor may receive some dividend does not reflect in any way adversely upon the sentencing Judge’s course of reasoning.

44 The Crown submitted that the sentencing Judge was required to impose a sentence that properly reflected the objective seriousness of the offences, the need for general deterrence and the protection of society. Any lesser sentence would have failed to meet these requirements.

45 As Spigelman CJ observed in R v Simpson (2001) 53 NSWLR 704 para 79:

“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘If it is of the opinion that error has occurred in the sentencing process.’ That is not the statutory formulation. By s6(3) [of the Criminal Appeal Act 1912] this Court must form a positive opinion that ‘some other sentence … is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefore’ is not satisfied. As the judgments in Dinsdale v The Queen (2000) 202 CLR 321 to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense.”

46 In the present case, a series of offences were committed over a prolonged period of time in a systematic way by a professional person employed to look after the victims’ financial affairs. The amounts involved were substantial, whether the total of the loss to the victims be something over $800,000 or something over $1 million. The applicant had a criminal record for dishonesty. The offences were committed when the applicant was at conditional liberty under a community service order. Some of the offences were committed when she was at conditional liberty on bail after being charged with other offences. These were aggravating circumstances. It is acknowledged that the proceeds of the crime were wasted by the applicant and that she is left with nothing due in part to an addiction to gambling. She is contrite and this is the first time that she will be serving a gaol sentence. However, I am not persuaded that some other sentence was warranted in law and should have been passed. Nor am I satisfied that such error has been shown as would justify this Court intervening. There is no exact calculation of the losses but they were substantial.

47 I would grant leave but dismiss the appeal.

48 JAMES J: I agree with Sheller JA.

49 O’KEEFE J: I agree with Sheller JA.

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Last Modified: 07/31/2003