Regina v Peter Francis Mato Regina v Monica Charis Rusu

[1999] NSWCCA 395

Reported Decision: 109 A Crim R 121

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Peter Francis MATO Regina v Monica Charis RUSU [1999] NSWCCA 395
FILE NUMBER(S):	CCA 60427/98; 60418/98
HEARING DATE(S):	30 November 1999
JUDGMENT DATE:	9 December 1999
PARTIES :	Peter Francis Mato Monica Charis Rusu
JUDGMENT OF:	Sheller JA at 1; Barr J at 48; Bell J at 49

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/3133; 97/21/3132
LOWER COURT JUDICIAL OFFICER:	Ford DCJ

COUNSEL:	S J Odgers / I N Asuzu - Appellant Mato G P Craddock - Appellant Rusu R A Hulme - Crown
SOLICITORS:	Martin Ricci - Appellant Mato Barber & Massey - Appellant Rusu S E O'Connor - Crown
CATCHWORDS:	CRIMINAL LAW - bank robbery - aiding, abetting and assisting - appeal against conviction - trial Judge left open to jury the possibility of conviction on the basis of an inappropriate inference - held; conviction was unreasonable and should be quashed - no substitution of lesser charge possible; CRIMINAL LAW - larceny as a clerk - bank robbery - appeal against sentence - held; sentence was within reasonable range.
ACTS CITED:	Criminal Appeal Act 1912 Crimes Act 1900
CASES CITED:	Knight v The Queen (1992) 175 CLR 495 R v McDonald (1992) 2 QdR 634 R v Browne (1987) 30 ACrim R 278 R v Kyriakou (unreported) CCA, 6.8.87 R v Vidler (unreported) CCA, 23.11.93 R v Pantano (1990) 49 ACrim R 328 R v Phelan (1993) 66 ACrim R 446
DECISION:	Mr Mato’s Appeal No. 60427/98 ; 1. Appeal allowed; 2. The appellant’s conviction on the second count in the indictment is quashed; 3. Direct a judgment and verdict of acquittal be entered; Ms Rusu’s Appeal No. 60418/98; 1. Application for leave to appeal granted; 2. Appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60427/98

60418/98

SHELLER JA
BARR J
BELL J

REGINA v Peter Francis MATO
REGINA v Monica Charis RUSU

Ms Rusu was found guilty of larceny from a bank while being employed by that bank. Mr Mato was found guilty of aiding abetting and assisting Ms Rusu to commit larceny. Both were sentenced to penal servitude for six years, with a minimum term of four and a half years and an additional term of one and a half years.

The evidence was that Ms Rusu, being the last employee left in the bank one evening, entered the safe and stole $476,500. She then left the bank and went to a car parked outside the bank in which Mr Mato was waiting. There was evidence that Mr Mato had previously picked Ms Rusu up from work whenever he was able.

Mr Mato appealed on the ground that there was insufficient evidence that he was present assisting Ms Rusu when she stole the money from the bank. It was argued that it could not be established beyond reasonable doubt that he had prior knowledge of Ms Rusu’s intention to steal from the bank. Mr Mato argued that the jury could not have rejected as a rational inference from the evidence the possibility that Mr Mato was not a party to Ms Rusu’s offence.

The Crown submitted in reply that if the Court were to quash the conviction against Mr Mato then it should, pursuant to s7(2) of the Criminal Appeal Act 1912, substitute a verdict on the terms of count 3 of the indictment, that Mr Mato was an accessory after the fact to the larceny. Mr Mato’s spending of large sums of money after the robbery was evidence to support this verdict.

Ms Rusu made an application to have her sentence reduced on the ground that it was on its face so excessive as to demonstrate error in the sentencing process. In addition it was argued that the trial Judge focused so heavily on Ms Rusu’s failure to return the money or to assist the police that he overlooked or gave insufficient consideration to her clean record and her youth.

Held:
By Sheller JA, Barr and Bell JJ agreeing:

Mr Mato’s Appeal
(1) It was open on the evidence for the jury to find that Mr Mato knew nothing of the robbery until after he drove Ms Rusu away from the bank. If Mr Mato knew nothing of Ms Rusu’s intentions or what she had been doing in the bank safe, earlier evidence showing Mr Mato’s financial difficulties did not support an inference that he learnt about it during the period they were driving away. The trial Judge, in the language he used, left it open to the jury to convict on the basis of such an inappropriate inference. It followed that the conviction was unreasonable and could not be supported and should be quashed.
(2) It was not possible to substitute a verdict of guilty as an accessory after the fact because the Court could not say that the jury must have been satisfied of facts which proved Mr Mato guilty of being an accessory after the fact.

Ms Rusu’s application
(1) The penalty imposed by the trial Judge was severe, but was within the range of an appropriate exercise of discretion. The Court was not persuaded that the trial Judge did not give appropriate weight to the subjective considerations about the applicant’s age and background. These had to be weighed with her lack of contrition in determining the sentence. There was no basis to interfere with the trial Judge’s discretion and extend the additional term.

ORDERS

Mr Mato’s Appeal No. 60427/98

1. Appeal allowed;

2. The appellant’s conviction on the second count in the indictment is quashed;
3. Direct a judgment and verdict of acquittal be entered.
Ms Rusu’s Appeal No. 60418/98

1. Application for leave to appeal granted;
2. Appeal against sentence dismissed.

*****

IN THE COURT OF
CRIMINAL APPEAL

60427/98

60418/98

SHELLER JA
BARR J
BELL J

Thursday, 9 December 1999

REGINA v Peter Francis MATO
REGINA v Monica Charis RUSU

JUDGMENT

1    SHELLER JA: Monica Charis Rusu and Peter Francis Mato were indicted on three counts to which they pleaded not guilty. By the first count Ms Rusu was charged that on 17 June 1996 at Campbelltown, she being then a clerk to the National Australia Bank, stole $476,500 the property of the bank, the bank being her employer. By the second count Mr Mato was charged that on the same day he was present aiding abetting and assisting Ms Rusu to commit the felony charged against her. Alternatively, by the third count Mr Mato was charged that between 16 June 1996 and 24 August 1996 at Campbelltown or elsewhere in New South Wales, knowing Ms Rusu to have committed the felony he received harboured maintained and assisted her.

2    Their trial took place before Acting Judge Ford QC and a jury between 9 and 26 June 1998 when the jury returned with a verdict of guilty against Ms Rusu and guilty against Mr Mato on the charge of aiding and abetting. Ms Rusu was sentenced to penal servitude for six years with a minimum term of four and a half years commencing on 25 June 1998 and expiring on 24 December 2002 and an additional term to expire on 24 June 2004. Mr Mato was sentenced to penal servitude for the same term similarly apportioned between the minimum and additional term.

3    Ms Rusu seeks leave to appeal against the severity of the sentence imposed on her. Mr Mato appeals against his conviction on the ground that it was unreasonable and cannot be supported. The written submissions filed for Mr Mato foreshadowed a further ground of appeal.

4    The essential facts are not in dispute. In June 1996 Ms Rusu was employed by the National Australia Bank as a bank teller at its Campbelltown Branch. Ms Rusu was one of a small number of persons responsible for the safe custody of excess or “reserve” cash accumulated at that branch of the bank. Each Tuesday the reserve cash was collected from the branch and conveyed to the Reserve Bank. On Monday, 17 June 1996 Ms Rusu and another staff member tallied the reserve cash and prepared it for collection the next day. In the process Ms Rusu came to know that $476,500 reserve cash was on hand.

5    The reserve cash was kept in a compartment in the safe. Ms Rusu had the key to the compartment. The safe was secured by two combination dials, right and left, each of which was in turn secured by a key. The left dial combination was known to the manager, Mr Ahmet, and the assistant manager or second in charge, Ms Robinson. The right combination was known to Ms Rusu and another staff member. There were two copies of the one key to the combination dials. Ms Rusu held one of the keys, Ms Robinson the other. The safe was fitted with an alarm which was linked to the control room of Chubb Electronic Security. Bank staff knew the six digit number for activating the alarm. Obviously Ms Rusu was a person in whom her employer placed trust to act honestly and loyally.

6    There was evidence that the left combination dial could remain open even when the two dials were supposedly locked with the key. Moreover, Ms Robinson had the number of the left combination dial written on a card in her purse. Further, Ms Rusu had many opportunities to watch Ms Robinson operate the left combination dial.

7    On the afternoon in question, the bank alarm was placed in night mode at 5.17pm. At approximately 5.30pm Mr Ahmet left the bank premises. Other staff members apart from Ms Rusu had left earlier. After Mr Ahmet left Ms Rusu was in the bank premises alone. At 5.34pm the alarm was put into open mode and at 5.43pm into night mode again. The Crown case was that Ms Rusu had switched off the alarm, used her knowledge of the combinations and possession of the key to the combination dials and the key to the compartment to gain access to the reserve cash which she stole before turning the alarm back to night mode. She then left the bank with the money in a bag and went to a car parked in the road outside the bank in which her fiance Mr Mato was waiting for her, as he had done on other occasions before, to take her home. They drove away together.

8    The Crown contended that Ms Rusu needed either to have surreptitiously discovered the combination of the left dial or to have taken advantage of the dial not locking correctly. Her mistake was not realising when she turned the alarm system off and then on again that a computer at Chubb Electronic Security kept a record. Thus it was quickly determined that it was likely the safe had been opened and the cash taken when there was nobody on the premises but Ms Rusu.

9    Ms Rusu compounded this mistake by embarking with Mr Mato on a spending spree in the weeks after 17 June 1996. Most of the money spent was spent for Mr Mato’s benefit. Of the $476,500 stolen, $125,000 approximately was traced as having been spent in the period after 17 June 1996 up to the time of Ms Rusu’s and Mr Mato’s arrest on 24 August 1996. The disposition of the balance of about $350,000 remains a mystery.

10    Some of the evidence of expenditure can be summarised as follows. On 18 June 1996 $2,850 in cash was deposited in Mr Mato’s account at the Advance Bank and on 2 July 1996 there was a further cash deposit of $5,500. On 18 June 1996 he paid a shop $3,200 cash for tyres and wheels and on the same day and later $3,297 cash for insurance policies. On 18 June 1996 he also paid cash of $1,201 for fuel and on 24 June 1996 $1,225 cash for truck tyres. Between 24 June and 19 August 1996 six payments totalling $35,800 were made on Mr Mato’s account to Avco Financial Services Limited (Avco). Between 1 July and 19 August 1996 five payments totalling $16,500 were made on Mr Mato’s account to Esanda Finance Corporation Limited (Esanda). These were repayments of money borrowed in February 1995 by Mr Mato to purchase a motor vehicle. On 21 July 1996 Mr Mato purchased a boat, outboard motor and trailer for $30,000 which was reduced by a trade-in of $3,000 and a cheque of the same date for $2,000. On 30 July 1996 Mr Mato repaid $15,000 of the balance in cash and on 3 August 1996 the balance of $10,000 in cash. On 2 July and 29 July 1996 Mr Mato made cash payments to Endeavour Credit Union on his own account of $4,000 and $5,000. On 10 July 1996 he paid $8,000 in cash for a new engine for his concrete pumping truck.

11    Mr Mato sought to explain this expenditure on the basis that he had saved a large amount of money in cash from his business and had chosen to spend it. His parents gave evidence to support this. However, there was evidence that for some time before 17 June 1996 he had been in dire financial difficulties.

12    On 25 November 1994 Mr Mato and his parents had borrowed $115,000 from Avco to enable Mr Mato to buy a cement truck business. Since October 1995 payments under the loan arrangements had been in arrears. In March and April 1996 Ms Rusu made an application to National Australia Bank to borrow $170,000. She spoke to Mr Ahmet about this. According to him in the course of this conversation she said words to the effect that Mr Mato’s parents “wanted the money off Peter desperately”. The loan application which was made by Ms Rusu more than once was refused. On 29 April 1996 Ms Rusu took the tenancy of an apartment. On 8 May 1996 a solicitor, Mr David Scutts, on the instructions of Mr Mato’s parents, wrote to Mr Mato in part as follows:

“On our instructions, you borrowed $115,000 from Avco Financial Services at 14% interest and utilised approximately $75,000 of this loan in purchasing a new truck for your business. As security for the loan, your parents gave a first mortgage over their home at 81 Woodcourt Street, Ambarvale and which is valued at $140,000. The basis of the loan arrangement was that you would meet all of the payments of the loan.
You have defaulted on the loan and the finance company is entitled to enforce its security by exercising its right to sell your parents’ property as mortgagee exercising power of sale. In such circumstances, your parents would be forced to move out of their home and would lose most of their equity in it.
The situation is completely intolerable from your parents’ point of view and needs to be resolved as a matter of urgency.
Your parents have instructed us that unless the matter can be satisfactorily resolved by 5 pm on Monday next, 13 May 1996, we are to institute legal proceedings against you out of the appropriate court without further notice.”

13    Mr Scutts received no reply from Mr Mato and wrote another letter to him on 16 May 1996 advising that legal proceedings were being instituted against him as a matter of urgency. The letter went on:

“You have placed your parents in the position where they have no option other than to sell their home to repay the debt to Avco. They simply cannot afford the monthly payments. Your failure to keep to the arrangements to make payments to Avco will force your parents to suffer not only the loss of their home but also substantial financial loss. The property is worth about $130,000 and the debt to Avco (with penalty interest) is about $122,000. After paying selling commission and legal expenses on the sale, your parents will be left with virtually nothing.
When the total financial loss to your parents is quantified further legal proceedings will be taken against you to recover this money.”

14    On 21 May 1996 Mr Mato told Mr Scutts that his parents owed him $30,000.

15    Mr Mato was in arrears in paying on the car loan from Esanda on various occasions before 17 June 1996.

16    In April 1996 Mr Mato and Ms Rusu bought household goods on credit from Harvey Norman. To do this they borrowed $4,168.66. The Crown submitted that Mr Mato’s inability to keep up payments on loans and the borrowing of money to purchase household goods was inconsistent with his having substantial cash savings. After 17 June 1996 payments, mostly cash, were made to Harvey Norman as follows; on 1 July 1996 $2,000, on 18 July 1996 $2,000, on 1 August 1996 $4,000, on 12 August 1996 $3,500 and on 19 August 1996 $5,000.

17    In July and August 1996 renovation work was done on the house of Mr Mato’s parents.

Grounds of Appeal

18    The essence of Mr Mato’s appeal was that there was insufficient evidence that the appellant was present assisting Ms Rusu when she stole the reserve cash from the bank. He did not dispute that he had picked up Ms Rusu at some time between 5.30 and 5.45 on the afternoon in question. But, counsel submitted that it could not be established beyond reasonable doubt that he had prior knowledge of Ms Rusu’s intention to steal the money from the bank.

19    The Crown case against Mr Mato was circumstantial. In summing up Judge Ford said that the case for the prosecution as he understood it was that there was an arrangement for Mr Mato to call for Ms Rusu after he work in the afternoons. He did not always go because sometimes he had to work but it was not unusual for him to park outside the bank and wait there for Ms Rusu to come out of the bank and come over to his car. The prosecution argued that Mr Mato was waiting in his car, by analogy, like the driver of the getaway car after a bank hold up. He was there waiting ready to meet Ms Rusu and carry away the proceeds of the theft. His Honour said:

“The prosecution as I understand it says it would be unrealistic to suppose that if Ms Rusu was bent upon stealing the money that Mr Mato would be unaware of that. The submission is made to you that he was well aware that she was going to steal the money and he was there ready to drive away, to assist her in carrying away the money that had been taken out of the reserve cash compartment.
I remind you of what I said before, that theft or larceny involves the taking and carrying away of property. And here it is alleged by the prosecution that Mr Mato given that he was aware that she had taken the money, he was there waiting to assist her in the task of carrying it away. In other words, he was giving her very able assistance to carry out the theft of the money.
Now is it unrealistic? Is it unrealistic to suppose that he did not know that Ms Rusu was going to take the money on this afternoon? It is only if he was well aware that she was taking the money and was there present willing and able to assist her in carrying the money away from the scene that he could be treated and regarded as an accessory to the commission of the offence, her accessory to the commission of the offence.
But says the prosecution, in the unlikely event that he did not find out about the stolen money until subsequently, then he was an accessory after the fact, after the commission of the crime and gave assistance to Ms Rusu in supporting her, keeping the money and using the money. This much is perfectly plain of course, that if you are not satisfied, according to the criminal standard, that Ms Rusu is guilty of the offence of theft, then you must of necessity acquit Mr Mato of the offence in which he is alleged to have been the accessory to the commission of the offence and acquitted also of the offence that is count 3 in the indictment which says that he was an accessory after the event, after the commission of the theft of the money.”

20    Mr Mato’s counsel submitted that, to adapt the language of Mason CJ, Dawson and Toohey JJ in their joint judgment in Knight v The Queen (1992) 175 CLR 495 at 503, the jury could not have rejected as a rational inference the possibility that Mr Mato was not a party to Ms Rusu’s offence. In Knight at 503 their Honours said:

“if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.”

21    The trial Judge gave directions about circumstantial evidence in that part of his summing up dealing with the case against Ms Rusu. That direction was not repeated when he turned “to the question of the case against Mr Mato”. No complaint was made about this though I regard it as significant. The pivotal sentence in the passage I have quoted is that which begins with the words “It is only if he was well aware that she was taking the money”. If by that the trial Judge was speaking of the time when Ms Rusu was in the bank safe physically taking the money from its place in the bank, Mr Mato’s dire financial circumstances, the pressure upon him to repay money, particularly the money borrowed with his parents from Avco, and his borrowing more money for household furniture in that situation, were indicators that he knew that Ms Rusu intended to steal cash from the bank and was doing so on 17 June 1996 and that he was waiting in the car to take her and the money away. But the Crown’s submissions exposed another way in which this passage in the summing up might reasonably have been understood by the jury. The jury might have understood it to include knowledge derived at the time Ms Rusu came to the car or entered or was in the car with the money, presumably in a bag and weighing something in the order of 14 kilograms, and might have reached the conclusion that Mr Mato was party to the larceny for that reason, even though not satisfied that Mr Mato knew in advance or at the time Ms Rusu was taking the money in the safe that she intended to do this or was doing it. What the Crown said was based on the proposition that, when considering Mr Mato’s liability, the act of larceny continued until Ms Rusu deposited the money in some place she regarded as safe; see for example R v McDonald (1992) 2 QdR 634 at 645. In the Crown’s written submissions it was said:

“The terms in which his Honour directed the jury permitted them to find the appellant guilty as a principal in the second degree on finding, inter alia, that he rendered assistance to Ms Rusu in carrying away the money. …… His Honour put the case as one in which the actual assistance in the form of helping to carry away the money was the basis of liability.
If it can be said that this was an appropriate basis upon which liability as a principal in the second degree could be established then there is no question that the appellant was ‘present assisting Ms Rusu’. That is, if the activity of ‘carrying away’ extended beyond the removal of the money from the reserve cash compartment in the safe and continued until Ms Rusu and the money were safely away from the bank, then the appellant was ‘present’ (actually) during part of that activity. He assisted by driving her and the money safely away.
It is submitted that in the circumstances of this case that was an appropriate manner in which to regard the theft. That is, it was not fully achieved until the perpetrator left the scene with the proceeds. The appellant’s actions assisted her in the latter respect.”

22    Later in the written submissions it was said:

“From all of this it was open to the jury to conclude beyond reasonable doubt that the appellant knew, at least by the time he was driving Ms Rusu and the money away from the bank, that she was stealing the money. Given his desperate need for money and the lack of any apparent similar need by Ms Rusu, the more likely conclusion is that he knew beforehand and encouraged her (although the latter, of course, is not a matter which needed to be established).”

23    If the Crown accepts that the jury might have understood that it was sufficient, even if Mr Mato had no prior knowledge of Ms Rusu’s intentions, that Mr Mato learned at a point of time after Ms Rusu emerged from the bank that she had stolen the money, then it seems to me an inference or hypothesis consistent with Mr Mato’s innocence was open on the evidence.

24    Mr Mato had gone to collect Ms Rusu after she finished her work. This he did regularly if he could. Ms Rusu emerged from the bank one may suppose carrying a bag with contents which weighed about 14 kilograms. She got into the car and drove away with Mr Mato. It is quite open on the evidence that he remained innocent of the contents of the bag or what Ms Rusu had done until a time beyond the period described as driving Ms Rusu and the money away from the bank. If Mr Mato knew nothing about Ms Rusu’s intentions or what she had been doing in the bank at the time she was in the safe, the fact of earlier financial difficulties or obtaining credit does not support an inference that he learnt about it after she emerged from the bank and during the period they were driving away presumably to their home.

25    Since his Honour in the language he used left it open to the jury to convict on the basis of such an inappropriate inference it follows that the conviction was unreasonable and cannot be supported and should be quashed. It is therefore unnecessary to consider a further ground of appeal that Mr Mato’s counsel foreshadowed.

26 The Crown submitted that if the Court were to quash the conviction on aiding and abetting it should pursuant to s72 of the Criminal Appeal Act 1912 substitute a verdict on the terms of count 3 of the indictment, namely that Mr Mato was an accessory after the fact to the larceny. Section 7 (2) provides:

“Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

27    Mr Mato’s spending of large sums of money was evidence to support a verdict that he was an accessory after the fact.

28 A good example of the intention behind s7 (2) is found in its application by this Court in R v Browne (1987) 30 A CrimR 278. The appellants were charged, inter alia, with armed robbery and wounding under s98 of the Crimes Act 1900 before its amendment in 1994. All were found guilty on this charge. On behalf of the appellant Browne it had been submitted (see 305-6) that because the only evidence against him was the alleged identification of him as the driver of the getaway vehicle, and because that vehicle had not been used to take the two principal offenders to the scene of the robbery, or for the purposes of carrying out the actual robbery itself, even if the evidence of identification was such as the jury might properly accept, there was nonetheless no evidence upon which Browne could be convicted of an offence involving the use of arms. The Court was of opinion that the totality of the evidence relied upon by the Crown against Browne was not sufficient to enable the jury to determine beyond reasonable doubt that he was a party to a common purpose of armed robbery and accordingly set aside his conviction on that count. The Court said that it was plainly open to the jury to conclude that the identification of Browne as the driver of the getaway vehicle was safe and accurate and that in consequence he did drive such car. But the evidence would not support a finding beyond reasonable doubt that the common purpose to rob to which, in such circumstances, Browne would plainly have been a party, extended to the use of weapons.

29 It was on that basis that the Court was satisfied that the case was one in which it was appropriate and proper pursuant to the provisions of s7 (2) to substitute for the verdict of guilty of an offence under s98 a verdict of guilty of an offence under s94 which relevantly provided that whosoever robs or assaults with intent to rob any person should, except where a greater punishment is provided, be liable to penal servitude for 14 years.

30    Their Honours referred to R v Kyriakou (unreported) Court of Criminal Appeal, 6 August 1987 where Street CJ, with whom the other members of the Court agreed, pointed out that an alternative charge must be found to be available either within the terms of the statute itself or by virtue of some principle of the common law and that, in the case there under consideration, because the statute did not make the necessary provision, it was necessary to examine whether the common law permitted it. After referring to Archbold Criminal Pleading Evidence and Practice, (24th ed), p228 where it was said that at common law a defendant might be convicted of a less aggravated felony or misdemeanour on an indictment charging felony or misdemeanour of greater aggravation, provided that the indictment contains words apt to include both offences,
Street CJ said that applying that principle to s97 (robbery being armed) and s98 he considered that the enunciation in s98 of the precise ingredients that comprised the entirety of s97 adding in s98 the further ingredient of wounding or inflicting grievous bodily harm rendered it open on an indictment under s98 for the jury to consider an alternative convicting under s97.

31    In Browne the Court was of opinion that these words applied for the case in hand. They concluded by saying:

“The consequence is that the first ground, which argued that the convictions were unsafe and unsatisfactory, except in so far as the question of common purpose is concerned, should be rejected. There is no reason why, pursuant to the powers conferred by this Court by s7 (2) of the Criminal Appeal Act 1912, there should not be substituted a verdict of guilty of an offence under s94.”

32    In the present case, in my opinion, it is not possible on this line of reasoning to substitute a verdict of guilty as an accessory after the fact. First the conviction for aiding and abetting is not quashed simply because as in Browne it was not open for the jury to be satisfied beyond reasonable doubt about one element of the offence and secondly, even if this had been so, in the language of Street CJ, aiding and abetting is not a crime of the same character as being an accessory after the fact escalated by adding one further or further ingredients. In short, this Court cannot say that the jury “must have been satisfied of facts which proved” Mr Mato guilty of being an accessory after the fact. As a matter of common sense I would think that the jury would have been so satisfied in light of the clear evidence of spending after 17 June 1996, but that is not enough. In any event, Mr Mato said that the source of the funds used for that spending came from his own legitimate cash resources. In my opinion, the Court cannot substitute a verdict of guilty of being an accessory after the fact.

33 This leaves the question of whether rather than directing a judgment and verdict of acquittal to be entered on the count of aiding and abetting (s6 (2)) we should order a new trial pursuant to s8 (1) of the Criminal Appeal Act. I do not think that it was seriously suggested there should be a new trial on the count of aiding and abetting and I would not so order. Mr Mato has served 17 months of his sentence which inclines me against ordering a new trial on the charge of being an accessory after the fact. If convicted the penalty would in the circumstances be considerably less than that imposed on him for aiding and abetting. In my opinion, it is not appropriate to order a new trial on the charge of being an accessory after the fact. Accordingly, on Mr Mato’s appeal I would propose the following orders:

1. Appeal allowed;
2. The appellant’s conviction on the second count in the indictment is quashed;
3. Direct a judgment and verdict of acquittal be entered.
Ms Rusu’s Application

34    Ms Rusu was born on 21 April 1975. She was 21 when she committed the crime of which she has been convicted and 23 at the time of sentencing. According to the pre-sentence report she came to Australia with her parents when she was aged 2. When she was 8 her parents separated and she was subsequently raised by her father and step-mother. About two weeks before the offence she began regular contact with her natural mother who, it was said, remained supportive. She was said to have entered into a relationship with Mr Mato approximately 4 weeks before the offence. This was her first adult relationship and she continued to verbalise what was regarded as a naive faith in Mr Mato’s ability to assist her to extricate herself from the situation she found herself in.

35    She left school at the age of 18 after completing her Higher School Certificate and then began employment with the bank. On 28 July 1998 a specialist psychiatrist, Dr Roberts, made a report. From that it appears that Ms Rusu had known Mr Mato for about 2 years. She described her father as being very strict and said that he was “very physical” in the manner in which he disciplined her, that he would beat her for the littlest thing, that he had also beaten her mother and that she had recollections of her mother bleeding as a result of the beatings inflicted upon her by her father. On an occasion of Ms Rusu going out aged 20 her father responded in a violent aggressive manner and split her lip. Dr Roberts said:

“The content of her account suggested a long-term submissive relationship to significant others and in the case of her father, submission in the context of a violent, controlling relationship.”

36    Dr Roberts said her involvement with Mr Mato, her first serious involvement, appeared to have occurred in the context of a situation in which she was deprived of kindness, companionship and support. Dr Roberts’ impression was that Ms Rusu’s overall mode of functioning was that of a dependent personality disorder. People with this disorder fear losing support or approval and individuals with dependent personality disorder often have difficulty in expressing disagreement with other people especially those on whom they are dependent. In summary Dr Roberts said:

“Ms Rusu comes from a background in which initiative, individuality and self-assertion were seriously compromised by a physically violent father who was an extreme disciplinarian and highly controlling. The environment in which Ms Rusu grew up, in my view has made her a dependent person who will tend to become involved with a significant other and maintain a degree of loyalty to that person regardless as to how she is treated. She will tend to be able to be dominated by that person and will accept domination, humiliation and even physical and mental hurt in order to maintain that relationship with a person to whom she transfers he dependence.”

37    She was a person who potentially could be manipulated and influenced to undertake a course of action contrary to her usual character and personality because of her need to form a relationship with a person regardless of how that person treated her.

38    In his remarks on sentence, Judge Ford noted the large amount of money stolen and the betrayal of trust involved. He also noted that a substantial part of the money taken remained within the reach of Ms Rusu and Mr Mato. After the jury returned its verdict his Honour had extended to counsel the suggestion that it would be substantially in Ms Rusu’s interests if she could return or at least indicate the means by which the outstanding money could be returned to the bank. Counsel informed his Honour that he had no instructions in that regard. His Honour said:

“And it seems to me that you simply persist and impose upon yourself, the very serious hardship that necessarily is involved for you in being in prison.”

Judge Ford had no doubt whatsoever that Ms Rusu was strongly influenced in the enterprise by her co-accused, who was older and of a stronger personality. He added:

“But nonetheless you are obstinate and you say that you have no knowledge of this offence, no knowledge of the whereabouts of any of the money and consequently you must suffer the regrettable consequences.”

39    His Honour went on that Ms Rusu’s deprival of the support that she would have from friends and relations to be replaced by “harder characters” in prison had been put as a reason for finding special circumstances and substantially reducing the period of full-time custody. However, his Honour said that the long term supervision and hardship that Ms Rusu would experience was something she had brought on herself “by reason of the fact that no offer whatsoever has been made to return any of the money”. He noted various matters of evidence which the jury had obviously not believed and said that the case against Ms Rusu was very strong and he had no reason to doubt the correctness of the jury verdict. The remarks on sentence continued:

“But then what am I to do to give you a relatively minor sentence? A smack on the wrist because you are the person who will suffer severely in prison. I do not think I can do that because the remedy for reduction of your sentence lies with you. If you have the good sense to indicate where the funds are, that would be so much better for you, but you persist in denying that you committed this offence.
The maximum sentence for this offence is one of penal servitude for a term of ten years, so you will appreciate that it is regarded as a very serious offence. Taking into account all those matters that have been put to me on your behalf, those subjective matters, I nonetheless am required to impose a salutary condign sentence which in your case will be a minimum term of four years and six months and an additional term of one year and six months. I impose that sentence taking into account the one day which you served in custody after your arrest. Now that minimum term will expire on 25 December 2002 and the sentence will commence of course on 25 June 1998.”

40    The principal submission made on Ms Rusu’s behalf was that the sentence was on its face so excessive as to demonstrate error in the sentencing process. In addition, it was submitted that his Honour emphasised Ms Rusu’s failure to return the money stolen or assist the police to the point where he overlooked or gave insufficient account to subjective considerations such as Ms Rusu’s youth, her clean record and that the present was a first offence. We were shown statistics which indicated that the sentence imposed was, so far as the statistics showed, at the top of the range. It was also submitted that there were special circumstances which his Honour failed to take into account to increase the additional term and to that extent reduce the minimum term. An argument based on parity to suggest that there would be a reasonable grievance that the sentence imposed was as great as that imposed upon Mr Mato has, in my opinion, no substance whatever. In this regard it must be remembered that it was Ms Rusu who used her position of trust to steal from her employer a very large sum of money.

41    In support of the submissions that the sentence was excessive, counsel for Ms Rusu referred us to the decision of the Court in R v Vidler (unreported) Court of Criminal Appeal, 23 November 1993. In that case the applicant had pleaded guilty in the Local Court to twenty counts of fraudulent conversion laid under s71 (1) of the Crimes Act 1914 (Cth) and two counts of larceny as a clerk laid under s156 of the Crimes Act. The District Court Judge imposed a sentence on the first of two counts under s156 of 7 years comprising a minimum term of 4 years and an additional term of 3. Fixed terms were imposed in respect of the remaining charges to be served concurrently with the minimum term imposed for the count under s156. The offences had been committed over a period beginning in about 1982 and finishing with the applicant’s arrest in January 1992 and involved the applicant using her position of employment with the Commonwealth Bank to appropriate money fraudulently. The ultimate deficiency came to a sum of nearly $922,000. Counsel for Ms Rusu submitted that in the present case the sum involved was much less, the act was a single act on one day, the applicant was much younger and the scheme of taking money far less sophisticated.

42    However, I find Vidler gives little, if any, support to an argument that the sentence imposed on Ms Rusu was excessive. In Vidler the applicant had pleaded guilty at the committal stage thereby avoiding a long and complicated trial. She came grudgingly to give some assistance to the Crown. Reparation was made out of her superannuation entitlements and other payments due to her by way of leave and salary. Badgery-Parker J, with whose judgment Mahoney JA and Ireland J agreed, said that the case was not one of a person who was mentally ill in such degree as to make it inappropriate to visit upon her a sentence formulated to give weight to principles of general deterrence.

“This was at most the case of a person whose criminality, substantial as it was, might reasonably be seen to be mitigated by her neuroticism. In my view, the sentence imposed was by no means at the top of the range through which his Honour’s legitimate discretion extended and it is so far below what might otherwise have been regarded as appropriate that it is only explicable on the basis that his Honour gave a great deal of weight, more perhaps even than the language of his judgment would suggest, to the sad neurotic state of the applicant.”

43    In that case the sentencing Judge recognised that there was a special circumstance which required that there be a lengthy period of counselling and supervision once the prisoner regained her liberty.

44    In the present case there is no sign of contrition, which is perhaps the most significant feature of the refusal to give any assistance in finding the proceeds of the crime. The penalty imposed was severe, perhaps higher than I would myself have imposed, but I have come to the conclusion that it is within the range of an appropriate exercise of discretion. As must be acknowledged, the case is a very sad one because a young woman setting out on her career with an unblemished record and having survived the not inconsiderable hardships of her childhood has quite literally ruined her prospects. Moreover, as the trial Judge found, she did so under the influence of a man who probably encouraged her to do what she did. I am reminded of the statement in the judgment of Wood J in R v Pantano (1990) 49 A Crim R 328 at 330:

“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 financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences …..”

45    It was urged upon us that the present was not a sophisticated crime which would produce any great difficulty in detection. However, it seems unlikely that Ms Rusu was aware that the times of opening and closing the safe alarm were recorded at the Chubb control centre. But for this information detection would, at the least, have been more difficult. Although in one sense not sophisticated, what Ms Rusu did must have been carefully planned so as to enable her to take money which was, presumably, unidentifiable, and which was at its maximum amount for the week of reserve cash. Clearly she planned what she did. It is true that the trial Judge emphasised, perhaps reading it, with a degree of hyperbole, the importance of Ms Rusu’s failure to reveal what had become of the proceeds of the larceny; compare R v Phelan (1993) 66 A CrimR 446 at 448. But I am not persuaded that his Honour did not give appropriate weight to the obvious subjective considerations about the applicant’s age and background. These had to be weighed with her lack of contrition in determining the sentence. No error emerges from anything his Honour said.

46    The period of additional sentence of 18 months is significant and it seems to me appropriate. I can see no basis upon which this Court can interfere with his Honour’s discretion and extend the additional term. In my opinion, the application for leave to appeal should be granted but the appeal against sentence dismissed.

47    I propose the following orders:

Mr Mato’s Appeal No. 60427/98

1. Appeal allowed;

2. The appellant’s conviction on the second count in the indictment is quashed;
3. Direct a judgment and verdict of acquittal be entered.
Ms Rusu’s Appeal No. 60418/98

1. Application for leave to appeal granted;
2. Appeal against sentence dismissed.

48    BARR J: I agree with Sheller JA.

49    BELL J: I agree with Sheller JA.

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