Richards v The Queen

[2019] NSWCCA 199

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Richards v R [2019] NSWCCA 199
Hearing dates:	3 July 2019
Date of orders:	03 July 2019
Decision date:	26 August 2019
Before:	Basten JA at [1]; Button J at [2]; Lonergan J at [3]
Decision:	(1)   Grant the applicant an extension of time to bring her application for leave to appeal.  (2)   Refuse leave to appeal.
Catchwords:	CRIMINAL LAW – appeal – leave to appeal against sentence – extension of time granted – no merit –appeal refused
Legislation Cited:	Crimes Act 1900 (NSW), s 192E Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Category:	Principal judgment
Parties:	Jane Richards (Applicant) Regina (Crown)
Representation:	Counsel: D Patch (Crown)   Solicitors: Self-represented (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/256019, 2011/8399
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: --- Date of Decision: 1 November 2017 Before: Acting Judge Charteris SC File Number(s): 2016/256019, 2011/8399

Judgment

1. BASTEN JA: I agree with Lonergan J.

2. BUTTON J:   I agree with Lonergan J.

3. LONERGAN J: This application for leave to appeal against sentence has no merit, and at the end of the hearing on 3 July 2019, leave to appeal was unanimously refused by the Court, with reasons to follow. These are my reasons. In the circumstances, my dealing with the facts and the submissions and my analysis of those will be shorter than they would have been if the Court had been of the view that leave should be granted.

4. On 1 November 2017, Acting Judge Charteris SC at the Sydney District Court sentenced the applicant in respect of two charges of dishonestly obtain a financial advantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW). Each offence carried a maximum penalty of 10 years imprisonment.

5. The first charge involved a sum of $457,704.26 taken, according to the Agreed Facts, between 1 January 2012 and 8 January 2016 and the second, $31,040, taken between 1 January 2014 and 8 January 2016. All of the offending occurred whilst the applicant was in the part-time employment of a Ms Gilbey, in Ms Gilbey’s business known as Gosford Gymnastics.

6. The applicant entered an early guilty plea in the Gosford Local Court on 10 February 2017, recognised by his Honour in a reduction of her sentence by 25%.

7. His Honour sentenced the applicant to an aggregate non-parole period of 3 years and 6 months commencing 1 November 2017 and ending on 30 April 2021 with an additional term of 1 year and 9 months expiring on 31 January 2023. The total aggregate term was thus 5 years and 3 months, and the non-parole period was two thirds of this, reflecting his Honour’s finding of special circumstances.

8. His Honour also sentenced the applicant in respect of an earlier offence of obtaining money by deception for which she had previously received a two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in February 2011.

9. In respect of that offending his Honour sentenced the applicant to a wholly concurrent fixed term of 6 months dating from 1 November 2017.

Grounds of appeal

10. The applicant was unrepresented. Her notice of appeal identified 13 grounds of appeal, stated as follows:

1. error in facts – specifically the dates of offending and perceived errors in figures in the statement of facts that had been agreed;

2. error because no discount had been applied for assistance;

3. error in aggravating factors;

4. fresh new evidence due to incompetent legal representation evidence of factual circumstances which existed at sentence;

5. insufficient weight given to an issue specified to be the offender’s mental health conditions namely dysthymia and gambling disorder;

6. error in accounting for specialised knowledge - failure to have sufficient regard to the professional qualifications of Theresa Taylor;

7. error in application of mitigating factors in general deterrence;

8. error in finding nil good prospects of rehabilitation;

9. error in finding lack of remorse;

10. errors in finding of special circumstances;

11. delay in sentence;

12. a lesser sentence is warranted in law; and

13. manifest excess.

The Remarks on Sentence

(i)    Objective features and objective seriousness

11. The following is taken from the Agreed Facts tendered on sentence. The victim is a 61-year-old woman who was the owner and manager of Gosford Gymnastics since 1998. She had about 18 staff members working for her at the time and had known the applicant for 9 or 10 years. The applicant had been recommended to her to assist with bookkeeping.

12. The applicant was employed as a subcontractor without any written contract. There was an oral agreement that a certain amount of money per week would be paid.

13. At some point in 2012, the applicant started to assist with paying invoices for the business. From this time she had access to the bank accounts of Gosford Gymnastics and was responsible for that organisation’s finances. The applicant would regularly tell the victim that she (the victim) “did not need to touch anything and that the applicant “had it all under control”, thus diverting the victim from overseeing the applicant’s activities.

14. Whilst the applicant was on leave in January 2016, the victim noticed that there were numerous unauthorised transfers into the offender’s account that had been made on a regular basis since 2012, as well as into an account of a friend of the applicant, Susan Chapman, since 2015.

15. When confronted on her return from leave, the applicant admitted to the offending. The matter was then referred to the police who determined a total of $557,501.72 had been taken into the applicant’s account and that the amount was in excess of the wage that she was actually due by $457,704.26.

16. A further sum of $31,040 had been transferred to the Susan Chapman account which became the second count on the indictment.

17. Transfers into the applicant’s account were given false descriptions to mask them as legitimate payments, or were part of multi-payments where additional money was added onto a legitimate payment, with the legitimate payment going to the intended recipient and the remaining money going into the applicant’s account.

18. The applicant was arrested on 25 August 2016 and made admissions in her recorded interview to stealing money from the victim over the period of time that she was working with her. She also admitted that the money transferred into the Chapman account was withdrawn by Ms Chapman and given by Ms Chapman to the applicant.

19. The consequence of the offending has left the victim’s savings exhausted. No attempt has been made by the applicant to repay any of the money.

20. There are a number of aspects of the applicant’s subjective case that were accepted by the sentencing judge in the remarks on sentence. The applicant gave evidence and was cross-examined and a number of her answers led the sentencing judge to have serious doubts about her veracity.

(ii)    Subjective features

21. By way of general background, the applicant was aged 47 years and 9 months at the time of sentencing. She had a previous criminal conviction relating to an offence of a similar nature. That was the subject of the call up of the bond that she had been given in 2011. As observed by his Honour, instead of being of good behaviour, the applicant resumed her previous fraudulent activity, this time upon a new employer.

22. His Honour made reference to a psychiatric report authored by Dr Furst dated 6 July 2017, noting that the applicant had been married for 20 years and lived with her husband and four children and her parents at a home in Wyoming, NSW. She had worked as a bookkeeper since she was 17. She was born in Sydney and educated to year 11.

23. The applicant is alleged to have been the victim of childhood sexual abuse at the hands of her older cousins. The detail regarding the evidence about that abuse is noted by his Honour, including that the applicant had been attending trauma counselling for the 14 month period prior to being assessed by Dr Furst, and that the counselling was to address the effects of what she said was her childhood sexual abuse and traumatic memories.

24. His Honour recorded a number of physical and psychological symptoms about which the applicant gave an account, and that she alleged are related to the effects of her childhood sexual abuse including missing a lot of school and self-harm. She also told Dr Furst that she had no memories of this sexual abuse when she was growing up and did not disclose the abuse until she was 40 when she told her sister and aunt.

25. The applicant worked in insurance and brokering from the age of 16 and had breaks in work between the births of her children.

26. She told Dr Furst that she felt no emotions, feeling numb and irritable and that she now believed that she was chronically depressed after the birth of her daughter 16 years ago.

27. His Honour noted the treatment over recent years with antidepressant medication through her GP, and that the applicant had told Dr Furst that she had taken the antidepressants over the last four years, and that she had had recent trauma counselling with Teresa Taylor, a sexual abuse counsellor at Gosford Hospital, and that she now felt she could deal with her emotions “both in positive and negative.” [1]

    1. ROS page 12

28. A history of gambling from age 16 was noted, which was described as compulsive and which got out of hand. The applicant linked this to her previous offending which involved taking money from a previous employer. Dr Furst diagnosed the applicant as meeting the criteria for gambling disorder and persistent depressive disorder also known as chronic dysthymia. His Honour noted Dr Furst’s record of the history of excessive gambling was consistent with a gambling disorder, but that the diagnosis Dr Furst made was based on the veracity of the applicant’s self-reporting which was not independently confirmed. His Honour noted Dr Furst’s record of the characteristics of the gambling disorder and also that he assessed the presence of a persistent depressive disorder characterised by depressed mood for at least two years. [2]

    2. ROS pages 13-14

29. His Honour noted that Dr Furst concluded that on the basis of her history, the applicant’s offending was driven by her addiction to gambling on poker machines and that it would appear that the applicant’s “gambling addiction has been a maladaptive means of blocking out negative emotions and/or numbing herself in the background of a lengthy history of low mood and irritability”. [3]

    3. ROS page 14

30. His Honour referred to Dr Furst noting a range of psychiatric syndromes that have been associated with childhood sexual assault including depression, amongst other things, and that he believed that the applicant’s direct experience of being sexually abused, plus the dysfunctional family environment in which she had been raised, had contributed to a mental disorder and personality dysfunction in the form of chronic dysthymia. His Honour noted that Dr Furst concluded that this had mitigated to some degree the seriousness of her actions and that Dr Furst believed that the applicant’s willingness to engage in future counselling, means that she is probably now of a low to moderate risk of reoffending, and that she should have psychiatric assistance and mental health nurse assistance whilst in custody, and should continue with her Zoloft as well as psychological counselling to address her gambling disorder [4] .

    4. ROS page 15

31. His Honour noted that he had taken Dr Furst's report into account, and that Dr Furst himself had observed that he based his opinion on the reliability of the history that had been given to him by the applicant.

32. His Honour also referred to the report of Teresa Taylor, a sexual assault counsellor at Gosford Hospital, and the fact that there had been 28 counselling sessions between March 2016 and July 2017. His Honour noted that Ms Taylor described psychological symptoms including the applicant’s account of childhood sexual assault, but as observed by his Honour, the account of the sexual abuse was different to the account that the applicant gave to Dr Furst [5] .

    5. ROS page 16

33. His Honour made reference to various medical records about other members of the family as well as the character references upon which the applicant relied.

34. His Honour made comment regarding the nature and quality of the offender’s evidence given at the sentencing hearing, concluding that she had a tendency to embellish and that after observing her in evidence-in-chief and also in cross-examination, “none of her accounts lost anything in the telling”. His Honour noted inconsistencies within her evidence and found that her approach was to emphasise the difficulties of her children in an effort to diminish any penalty that would be imposed upon her [6] .

    6. ROS page 20

35. His Honour concluded that the applicant was an unreliable historian, although he noted that he “of course accepted the medical evidence tendered as exhibit 3” [7] .

    7. ROS page 20

36. His Honour found that her expression of remorse was unimpressive and that the applicant seemed to be “going through the motions” of saying the words of how sorry she was for the victim, when she evidently had no concerns for the victim for the four years that she constantly deceived her. His Honour concluded that the applicant had ingratiated herself with the victim and presented herself as a friend so that she could continue stealing from her [8] .

    8. ROS page 21

37. His Honour rejected the submission that the applicant was remorseful, observing that no arrangement seemed to have been made to repay the money she had stolen despite there being significant equity being available in the home she lived in with her husband. His Honour noted that the applicant gave evidence that the house was in her husband’s name and that her husband would not agree to her accessing the equity in the home [9] .

    9. ROS page 22

38. His Honour observed that the applicant said that if she had not been sexually assaulted, she “would not have put people through this” but his Honour concluded that this was “a simplistic approach to the predicament in which she finds herself and that she is seeking to blame all of her decisions to continue gambling for which she has already been brought before the Court, despite having had access to a psychologist and counselling for the alleged sexual assault she says she suffered when she was a child” [10] .

    10. ROS page 22

39. Other aspects of the cross-examination were noted by his Honour to be unimpressive, including that the applicant denied she discouraged the victim from looking at the financial records, despite this being a matter specifically included in the agreed statement of facts.

40. His Honour also observed that the evidence the applicant gave to the effect that she “couldn’t really say” how she concealed all the payments that she was stealing could not be accepted because it was clear that there was regular careful stealing of money with a clear pattern of concealing those thefts by false entries [11] .

    11. ROS page 24

41. His Honour also observed that in terms of the applicant’s evidence about her complaint of sexual assault, he had some hesitation about her genuineness as she is an experienced fraudster with the intelligence and ability to say and do things for her own benefit [12] . His Honour also noted the inconsistencies in accounts about this subject matter that she had given to Ms Taylor as opposed to Dr Furst. However, despite these inconsistencies, his Honour stated that he was prepared to accept, although with considerable doubt, that the applicant had been the subject of sexual assault on the evidence before him [13] .

    12. ROS page 25

    13. ROS page 25

42. In respect of the submission made on behalf of the applicant that the background of sexual assault diminishes her moral culpability because this had caused psychological difficulties and she was gambling to “numb the psychological pain”, his Honour noted that Dr Furst had accepted this, but his Honour referred to the fact that he had had the benefit of seeing the applicant cross-examined, a benefit which Dr Furst had not had to assist him in assessing the accuracy of the applicant’s account [14] .

    14. ROS page 25

43. His Honour then summarised the submissions of the Crown and those made on behalf of the applicant, and concluded that on the Agreed Facts, the applicant did encourage the victim not to look closely at the accounts. He found that there was a breach of trust, and the emotional harm and loss and damage to the victim is substantial.

44. His Honour was guarded about prospects of rehabilitation, and despite the early plea of guilty, he could not conclude that the applicant will not offend in this way again, given what had happened in the past.

Decision

45. His Honour’s remarks on sentence were entirely cogent, appropriately comprehensive and systematically reasoned. Most of the grounds of appeal raised by the applicant are misconceived.

46. Ground 1, the assertion that there are errors in the dates of offending and amounts stolen, is based on a perception that the offending should only include the dates when money was actually stolen. His Honour found that the deception started from the moment the applicant commenced employment with the victim by the acts of ingratiation and fake friendship she engaged in from the very beginning. The amounts stolen, for which she was sentenced, were taken directly from the Agreed Facts which the applicant had signed. Ground 1 is without substance.

47. Ground 2, no discount for “assistance”, is based on a misunderstanding that because the applicant pleaded guilty and made admissions to particular acts and amounts of money that she had taken, and assisted with reconciliation of the amounts she stole, that this amounts to assistance to police, and entitles her to a discount. No discount for assistance to authorities was requested on behalf of the applicant in the sentence proceedings. She did not disclose any unknown guilt or assist bringing any offender to justice. She acted in a way ultimately to her advantage in pleading guilty and admitting her guilt and co-operating with authorities. This was recognised in the discount she received for her early guilty plea of 25%. Ground 2 has no substance.

48. Ground 3 asserts error in the way his Honour dealt with aggravating factors. This ground must be rejected. The applicant argued that because her first act of stealing occurred 20 months into her s 9 bond for the earlier (and very similar) offending, there was a failure to take into account that she had been of good behaviour for 20 months. The submission is that because his Honour found she had not offended only during the first 12 months of the bond, he made an error. This ground is misconceived for obvious reasons. On any analysis, the applicant breached her bond during its term, and in a significant way, again engaging in the very type of offending for which she had been given the bond.

49. It is asserted his Honour was wrong to conclude that there was considerable planning involved in the commission of the offences. The applicant’s submission in relation to this ground is not clear. From her written submissions, it seems to be based on an assertion that the Crown argued that there was “some planning” and afterwards steps taken to “cover her tracks”, yet his Honour found “considerable planning”. The conclusion reached by his Honour was clearly open to him as the evidence. There was no error.

50. Ground 4 asserts that there was incompetence on the part of the applicant’s legal representatives who appeared at the sentencing proceedings in that they failed to place before the sentencing judge “evidence of certain factual circumstances that existed at the time of sentence”.

51. The first part of the submission proceeds on the mistaken premise that his Honour did not accept Dr Furst’s diagnosis of gambling disorder. The applicant says that the reconciliation of money stolen and her affidavit attesting to her gambling expenditure independently confirms Dr Furst’s diagnosis of gambling disorder, and so this material should have been provided to the sentencing judge, and her lawyers were incompetent in not presenting it.

45. This ground is reliant upon an affidavit by the applicant dated 18 January 2019. Objection was taken by the Crown on the basis that the material does not meet the test for fresh or new evidence and in any event it is clear the sentencing judge accepted both that the applicant had gambled and Dr Furst’s opinion. The affidavit was rejected other than paragraph 4 which was limited to re-sentence.

46. The relevant finding by the sentencing judge, clearly available on the evidence, was that the sentencing judge was not persuaded that the gambling disorder together with the childhood sexual abuse operated to reduce the applicant’s moral culpability. His Honour sets out his reasons for that conclusion. As submitted by the Crown, there is no basis to conclude that the other material would have made any substantial difference to his Honour’s reasoning or to the ultimate sentence.

47. The other material the applicant says should have been tendered was the affidavits from the applicant’s mother and sister. This material adds nothing to the material that was before the sentencing judge. Much of the content was inadmissible hearsay or opinion. The fact of the abuse as a child was not in issue on sentence, the contention that it played any causal role in the offending or reduced the moral culpability were the relevant issues and these issues were considered and determined by his Honour.

48. There was no demonstrated incompetence on the part of the legal representatives and no miscarriage of justice has been demonstrated. Ground 4 fails.

49. Grounds 5 and 6 can be dealt with together as they relate to the way in which his Honour dealt with the expert evidence. His Honour clearly had regard to it, evaluated its bases and took it into account. He clearly took into account the dysthymia and gambling disorder and Dr Furst’s conclusions about those matters. [15]

    15. ROS pages 14-15

50. His Honour specifically noted Ms Taylor’s role as sexual assault counsellor and the context of the applicant’s engagement with her. [16] The commentary at page 16 of the ROS regarding the qualifications of Ms Taylor, is made in the context of a lack of clarity about her qualifications to make a diagnosis of PTSD. [17]

    16. ROS page15

    17. ROS page 16

51. It is true that his Honour looked askance at the applicant’s own evidence about certain matters, and that Dr Furst’s opinion was dependent on self-report [18] . His Honour was entitled to critically evaluate the applicant’s evidence and it was open for him to conclude that the applicant was an “unreliable historian” [19] who gave evidence “so as to diminish any problem that would be imposed upon her”, and who adopted a “simplistic approach of blaming her offending of gambling and sexual assault when she had been given the opportunity of counselling and rehabilitation [20] . He doubted her evidence that she gambled to feel numb [21] . It is not an issue of insufficient weight being given to the mental health diagnosis made. His Honour simply concluded, on a reasoned basis, what weight should rightfully be given to it, in the context of all the evidence before him including the unsatisfactory aspects of her own evidence and demeanour. His Honour was entitled to do so. There is no error.

    18. ROS pages 14-15

    19. ROS page 20

    20. ROS page 22

    21. ROS page 23

52. In respect of grounds 7 and 8 and the errors asserted in his Honour’s consideration of mitigating factors and general deterrence, his Honour was entitled to find that both specific and general deterrence remained an issue for sentencing, given the repeated pattern of conduct despite the applicant actually being on a s 9 bond for very similar offending. His Honour appropriately dealt with the issues of assistance, mental health, rehabilitation and remorse. It was open to his Honour to deal with these issues as he did.

53. Regarding the question of rehabilitation, his Honour did not conclude that there were no prospects of rehabilitation; simply that the prospects were guarded, a finding that was clearly open to him. There is no error demonstrated in grounds 7 and 8.

54. In ground 9, the applicant complains that his Honour was wrong in finding a lack of remorse. The applicant argued that her guilty plea should have been treated as evidence of remorse and that his Honour should have taken into account the opinions of Dr Furst and Ms Taylor about remorse.

55. The applicant failed to persuade his Honour that she was genuinely remorseful. He concluded that she was “going through the motions” leaving a “distinct impression that the offender was mouthing words without truly appreciating the disastrous effect her behaviour has had on the financial health of the victim and indeed her husband” [22] . Having observed the applicant giving evidence, these findings were entirely open. This ground is rejected.

    22. ROS pages 21-22

56. Ground 10, error in finding special circumstances, seems to misunderstand that the finding is actually one potentially favourable to the applicant in that his Honour reduced the non-parole period to two thirds of the total term. The written submissions of the applicant on this issue are difficult to follow. The fact that it was the applicant’s first time in custody, whilst not necessarily amounting to special circumstances of itself, was one accepted by the Crown representative on sentence as an available basis for finding special circumstances. The finding was open to his Honour. There is no error and this ground fails.

57. Ground 11 asserts that there was delay in sentence. There was no relevant delay and none was raised at the sentencing hearing. This ground has no substance and is dismissed.

58. Grounds 12 and 13 can be dealt with together. The applicant asserts that a lesser sentence is warranted in law, and that her sentence was manifestly excessive. Both grounds have no merit. The sentence was lenient given the applicant engaged in concerted, deliberate sustained conduct involving numerous transactions over a long time, and a serious breach of trust causing extensive financial loss to her employer for which no effort towards reparation has been made. There was a generous concurrence in the 6 month term given for the call-up on the bond, in circumstances where the applicant had engaged in the same type of offending against different victims. Grounds 12 and 13 fail.

Orders

66. The orders made on 3 July 2019 were:

1. Grant the applicant an extension of time to bring her application for leave to appeal.

2. Refuse leave to appeal.

***************

Endnotes

Decision last updated: 26 August 2019