Rossi v The Queen

[2021] VSCA 296

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0213

ROSA CATHERINE ROSSI	Applicant
v
THE QUEEN	Respondent

----

JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2021
DATE OF JUDGMENT:	3 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 296
JUDGMENT APPEALED FROM:	DPP v  Rossi [2020] VCC 1471 (Judge Marich)

---

CRIMINAL LAW — Appeal — Sentence — Obtaining property by deception and associated offences — Applicant police officer obtained residential properties with a view to relying on adverse possession — Whether sentence of 4 years and 6 months’ imprisonment with 2 years and 4 months non-parole manifestly excessive — Utilitarian value of guilty plea during pandemic — Leave to appeal granted — Appeal allowed — Resentenced to 3 years and 6 months’ imprisonment with 1 year and 9 months non-parole.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr B Walmsley QC with Mr I Lloyd	Condello Lawyers
For the Respondent:	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Charges, sentences and grounds of appeal

1. On 22 May 2020, the applicant, now aged 59 years,[1] pleaded guilty before a judge in the County Court to obtaining property by deception[2] (five charges — charges 1, 2, 3, 4 and 6); attempting to obtain property by deception[3] (one charge — charge 8); unauthorised accessing of police information[4] (one charge — charge 5); and perjury[5] (two charges — charges 7 and 9); and to a related summary offence, obtaining a financial advantage for another.[6]

   [1]Her date of birth is 27 October 1962.

   [2]Crimes Act 1958, s 81. The maximum penalty is 10 years’ imprisonment.

   [3]Crimes Act 1958, ss 81 and 321M. The maximum penalty is five years’ imprisonment.

   [4]Victoria Police Act 2013, s 228. The maximum penalty is five years’ imprisonment or 600 penalty units.

   [5]Crimes Act 1958, s 314. The maximum penalty is 15 years’ imprisonment.

   [6]Criminal Code Act 1995 (Cth), s 135.2(2). The maximum penalty is one year’s imprisonment.

1. Following an extensive plea, on 16 September 2020 the judge sentenced the applicant to be imprisoned for four years and six months, and fixed a non-parole period of two years and four months, in accordance with the following table:

Charge	Offence		Sentence	Cumulation
1	Obtaining property by deception		18 months	3 months
2	Obtaining property by deception		18 months	3 months
3	Obtaining property by deception		2 years 6 months	Base
4	Obtaining property by deception		2 years 3 months	6 months
5	Unauthorised access to police information		6 months	2 months
6	Obtaining property by deception		2 years	4 months
7	Perjury		18 months	3 months
8	Attempting to obtain property by deception		12 months	2 months
9	Perjury		12 months	1 month
Related Summary Offence	Obtaining a financial advantage for another		1 month	—
Total Effective Sentence:		4 years and 6 months’ imprisonment
Non-Parole Period:		2 years 4 months
Pre-sentence Detention Declared:		None
6AAA Statement:		6 years and 4 months’ imprisonment with 4 years and 6 months non-parole

1. The applicant now seeks leave to appeal against sentence, relying on four proposed grounds — two of which impress us as being unnecessarily elaborate — as follows:

1.   The learned sentencing judge erred in law, and her sentencing discretion miscarried, when determining that the nature and severity of the offending was such that it required and deserved the imposition of the terms of imprisonment she ordered.

2.   The learned sentencing judge erred in law, and her sentencing discretion miscarried, when finding, as to the nature and severity of the offending that:

2.1 the gravamen of the Applicant’s frauds did not lie in actual financial loss to the victims, but is found in ‘the profound usurpation and violation of their proprietary and personal rights, including their right to privacy and to quiet enjoyment of their property’ (Paragraphs 73 and 117 of the Reasons for Sentence);

2.2 at the time of the offending, the Applicant’s psychological state did not affect her mental functioning, and accordingly did not affect her moral culpability (Paragraph 111 of the Reasons for Sentence);

2.3 the properties the subject of the 6 obtaining property charges were their private properties and worth significant sums (Paragraph 116 of the Reasons for Sentence);

2.4 ‘each offence was complete upon the point of the changed locks, but you then needed to continue to behave in a dishonest way to conceal your offending’, and that such concealment ‘is better taken into account in evaluating (the Applicant’s) ‘moral culpability leading to the commission of each next acquisition’ (Paragraph 116 of the Reasons for Sentence);

2.5 there was no merit in the argument that moral culpability for the offending was reduced by your ‘desire eventually to expand your property portfolio via that means’, and, further, finding that the ‘eventual foreclosure of the victims’ civil remedies against you, some 15 years hence, would not and cannot reduce your moral culpability for these offences’ is misconceived. (Paragraph 118 to 120 of the Reasons for Sentence);

2.6 because of the mere fact that the Applicant was a Sergeant of police, the Court did not accept that the Applicant initially misunderstood the nature and character of permissible conduct, nor did it accept that she could have felt ‘that this doctrine enabling long future ownership could in any way justify’ the Applicant’s ‘intrusion and acquisition of these properties’ (Paragraph 122 of the Reasons for Sentence);

2.7 the submission as to the focus of a person interested in adverse possession, is soundly based, as quoted in Paragraph 123 of the Reasons for Sentence, and should have been accepted by the Court;

2.8 the Applicant’s ‘adverse possession claims have nothing whatsoever to do with (her) moral culpability in relation to’ any of the other charges (Paragraph 126 of the Reasons for Sentence); and

2.9 that the offending was such so as to exclude the suitability of a community corrections order as such a disposition ‘did not adequately satisfy all of the purposes for which sentence must be imposed in this case’, despite having positively found the following mitigating circumstances had been proven to the Court’s satisfaction:

2.9.1 Pleas of guilty at an early stage (Paragraph 74 of the Reasons for Sentence);

2.9.2 Remorse (para. 74);

2.9.3 Utility of the pleas (para. 74);

2.9.4 Profound impact of historical abuse (para. 78);

2.9.5 Public opprobrium (para. 84);

2.9.6 Loss of senior employment at Coles Supermarkets (para. 84);

2.9.7 No prior criminal history (para. 87);

2.9.8 Very good character per personal and professional testimonials (para. 88 and 97);

2.9.9 Significant mood disorder since youth (para. 102);

2.9.10Significant level of depressive mood disturbance at time of offending conduct (para. 104);

2.9.11 Mental health rendering custodial disposition relatively difficult (paras. 107 to 110);

2.9.12 Serious risks associated with COVID-19 (para. 130);

2.9.13 Risks to policewoman in custody (para. 132);

2.9.14 Good prospects of rehabilitation (para. 128).

3.   The learned sentencing judge erred in law, and her sentencing discretion miscarried, when making the following findings of fact that:

3.1 the ‘grave’ offending was aggravated by the Applicant’s status ‘as a serving, sworn, and senior police officer’ (Paragraph 114 of the Reasons for Sentence);^[[7]]

3.2 it became clear to the Applicant following on from her commission of Charge 3 ‘that she would need to defend (her) ownership of each house vigorously when challenged’ (Paragraph 116 of the Reasons for Sentence);

3.3 ‘the psychological material does not draw a connection between (the Applicant’s) symptoms and (her) behaviour’ (Paragraph 121 of the Reasons for Sentence);

3.4the Applicant ‘had escalated from obtaining rural properties of relatively modest objective value to’ (properties of greater value) (Paragraph 122 of the Reasons for Sentence);

3.5 by finding that ‘you also made known that you were a serving policeman’ misdescribes against the Applicant, the evidence in that regard (Paragraph 124 of the Reasons for Sentence);

4.   That the sentences imposed, in each instance, and the total aggregate sentence imposed of 4 years 6 months was manifestly excessive in the circumstances.

[7]Counsel for the applicant abandoned this plainly untenable particular in the course of the hearing in this Court.

1. For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant as set out below.

The offending

1. Notwithstanding our ultimate conclusion, we regard the applicant’s offending as serious.  It was cynical, premeditated and breathtakingly dishonest.  The Summary of Prosecution Opening described it as follows:

BACKGROUND

1    The [applicant was] a sergeant of Victoria Police and at the time of the offending resided at [an address in] Corio.

2    In April 2017, the Independent Broad-Based Anti-Corruption Commission (IBAC) commenced an investigation into allegations that the [applicant] had been identifying vacant residential properties with the intention of using deception to take possession of these properties and make claims for adverse possession.  To achieve this, the [applicant] took advantage of her position as a police officer.

3    The [applicant] also prepared for these actions by researching the law of adverse possession, including downloading online guides to acquiring adverse possession on 9 and 17 April 2016 …

CHARGE 1 – 9 Ayrey Street, Willaura

4    In April 2016, the [applicant] identified a property at 9 Ayrey Street, Willaura.  The owner Tiffany Paul … had bought the property in 2010 but had left the property vacant when she moved to Queensland to look after her ill son in January 2013.  However, as she intended to return, she left personal possessions and furniture in the house.

5    The property had a rates valuation of $50,500.

6    On or about 18 April 2016 the [applicant] engaged Lardner Bros Locksmiths of Ararat to change the locks at 9 Ayrey Street Willaura.  The [applicant] did not inform the locksmith Geoff Dunmore … that she was not the owner of the property.

7    On 21 April 2016 [the applicant] prepared a document, later seized by police, which showed that she intended to claim that the property was rundown and the garden overgrown, and that her company Sweet Georgia Pty Ltd had taken possession of the property in March 2016.

8    Police subsequently seized documents which had been scanned into the [applicant’s] Victoria Police email account which showed that the [applicant] had used some of the Ms Paul’s personal documents including bank correspondence, employer letters and taxation letters ...

9    On 19 October 2016, Ararat Rural City Council received a Change of Customer Address form, falsely completed by the [applicant] in the name of the owner Tiffany Paul.  The form gave the [applicant]’s mobile phone number as a contact ...

10  On 14 December 2016 the [applicant] instructed her solicitor to put a Landata alert on the property.

Related summary offence 3 – Obtain financial advantage (Cth)

11  The [applicant] had tenants Paige Richards and her partner Phillip Harrington in an address at 47 Warranoke Street Willaura.

12  In February 2016, she suggested to Richards that she falsely notify Centrelink that Richards and Harrington were not living together and that they could then claim extra money from Centrelink, thereby assisting them to pay the rent to the [applicant] ...

13  Between 8 October 2016 and 10 January 2017 the [applicant], Richards and Harrington agreed that they would use the address at 9 Ayrey Street Willaura, then vacant, to deceive Centrelink that Richards had moved there.  Police subsequently located a lease agreement dated 5 October 2016 between Sweet Georgia and Richards stating that Richards was the sole tenant ...

14  On 28 October 2016, Centrelink received a rent certificate from Richards dated 19 October 2016, which stated that Richards was renting from the [applicant] at the 9 Ayrey Street address.  The document was co-signed by the [applicant] ...

15  In consequence of the filing of the rent certificate by Richards, she was able to obtain rental assistance as part of her Family Tax Benefit …, thereby assisting her to pay her rent at 47 Warranoke Street to the [applicant].

CHARGE 2 – 63 Warranooke Street, Willaura

16  In April 2016, the [applicant] identified a property at 63 Warranooke Street, Willaura.  She conducted a Landata search on the property on 18 April 2016 … which showed the owners of the property as Karen Lang … and Guiseppe Latronico.  The property had a rates valuation of $108,500 ...

17  Ms Lang and Mr Latronico had purchased the property in December 2010 and had intermittently lived there over the following five years due to work commitments.

18  On 18 April 2016, the [applicant] instructed Lardner Brothers Locksmiths to change locks at the property, not telling the locksmith Geoffrey Dunmore that she did not own the property.

19  The owners became aware that someone had occupied their house when contacted by a neighbour and reported the matter to Ararat police.  The owners then discovered that the locks had been changed on the front and back security doors and deadlocks placed on the internal wooden doors.  A number of personal items were also missing and cleaning equipment was outside.

CHARGE 3 - 53 Bolwarra Street Chadstone

20  In early 2016 the [applicant] identified a property at 53 Bolwarra Street, Chadstone as suitable to make an adverse possession claim.

21  The property had a rates valuation of $805,000 …

22  On 9 June 2016 the [applicant] conducted a Landata search on the property, which showed that it was owned by siblings Tri Candrayuda Putra and Ika Candra Setiawati ...  They had purchased the property in September 2001 and rented it out until 2013.

23  On 14 June 2016, the [applicant] engaged Kon the Locksmith to change the locks at the property.  Kon Koutros … attended the property on 15 June 2016 while the [applicant] was clearing the garden of the property but she did not inform Mr Koutros that she was not the owner of the property.  Mr Koutros then changed the front and back security locks and the internal wooden doors locks at her request.

24  On 18 June 2016, the [applicant] advertised the property for rent at $420 per week, giving her company name Sweet Georgia Pty Ltd as the owner and ‘Kathy’ as the contact with the [applicant]’s mobile telephone number ...

25  On or about 20 June 2016, Shannon Sweeney contacted the [applicant] in response to the advertisement.  The [applicant] said that the property would be ready to occupy in about three weeks.  Mr Sweeney met with the [applicant] on 24 June 2016 at the property.  The [applicant] claimed that she was working on behalf of the owner and provide them with a rental agreement to complete.

26  Ms Sweeney and her partner Ms Amber Cattana signed the rental agreement on 11 July 2016 ...  Between 15 July and 23 July 2016 they transferred a bond of $1825 and two week’s rent of $840 to the [applicant].

27  On 27 June 2016 the [applicant] submitted a change of address and personal details form to the City of Monash ...  The [applicant] also spoke to Suzanne Kennedy …, a property administration office at the City of Monash, stating that the owners had been deported in 2002, that the [applicant] had occupied the property since 2011 and that the property was currently tenanted.  This was followed by a further letter from the [applicant] advising the Sweet Georgia Pty Ltd has occupied the property since 2002 and that all correspondence should be sent to Sweet Georgia.  However this was not carried out by the City of Monash as no confirmation was provided by the registered owners.

28  On 13 July 2016, the [applicant] paid $1360.25 towards the outstanding rates for the property and then applied to pay the balance by a payment plan ...  On 20 July 2016 she emailed Yarra Valley Water asking that the water restriction on the property be removed as Sweet Georgia had a tenant moving into the property ...

29  Mr Sweeney and Ms Cattana rescinded the rental agreement with the [applicant] when it became apparent that the repairs had not been carried out as agreed and that their bond had not been lodged with the Residential Tenancy Bond Authority.  On 29 July 2016 the [applicant] returned the bond and one week’s rent of $420, the other $420 being agreed by the parties to be kept by the [applicant] for the inconvenience.

30  The [applicant] re-advertised the property at 53 Bolwarra Street Chadstone on Gumtree using the contact name ‘Kathy’ and on 1 August 2016 James Dixon … and his partner Eloise Clareborough attended the property and met with the [applicant].  In return for a rent free period, the [applicant] allowed Dixon and Clareborough to move in to clean up the property.  On 7 August 2016 the [applicant] signed a 12 month lease agreement with Dixon and Clareborough, with the landlord being Sweet Georgia Pty Ltd ...

31  The [applicant] accepted rent [of $5000] in advance … for the period between 1 October and 22 December 2016, together with a bond.  A total of $10,435 was paid by Dixon and Clareborough to the Sweet Georgia account between 9 August 2016 and 27 February 2017.

32  On 24 September 2016, the [applicant] received confirmation from Yarra Valley Water that she had been added as an authorised representative for the owners, despite no evidence that the owners had consented to this.

33  During the course of the tenancy, Dixon became suspicious that the [applicant] was not the owner of the property and confronted the [applicant], who admitted that she was claiming adverse possession, having been in the property for almost 15 years.  She further claimed that the owners had been deported in 2002 and their assets had been forfeited as part of their sentence ... By this time Dixon had completed considerable landscape works and renovations to the property as agreed with the [applicant].

34  The [applicant] made it known to the tenants that she was a police officer.

35  On 29 March 2017 the [applicant] submitted a mail redirection form to Australia post … without authority from the owners and thereby re-directed the email for the owners to an address at 34/278 Church Street Richmond.  This mail included documents from a real estate agent looking to purchase the property and rates notices from the City of Monash.

36  On 28 April 2017, the [applicant] appointed JRW Property International Pty Ltd to manage the property on her behalf, signing a management agreement on behalf of Sweet Georgia Pty Ltd ...

37  On 4 May 2017, the [applicant] mailed a notice to vacate to Dixon and Clareborough ...  A short time later, the owner Putra returned to Australia and realised that someone was living in the house.  The other owner Setiawati checked online and discovered that Dixon and Clareborough had put a caveat on the property.  When contacted by the owners’ lawyers, Dixon and Clareborough said that they had been renting the house from the [applicant].

38  On 9 May 2017, Dixon and Clareborough filed a VCAT application against the [applicant] seeking return of the rent and bond.

39  As the tenants had not vacated the property and were in arrears of rent, on 1 June 2017 the [applicant] filed a VCAT application against them, seeking a possession order ...  This application was opposed by the owners ...  The [applicant] initially claimed $50,000 from the owners on the basis of the repairs done at the property but later withdrew this claim.

CHARGES 4 and 5 – 547 Waverley Road, Malvern

40  In or about September 2016, the [applicant] identified a property at 547 Waverley Road, Malvern.

41  The property had a rates value of $990,000 ...  The property is owned by George Atamian … and was purchased by him in December 2014 with the intention that it be demolished.

42  On 17 September 2016, the [applicant] engaged Josh Melilli … from Lockstar Locksmiths to change the locks at the property, saying that it was a deceased estate.

43  On 3 October 2016, the [applicant] reset the LEAP password … for her Victoria Police subordinate Keith Randall, who was employed as an unsworn officer ...  The [applicant] then used Randall’s password to log into LEAP and search George Atamian, however it is unknown whether this was done by the [applicant] instructing that Randall conduct the search or the [applicant] performing the search herself …  The [applicant] had not authority to access the LEAP database for this purpose and used the information acquired about the owner to gain control of the property at 547 Waverley Road Malvern ...

44  On 13 October 2016, the [applicant] emailed Homesglen Institute seeking students willing to renovate the garden at the property ...

45  On 18 October the [applicant] sent a Change of Mail Address from to the City of Stonnington, falsely claiming to be Atamian and changing the address for rates notices from Atamian’s address in Mt Waverley to the property address in Malvern …

46  On 14 December 2016, the [applicant] instructed her solicitor to place a Landata property alert on this property, together with the properties at Willaura and Chadstone (Exhibit 35) so she would know whether there were any dealings with the property by the true owners.

CHARGE 6 – 38 Wileman Street, Willaura

47  In November 2016, the [applicant] identified a property at 38 Wileman Street, Willaura.  The owner of the property is Christopher Habel …, who inherited it on the death of his father in 2007.  Mr Habel resides in South Africa.

48  On 29 November 2016, the [applicant] engaged Lardner Bros locksmiths to change the locks at the property, saying that she did not have the keys to the property but not stating that she was not the owner.

49  On 4 December 2016, the owner was alerted by neighbours that there were unknown people at the house and he then reported the matter to police as a possible burglary.  When confronted by Acting Sergeant Stephen Oliver …, the [applicant] claimed to be buying the house and that she had keys to the property.  She also said that she was a sergeant of police and was dealing with Landmark Real Estate, thereby convincing Sergeant Oliver that she was at the property legitimately.

50  When Sergeant Oliver spoke to the owner and was informed that the [applicant] had no right to be at the property, the [applicant] admitted that she did not know the owner and had believed it was a deceased estate.

51  The [applicant] contacted the owner on the same day, using a number provided by Sergeant Oliver, and said that she wanted to buy the property.  The owner agreed not to make a trespass complaint if she did so for a price agreed between them of $73,000.

52  On 11 December 2016, the [applicant] contacted her mortgage broker ALIC about the purchase of the property for $73,500 ...  On 12 January 2017 the [applicant] provided false tenancy details under the name of ‘Kelly Randall’ for properties at 29 Colorado Drive Corio and 8 Hindmarsh Street, Jeparit to ALIC in order to obtain a loan from the CBA for the purchase of the Willaura property.

53  The application for loan was ultimately unsuccessful as it did not meet the CBA loan criteria, despite further attempts by the [applicant] to knowingly provide incorrect and misleading documentation concerning properties at 15 Pickersgill Court Endeavour Hills and 547 Waverley Road, Malvern that would satisfy the bank …

54  The [applicant]’s solicitor advised the owner on 12 April 2017 that the [applicant] would not be proceeding with the purchase of the Willaura property.

CHARGE 7 – PERJURY

55  At this time, the [applicant] was residing at [an address in] Corio but in the application form for the loan to purchase the Corio property in July 2016, the [applicant] had stated that it was an investment property ...  To maintain this fiction, she connected the electricity at the Corio property in the name ‘Elizabeth Turner’, using a false date of birth and drivers licence number and had cash deposits for rent from other premises paid to the CBA purporting to be for the Corio property.

56  As part of the CBA application for the Corio property, the [applicant] also stated that her actual residential address was 15 Pickersgill Court, Endeavour Hills.

57  When the [applicant] made the application for the loan to purchase the Willaura property, the [applicant] signed a false statutory declaration … stating the she resided at 15 Pickersgill Court, Endeavour Hills and that she did not pay rent or board.  The [applicant] knew that the statutory declaration was false.

CHARGE 8 – 36 Nolan Avenue Brooklyn

58  In January 2017, the [applicant] identified a property at 36 Nolan Avenue Brooklyn.

59  On 4 January 2017 the [applicant] attended at the Hobsons Bay City Council.  She wore her Victoria Police uniform and asked for details of the owners of two addresses, one of which was 36 Nolan Avenue.  The council officer Nguyet Demiri … said that it would be emailed to her but the [applicant] said that she was already in the local area and asked for the information to be written on a piece of paper.  Mr Demiri then provided the [applicant] with the address and phone numbers of the owner, Mr Jason Barry ...

60  Mr Barry … was working in Macau at the time.  He had purchased the Nolan Street property in September 2016 with the intention to demolish it.  The property had been vacant since the last tenant left in July 2016.  The rated value of the property was $584,000.

61  Between 2 February and 14 February 2017, the [applicant] communicated via Gumtree … with Jon Henare regarding the Nolan Avenue property.  She told him that the property was abandoned by the owner and that she was looking after it, so made an arrangement with Henare to change the door locks in exchange for living there rent free.

62 The [applicant] stated that she was the landlord and that Henare would receive a rental agreement for a six month lease.

63  At the same time, the [applicant] made notes of conversations with a neighbour confirming that the owner had not been at the property for some time … and arranged for AGL to connect the gas to the property under the false name of Kim Snowden, giving AGL the [applicant]’s own mobile phone number and email but creating a false driver’s licence number ...

64 Between 1 March and 4 May 2017, the [applicant] received four rental payments from Henare totalling $3089.80, Henare having signed a lease agreement with Sweet Georgia Pty Ltd on 9 March 2017 ...

65  On 2 May 2017 the [applicant] submitted a Change of Address form to Hobsons Bay City Council, falsely completing the form in the name of Jason Barry using the information provided the Hobsons Bay City Council employee on 4 January 2017.

66  On 9 May 2017 the [applicant] conducted a Landata search on the property and the same day appointed JRW Property to manage the leasing ...

67  On 10 May 2017 the [applicant] submitted a false mail re-direction application to Australia Post, stating that the owner Barry had authorised the re-direction (Exhibit 136), and this took effect on 10 May 2017.

68  In August 2017, the [applicant] wrote to the owner Barry saying that she was a police officer and falsely stated that she had attended at the house because there had been reports of squatters.  She then stated that she had secured and had been maintaining the house since then, and sought permission to keep doing so …

CHARGE 9 – PERJURY

69  On 15 April 2012, the [applicant] opened a Paypal account in the false name of Dianne Marshall.  She used her own credit card details and conducted transaction on this account between April 2012 and July 2014.

70  On 15 June 2017, the [applicant] completed and signed a statutory declaration in the name of Dianne Marshall, giving the address of 34/278 Church Street, Richmond, and stating that:

- She did not have photo identification;

- She was the tenant at 14 Nesnah Street West Footscray;

- She attached nine different accounts and invoices addressed to her.

71  The purpose of the statutory declaration was to obtain the release of a residential tenancy bond.  The [applicant] knew that the contents of the statutory declaration were false.

72  The bond was released on 13 September 2017 ...

INTERVIEW

73  On 27 October 2017 the [applicant] was invited to participate in an interview but declined.

The applicant’s submissions

1. By comparison with the proposed grounds of appeal, the manner in which the submissions were expressed in the applicant’s written case was relatively straightforward.

1. In relation to the first proposed ground, counsel argued that nine discrete errors particularised in ground 2 had led the judge’s sentencing discretion to miscarry.  Under ground 2, counsel discussed the nine suggested errors.  So far as ground 3 was concerned, counsel submitted that a fair assessment of the situation is that the applicant’s revelation of her status as a police officer was merely incidental.  Further, counsel submitted that there was no evidence upon which it could have been concluded that there was any ‘escalation’ in obtaining properties.  And on ground 4, counsel submitted that it sufficed ‘to submit that reliance is placed on the argument supporting the other three grounds argued … in support of this ground’.

1. In oral submissions, senior counsel for the applicant submitted that grounds 1, 2 and 3 should be ‘read together’, as they ‘conveniently reinforce’ the submission that the sentence is manifestly excessive.  Counsel then set about speaking to many of the particulars subjoined to grounds 2 and 3, paying particular attention to the utility of the applicant’s guilty plea and her mental ill-health.

Discussion

1. Despite the convoluted manner in which the grounds of appeal were formulated, we consider that proposed grounds 1, 2 and 3 are essentially ‘particulars’ of the complaint in ground 4 that the sentence is manifestly excessive.

1. Thus, ground 1 contends in effect that the judge erred in determining that the ‘nature and severity of the offending’ foreclosed a non-custodial sentence.  In other words, the sentence imposed was disproportionate to the gravity of the applicant’s offending.  The wrong kind of sentence was imposed.[8]  To like effect, ground 2 contends that the judge made certain enumerated findings as to the ‘nature and severity of the offending’, thereby excluding a community correction order as a sentencing option.  Put another way, the judge’s findings led to a disproportionate sentence being imposed.  And ground 3 relates to a mixed bag of factual findings, all of which bear on the applicant’s moral culpability, in circumstances in which an assessment of the applicant’s moral culpability bears directly on a conclusion as to whether the sentence imposed is manifestly excessive.

   [8]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15].

1. As we have mentioned, in oral submissions senior counsel for the applicant paid particular attention to the utilitarian value of the applicant’s guilty pleas, contending that the judge must have given that aspect insufficient weight when intuitively synthesising those factors bearing on the exercise of the sentencing discretion.  He also devoted a deal of attention to the effects of the COVID-19 pandemic on the applicant’s conditions of custody.

1. In her sentencing remarks, the judge dealt with the effects of the pandemic in the following way:

Your counsel submitted that a Community Corrections Order would represent a proportionate penalty, and adequately satisfy all of the purposes for which sentence must be imposed in this case.  I note that should I sentence you to immediate custody, it coincides with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus.  A sentence would necessarily involve an initial two week isolation period, and you will be deprived of some of the ordinary concomitants of custody such as face to face visits, courses, and employment activities.  Also in your case, you are acutely aware of your own physical and mental health vulnerabilities that would place you in great peril should you be exposed to the virus, which will weigh heavily upon your fragile mind. I take these matters into account in mitigation of sentence.^[[9]]

[9]The judge’s reference is to a report of the applicant’s treating general practitioner, Dr Peter Ng.  He had diagnosed the applicant with hypercholesterolemia; hypertension; raised body mass index; and declining mental health.  Dr Ng reported that each of these conditions are significant risk factors known to worsen the severity of COVID-19.

1. At the time that she sentenced the applicant, however, the judge did not have the benefit of this Court’s guidance in Worboyes — judgment was not published until 18 June 2021 — in which the Court said:[10]

As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.

There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards.  As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation.  Thereafter, he or she will have very restricted opportunities for contact with family and friends.  Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious.  These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea.  These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.

Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic.  The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution.  In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one.  The longer the delays, the more pronounced their plight.

Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present.  One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.

For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.

[10]Worboyes v The Queen (2021) 96 MVR 344, 356–7 [35]–[39] (Priest, Kaye and T Forrest JJA) (emphasis added) (‘Worboyes’).

1. Her Honour’s reasons for sentence are careful and conscientious, however we think it likely that, had the judge had the benefit of Worboyes, much greater weight in the sentencing mix would have been accorded to the significant utilitarian benefit arising from the applicant’s guilty pleas.

1. In our view it cannot be gainsaid that, had the applicant elected to contest the charges, there would have been considerable delay in finalising the matter.  At the present time jury trials are only now starting to resume, after having been suspended for many months.  It is no exaggeration to say that backlogs in criminal lists are enormous, and will take years to clear.  Moreover, once held, any trial of the applicant would have been lengthy — we estimate it perhaps would have occupied three weeks of court time — and would have involved the calling of many witnesses, including property owners, locksmiths, real estate agents, local council staff, mortgage brokers, police and others.  Further, as recent experience has shown, any trial would very likely have been far more resource-intensive than in non-pandemic times.

1. Given these circumstances, we consider that the applicant’s pleas of guilty should have been reflected in far greater mitigation of the applicant’s sentence.  Indeed, we have concluded that the sentence imposed is manifestly excessive.

1. It should not be thought that we have lost sight of the seriousness of the applicant’s offending.  Indeed, as we have indicated, we consider the applicant’s offending to have been cynical and flagrantly dishonest, perpetrated by a person whose sworn duty it was to uphold the law.  Her actions were calculated to erode the community’s trust in its police. 

1. On the other side of the equation, however, we have also had regard to the fact that aggravating features that are often present in cases of obtaining property by deception are absent in the applicant’s case.  In particular, we take into account that nobody suffered any substantial financial loss as a result of the applicant’s swindles.  This was not a case where a victim was left destitute as a result of the applicant’s fraudulent activity.

1. As we have endeavoured to emphasise, in the unique circumstances presented by the pandemic, the utilitarian benefits to the system of justice flowing from the applicant’s pleas of guilty ought to have been reflected in a far more substantial mitigation of her sentence.

1. We will thus grant leave to appeal, allow the appeal and resentence the applicant. 

1. Doing our best to balance all relevant factors, we would sentence the applicant in accordance with the following table:

Charge	Offence		Sentence	Cumulation
1	Obtaining property by deception		9 months	3 months
2	Obtaining property by deception		12 months	3 months
3	Obtaining property by deception		2 years	Base
4	Obtaining property by deception		2 years	3 months
5	Unauthorised access to police information		3 months	1 month
6	Obtaining property by deception		9 months	3 months
7	Perjury		12 months	3 months
8	Attempting to obtain property by deception		9 months	1 month
9	Perjury		9 months	1 month
Related Summary Offence	Obtaining a financial advantage for another		1 month	—
Total Effective Sentence:		3 years and 6 months’ imprisonment
Non-Parole Period:		1 year and 9 months
Pre-sentence Detention Declared:		None
6AAA Statement:		6 years’ imprisonment with 4 years non-parole

----