Valentine v Regina

[2007] NSWCCA 23

New South Wales
Court of Criminal Appeal

CITATION:	Valentine v Regina [2007] NSWCCA 23
HEARING DATE(S):	1 February 2007
JUDGMENT DATE:	12 February 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Price J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law-sentencing-voluntary disclosure of offences-imminence of discovery-degree of leniency
LEGISLATION CITED:	Crimes Act 1900 (NSW) s 300 (2)
CASES CITED:	R v Bell [2005] NSWCCA 81 R v Ellis (1986) 6 NSWLR 603 R v Palinko [2005] NSWCCA 46 Ryan v The Queen (2001) 206 CLR 267
PARTIES:	Darrin Patrick Valentine Regina
FILE NUMBER(S):	CCA 2006/2341
COUNSEL:	P Barrett - Crown J Manuell - Applicant
SOLICITORS:	S Kavanagh - Crown S O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/31/0140
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	3 February 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Darrin Patrick Valentine

2006/2341

McClellan CJ at CL
Simpson J
Price J

12 February 2007

DARRIN PATRICK VALENTINE v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 SIMPSON J: I agree with Price J.

3 PRICE J: The applicant Darrin Patrick Valentine seeks leave to appeal against the severity of sentences imposed upon him by McLoughlin DCJ in the District Court at Gosford on 3 February 2006.

4 On 19 May 2005, the applicant pleaded guilty in the Local Court to three counts of using a false instrument with intent contrary to s 300(2) of the Crimes Act 1900 (NSW) and confirmed his pleas in the District Court.

5 An offence contrary to s 300(2) of the Crimes Act 1900 (NSW) carries a maximum penalty of imprisonment of ten years.

6 Two matters on a Form 1 of using a false instrument with intent were taken into account on sentence.

7 The Judge (taking into account the matters on the Form 1) on the first count sentenced the applicant to imprisonment with a non-parole period of two years commencing on 3 November 2006 and expiring on 2 November 2008 with a balance of term of two years expiring on 2 November 2010. On the second count, a sentence of imprisonment with a non-parole period of eighteen months commencing on 3 February 2006 and expiring on 2 August 2007, with a balance of term of eighteen months expiring on 2 February 2009 was imposed. On the third count the applicant was sentenced to imprisonment with a non-parole period of eighteen months commencing on 3 May 2007 and expiring on 2 November 2008, with a balance of term of 18 months expiring on 2 May 2010.

8 As a result of partial accumulation, the total effective sentence was imprisonment for four years and nine months, with a non-parole period of two years and nine months.

The offences

9 An agreed statement of facts was tendered on sentence which the Judge set out in his sentencing remarks and may be conveniently summarised.

10 The applicant was employed by the ANZ Bank providing financial advice and arranging loans for customers. His client base included relatives Mark and Lorraine Tonna and his wife’s uncle Ron Strettles.

11 On leaving the bank, he started his own finance business and took with him the portfolios of Mark and Lorraine Tonna and Ron Strettles.

12 Count one: In May 2001 the applicant convinced Mr and Mrs Tonna to refinance their mortgage. He was to make the repayments on their behalf. Without their knowledge, the applicant inflated the amount required to cover the mortgage to obtain funds to meet his personal debts. He concealed the details by forging Mr and Mrs Tonna’s signatures, altering documents and diverting mail from their letter box. As a result, $217,725.69 was obtained by the applicant for himself.

13 The matters on the Form 1: On 12 October 2002 Ron Strettles, the uncle of the applicant’s wife, passed away. On 28 and 29 October 2002 the applicant forged at the Commonwealth Bank the deceased’s name on withdrawal slips and withdrew $14,000 and $1,800 from the deceased’s account for his own use.

14 Count three: On 30 October 2002 the applicant acting on behalf of the deceased Ron Streetles obtained a loan through a finance company. He forged the deceased’s name and arranged a loan for $200,000 using the deceased’s estate as security for the loan. The applicant obtained $200,000 for his own use.

15 Count two: The applicant in May 2003 decided to refinance the loan over Mr and Mrs Tonna’s property and convinced them to take up a loan he brokered with Liberty Funding Pty Ltd for the sum of $1,301,250. Of the monies advanced, $810,321 was used to pay off Mr and Mrs Tonna’s existing debt and the applicant received $490,929.30 for his own use.

16 The applicant fraudulently obtained a total of $924,454.99 for himself over a two year period. He told police he had spent all the money he stole to cover debt problems associated with his life-style and had nothing left.

17 The applicant’s offending behaviour and non-repayment of loans resulted in Mr and Mrs Tonna’s property at Schofields and a property owned by the estate of Ron Strettles being seized by finance companies.

Subjective circumstances

18 Evidence of the applicant’s subjective circumstances was put before the Judge by way of a Probation and Parole report dated 2 August 2005, a number of character testimonials marked exhibit 1 and the oral evidence of the applicant himself.

19 The applicant was born on 19 September 1968 and at the time of sentence was aged 37 years. After leaving school, he worked with the ANZ Bank for 15 years until he left the bank following a dispute. He then started his own business as a finance broker principally arranging home loans. He had obtained an accountancy certificate at TAFE.

20 The applicant was married in 1993 and has two children who at the time of sentence were aged ten and seven years. He has been separated from his wife and children since the commission of the offences.

21 The applicant was living with his father at the time of sentence and maintained support for his family by working as a yard manager in the automotive industry. He had been a coach of his son’s soccer team for more than three years and was involved in the local church community where he sought support and counselling.

22 On the termination of his employment at the ANZ Bank, the applicant commenced unfair dismissal proceedings in the Supreme Court. He gave evidence that legal fees between $140,000 - $150,000 were incurred by him in pursuing the claim which was settled on terms that each party pay their own costs.

23 The thrust of the applicant’s evidence was that he had commenced his offending behaviour to pay these legal costs. He subsequently needed to make repayments to keep the fraud hidden but was unable to do so from his own resources.

24 The Judge noted that the applicant initiated legal proceedings against the bank before realising that his financial means were not sufficient to fund this action and had stated that this was the “trigger” to his offending behaviour. His Honour further noted that the applicant stated that he found within his business opportunities an easy way to get the extra finance needed and once he had started the process it was difficult to stop (ROS at p 7 and 8 ).

25 The applicant had no prior convictions.

Dealing with the appeal

26 The sole ground of appeal is that the sentence is manifestly excessive because the Judge failed to give proper weight to the remorse demonstrated by the applicant by voluntarily disclosing his offence to his victims and to police.

27 The evidence before the Judge was that the applicant in September 2004 spoke to the pastor of his church and then to his solicitor about his offending behaviour. He instructed his solicitor to inform the police.

28 Before the solicitor did so, the applicant met Mr Tonna and told him what he had done. He offered to accompany Mr Tonna to Mr Tonna’s solicitor to enable him to commence rectifying Mr Tonna’s financial position. The applicant and Mr Tonna subsequently met with the solicitor.

29 On the same day he spoke to Mr Tonna , the applicant met Mrs Wheeler who was Mr Strettles’s daughter and told her what he had done. He also told Lynne Wheeler about the fraud at another meeting.

30 The applicant’s solicitor in accordance with his instructions attended the Sydney Police Centre on 27 October 2004 and reported the matter to police. As a result of follow up inquiries, the applicant attended Gosford police station on 27 January 2005 and participated in a record of interview during which he made full admissions.

31 In submissions on sentence before the Judge counsel for the applicant argued that the applicant was entitled to an “Ellis” style discount, that it would be appropriate to discount the sentence by 25 per cent for his early plea of guilty and by another 10 per cent for the applicant’s remorse, voluntary disclosure of his guilt and the 15 month delay in sentencing during which the applicant had demonstrated rehabilitation. The Crown conceded that a discount of between 15-25 per cent was appropriate for the applicant’s disclosure, his assistance and early plea but the applicant should not get a greater discount as the discovery of the frauds had been imminent.

32 The Judge in rejecting the applicant’s submission said (ROS 10 and 11):

“ I accept that the offender has expressed contrition. I accept he is genuine in such expression. I accept that the offender informed the victims, went to the police and was full and frank in his statement to them. I also accept that those crimes would have been discovered within a short time of the offender’s disclosure. I say this because of the nature of the matters themselves. The monies would appear to have run out. There were no more monies to take their place and in my view discovery was imminent, or at least within weeks, at the time the offender made his disclosure.
I take into account that the assistance provided and the early plea have public utility.
Learned counsel for the offender submitted that because of these matters the Court should reduce the sentence by thirty five per cent. I do not accept that submission because I have found the criminality would have been discovered within a short period of time of the offender’s admissions.
The offender in my view has suffered guilt and wished to bring a conclusion to his fraudulent activity and was also reaching the stage where funds had or were about to expire.
I have no doubt that the inevitability of discovery played some role in the offender’s decision to confess. For those reasons I am of the view that the appropriate discount given, because of contrition and because of the plea of guilty and its public utility and the assistance given, is twenty five per cent and I reduce those sentences by that percentage to four years and three years respectively.”

33 It is not in contention that the offences were likely to have been detected shortly after the applicant’s disclosure. Eviction proceedings had been commenced against the executors of the Strettles estate and the applicant did not have the funds to continue making repayments on Mr and Mrs Tonna’s mortgage. The applicant in cross examination gave evidence of his belief that he eventually would have been caught up with but said he took steps prior to September to stop the matter going any further (POS at 17 LL 45 – 50 30/01/06).

34 The applicant submits that his Honour erred by failing to discount the sentence beyond 25 per cent for his voluntary disclosure of the offences because of his finding that the criminality would have been discovered within a short period of time. A discount for the applicant’s voluntary disclosure in addition to the 25 per cent given for the utilitarian value of his early plea was warranted, the applicant contends, and a total discount of 35 per cent would result in a sentence that sufficiently reflects the objective gravity of the offences.

35 The imminence of discovery does not disentitle the applicant to some degree of leniency for the voluntary disclosure of his offending behaviour to the victims of his crimes and to police in accordance with the principles in R v Ellis (1986) 6 NSWLR 603 at 604. The degree of that leniency will vary according to the likelihood that the offences would have been discovered by the authorities and the likelihood that the offences could have been proven beyond reasonable doubt in a Court without disclosure: see Ryan v The Queen (2001) 206 CLR 267 per McHugh J at 272, R v Bell [2005] NSWCCA 81 per Grove J at [12]. The significance of the disclosure depends on the facts and circumstances of the case: Ryan (supra) per McHugh J at 273.

36 The facts of this case are different from that in Ellis where voluntary disclosure was made by the offender of his involvement in armed robberies of which the police had no knowledge. Here the offences were likely to have been detected shortly after the applicant’s disclosure and could have readily been proven beyond reasonable doubt without his confession. In these circumstances a significant added element of leniency is not warranted.

37 He did confess to the victims of his crime and to police and sought to provide assistance. He is entitled to some leniency on that account.

38 The Judge was correct, in my view, in rejecting the submission that a discount of 35 per cent should be given. In doing so, the Judge did not decide that the applicant was not entitled to leniency for his disclosure.

39 The applicant’s disclosure, it is clear, was taken into account by the Judge. He assessed it as a demonstration of genuine remorse and contrition and included it in his determination of the discount of 25 per cent.

40 As was observed by Hoeben J in R v Palinko [2005] NSWCCA 46 [at 26]:

“The principle in R v Ellis was fully considered in R v Thomsonand Houlton (2000) 49 NSWLR 383 at para 138. It was in that context that Spigelman CJ said:
“[140] Where the accused’s own disclosure or confession is the basis of the strong Crown case, this should be taken into account with respect to the utilitarian benefit. Indeed, such conduct should be regarded as the earliest [possible] timing for a plea.”
This extract confirms that such considerations were to be included in the utilitarian value of an early plea of guilty, for which the appropriate discount on sentence should be ten - twenty five percent.”

41 His Honour’s assessment of the discount appropriately reflected, in my view, the degree of leniency to which the applicant was entitled having regard to his voluntary disclosure. I have little doubt, furthermore, that the disclosure demonstrative of remorse was a factor in the Judge’s finding of special circumstances resulting in a ratio of the non-parole period to the head sentence of about 58 per cent.

42 His Honour gave proper weight to the remorse and contrition demonstrated by the applicant in voluntarily disclosing his offences to his victims and to police.

43 The applicant fraudulently obtained a total of $924,454.99 over a two year period. The offences were, as his Honour remarked, crimes committed as a breach of a position of trust causing substantial loss and financial hardship to his victims. The applicant’s sentence was well within range of an appropriate sentence.

44 I propose that leave to appeal be granted, but the appeal be dismissed.

**********