Whyte v The Queen

[2019] NSWCCA 218

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Whyte v R [2019] NSWCCA 218
Hearing dates:	8 April 2019
Decision date:	13 September 2019
Before:	Simpson AJA at [1]; Wilson J at [67]; Ierace J at [72]
Decision:	(1)   Leave to appeal against sentence granted; (2)   Appeal allowed; (3)   Sentence imposed by the District Court on 16 August 2017 set aside; (4)   In lieu thereof, the applicant is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 6 months commencing on 28 April 2017 which will expire on 27 October 2023, with a balance of term of 3 years and 6 months which will expire on 27 April 2027.
Catchwords:	CRIMINAL LAW – appeal against sentence – applicant convicted of dishonestly obtaining a financial advantage by deception – whether judge improperly took into account as an aggravating factor that offences were committed for financial gain – whether an email from judge to the Registrar after sentence acknowledging error should be taken into account – whether sentence manifestly excessive – exercise of discretion to resentence
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure Act) 1999 (NSW), ss 21A, 22A, 44, 50, 53A, Pt 3 Div 3 Crimes Act 1900 (NSW), ss 178BA, s 192E Criminal Appeal Act 1912 (NSW), s 11
Cases Cited:	Clinton v R [2018] NSWCCA 66 Cummins v R [2019] NSWCCA 163 Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402 Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hughes v R [2018] NSWCCA 2 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 King v R [2010] NSWCCA 33 Lee v R [2019] NSWCCA 15 Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Ahmet (1996) 86 A Crim R 316 R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188 R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Vaughan v R [2011] NSWCCA 4 Zhang v R [2018] NSWCCA 82
Category:	Principal judgment
Parties:	Karlene Whyte (Applicant) Regina (Respondent)
Representation:	Counsel: T Game SC/D Barrow (Applicant) E Balodis (Respondent)   Solicitors: Blair Criminal Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2014/285294
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 August 2017 Before: Hoy DCJ File Number(s): 2014/285294

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged with 27 offences of dishonestly obtaining a financial advantage for herself by deception, pursuant to ss 178BA(1) and 192E(1)(b) of the Crimes Act 1900 (NSW).

The offences related to the applicant’s conduct while she was an employee of a company associated with Centurne Pty Ltd (“Centurne”). Centurne is a family business which provides equipment to large building and mining companies. The applicant was employed as a bookkeeper and financial manager from 2000 to 2014 and developed a close relationship with the owners. From 2007 to 2014, she used her position to issue false invoices and instructions to clients, defrauding the company of approximately $2.9 million.

The applicant entered pleas of not guilty to all counts. On 28 April 2017, a jury found her guilty on all counts. On 16 August 2017, the sentencing judge imposed an aggregate term of imprisonment of 11 years, with a non-parole period of 6 years and 6 months. On 4 December 2018, the sentencing judge emailed the Registrar of the Court, indicating that he had erred in taking into account as an aggravating factor the fact that the offences were committed for financial gain.

The applicant appealed against the sentence on the following grounds:

(1)    the judge erred in finding that her offending was aggravated by being committed for financial gain; and

(2)    the aggregate sentence was manifestly excessive.

The Court (Simpson AJA, Wilson and Ierace JJ) allowing the appeal and resentencing the applicant, held:

In relation to Ground 1:

per Simpson AJA, Wilson and Ierace JJ agreeing:

(i) As financial gain is an element of the offences, and no motivation for financial gain beyond the norm was demonstrated, the sentencing judge erred in taking into account the fact that the offences were committed for financial gain as an aggravating factor in relation to the totality of the sentences: [34]-[35], [67], [72].

R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218, applied.

per Simpson AJA and Ierace J:

(i) Consideration of reports by judges to the Court of Criminal Appeal under s 11 of the Criminal Appeal Act 1912 (NSW): [37]-[43].

(ii) The judge’s email to the Registrar could be taken into account as a report under s 11 of the Criminal Appeal Act as it was relevant to the purpose of confirming the sentencing judge’s consideration of the motivation for the offences: [44], [76].

R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; R v Ahmet (1996) 86 A Crim R 316, considered.

per Wilson J:

(iii) The error raised by Ground 1 could be established without referring to the sentencing judge’s email and it should not be treated as a report under s 11 of the Criminal Appeal Act: [70].

Cummins v R [2019] NSWCCA 163; Zhang v R [2018] NSWCCA 82, considered.

In relation to Ground 2:

per Simpson AJA, Wilson and Ierace JJ agreeing:

(iv) While the sentence was longer than some comparable cases, it was not unreasonable or plainly unjust such that the Court’s intervention was warranted. Accordingly, the ground of manifest excess was dismissed: [53]-[57], [67], [72].

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hughes v R [2018] NSWCCA 2, applied.

Vaughan v R [2011] NSWCCA 4; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, considered.

On resentencing:

(v) Due to the error in relation to Ground 1, the Court must exercise an independent sentencing discretion: [45], [67], [72].

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

(vi) In light of the sustained and deliberate misconduct over a lengthy period, and the applicant’s lack of contrition or insight, an aggregate sentence of 10 years was imposed. Adopting the sentencing judge’s finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) a non-parole period of 6 years and 6 months was imposed: [62], [67], [72].

Judgment

1. SIMPSON AJA: On 11 April 2017 the applicant was arraigned in the District Court in Sydney on an indictment that charged her with 27 counts of offences committed between 21 June 2007 and 30 June 2014. The counts were as follows:

• Counts 1-8: dishonestly obtain a financial advantage for herself by deception, contrary to s 178BA(1) of the Crimes Act 1900 (NSW); and

• Counts 9-27: dishonestly obtain a financial advantage for herself by deception, contrary to s 192E(1)(b) of the Crimes Act.

Each offence against s 178BA of the Crimes Act carried a maximum penalty of imprisonment for 5 years. Section 178BA was repealed on 22 February 2010, and replaced by s 192E which carries an increased maximum penalty of 10 years imprisonment.

2. The applicant entered a plea of not guilty to each count, and a jury trial proceeded. On 28 April 2017, the jury returned verdicts of guilty on all counts. On 16 August 2017 the trial judge sentenced the applicant to an aggregate term of imprisonment of 11 years commencing on 28 April 2017 and expiring on 27 April 2028, with a non-parole period of 6 years and 6 months, which will expire on 27 October 2023. In compliance with s 53A(2)(b) of the Crimes (Sentencing Procedure Act) 1999 (NSW) (“the Sentencing Procedure Act”), the trial judge specified the indicative sentence for each count. The table below shows the dates on which the offences were committed, the amount of defalcation, and the indicative sentence.

Count	Dates	Amount	Indicative sentence
Count 1	21 June 2007 to 31 December 2007	19,778.077	6 months
Count 2	27 June 2007 to 3 February 2010	98,422.35	2 years
Count 3	6 July 2007 to 19 February 2010	117,418.15	2 years and 3 months
Count 4	2 August 2007 to 22 November 2007	42,535.55	1 year
Count 5	31 March 2008 to 18 February 2010	286,696.92	3 years
Count 6	14 April 2008 to 4 December 2009	4,282.39	1 year
Count 7	5 June 2008	443.85	6 months
Count 8	20 May 2008	2,858.77	9 months
Count 9	24 February 2010 to 24 October 2013	930,627.00	5 years and 6 months
Count 10	12 March 2010 to 23 November 2010	14,213.43	1 year and 3 months
Count 11	17 March 2010 to 16 February 2011	96,679.66	2 years and 6 months
Count 12	23 June 2011 to 11 August 2011	89,019.48	2 years and 3 months
Count 13	21 July 2011 to 10 July 2014	44,743.25	2 years
Count 14	21 May 2012 to 2 December 2013	283,831.58	3 years and 9 months
Count 15	8 June 2012 to 21 June 2012	13,168.00	1 year and 6 months
Count 16	7 December 2012	50,853.00	1 year and 6 months
Count 17	30 January 2013 to 9 August 2013	101,248.85	2 years and 6 months
Count 18	19 February 2013 to 1 May 2013	45,536.86	2 years
Count 19	11 April 2013 to 7 November 2013	6,803.61	1 year and 6 months
Count 20	8 August 2013 to 30 August 2013	40,472.61	2 years
Count 21	22 August 2013 to 25 November 2013	33,909.54	2 years
Count 22	30 August 2013	6,534.99	9 months
Count 23	30 August 2013	5,440.00	9 months
Count 24	29 October 2013 to 30 April 2014	41,731.80	2 years
Count 25	4 November 2013 to 3 June 2014	228,823.94	3 years and 6 months
Count 26	5 December 2013 to 30 June 2014	27,654.00	1 year and 6 months
Count 27	16 December 2013 to 30 June 2014	272,502.72	4 years

The offences were committed over a seven year period commencing in June 2007, and ending in June 2014. The amounts involved in the offences varied from $443.85 (Count 7, committed on 5 June 2008) and $930,627 (Count 9, committed between February 2010 and October 2013).

3. The applicant now seeks leave to appeal against the sentence. She does not challenge the conviction. She proposes two grounds of appeal. They were formulated as follows:

“1.   His Honour erred in finding that the Applicant’s offending was aggravated by being committed for financial gain.

2.   The aggregate sentence is manifestly excessive.”

The offences

4. Since the applicant was convicted after trial, it was necessary, for sentencing purposes, that the judge determine the relevant facts, consistent with the jury verdicts. This he did as follows.

5. The applicant began employment as an office administrator in 2000 with a company associated with Centurne Pty Ltd (“Centurne”). Centurne is a family business, controlled jointly by Mr Graham Jenkins as its general manager and his wife Ms Susan Jenkins as its sole shareholder and director. It is in the business of providing crane hire services, transport, access equipment, concrete pumps and labour to large companies in the building and mining industries.

6. The applicant performed all office tasks required for the daily operations of Centurne, including booking jobs, bookkeeping, paying accounts, answering client inquiries and invoicing customers. As the business of Centurne grew over the years, the applicant became a trusted employee and was responsible for carrying out important and financially sensitive functions. The applicant and her family also formed a close relationship with Mr and Mrs Jenkins and other members of their family.

7. Centurne’s customers received invoices or end of month statements, which included instructions as to making payments to an account that Centurne held with Westpac Bank. The applicant, however, provided verbal and written instructions to some customers to make their payments into an account she held with the Commonwealth Bank. The applicant also changed some invoices by replacing Centurne’s bank account details with her own. To avoid detection, the applicant occasionally directed certain larger account holders with Centurne to make payments to the account Centurne held with Westpac Bank instead of her own.

8. Using that methodology, the applicant used her position of employment to defraud her employer of approximately $2.906 million. This money was used by the applicant for a variety of purposes, including the purchase of property, luxury goods, motor vehicles, a boat, holidays and personal items for herself and her family. In particular, the applicant used some of the funds to support an interest that she and her then husband had in drag racing. To conceal the truth as to the discrepancy between her lifestyle and earnings, the applicant represented to several people that she was receiving financial support from a wealthy relative.

9. In May 2014, Mr Jenkins became aware of financial irregularities in Centurne’s finances and an audit was undertaken. The applicant was asked to assist by preparing reports. The applicant resigned the following month and gave limited notice. On her last day of employment at Centurne, the applicant deleted 6,600 emails from her work computer. Some of these emails were able to be recovered, and showed correspondence between the applicant and Centurne customers nominating the applicant’s bank details for payment of accounts.

10. During the trial and afterwards, the applicant alleged that the payments were made to her with the acquiescence of Mr Jenkins and without the knowledge of Mrs Jenkins on the basis of some affection or illicit relationship between them. This, she stated, extended to Centurne sponsoring her and her then husband’s drag racing interests. Mr and Mrs Jenkins denied these claims and, consistent with their verdicts of guilty, the jury clearly rejected them.

The proceedings on sentence

11. Sentencing proceedings took place on 14 August 2017. Before the court for sentencing purposes was a short report from a psychologist (Ms Anita Duffy), Supreme Court consent orders that dealt with civil litigation between Centurne and the applicant and her husband, and a letter from the applicant addressed to the sentencing judge. The applicant did not give oral evidence. Both the Crown and the applicant submitted draft statements of facts on sentence, which were substantially agreed except for a few relatively minor aspects. From that, the following emerges.

12. The applicant was born in April 1974. She was aged between 33 and 40 years at the time of the offences. She had no criminal history, nor had she had any disciplinary incidents while in custody.

13. According to the history given to Ms Duffy by the applicant, the applicant was a victim of domestic violence and intimidation by her estranged husband that culminated in her leaving the matrimonial home in December 2016. Ms Duffy considered the applicant to be “an individual who lacks the confidence, assertiveness and initiative to extricate herself from situations of abuse, dominance and control over her”. Ms Duffy administered personality tests that suggested that the applicant was suffering from anxiety, major depression and post-traumatic stress disorder. Ms Duffy stated that the applicant was feeling considerable concern about the wellbeing of her youngest daughter, who is living with her estranged husband while she is in custody.

14. In her letter directed to the sentencing judge, the applicant stated that she is a private person and is primarily focussed on her commitment to raise and provide for her two children.

The Remarks on Sentence

15. The sentencing judge began his Remarks on Sentence by recording the offences for which the applicant was to be sentenced. He noted that the applicant was without prior convictions and had not committed offences whilst on remand, and proceeded to make specific findings of fact concerning the offences. These are as set out above and are not the subject of criticism on this application. He noted that no reparations had yet been made, but that it was expected that about $790,000 from the sale of the applicant’s property and assets would eventually be made available for reparation.

16. The sentencing judge noted that the offending involved a total of 323 invoices or transactions subsumed in the 27 separate counts with 24 different debtors or creditors of Centurne. He said that:

“The offences were not impulsive. There was a significant degree of planning and on occasions action taken by the offender to disguise and/or conceal her dishonesty. Each offence involved separate and ongoing acts of criminality … The moneys received were apparently disposed of by what appears to be a wanton and lavish lifestyle … The offences involved a multiplicity of invoices and illicit payments into account …

The methodology at least at the outset reflects as I say a significant degree of sophistication and planning. Simply exercised, primarily because of the position of trust … The offender, I perceive, was in a position of significant trust. A friend of Mr and Mrs Jenkins, to them a valued employee. She returned this trust by ongoing dishonesty.

…

It seems to me that there are a number of features in this case that demonstrate a high level of criminality. Lengthy period of time, 7 years. Sophistication, planning and pre-meditation, ongoing. Considerable and ongoing dishonesty and a gross abuse of trust. The financial advantage obtained over the years was substantial. I am of the overall view that the objective seriousness of all these matters falls at about the mid-range.

As I say, remorse and contrition is absent. The offender maintains her denial of guilt. She therefore receives no benefit of remorse or contrition.”

17. With respect to aggravating circumstances, he said:

“… I confirm that no factor that is an element of any of the offences or otherwise considered an inherent characteristic of any of the offences is to be taken into account. That is to avoid any possibility of double counting.”

Accepting a submission made by the Crown prosecutor and supported by defence counsel, he found beyond reasonable doubt that there were two aggravating factors, being that the applicant was in a position of trust and that the offences were committed for financial gain (Sentencing Procedure Act, s 21A(2)(k) and (o)). Although he was not prepared to find to the requisite standard the aggravating factors of substantial damage caused by the offences or that the offences were part of a planned or organised criminal activity, he had regard to them generally as part of the sentencing exercise.

18. The sentencing judge found that mitigating factors, that the applicant had no prior convictions and was of previous good character, were made out on the balance of probabilities. Although defence counsel urged that other mitigating factors such as an unlikelihood of reoffending and good prospects of rehabilitation were present, the sentencing judge declined to uphold those claims in light of the applicant’s continued maintenance of her innocence.

19. With respect to totality and accumulation, he said:

“… As I say, the offences are serious. They occurred over an extended period of time, during which the offender has committed multiple offences. It is submitted and I accept there should be a significant degree of accumulation on sentences. This ought, of course, be tempered by some concurrence.”

20. Pursuant to s 22A of the Sentencing Procedure Act, the sentencing judge took into account, in the applicant’s favour, that she had facilitated the administration of justice by the manner in which the trial had been conducted. Specifically, he accepted that the trial had been shorter and less complex than it otherwise would have been by the admission of agreed facts. He did not quantify the “adjustment” he made in that respect.

20. The sentencing judge made a finding of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act on the basis of the accumulation of sentences, it being the applicant’s first time in custody, her mental health conditions, her relatively young age and the necessity for an extended period of rehabilitation to assist in her assimilation back into society. He accordingly varied the statutory ratio between the head sentence and the non-parole period. Section 44(2) provides for a statutory ratio of 75 per cent unless special circumstances are found justifying variation. 75 per cent of 11 years is 8 years and 3 months. The variation was therefore significant – a reduction of 1 year and 9 months of the non-parole period. The non-parole period is 59 per cent of the head sentence.

21. Finally, the sentencing judge stated:

“It seems to me the offender has deliberately and surreptitiously deceived her employer, all the while justifying any questioning as to excessive funds and lifestyle by reference to ‘Uncle Shorty’ and also making adjustments to the invoices and/or contact with the various debtor companies so as to disguise her involvement. Essentially rewarding the trust that was bestowed upon her within the confines of a small but ever growing family business by implementing and maintaining a systemic process of deceptive dishonesty over a period of nearly 7 years, reaping what appears to be considerable financial rewards for apparently selfish purposes of greed and enhanced lifestyle.

I remain concerned as to the absence of any material that might explain or at least articulate the offender’s motivation for this ongoing criminal conduct. The psychological report provides very little insight, other [than] providing or identifying relevant background and some psychological factors that have affected her in the past and as of today and of course require ongoing treatment and counselling. I am thus left with the unavoidable conclusion that she committed these offences in a deceitful and calculating way for her own selfish purposes of financial gain.”

23. The sentencing judge proceeded to impose on the applicant the sentence mentioned above.

24. Having imposed sentence, the judge purported to give directions to the “Corrective Services Commission” to assist the applicant by providing specified forms of treatment, counselling and assessment, to provide her with access to “educational, training, work related skills and vocational programs”, and, as the applicant’s parole date approaches, to obtain an assessment as to the suitability of placement in appropriate residential accommodation and subsequent placement in appropriate work and/or training courses.

25. He then made a request of the Corrective Services Commission with respect to accelerated classification. Noting that the applicant is eligible for parole at the expiration of the non-parole period, he directed that parole be subject to the supervision and guidance of the Parole Authority and subject to the standard conditions as provided. He recommended that the Parole Authority impose specific conditions.

26. To the extent that the judge purported to give directions to those administering the sentences, he acted without power. Administration of prisons and the facilities and services available to prisoners is governed by the Crimes (Administration of Sentences) Act 1999 (NSW) and regulations made thereunder. Discretionary decisions, taking account of competition for resources and the claims of other prisoners need to be made by authorities in possession of relevant information. It is inappropriate for a judge to purport to intervene in administrative decisions. “Directions” such as those purportedly made should not be made; they are beyond power. To purport to give such directions in the absence of power is apt to cause confusion to the prison administration, and to engender disrespect when it is known that the “directions” are of no force and effect and can safely be ignored.

27. It is open to a sentencing judge to make recommendations to authorities administering prisons, but, in my opinion, even these should be made with caution and circumspection. They are not binding, while they may be made in the interests of the particular prisoner concerned, they cannot be made in full knowledge of the resources available or the competing claims for the resources. Such recommendations also can safely be ignored by their recipients.

28. It was also, in my opinion, inappropriate to make recommendations to the Parole Authority. As the sentence imposed exceeded 3 years (see Sentencing Procedure Act, s 50, now repealed), the judge had no power to order the applicant’s release on parole, and no power to impose conditions (he did not purport to do so, but he did make recommendations). The applicant will not be eligible for release on parole until October 2023. There exists in this State an elaborate structure by which parole is considered and granted and by which appropriate conditions – at the time parole is granted – are imposed. The Parole Authority is well qualified, at the time of granting parole, to determine the conditions to be imposed.

Grounds of appeal

29. As indicated above, two grounds of appeal are proposed. The first asserts specific error in the finding that the offences were aggravated by being committed for financial gain. The second asserts that the sentence is manifestly excessive.

Ground 1: financial gain as an aggravating factor

30. Section 21A(2) of the Sentencing Procedure Act spells out aggravating factors “to be taken into account in determining the appropriate sentence” to be imposed. One, identified in par (o), is that the offence was committed for financial gain. A suffix to the sub-section provides that the court is not to have regard to any specified aggravating factor that is an element of the offence. That has also been held to apply to any circumstance that is inherent in the offence and therefore to be taken into account on ordinary sentencing principles.

31. The simple point made on behalf of the applicant is that, self-evidently, financial gain is an element of each of the 27 offences of which she was convicted and it was therefore an error to treat it as an aggravating factor: Clinton v R [2018] NSWCCA 66; Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402.

32. The Crown accepted that the offences were indeed committed for financial gain, but referred to decisions of this Court that contemplate that a circumstance that is an element of the offence for which an offender is to be sentenced may nevertheless be taken into account if it is present to an unusual degree. Reference was made to my judgment in R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 at [37]. There I said:

“37   … By s 21A(2), the fact that an offence is part of a planned or organised criminal activity is a matter that a sentencing court is obliged to take into account as an aggravating feature. But, by the suffix to that subsection, the court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are ‘an inherent characteristic’ of the offence charged [I cited Elyard]. An example is the disregard for public safety implicit in dangerous driving offences. But this principle does not mean that the degree to which the ‘inherent characteristic’ exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor. The problems that are created by s 21A were spelled out by Howie J in Elyard.”

That proposition has been adopted and repeated on a number of occasions: see Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275 at [46]; Lee v R [2019] NSWCCA 15 at [49]; King v R [2010] NSWCCA 33 at [35]; Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151 at [10].

33. The Crown therefore argued that, having regard to the extent of the applicant’s offending, the element of financial gain was present to a greater degree than was necessary to establish the element of obtaining a financial advantage.

34. For three reasons this submission cannot be accepted. First, it goes, not to the assessment of the gravity of the individual offences, each of which was committed for financial gain, some of which were within “normal” limits, but rather to the extent of the offending over a period of seven years, the repetitive course of conduct in which the applicant engaged. The magnitude of the defalcations is a consideration in the evaluation of the totality of the offending. Totality is a salient consideration, when sentencing under s 53A of the Sentencing Procedure Act, in the selection of the aggregate sentence. To add to the evaluation of totality the further consideration of financial gain beyond what would normally be expected of offences of the kind for which sentence is to be imposed would be to double count.

35. The second reason for rejecting the submission is that there is nothing in the Remarks on Sentence to indicate that the sentencing judge considered that the extent of financial gain was outside the “norm” and that that was the reason for taking that consideration into account. As mentioned above, some of the offences involved relatively small amounts. If “excessive” financial gain were to be taken into account, it would have to be in the determination of the indicative sentences for the individual offences.

36. The third reason for rejecting the submission is more complex. On 4 December 2018 the sentencing judge communicated by email with the Registrar of this Court. He said that he agreed that he ought not to have taken into account, as an aggravating factor, that the offence was committed for financial gain, as it is “a constituent of each offence”.

37. Section 11 of the Criminal Appeal Act 1912 (NSW) provides:

“11 Judge’s notes and report to be furnished on appeal

The judge of the court of trial may, and, if requested to do so by the Chief Justice, shall, in case of any appeal or application for leave to appeal, furnish to the registrar the judge’s notes of the trial, and also a report, giving the judge’s opinion upon the case, or upon any point arising in the case:

Provided that where shorthand notes have been taken in accordance with this Act, a transcript of such notes may be furnished in lieu of such judge’s notes.”

38. Although the judge’s communication was not expressed to be a report under s 11, that is the most obvious construction to place upon it. Section 11 has been in the Criminal Appeal Act since it was passed in 1912. Reports of trial judges were, no doubt, of significant benefit to this Court in a less technological era, when transcripts were not so readily available. Reports under s 11, however, continue to have some use in the modern era, but that use is somewhat circumscribed.

39. In R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188, this Court considered the function of reports under s 11. Wood CJ at CL, with whom Studdert and Bell JJ agreed, said:

“10 An important function of a Report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.

11   Another permissible and relevant function of such a Report is its use, by a trial Judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.

12   A third permissible reason for such a Report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.

13 Otherwise, in times where there is in existence an adequate system for Court reporting, occasion for the provision of a s 11 Report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance.

14   In the present case his Honour offered, as a reason for not having expressed the reasons for sentence more fully, his concern that to do so might inflame what appeared to be a situation of serious racial tension in Condobolin. That did not, in my view, constitute a sufficient reason for the course taken, particularly in circumstances where the trial had been heard in Parkes, more than five years after the date of the offence, where the victim had not returned to work as a police officer, and where only one of the four other police witnesses was still stationed at Condobolin.

15   Notwithstanding those considerations, and notwithstanding the difficult position in which the Crown and this Court are left, (the former because of the absence of any specific or timely indication of the full nature and extent of his Honour's concerns, to which the Crown Prosecutor might have responded) I consider it proper for this Report, now that it has been provided, to be taken into account.”

40. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, Crennan J gave similar consideration to a report made under s 11. Her Honour said:

“110   Submissions on the alleged failure to take into account the trial judge’s opinion were framed by reference to the value of a trial judge’s report which must undoubtedly have been of ‘great use’ before the routine provision of transcripts as part of a written record of a trial. In this case, the trial judge was not asked to provide a report and he declined to provide a certificate that the case was fit to appeal.

111   Relevant authorities establish a number of propositions about trial judges’ reports which are applicable to the present circumstances where the transcribed evidence is part of the written record.

112   First, whilst a trial judge’s report may be a factor to be taken into account it would be wrong to substitute the opinion of the judge for that of the jury. Secondly, the weight to be given by an appellate court to a trial judge’s report will vary with the circumstances. Such a report will be of greatest assistance when expressing views about matters not readily apparent from the written record of a trial. Less weight will be given to a trial judge’s report in circumstances where the judge’s opinion appears to be based almost wholly upon the assessment of the evidence which an appellate court is obliged to undertake for itself, or is an opinion which is not fully reasoned. The functions of such a report, when there is in existence an adequate system for reporting of court proceedings, have been summarised helpfully in R v Sloane …” (internal citations omitted)

Her Honour then quoted [10]-[13], extracted above, of the decision in Sloane.

41. Crennan J was in dissent as to the outcome in SKA, but there is no reason to doubt the accuracy of her observations.

42. In R v Ahmet (1996) 86 A Crim R 316, the Court of Appeal of Victoria also was faced with a report, under different legislation, and which had twice been solicited by the court. Winneke P (with whom Hayne JA and Smith AJA agreed) said, of the purpose of such reports:

“The report of the primary judge which is contemplated by the rules and s 573 of the Crimes Act is intended to assist the Court of Appeal by giving to it the judge’s ‘opinion upon the case or upon any point arising in the case’. If the judge does not provide such a report then the court proceeds without any assistance. On some occasions the reports are of value in the disposition of appeals, if only because they provide the opportunity (to which I have referred) to express views upon matters that may not be readily apparent from a perusal of the written record … However such reports are not, are not intended to be, and should not be treated as documents in and through which the trial judge is being called upon to defend the course which he or she may have taken …” (at 323)

43. In this case, the Crown submitted that, even if the communication is to be treated as a report authorised under s 11, it adds nothing to what can be derived from the transcript of the Remarks on Sentence. That is generally correct, in that it can readily be seen on the transcript that the s 21A(2)(o) factor was taken into account in the determination of the sentence. That raises a question of what use this Court ought to make of the communication. In Sloane, despite misgivings about the nature of the report, the Court did take its contents into account. So also did the Victorian Court of Appeal in Ahmet.

44. As stated above, there is nothing in the Remarks on Sentence to indicate that the sentencing judge considered that the motivation for the offences, being for financial gain, qualified as an “additional” aggravating factor by reason of the magnitude of the financial gain – that is, to take it beyond the norm. That that was not the reason is confirmed by the email communication, which I am prepared to treat as a s 11 report. In my opinion, the report can be used to that extent and for that purpose.

45. It follows that the sentencing judge erroneously took into account that the offences were committed for financial gain. It also follows that the exercise of the sentencing discretion has miscarried and Ground 1 must be upheld. This Court must proceed to exercise an independent sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Ground 2: manifest excess

46. Notwithstanding that it is necessary that the Court proceed to resentence, in this case it is appropriate to consider, although briefly, the second ground.

47. It was accepted on behalf of the applicant that the offending was “systematic, repetitive and persisted over seven years”, involved $2.9 million, and that the applicant showed no remorse for her conduct. As against that, it was pointed out, the applicant had no prior criminal history, was aged 43 at sentence, and was the mother of two daughters. She was described by the psychologist as:

“… insecure, with low self-esteem, and tends to identify with stronger people in her life to gain their support and affection.”

48. The principal argument advanced on behalf of the applicant lay in a close examination of a number of what were said to be comparable cases, to several of which the sentencing judge was also referred.

49. I found the summaries of the cases provided informative and helpful. I do not propose to perform an examination of all of them. One, in particular, was presented to the sentencing judge as bearing significant parallels to the present case: Vaughan v R [2011] NSWCCA 4. Ms Vaughan pleaded guilty to five counts of offences against s 178BA; another five offences were taken into account pursuant to Pt 3 Div 3 of the Sentencing Procedure Act. The offences were of a similar nature to those under present consideration: Ms Vaughan was a trusted employee, who, over a seven year period, defrauded her employer of almost $2.8 million. She was sentenced to imprisonment for 5 years with a non-parole period of 3 years. An appeal against sentence was dismissed.

50. The parallels to the present case lie in the position of trust from which the offences were committed and the period over which they were committed. No motive other than the desire to support “a lavish lifestyle” was disclosed.

51. As against that, there are significant dissimilarities. Ms Vaughan pleaded guilty at the earliest opportunity and was awarded a reduction of 25 per cent in the sentence that otherwise would have been imposed. That means the starting point was 6 years and 6 months, with a non-parole period of 4 years. Ms Vaughan had voluntarily made significant reparations. She suffered mental health issues that were causally connected to the offending. Most significantly, all offences were committed at a time when the maximum applicable penalty was 5 years.

52. The decision in Vaughan does not establish a benchmark for the sentencing of the applicant. Nor does a survey of the other cases to which counsel referred. They are informative, and provide a useful check against which to compare the sentence imposed. Historical sentencing information is valuable as a yardstick against which to measure a proposed sentence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.

48. Far from persuading me that the sentence in this case was manifestly excessive, the sentencing in Vaughan indicates that, although severe, the sentence in this case was within the available range.

49. It is well recognised that consistency in sentencing is a desirable goal. The consistency that is sought is consistency in the application of the relevant legal principles. That does not mean that a sentencing judge is bound to select a sentence that mirrors sentences imposed in comparable cases.

50. The ultimate question where a complaint of manifest excess is made is that stated in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. It is:

“… is the result embodied in the order unreasonable or plainly unjust?”

56. The principles, drawn from Markarian and other decisions were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]:

“(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

57. I am not able to find, in the circumstances, that the sentence imposed on the applicant was unreasonable or plainly unjust. In particular, the applicant was given a very significant reduction on the statutory proportions of the non-parole period relative to the head sentence.

58. I would reject this ground of appeal.

Resentence

59. Nevertheless, by reason of the error exposed by Ground 1, and the decision in Kentwell, it is necessary that this Court proceed to resentence. For that purpose, the applicant provided two affidavits, one sworn by herself on 21 March 2019, and the second by Karim Rizkalla sworn on 19 March 2019.

60. The applicant provided evidence of her conduct while in custody. I am prepared to accept that the evidence attests to some efforts at rehabilitation, and that these efforts appear to have borne fruit. The Crown objected to the evidence of Mr Rizkalla, on the basis that it referred to circumstances that pre-dated sentencing. That, however, disappears when this Court sentences afresh.

61. The fact remains that the applicant engaged, over a sustained period of time, in a deliberate course of conduct which resulted in her employer being deprived of almost $3 million. Even when interviewed by the psychologist, after conviction, she continued to assert her innocence, and attributed the defalcations to:

“… the machinations of her employer who wanted to use her bank account to siphon money from the business.”

She has demonstrated no contrition, and no insight into her offending.

62. In my opinion, the aggregate sentence that should be imposed is one of imprisonment for 10 years. While I would adopt the sentencing judge’s finding of special circumstances, I would not vary the statutory proportion to the extent that he did. The sentence that I propose is a term of imprisonment for 10 years with a non-parole period of 6 years and 6 months. That is a reduction of 1 year on the statutory ratio, and results in a non-parole period that is 65 per cent of the head sentence.

63. It is necessary, by s 53A(2)(b) of the Sentencing Procedure Act, to specify the separate sentences that would have been imposed in respect of the individual offences. In arriving at those sentences, I have borne in mind that the maximum penalty applicable to Counts 1-8 was imprisonment for 5 years; the maximum sentence applicable to the remainder is imprisonment for 10 years. Recognition must be given to the clear intention of the legislature that offences of this kind are to be treated as serious crimes.

64. I have also borne in mind the progressive criminality evident in the applicant’s conduct. Although she has no prior convictions, she can hardly be said to have been a person of good character throughout the 7 year period.

65. The custodial sentences I would, if sentencing separately, impose are:

Count 1	6 months
Count 2	1 year and 6 months
Count 3	2 years
Count 4	1 year
Count 5	2 years and 6 months
Count 6	6 months
Count 7	3 months
Count 8	6 months
Count 9	5 years
Count 10	9 months
Count 11	2 years and 6 months
Count 12	2 years and 3 months
Count 13	2 years
Count 14	3 years and 6 months
Count 15	1 year
Count 16	2 years
Count 17	2 years and 6 months
Count 18	2 years
Count 19	1 year
Count 20	1 year and 6 months
Count 21	1 year and 6 months
Count 22	9 months
Count 23	9 months
Count 24	2 years
Count 25	3 years and 6 months
Count 26	1 year and 3 months
Count 27	3 years

66. The orders I propose are:

1. Leave to appeal against sentence granted;

2. Appeal allowed;

3. Sentence imposed by the District Court on 16 August 2017 set aside;

4. In lieu thereof, the applicant is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 6 months commencing on 28 April 2017 which will expire on 27 October 2023, with a balance of term of 3 years and 6 months which will expire on 27 April 2027.

67. WILSON J: I have had the benefit of reading in draft the judgment of Simpson AJA. I agree with her Honour’s conclusions with respect to each of the proposed grounds of appeal, and with the sentence her Honour would impose on exercising the sentencing discretion afresh.

68. There is one discrete issue with respect to which I am unable to agree with Simpson AJA, that being the treatment of the email received from the sentencing judge by the Registrar of this Court.

69. Her Honour has set out the terms of s 11 of the Criminal Appeal Act, and referred to the decisions of R v Sloane, SKA v The Queen, and Ahmet v R, in which the operation of s 11 or a comparable Victorian provision is discussed. A report pursuant to s 11 and the uses to be made of it has also been considered recently in Zhang v R [2018] NSWCCA 82 and Cummins v R [2019] NSWCCA 163.

70. In the present case the email from the sentencing judge served to concede the error raised by ground 1, in circumstances where the error could be readily discerned from his Honour’s remarks on sentence, without the need for any privately conveyed information from him. I do not agree that his Honour’s email is a s 11 report, and have disregarded it in my consideration of ground 1.

71. I otherwise agree with Simpson AJA.

72. IERACE J: I have had the benefit of reading the draft judgments of Simpson AJA and Wilson J and agree with Simpson AJA.

73. As Simpson AJA noted, the communication from the sentencing judge purports to be an acceptance that, in the circumstances, his Honour ought not to have taken the motive of financial gain into account as an aggravating factor. Simpson AJA treated the communication as a report under s 11 of the Criminal Appeal Act 1912 (NSW) and took it into account as confirming her Honour’s independent analysis of the facts and Remarks on Sentence, to the same effect. The marginal value of the communication is that it removed any doubt that the sentencing judge had treated financial gain as outside the “norm” for such an offence, so that it was legitimately an aggravating factor.

74. Wilson J has concluded that the communication does not qualify as a s 11 report and disregarded it on that basis. In both Zhang v R [2018] NSWCCA 82 and Cummins v R [2019] NSWCCA 163, this Court disregarded a note from the sentencing judge expressing views on grounds of appeal, because in each case it did not meet any of the purposes for which s 11 was enacted, as those purposes are explained in R v Sloane (2001) 126 A Crim R 188; [2001] NSWCCA 421.

75. In Sloane, the Court (Wood CJ at CL, Studdert and Bell JJ) similarly concluded that the report in that case did not come within the purposes for which s 11 was enacted. The sentencing judge sought to explain why he had not given reasons for the sentence imposed more fully, which the Court held was not a proper use of a s 11 report. Nevertheless the Court considered it appropriate, in the circumstances of that case, for the report to be taken into account, because it provided some assistance in understanding an aspect of the circumstances in which the offence occurred. The decision in Sloane to admit the report is not inconsistent with the Court in Zhang and Cummins, which disregarded the report as having no redeeming value in the circumstances of those cases.

76. Accordingly, although the communication from the sentencing judge in this case does not come within the purposes set out in Sloane, its marginal value in confirming that his Honour inappropriately regarded financial gain as an aggravating factor warrants it being taken into account.

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Decision last updated: 13 September 2019