Adams v R

Court of Criminal Appeal (NSW)|2019-09-09|Before: Bathurst CJ, Fullerton J, Bellew J

Solicitors: Michael Bowe (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/61513 Decision under appeal Court or tribunal: District Court Date of Decision: 22 June 2017 Before: Sutherland DCJ File Number(s): 2015/61513

Judgment

BATHURST CJ: I agree with the orders proposed by Fullerton J and with her Honour's reasons.
FULLERTON J: The applicant, Victoria Anne Adams, seeks leave to appeal a sentence of 7 years with a non-parole period of 5 years imposed by Sutherland DCJ on 22 June 2017 after she was convicted by a jury of a common law conspiracy to cheat and defraud the beneficiaries of the Estate of the late Edna Pearson between 19 October 2005 and 24 February 2011.
There is no appeal against conviction.
The maximum sentence for a conspiracy at common law is at large. The substantive offence comprehended by the conspiracy, namely dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), carries a maximum penalty of 10 years' imprisonment.
Although the applicant was charged with conspiring with three people (being Louise Johan, her aunt, Anthony D'Souza and her father, Alex Johan) she was not tried jointly with them. Mr D'Souza entered a plea of guilty to the conspiracy. After taking into account unrelated offences, and after applying a discount of 10 per cent for the plea of guilty, he was sentenced by Sutherland DCJ to an aggregate sentence of 4 years' imprisonment with a non-parole period of 2 years and 6 months. Louise Johan pleaded guilty to an offence of receiving stolen property contrary to s 188(1) of the Crimes Act. She was sentenced to an 18 month intensive corrections order. The applicant's father died in 2015. He was not charged with the conspiracy.

The sentence proceedings

The Crown referred the sentencing judge to the evidence at trial, an overview of which was annexed to the Crown's submissions, together with what was described as "a list of circumstances" the Crown submitted the jury must have found established in order to return a verdict of guilty.
His Honour's sentencing remarks include a rendering of that material into a lengthy narrative. The salient features of his Honour's findings of fact follow. Subject to what were said to be errors of fact in the assessment of objective seriousness (a submission developed in support of the first ground of appeal), there was no challenge to the sentencing judge's findings of fact.
Edna Pearson was born in 1926. She lived alone in a house at Canterbury. She never married. She worked as a bookkeeper during her adult life. In addition to her home, Ms Pearson owned a number of properties, including a holiday house at Terrigal which she regularly visited.
In October 1978, Ms Pearson executed a Will leaving her entire estate to her niece, Suzanne Corney (nee Pearson), and nephew, Thomas Pearson, who were the children of her brother, Raymond Pearson. Ms Pearson was very fond of her niece and nephew.
In March 2003, when Ms Pearson was 77 years old, the management of her finances was assigned to the Protective Commissioner by the Guardianship Tribunal. Although she continued to live in her own home and manage her own finances in a limited way, she was not permitted to deal unilaterally with her financial affairs.
In August 2003, Ms Pearson was diagnosed with symptoms of vascular dementia.
At about this time, the applicant became involved with Ms Pearson. She was understood by other members of Ms Pearson's family initially to have been retained as a cleaner. Although there was no evidence as to how Ms Pearson was identified as a "target", the sentencing judge found that the applicant's likely volunteering to help her at home was part of the conspiracy to cheat and defraud Ms Pearson's beneficiaries.
The sentencing judge found that the applicant's increased involvement in Ms Pearson's life from 2003, including daily travel between her home near Campbelltown and Ms Pearson's home in Canterbury was undertaken "with no altruistic purpose in mind and with no honourable intentions".
Over time, by the applicant insinuating herself into Ms Pearson's life, Ms Pearson came to treat the applicant as indispensable. By August 2005, the applicant's father, Alex Johan, was recorded as a contact point for various community service providers. Mr Johan was also seen at Ms Pearson's home and was presumed to be a gardener. In 2005, Louise Johan (the applicant's aunt), the applicant and Ms Pearson attended Canterbury Hospital. On this occasion, Louise Johan falsely pretended to hospital staff that she had known Ms Pearson for many years.
By 2007, community service providers observed that the applicant was at Ms Pearson's home at least three days a week. One note recorded that Ms Pearson was in a state of panic when she was unable to make contact with the applicant. At this time, Ms Pearson began to exhibit behaviour consistent with her deteriorating mental health and increasing symptoms of paranoia. Notes made in Ms Pearson's handwriting indicated that she distrusted people who had otherwise been her close personal friends, and that she believed that her own family wanted nothing to do with her.
The applicant's increasing influence over Ms Pearson was reflected in a number of notes and diary entries written over the period from 2005 to 2007. Some of these notes expressed an intention by Ms Pearson to leave money to the applicant and the applicant's family in her Will.
Other notes were found in a diary which had been printed for 1935. The sentencing judge concluded that the diary had remained blank until Ms Pearson began writing in it around 2005 or 2006.
In one note, Ms Pearson appeared to have written: Dearest Victoria, Hello my dear, how have you been? How are my boys? I have been thinking about you a lot this week. I am excited about having a family lunch with you this weekend. I have been thinking of you and all that you have done for me since you have come into my life. I want you to be looked after when I pass away, so it is my wish for you to have everything I own. My property, money and photos are important to me and I know you will treasure them. I want you not to have to worry about rent and bills again and because you are so special to me and I love you like you are my own daughter, I wish for everything I own to be left to you, including my diary. These are my last wishes and my Last Will and Testament. I am revoking all other Wills that I have made in the past. Your friend, Edna Marie Pearson.
His Honour found this entry, amongst others, was fraudulently dated prior to the onset of Ms Pearson's dementia.
In late 2007, Ms Pearson's health had deteriorated to the extent that the Guardianship Tribunal directed that she be moved to a nursing home.
Ms Pearson died on 5 September 2008.
Six months prior to Ms Pearson's death, the applicant provided the Public Trustee with a Will dated 7 January 1999, which appeared to have been executed by Ms Pearson. The Will appointed the applicant as the sole executrix and trustee. A small bequest of $10,000 was made in favour of each of Ms Pearson's niece and nephew, with the residue of the Estate, valued at approximately $1.7 million, to the applicant. The Will was witnessed by Lorna Elliott and Anthony D'Souza.
Following Ms Pearson's death, her brother, Raymond Pearson, commenced proceedings seeking revocation of the grant of probate of the Will of 7 January 1999. In those proceedings, Ms Elliott and Mr D'Souza each falsely swore that they had witnessed the Will at Ms Pearson's home in 1999.
In 2011, the proceedings in equity were settled. The freehold title to two houses and the rental monies that had been received since Ms Pearson's death were transferred to the applicant with $10,000 to each of Thomas Pearson and Suzanne Corney. The balance of the estate, including Ms Pearson's home in Canterbury, was transferred to Raymond Pearson.
In 2014, police investigations into offending involving Mr D'Souza motivated police to investigate whether there were any fraudulent dealings involving the applicant (and others) with regard to Ms Pearson's Will.
As a part of the investigation, a search warrant was executed at the home of Alex and Jacqueline Johan. Another Will of Ms Pearson was located in essentially the same terms as the 7 January 1999 fraudulent Will, but typed in a different font, with different formatting. It contained various misspelt names.
As part of this investigation the police also intercepted a number of the applicant's phone calls. Those intercepted phone calls included conversations between the applicant and her mother where the sharing of money was discussed, including amounts of $150,000 to each of Louise Johan and Alex Johan, $170,000 to Jacqueline Johan and $10,000 to "the boys". The purchase of motor vehicles and a jet ski was also discussed. In a conversation between Alex Johan and the applicant, he suggested that his daughter had "cheated" him.

The applicant's subjective case

The applicant was aged 46 at the time of sentence. She had no prior convictions.
After leaving home at 17, she had been in a stable marriage for 30 years. She had adult sons aged 27, 24, 22 and 19. She has a limited employment history. Her husband was apparently involved in a serious work-related incident some years ago and she has been his primary carer since that time. She has also provided domestic assistance to other members of her family.
The applicant tendered a number of handwritten testimonials from her mother, her aunt and her brother, each of whom describe a level of control and manipulation of the applicant by her father over many years (including, so it was said, at the time of the conspiracy when, I note, she was aged between 34 and 39). The applicant's mother asserted that entries on her deceased husband's criminal history reflect criminal conduct by him and other members of his family and a tendency on his part to manipulate others into taking the blame for his wrongdoing.
Although the Crown did not require the applicant's family members to attend for cross-examination, the assertion, both express and implied, that the applicant would not have joined the conspiracy and would not have committed the many acts in furtherance of it but for the adverse influence of her father was not tested in cross-examination, a matter to which his Honour referred in the context of considering whether the applicant was likely to reoffend in the future. Although his Honour ultimately found that the applicant was unlikely to reoffend, he expressed a degree of reservation in making that finding because of what he described as "numerous members of her extended family having been involved in criminal conduct" noting, in particular, her father's criminal record, albeit he was deceased at the time of sentence.
The alleged role of the applicant's father in the conspiracy was also the subject of comment in the report of Tim Watson-Munro, consultant forensic psychologist, tendered on sentence. His report, largely based upon the applicant's self-report, includes: She describes life long symptoms of anxiety and depression, which I suspect date back to her formative developmental years in the family home. She described her father as a powerful figure within the family and in this regard he was highly controlling and manipulative. (He quoted the applicant as describing her father as "a gypsy".)
Later in the report he noted: [The applicant] added that she has used this time [on remand awaiting sentence] to reflect upon her criminality and to this end at examination expressed remorse for her behaviour. Although not attempting to obfuscate her guilt, she claims that had it not been for the solicitations of and manipulation of her father, she would not have found herself in this situation.
Mr Watson-Munro administered the Beck Depression Inventory, a self-reporting questionnaire which canvases psychological and physiological symptoms of depression and anxiety experienced by the subject over the preceding fortnight. The results of that testing confirmed Mr Watson-Munro's clinical impressions of the applicant as suffering from a Severe Depressive Disorder, according to DSM-5 criteria.
In summary, in his opinion the applicant presented as a cooperative although psychologically troubled woman whose anxiety and depression he suspected dated to her formative years. He also opined that her high levels of anxiety were likely the product of issues arising from her pending sentence hearing.

The application for leave to appeal

The applicant relies upon two ground of appeal: 1. The sentencing judge erred in his assessment of the objective seriousness of the offence; and 2. The sentence is manifestly excessive.

The assessment of objective seriousness

The applicant's counsel identified three sources of what he submitted were House v The King errors ((1936) 55 CLR 499; [1936] HCA 40) in the sentencing judge's assessment of the objective circumstances of the applicant's offending as towards the upper end of the range of seriousness of criminal conduct of the kind comprehended by the conspiracy. Firstly, it was submitted that the sentencing judge allowed extraneous or irrelevant matters to affect the exercise of the sentencing discretion; secondly, that he was mistaken as to the facts upon which that assessment was to be made; and, thirdly, that he failed to take into account a material consideration.
In developing that submission, counsel for the applicant did not suggest that there was any disparity between the applicant's sentence and the sentences imposed on her co-offenders. Counsel did submit, however, that the sentencing judge should have sentenced the applicant on the basis that her role was subordinate to that of her father, being one of the particulars in his second category of House v The King error. At the sentencing hearing it was submitted that the applicant's father was the "architect" of the plan to defraud the beneficiaries of Ms Pearson's estate. It was submitted that the sentencing judge's failure to make that finding led to error in his assessment of the objective seriousness of the applicant's offending.

The use of the epithet "wicked"

The applicant also challenges the sentencing judge's description of her offending as "wicked" in two places in his sentencing remarks as both inappropriate and unsupported by the evidence, also leading to error in his assessment of the objective seriousness of her offending as "towards the upper end of the range".
His Honour described the applicant's insinuation into Ms Pearson's life as her dementia progressed as "wicked" and the influence that she exerted on Ms Pearson as an "ageing and dementia-afflicted proud woman" as "wicked". His Honour went on to say: Not only was the conduct of the offender calculating, it extended over a period of years. It had but one aim in mind, namely the criminal obtaining of Edna Pearson's assets.
His Honour's use of the epithet "wicked" in describing the applicant's conduct needs to be understood in the context of other passages in his Honour's lengthy sentencing remarks, including where his Honour said of the applicant: … [H]er participation and involvement in the conspiracy aimed at defrauding the true beneficiaries of Edna Pearson's estate and in the process benefiting herself and members of her own family was both integral and fundamental to the conspiracy. The imposition or insinuation into [Ms Pearson's] life … was calculated and criminal. It [the relationship between the applicant and Ms Pearson] was part of a concerted plot which had as its aim the convincing of an elderly and dementia-ridden, vulnerable member of our community to sign a new Will leaving everything, or substantially everything, to [the applicant] to the detriment of the beneficiaries and relatives of Edna Pearson who she had consistently maintained an intention to leave her worldly goods to until sometime after the effects of dementia had taken hold and the Johan family insinuation into her life had taken place.
The sentencing judge also referred to Ms Pearson's handwritten notes in which she expressed her feelings of distrust towards previously close personal friends and her belief that her family did not want contact with her. His Honour found that this paranoia and sense of distrust was "substantially increased and promoted, if not initiated, by [the applicant]". He also found that the diary entries were likely to have been created during 2005 to 2006 despite being dated during 1989 and into 1990, after the applicant inveigled her way into Ms Pearson's life and that the notes constituted: … the calculated scattering of snippets of evidence intended by the offender to reflect a genuine intention by Edna Pearson to willingly and intentionally, whilst of sound mind and before the onset of her dementia, leave all her worldly goods to Victoria Adams.
On the appeal, the applicant's counsel accepted that it was open to his Honour to describe the applicant's insinuation into Ms Pearson's life as "calculated and criminal". The applicant's counsel submitted, however, that for the sentencing judge to describe her influence on Ms Pearson and her insinuation into Ms Pearson's life as "wicked" was to impose an additional level of moral culpability reserved only for the person who had orchestrated the conspiracy. Counsel did not submit that there was an absolute prohibition on a sentencing judge using the concept of "wickedness" to describe particularly heinous criminal conduct, but for the sentencing judge to have done so in this case was to unjustifiably elevate the applicant's moral culpability, relative to that of her father, amounting to a House v The King error in the second category of error counsel identified in support of the first ground of appeal.
I am not persuaded that error has been demonstrated in the sentencing judge's approach to the question of whether the applicant's father's role in the conspiracy was that of an "architect". His Honour dealt with the issue in the following way: With respect to the overarching role attributed to Alex Johan it suffices to observe simply this. I am well satisfied that he was the patriarch of an extended family, many members of which appear to have been convicted or connected with the commission of a variety of offences, many of which appear to involve fraud or deception of others. Those offences, involving not only his own conduct but other related members of his extended family, appear to extend over at least a decade in the early part of this century. Whether in relation to the individual conspiracies before me, in respect of which he is named and clearly was involved as a co-conspirator, his involvement was that of tying together suggestions of possible or potential targets or identifying potential targets or simply targeting them as a result of information brought to him by others; whether he is, as asserted by Ms Hickleton, properly to be viewed as the architect of the identified criminal conduct, is a matter in respect of which there is simply no specific or direct evidence. To the extent that one can properly conclude that he had a degree of involvement or, if I may use a colloquial phrase, a "finger in the pie" of the respective conspiracies before me, I would certainly be satisfied of that fact on the balance of probabilities at least. It may well be that he was some sort of principal in the formation of the respective agreements. Just how, and in what circumstances, the offenders before me were either recruited or enlisted in the criminal activity, or whether they were willing volunteers, is a difficult matter to determine on the material placed before the Court. I will give the apparent patriarchal position of Alex Johan appropriate consideration when assessing the criminal culpability of each of the present offenders with regard to the specific offences for which they fall to be sentenced.
Where the sentencing judge made the further finding that there was no evidence adduced at trial or on sentence to indicate precisely how Ms Pearson was identified by the applicant or her co-conspirators as a potential target, nor the precise means by which the applicant's family members and, in particular, her father and his relatives, managed to successfully insinuate themselves into Ms Pearson's life, the complaint that he failed to make a positive finding that the applicant's father was the architect of the conspiracy cannot be sustained.
In coming to that conclusion, I have also taken into consideration the fact that a number of telephone conversations intercepted during the course of the investigation included the applicant and her mother discussing the distribution of the proceeds of the conspiracy, with $170,000 being apparently due to her mother and a lesser amount to her father with some concerns apparently expressed by him that the applicant had "cheated" him. This does not represent the language of a person who had orchestrated the conspiracy and, even less so, the person who had allegedly manipulated and controlled members of the conspiracy, including the applicant, to achieve the criminal objective of defrauding Ms Pearson's beneficiaries as the "architect" of the conspiracy.
Since it is the applicant's submission that the use of the word "wicked" was not an error in itself but should have been reserved to describe the conduct of the applicant's father, the complaint at his Honour's use of that epithet as informing his assessment of the objective seriousness of the applicant's offending falls away. That being the case, whether his Honour's use of the term "wicked" to describe the applicant's calculating insinuation into the life of a vulnerable elderly woman suffering from dementia, with the applicant's sole motivation, as a member of a conspiracy which extended over many years, to obtain a financial gain was an appropriate characterisation of the applicant's conduct does not require further analysis in considering whether House v The King error is made out.
In my view, however, while it was well open to the sentencing judge to describe the applicant's conduct in terms reflecting his strong reprobation of her conduct, as it is for sentencing courts to use strong, even powerful language, where offending is so serious as to inspire strong condemnation, the use of the word "wicked" might have been avoided, given the potential for "wickedness" to be aligned with the outmoded concepts of "evil", "depravity" or "sinfulness" (see the definitions in Macquarie Australian Dictionary and The Oxford English Dictionary), concepts which have no application in contemporary sentencing jurisprudence.
The applicant also takes issue with his Honour's attribution to the applicant of "perverse amusement and satisfaction" in appointing 7 January 1999, the date of the applicant's birthday, as the date of the forged Will. In his Honour's judgment, the choice of that date was "contrived", "deceitful" and "anything but coincidental". That remark was made in the context of his Honour's recitation of the facts. It was not repeated in his Honour's consideration of the assessment of objective seriousness; neither was it taken into account in that assessment. That being the case, the remark does not qualify as a House v The King error in the discretionary exercise involved in a sentencing judge's assessment of objective seriousness.
The first ground of appeal is not made out.

Is the sentence manifestly excessive?

Even were the sentencing judge's findings as to objective seriousness open to him, the applicant submitted that the sentence imposed is manifestly excessive, in large part because, in considering the need for the sentence to reflect the principle of general deterrence, the sentencing judge failed to take into account the applicant's Depressive Disorder. Counsel submitted that although the disorder was not relied upon at the sentencing hearing as reducing the applicant's moral culpability for her role in the conspiracy, it nonetheless warranted some moderation in the weight to be given to general deterrence, and that his Honour's failure to treat it in that way has resulted in a sentence that is "unreasonable or plainly unjust".
Counsel conceded that such a submission was not advanced by the applicant on sentence. In fact, it would seem that no submission was directed to the significance or weight that should be attributed to Mr Watson-Munro's report other than a reference to the applicant as a "highly vulnerable woman" with "undiagnosed depression". This Court is a court of error. An application for leave to appeal against sentence is not an occasion for the revision or reformulation of sentencing submissions (see Zreika v R [2012] NSWCCA 44). In order for the applicant's submission to attract the intervention of this Court, the Court would need to be satisfied that the sentencing judge was obliged to treat the applicant's mental illness in the way contended for by the applicant on the appeal, in the sense that it was an error of principle not to do so (see Archer v R [2017] NSWCCA 151).
Whether an offender's mental illness will moderate the weight that might be given to general deterrence as part of the sentencing exercise is a question for the discretion of the sentencing judge, in large part informed by the nature of the mental illness and its currency at the time of the offending (see R v Quinn [2018] NSWCCA 297 at [248].
I am not persuaded that his Honour was obliged to treat Mr Watson-Munro's diagnosis of a Depressive Disorder as moderating the need for the sentence to reflect the principle of general deterrence. There was simply nothing in the evidence adduced at trial, or any sufficient evidence in the report of Mr Watson-Munro, to suggest that such subclinical depression as she may have suffered from during the currency of the conspiracy from October 2005 to January 2011 was active or disabling in any practical sense at that time. His Honour correctly emphasised the significance of general deterrence in the following passage of the remarks on sentence: In the circumstances where outsiders with criminal intent insinuate or impose themselves into the lives of such elderly persons, notwithstanding that the legal "victims" of the criminal conduct are ultimately identified as the true intended beneficiaries of the estate, such elderly persons are entitled to understand that the law views the deceptions and manipulations carried out upon them in their state of aged vulnerability very seriously. The law recognises the need to protect the vulnerable from the criminal activities of others in all manner of circumstance. The categories of vulnerable persons are not closed, they include children, they include persons under the control or trust of others, they include persons in occupations of vulnerability whether they be the operators of convenience stores or service stations or chemists late at night or others whose occupations place them in vulnerable circumstances in our society. The potentially vulnerable aged community is also entitled to such protection as the law can properly extend to them. Conspiracies of the type with which the Court is presently dealing carry more than the potential of mere financial gain. They involve an insult to the dignity of the aged and, in Ms Pearson's case, to the mentally infirm.
No submission was advanced on sentence or on the appeal that the applicant's Depressive Disorder would make the serving of her sentence more onerous.
In further support of the applicant's claim that the sentence is manifestly excessive to the extent of being "unreasonable or plainly unjust", counsel submitted that the sentence imposed on the applicant was outside the range of sentences imposed in comparable cases.
The sentences to which the Court was referred fail to make good that submission. Quite apart from the frequently endorsed limitation on the use of comparative cases to support a submission of manifest excess, I accept the Crown's submission that each of the three cases referred to by the applicant's counsel are distinguishable in material respects from this case.
In Thangavelautham v R [2016] NSWCCA 141, the conspiracy to defraud banking and financial institutions by the misuse of credit, debit and PIN numbers extended over a period of two months with concentrated activity over six days. The quantum of the conspiracy was $80,000. This is in contrast to the conspiracy committed by the applicant which generated an amount in the vicinity of $500,000.
In Page v R [2007] NSWCCA 175, the offender participated in a conspiracy to cheat and defraud an elderly woman of $397,500 by tricking her into paying for unsolicited work on her roof. In that case there was no overlay of emotional harm to the victim and family members occasioned by the offender's conduct (both factors which the sentencing judge in this case considered as features of aggravation with which no issue is taken). A sentence of 5 years with a non-parole period of 2 years and 6 months was imposed after trial and not disturbed on appeal.
Finally, Vella v R; Siskos v R [2015] NSWCCA 148 can also be distinguished as it was by the sentencing judge. In that case the fraud was practised upon an insurance company over a period of 13 months with the two conspirators agreeing that Mr Siskos would commit suicide thereby entitling Ms Vella to recover under a life insurance policy. Ultimately, Mr Siskos did not follow through with the plan. Ms Vella was sentenced to 6 years and 6 months' imprisonment with a non-parole period of 4 years and 3 months after trial whilst Mr Siskos was sentenced to 2 years and 6 months' imprisonment with a non-parole period of 1 year and 3 months. Ms Vella appealed her sentence claiming that it was manifestly excessive. The appeal was dismissed.
The second ground of appeal has not been made out.

Orders

The orders I propose are as follows. 1. Leave to appeal granted 2. Appeal dismissed
BELLEW J: I agree with Fullerton J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2019

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)