Andrick v The Queen [2010] VSCA 238

Court of Appeal (Vic)|2010-09-14|Before: ASHLEY and WEINBERG JJA

R v Andrick (Unreported, County Court of Victoria, 27 April 2009, Judge Jenkins)

CRIMINAL LAW - Appeal against sentence - Two counts theft, two counts obtaining property by deception, one count burglary and one count attempting to obtain property by deception - Whether plea of guilty sufficiently taken into account - Delay - Whether change in appellant's personal circumstances sufficiently taken into account - Whether total effective sentence of six years' imprisonment with a non-parole period of four years and six months manifestly excessive - Appeal allowed - Total effective sentence manifestly excessive - Specific error also demonstrated - Appellant re-sentenced to four years and three months' imprisonment with a non-parole period of two years and six months.

1 I will ask Weinberg JA to give the first judgment.

2 On 17 March 2009, the appellant pleaded guilty in the County Court at Melbourne, to two counts of theft (counts 1 and 4), two counts of obtaining property by deception (counts 2 and 5), one count of burglary (count 3), and one count of attempting to obtain property by deception (count 6). All of these counts were contained on a single presentment.

3 The circumstances surrounding these offences were as follows. In February 2003, the appellant, together with two friends, established a computer consultancy service business under the name Procom IT. The appellant was a computer systems engineer and dealt with technical aspects of the business. Right from the start there were cash flow problems. In May 2003, it was decided to operate the business as a company, and the corporate entity Procom IT Pty Ltd was set up. The appellant became its sole director. One of his two business partners became its sole secretary.

4 The appellant was responsible for attending clients' premises in order to program their computers, attend to viruses, and generally perform computer maintenance. His work often entailed after hours attendance on site at clients' premises.

5 From early March 2003 until late January 2004, the business rented offices numbered 7, 11, 20 and 21 at the P & S Caulfield Business Centre located at 189-191 Balaclava Road, Caulfield North. However, things did not go well and, by November 2003, the business was in serious financial difficulty. The appellant, at that stage, was effectively running it as his own.

6 Count 1 concerned the theft, some time between December 2003 and January 2004, of 18 Bank of Melbourne blank cheque forms belonging to a firm of architects, John Griffin Trading Pty Ltd, which is located in Punt Road, Richmond. That firm was one of Procom IT Pty Ltd's clients. Count 2 concerned the presentation of 16 of those cheques over a period of several weeks to the Bank of Melbourne whereby the sum of $25,980 was fraudulently obtained.

7 Counts 3 to 6 concerned a series of offences entirely unconnected to counts 1 and 2. As previously indicated, the appellant's business operated out of office premises at the P & S Caulfield Business Centre. Another tenant of that building, Buwro Pty Ltd, was a holding company which operated some 40 private companies, trusts, and superannuation funds. Buwro Pty Ltd rented office 5. All tenants of the building were given keys to their offices for the duration of their lease. After hours access to the building was achieved by means of an electronic key pad, the code for which was provided to all the tenants.

8 On 2 February 2004, Buwro Pty Ltd's accountant and office manager discovered that a total of 16 cheques, involving three separate accounts, were missing from various cheque books which were kept in the bottom drawer of an unlocked filing cabinet in office 5. That office was normally kept locked and there were no signs of forced entry.

9 There was, however, a master key kept in a locked bottom drawer of the desk in the office shared by the receptionists at P & S Caulfield Business Centre. That office was usually kept unlocked so that the tenants of the building could access the photocopier and facsimile machine. A key to the locked drawer of the desk was taped under it. The appellant was aware of that fact. He used that key to open the locked drawer and thereby gain access to the master key. He then used the master key to open the door to office 5. He stole the 16 cheques belonging to Buwro Pty Ltd. That offending constituted both count 3 (the burglary), and count 4 (the theft of the 16 cheques).

10 Over the next few weeks, the appellant presented four of the stolen cheques to the Bank of Melbourne, and thereby fraudulently obtained the sum of $9,004. That offending constituted count 5. He also attempted, unsuccessfully, to cash a further nine cheques out of the 16 cheques which he had stolen to a total sum of $26,624. However, payment on those cheques was stopped. That offending gave rise to count 6.

12 The sentencing judge directed that there be total concurrency between counts 1 and 2, and also between counts 4 and 5. She directed that 18 months of the sentence imposed on count 3, 12 months of the sentence imposed on count 4, and six months of the sentence imposed on count 6 be cumulated upon each other and also upon the sentence imposed on count 1.

13 The total effective sentence was six years' imprisonment. Her Honour fixed a non-parole period of four years and six months. She stated, pursuant to s 6AAA of the Sentencing Act 1991 that, but for the appellant's plea of guilty, she would have imposed a total effective sentence of six years and six months' imprisonment with a non-parole period of five years.

14 Pursuant to leave granted by Nettle JA on 23 April 2010, the appellant now appeals against the sentence imposed. He relies upon the following four grounds:

The sentence imposed is, in all the circumstances of the case, manifestly excessive.
The learned sentencing judge failed to accord any, or sufficient, weight to the Appellant's pleas of Guilty and the consequences of same.
The learned sentencing judge failed to accord any, or sufficient, weight to the delay between the commission of the offences and the imposition of sentence.
The learned sentencing judge has failed to accord any, or sufficient, weight to the sentencing principle of totality.

15 It is necessary to say something briefly about the appellant's background. He was born in June 1962 near the border crossing between Yugoslavia and Hungary. He was therefore 41 years of age at the time of the commission of these offences. He is the only child of a French mother and Montenegran father, both of whom are deceased. He lived in France until the age of four and thereafter in South Africa. He attended a government school in South Africa before coming to this country as a young child. He was disruptive as a student, and was expelled from a succession of schools. He commenced, but did not complete, a degree at RMIT, and eventually took up a cadetship at the Herald & Weekly Times. He became a photographer with the Herald Sun newspaper, and later went overseas, being based between 1981 and 1993 in Vienna. He worked for Microsoft between 1996 and 2000.

16 The appellant married at the age of 25. He has three daughters who were aged, at the time he was sentenced, 22, 17 and 12 and one son who was then aged 14. He and his wife separated in 2001. The children had been residing with him.

17 When he was only 16, the appellant was psychiatrically diagnosed with Attention Deficit Hyperactivity Disorder ('ADHD'). He was subsequently treated for that condition. A recent psychiatric report suggests that he suffers from Cyclothymic Disorder (elevated mood and irritability falling short of mania), rather than ADHD. There is also a history of amphetamine abuse which lasted for a period of about a year from the age of 15, and some later drug abuse as well. The psychiatric report suggests that Cyclothymic Disorder may have contributed to the appellant's impaired judgment in relation to some, if not all, of his offending.

18 The appellant was aged 46 by the time the appellant came to be sentenced. He has no prior convictions. However, he was previously before the Magistrates' Court on two separate occasions; once in January 1995 and again in June of that year. In relation to the January 1995 appearance, which involved two charges of obtaining property by deception, the appellant was sentenced to a community-based order for 12 months. In June 1995 he breached that order as a result of having, through the use of a false document, attempted to obtain property by deception. On that occasion, the proceedings were adjourned for 12 months without conviction. However, he was dealt with for breach of the earlier community-based order and fined $600.

19 In addition, when the sentencing judge came to deal with the appellant, she was informed that there had been several subsequent court appearances. In September 2005, the appellant was convicted in the Melbourne Magistrates' Court of having, in June 2002, obtained a financial advantage by deception. He was fined a total of $2,200, and required to pay compensation in an amount of $4,088. In April 2006, he was convicted in the Sunshine Magistrates' Court of one count of theft and one count of obtaining property by deception. On that occasion he was sentenced to 11 days' imprisonment, which equated to time served. He was also sentenced to four months' imprisonment, wholly suspended for two years. In March 2007, he was convicted in the Melbourne Magistrates' Court of having, in March 2005, obtained property by deception, and of having made and used a false document. He was fined $4,000 and required to pay compensation in an amount of $3,475. Finally, in October 2008 the appellant was dealt with for the breach of the suspended sentence. He received a community-based order for 12 months.

20 In relation to the current matters, the appellant was arrested and interviewed in May 2005. However, it was not until April 2006 that he was charged with these offences. In March 2007, the matter went to a committal hearing. The appellant reserved his plea. In May 2008, the case was scheduled to proceed to trial on a presentment which specified 36 separate counts. However, it was not reached and a new trial date of March 2009 was fixed. After one day of pre-trial argument, the matter resolved into a plea, and the current six count presentment to which the appellant pleaded guilty was filed.

21 Before the matter resolved, the Crown intimated that it proposed to call some 36 witnesses in proof of its case. The trial was estimated to run for some two weeks. It was agreed by both sides that it could be described as 'complex'.

22 In sentencing the appellant, her Honour was asked on his behalf to have regard to the following mitigating factors:

• the plea of guilty, albeit one which was proffered very late in the piece, and in the face of a strong circumstantial case;

• the prior history, which disclosed only minor offending in 1995, not resulting in a conviction;

• the appellant's history of gainful employment in positions of responsibility and trust;

• his mental health issues which were said to make imprisonment more burdensome for him (a submission that her Honour appears to have rejected); and

• delay, the offending having occurred in April 2004, his arrest in May 2005 and charges not being laid until April 2006. However, it was acknowledged that any benefit to the appellant from the delay would be diminished by his subsequent offending.

23 It was submitted on behalf of the appellant, on the plea, that there should be substantial concurrency on each group of counts because the offending was of a broadly similar nature, and occurred over a relatively short time frame. It was further submitted that a wholly or partly suspended sentence would be within the range.

24 The Crown submitted that only minimal weight should be given to the plea of guilty and to the delay. It was submitted that a wholly or partly suspended sentence would not be within the range. Her Honour seems to have accepted most, if not all, of the Crown's submissions.

25 Having considered the gravity of the offending, which she said entailed a series of gross breaches of trust on the part of the appellant, and a fraud of nearly $35,000, none of which had been repaid, her Honour imposed the individual sentences earlier described. She focussed in her sentencing remarks upon both general and specific deterrence, and the need to protect the community. She described the appellant's prospects of rehabilitation as 'uncertain and difficult to assess'. She concluded that nothing less than a sentence of immediate imprisonment would be warranted.

26 Her honour then referred to the totality principle, and cited relevant authority in that regard. Finally, she also made compensation orders in favour of Westpac Banking Corporation in the sum of $25,980, and the ANZ Banking Group Ltd in the sum of $9,004.

27 Dealing first with the appellant's submissions in support of this appeal, it is unnecessary to set them out in any great detail. Put simply, it is submitted that a reduction from six years and six months to six years on the head sentence, and from five years to four years and six months on the non-parole period scarcely reflects the utilitarian value of a plea of guilty which, albeit late, did save the cost of a lengthy and complex trial.

28 It is further submitted that the delay between April 2004, which was when the last of the offences for which the appellant fell to be sentenced was committed, and March 2009, when his plea was finally heard, ought to have resulted in a greater reduction in sentence than it ultimately did. In that regard, it was submitted that despite his having committed subsequent offences, the appellant had not offended since May 2006, and was entitled to some credit for that. The finding as to his uncertain prospects of rehabilitation was said to be unfair, and too harsh, in the light of that history.

29 Reference was also made to the appellant's personal circumstances which, it was said, had changed markedly between 2004 and 2009. In 2004, the appellant had been in a relationship with a prostitute who was addicted to heroin. He was involved with drugs and gambling. Moreover, at that stage of his life, there were particular difficulties associated with his estranged wife. By the time he came to be sentenced, however, his wife resided in New South Wales. She had mental health issues of her own, and that meant that the appellant was effectively a single father of four children, three of whom were then residing with him.

30 The appellant submits that the individual sentences imposed were manifestly excessive, as was the total effective sentence of six years' imprisonment. He submits that there ought to have been total concurrency between counts 3 and 4, rather than requiring 50 percent of the sentence imposed on count 4 to be served cumulatively upon count 3, as well as cumulatively upon count 1.

31 Turning then to the Crown's submissions, it acknowledges that the total effective sentence of six years' imprisonment, in the circumstances of this case, could properly be characterised as 'stern'. However, the Crown submits that this sentence was within the permissible range, and not manifestly excessive. The Crown points to the fact that the offending was not an isolated happening, but took place over time, and on a number of occasions. The Crown argues that her Honour was entitled to give little weight to the plea of guilty in this case, coming late as it did, and in the face of a powerful prosecution case. This latter submission raises a point to which I shall return in just a moment. The Crown also argues that her Honour was entitled to moderate any discount for such delay as had occurred.

32 Finally, the Crown submits that the offences charged as counts 3 and 4 differed as to their elements, and that her Honour was entitled to cumulate as she did. She was also entitled to cumulate counts 3 and 4 upon counts 1 and 2, they being offences entirely separate to those which gave rise to counts 3 to 6.

33 In my opinion, this appeal should succeed. The total effective sentence of six years with a non-parole period of four years and six months is manifestly excessive, having regard to those mitigating factors that were present, and established, in this case. A sentence of that order seems to me to be significantly out of kilter with current sentencing practices for offending of this nature.

34 In addition, the appellant has, in my opinion, demonstrated specific error. A discount of only six months on a putative sentence of six years and six months, and six months on a putative non-parole period of five years, does not adequately reflect the utilitarian value of a plea of guilty, still less accord sufficient weight to such remorse as might otherwise be thought to attached to that plea.

35 Her Honour characterised the prosecution case as 'strong', and used that fact to limit the discount that she was prepared to afford the appellant for his plea of guilty.[1] She did so in the context of her consideration of the utilitarian value of that plea. In approaching the matter in that way, her Honour erred. It is clearly established that the utilitarian value of a plea is not to be diminished by any such consideration.[2]

36 There was one further specific error in my view. I consider that the sentences imposed on counts 3 and 4 ought to have been made totally concurrent. These offences were part and parcel of a single transaction. They were committed at the same time, at the same location, and with the same end in mind. The burglary was a precursor to the theft of the cheque forms (which incidentally was itself a precursor to the fraud that was the intended purpose of the entire exercise).

37 Accordingly, I would propose that the sentences imposed be quashed and that the appellant be re-sentenced as follows:

38 I would cumulate the sentence imposed on count 3, and three months of the sentence on count 6 on each other, and on the sentence on count 1. The total effective sentence would therefore be four years and three months' imprisonment. I would fix a non-parole period of two years and six months. I would confirm all other orders made below.

39 Pursuant to s 6AAA of the Sentencing Act 1991, the total effective sentence that I would have imposed, but for the appellant's plea of guilty, would have been five years and six months' imprisonment. I would have fixed a non-parole period of three years and six months.

40 I agree. Subject to anything that counsel may wish to say when they have heard the orders pronounced in provisional form, these are the orders we will make:

1. The appeal is allowed, and the sentences passed below are quashed.

2. In lieu thereof the appellant is sentenced as follows:

2. Cumulate the sentence on count 3 and three months of the sentence on count 6 on each other and on the sentence on count 1. The total effective sentence is four years and three months' imprisonment.

3. The Court fixes a non-parole period of two years and six months.

4. The Court confirms all other orders made below.

It is declared that a period of 543 days, not including this day, has already been served pursuant to the sentence and it is ordered that the fact that that declaration has been made, and its details, be entered in the records of the Court.

[1] See R v Andrick (Unreported, County Court of Victoria, 27 April 2009, Judge Jenkins), [72] where her Honour said:

In the circumstances I accept that your pleas of guilty have saved the court the expense of conducting a contested trial, which was expected to take between 1 and 2 weeks. In the circumstances, by reason of your very late change of heart and the fact of the strong prosecution case which you otherwise faced you will be afforded a limited discount for your pleas.

[2] R v Pajic [2009] VSCA 53; (2009) 23 VR 527, 532 (Redlich JA).

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