Kentwell v The Queen [2014] HCA 37, 252 CLR 601, considered.

Jenkins v Tasmania [2019] TASCCA 12; 30 Tas R 179 followed.

Veen (No 2) [1988] HCA 14; 164 CLR 465, applied

1. If specific error is identified, this Court must set aside the sentence and exercise the sentencing discretion afresh unless, in the separate and independent exercise of its discretion it concludes that no different sentence should be passed: Criminal Code, s 402(4): AB v The Queen [1999] HCA 46, 198 CLR 111 at per Hayne J at [130]; Kentwell v The Queen [2014] HCA 37, 252 CLR 601; S v Tasmania (No 2) [2007] TASSC 85, 16 Tas R 449 at [7] and [15]. In AB v The Queen Hayne J said, in a passage subsequently adopted by French CJ, Hayne, Bell and Keane JJ in Kentwell:

1. As a result of the finding of specific error it is not appropriate to consider the ground that the sentence imposed by the sentencing judge was manifestly excessive. This Court is not to assess whether the sentence imposed was "within range": Kentwell at [42]. It must exercise the sentencing discretion afresh, taking into account all matters relevant to sentence. The circumstances of the offences and appellant are set out earlier in these reasons. The Court heard argument about whether the sentence was manifestly excessive. Although determination of that ground is no longer necessary, the submissions are relevant to re-sentence. Taking into account all matters relevant to sentence I have concluded that a lesser sentence is "warranted in law" and should be imposed.
2. As to count 1, the appellant submitted that the objective seriousness of that crime was reduced because:
   • there was no identified loss suffered by Community Based Support as a result of the fraud;
   • the amount of wages paid to the appellant during her employment was not a loss because the appellant performed her work as required and Community Based Support received the benefit of that work;
   • Community Based Support contributed to its own misfortune by failing to check an "obviously doctored" police check document.
3. None of those submissions should carry any weight. I would attach no importance to the issue of whether the wages paid to the appellant as a result of her fraudulent application constituted a loss. Her receipt of wages which would not have been paid but for the fraud, and the otherwise satisfactory performance of her employment duties, were not to the point. The appellant was to be sentenced for the criminality involved in her own conduct, which was not lessened by any perceived failings of her employer. However, the respondent does not assert that the fraud included any plan or intention to steal from clients if the employment application were successful. The subsequent conduct, which commenced about 18 months later, cannot be considered to aggravate the objective seriousness of the initial dishonesty: Director of Public Prosecutions v England [1999] VSCA 95, 2 VR 258 at 263 [18]; R v Wilkinson (No 5) [2009] NSWSC 432 at [61]; Shield v Tasmania [2017] TASCCA 6 per Brett J. Nevertheless, when considering the total sentence, the fraudulent employment application places the later dishonesty in context. Having fraudulently hidden her past dishonesty to obtain employment, the appellant took advantage of her appointment to benefit herself through many more dishonest acts.
4. Some reference was made by counsel for the appellant to delay. The appellant was not sentenced until about seven years after her offending was discovered. However, delay was not a factor in the appellant's favour of any weight. Delay of itself between the commission of an offence and the disposition of proceedings is not generally a mitigating factor although it may work in favour of an accused if it is not attributable to his or her fault: Prehn v The Queen [2003] TASCCA 55 at [21]. As Jago J, with whom Estcourt J and Porter AJ agreed, recently explained in Lockwood v Tasmania [2025] TASCCA 6 at [25], delay as a mitigating factor focuses on two principal contentions: first, the anxiety and stress of the offender who waits a long time for the determination of the charges and, second, where there is demonstrated or suggested rehabilitation during the period of delay. The second factor had no part to play in this case. The only evidence of the first factor was an assertion in mitigation that the appellant found the uncertainty of outcome stressful. Some delay arose from the time taken to prepare the matter for trial. When it became clear that the appellant intended to maintain her plea of not guilty, the allocation of further prosecution resources was required to marshal and prepare evidence from financial institutions and about on-line transactions. The process was slowed by the pandemic and was not completed until October 2022. After that, the delay was caused by various factors attributable to the appellant. Her legal representation was complicated. There were protracted negotiations for a plea. When a sentencing hearing was eventually set down in September 2023, the appellant submitted medical certificates asserting that, because of her own health and her responsibility to her sister, the appellant could not travel from her home in Queensland to Tasmania. Whilst some certificates were genuine it emerged that two certificates produced by the appellant in November 2023 were false. She conceded that her ill health at that time included anxiety about the possible outcome of the proceedings. When the appellant failed to appear at sentencing hearing scheduled for 2 October 2024 a warrant was issued for her arrest. She was taken into custody in Queensland on 13 November 2024 and extradited to Tasmania. The learned sentencing judge correctly ordered that the term of imprisonment he imposed commence on that date.
5. The only mitigating factor of any weight was the appellant's plea of guilty. It facilitated justice and avoided the need for what may have been a lengthy and complicated trial. However it was not an early plea and the timing of it did not avoid the allocation of a great deal of the resources of prosecution authorities in the facilitation of proof. The plea did not carry any indication of genuine remorse. Her repeated offending excluded any such claim: DPP v Harington [2017] TASCCA 4; 27 Tas R 128 at [83]. She acted with calculated dishonesty on many separate occasions for almost a year, and her dishonesty ceased only when it was discovered. Her submission of false medical certificates to delay the sentencing hearing and the requirement for extradition were also inconsistent with genuine remorse. The appellant made no attempt to repay the money fraudulently taken from the bank accounts. The bank took responsibility for Mr Fitzgerald's credit card losses, but it was a loss nevertheless.
6. I would accept that, by comparison with some cases which have attracted long sentences, the appellant did not steal a large sum and the period of offending was not as prolonged. However, in my view, there were other reasons which, in the circumstances of this case, suggested the need for a strong sentence, giving predominance to punishment, denunciation, general and specific deterrence and protection of the public. There was no suggestion that the appellant's blameworthiness was affected by some mental health impairment. Her offending was, at least in part, motivated by greed and the objective seriousness of it was greatly aggravated by her breach of trust. She was in a position of trust with her employer, but more significantly, she was trusted by Mr Fitzgerald. Clients of community based care organisations are almost invariably vulnerable and trusting, as Mr Fitzgerald was. The trust invested in carers is of particular importance. Clients, the family and friends of clients, employers and the community generally rely on the honesty of those entrusted with the care of those who, by age or disability or other reason, are less able to care for themselves. Breach of that trust substantially undermines the community's faith and confidence in carers and their employers generally.
7. Counsel for the appellant submitted that the objective seriousness of the appellant's crimes was less than the offences considered in a number of decisions of this Court concerning persons guilty of serious fraud:
   • In McCulloch v Tasmania [2010] TASCCA 21 the appellant was re-sentenced to imprisonment for six years with eligibility for parole after 3½ years. She pleaded guilty to 346 counts of computer-related fraud having had stolen over $1.2 million from her employers over a period of more than three years. Her mental health was a factor in sentencing:
   • Director of Public Prosecutions v Kendall [2021] TASCCA 10; 35 Tas R 128 concerned the misappropriation by a bookkeeper of $420,000 over 21 months. The respondent was re-sentenced to imprisonment for four years, one year of which was suspended. The respondent was a person of good character, had no significant prior convictions, pleaded guilty on her first appearance in court and had made significant reparations.
   • In Hill v Tasmania [2022] TASCCA 5 the appellant was re-sentenced to a suspended term of nine months, after having served five months of very restrictive home detention, for fraudulent transfers totalling just over $28,000 made as treasurer of a golf club. Mr Hill was 70, pleaded guilty and was otherwise of good character.
   • In Director of Public Prosecutions v Allen [2017] TASCCA 24; 27 Tas R 260 the respondent was re-sentenced to imprisonment for 2 years and 6 months for, over about six months, fraudulently using guest credit card details he had obtained during his employment in a hotel to dishonestly obtain $101,900 and attempt to obtain considerably more. Mr Allen was a young man and had not been to prison before.
   • Jacqueline Broomhall misappropriated $398,534.28 over a period of about eight years in the course of her employment in the Tasmanian Health Service. Her mental health was a relevant factor in sentencing. She was sentenced to imprisonment for three years, with one year of that sentence suspended. This Court dismissed an appeal on the grounds of manifest excess: Broomhall v Tasmania [2023] TASCCA 2.
8. In Hill, at [11], Estcourt J made reference to, and summarised the effect of, a table which had been compiled by counsel for the State with reference to sentences from the Court's database of matters relating to frauds mostly committed in circumstances of a breach of trust in an amount of between $20,000 and $49,000.
9. The appellant emphasised that the appellant's fraud, in distinction to the large sums involved in most of the cases just referred to, amounted only to just over $10,000 and was for the period of less than a year. The appellant also submitted that this case did not involve the unusually tragic or damaging consequences which existed in some cases, for example as was the case in Kendall. There were no attempts by the appellant to hide or disguise her wrongdoing and her dishonest conduct was not sophisticated. For those reasons, it was submitted, a lesser sentence should be imposed. Counsel for the appellant also referred to some other sentences imposed at first instance in cases she suggested were worthy of comparison also involving repeated dishonesty in positions of trust:
   • Alicia Johnson-Ploughman was employed as a companion for a quadriplegic who required 24 hour care. She stole more than $40,000 by 90 fraudulent transactions from bank accounts over about eight months. She had no prior convictions. She was sentenced to imprisonment for nine months, most of which was suspended.
   • Aleisha Direen was the bookkeeper at an RSL club. On 26 occasions over about four months she dishonestly transferred a total of just under $30,000. She had some prior convictions including for dishonesty but mostly related to a drug problem. She was ordered to serve home detention for nine months.
   • Rhonda O'Sign was president of a children's sporting organisation from which she misappropriated over $10,000 over about 32 months. She was aged in her late 50's and had no significant prior convictions. She was sentenced to imprisonment for three months wholly suspended with 140 hours of community service.
   • Alison Leslie stole more than $350,000 from her employer by 490 separate transactions over 3 1/2 years. She had one significant prior conviction for similar dishonesty which she had failed to disclose. She was sentenced to imprisonment for 3 1/2 years with eligibility for parole after half.
   • Rachael Walden was a school finance officer who misappropriated $142,700 over 19 months. She had one prior conviction for dishonesty when she was much younger and had an undiagnosed psychiatric condition relevant to sentence. She was sentenced to home detention for 10 months.
   • Emma Groves stole about $21,000 from her employer over about 4 1/2 years. She had no prior convictions. She was sentenced to imprisonment for six months, wholly suspended, with 140 hours of community service.
10. Consideration of what has been done in other cases is a proper sentencing exercise. Past cases can provide some measure by which a sentencing court can attempt to achieve consistency in sentencing and in the application of principle: R v Kilic [2016] HCA 48; 259 CLR 256 at [22]. However, as was pointed out in Hili v The Queen [2010] HCA 45, 242 CLR 520 at [18], the sentencing consistency sought is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence". All of the cases referred to by the appellant are different for various reasons concerning both the circumstances of the crimes and the offender. One factor is of particular importance in this appeal. At least in most cases, persons who commit crimes of this type have no or few relevant prior convictions. The explanation for that circumstance is that, if past serious dishonesty is known, especially involving breach of trust, persons are not generally entrusted to positions where the opportunity to offend may arise. In this case the appellant, by dishonestly concealing her criminal past, found herself into a position to offend.
11. To apply the passage in Veen quoted earlier in these reasons to this case, the crimes for which the appellant was sentenced, even though the amount of money misappropriated was not large, constituted a continuation of the criminal dishonesty she had demonstrated repeatedly for over thirty years. It was another example of a serious breach of trust. Past sentences had not deterred her. Her criminality resumed within about four years of having been given a suspended sentence for dishonesty. Retribution, deterrence and protection of society indicated a strong need for a harsh penalty. The high level of her moral blameworthiness and her propensity to offend in this way showed a need for "condign punishment" to deter her and others from further offences of a like kind.
12. It was not the first time the appellant had been sentenced to actual imprisonment. In light of the appellant's record and the absence of remorse and any sign of reform, she should serve something more than the minimum term before becoming eligible to apply for parole.
13. The appellant does not assert that anything which is relevant to sentence has occurred between when she was first sentenced and the hearing of the appeal: the Code, s 402(4A).
14. I would order that the appellant be convicted on counts 1 to 86 on the indictment, excluding counts 3, 4, 7, 9, 10, 11, 22, 28, 32, and that there be one sentence for all those offences, a term of imprisonment of two years from 13 November 2024 with eligibility for parole after having served fifteen months of that term.

(1936) 55 CLR 499