Barber v The Queen [2018] VSCA 232

1 On 30 November 2016, the applicant pleaded guilty, before a judge of the County Court, to five charges of obtaining a financial advantage by deception (Charges 1-5), and one charge of attempting to obtain a financial advantage by deception (Charge 6). Following a plea made on his behalf on that day, the judge, on 1 December 2016, sentenced the applicant to three years' imprisonment on each of the five charges of obtaining a financial advantage by deception, and two years' imprisonment on the charge of attempting to obtain a financial advantage by deception. The judge directed that each of the sentences on the five charges of obtaining a financial advantage by deception be served concurrently with the sentence on Charge 1, and that six months of the sentence on the sixth charge (attempt to obtain a financial advantage by deception) be served cumulatively on the sentence imposed on Charge 1. Thus, the applicant was sentenced to a total effective sentence of three years and six months' imprisonment, with a minimum non-parole period of two years and six months.[1]

2 On 8 February 2018, long after the expiration of the 28-day period prescribed by s 279 of the Criminal Procedure Act 2009, the applicant filed with the Registry an application to extend time for leave to file and serve a notice of application for leave to appeal against sentence, together with a proposed notice of application for leave to appeal against sentence. The application for an extension of time was made on the ground that the applicant was refused Legal Aid and he had no funds to pay lawyers to act on his behalf in the appeal until his father died in September 2017, at which time he inherited a small amount of money.

3 The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court. The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time.[2] In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it.[3] In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material.[4] Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the extension notwithstanding such delay.[5]

4 In the present case, the materials filed in support of the application for an extension of time are, to say the least, exiguous. They comprise an affidavit sworn by the applicant's instructing solicitor, the material part of which is as follows:

1. I am informed by the applicant and believe that:

(a) He wished to appeal the sentencing order immediately but had exhausted his available funds by transferring the share of the sale of the matrimonial home to the former complainant company's insurer in the sum of $200,000. After payment of his legal fees after the Magistrates' and the County Court proceedings he had no money to fund the appeal.

(b) He instructed his former solicitor to persue (sic) the complainant company for $48,000 owed to him but no money is as yet forthcoming.

(c) His father passed away in September 2017 and he is able to fund an appeal with his small inheritance.

(d) Legal Aid was declined as he had already funded his own legal proceedings.

(e) He has done his best to get the appeal on without all of the documentation and the exhibits in the plea which are not as yet in the possession of his current solicitors.

5 Significantly, no documentation was exhibited to the affidavit to support the assertion that the applicant did not have the financial resources to be able to institute an application for leave to appeal against sentence within time, or, at the very least, substantially before 8 February 2018.

6 On the morning of the application, a further affidavit, deposed by the solicitor, was provided to the Court. The affidavit exhibited a copy of the applicant's bank statements from 6 September 2016 to 9 February 2017, together with a copy of correspondence received by the applicant from his previous solicitors dated 22 February 2018, indicating that funds in the amount of $50,000 were to be received by him. The affidavit also exhibited copies of the death certificate of the applicant's father and documents relating to the probate of his father's will. The affidavit concluded by stating that the solicitor was instructed that the applicant had approached three lawyers to represent him using Legal Aid funding in his appeal from the time of the sentence on 1 December 2016, namely, a solicitor of a Horsham firm, a 'senior lawyer' from another firm of solicitors, and a 'Victoria Legal Aid solicitor within the prison system'. The affidavit concluded by stating 'I am instructed these lawyers all advised the applicant that he is not eligible for funding'.

7 In view of the long delay before the making of the current application, it behoved the applicant to proffer, before this Court, a proper explanation for the delay, supported by appropriate evidence. In that respect, the supplementary affidavit of the solicitor added very little of value to the first affidavit. The production of a copy of the applicant's bank statements for the last five months of the period of delay only provided information about one aspect of his financial position. No other material was filed setting out, in full, his financial position during the period of the delay. The assertion in the affidavit that the applicant had been given advice by three lawyers that he was not eligible for Legal Aid funding in the appeal is hard to accept at face value. The applicant's claim, to have received such advice, is unsupported by any letter from, or affidavit by, an officer of Victoria Legal Aid. Nor is it supported by any evidence of a practitioner experienced in the relevant area, stating the basis upon which Legal Aid funding might or might not be granted to a person in his position.

8 Accordingly, the applicant has failed to provide a sufficient excuse for the lengthy delay in filing an application for leave to appeal. In those circumstances, there would be no appropriate basis upon which to grant an extension of time, unless this Court was satisfied that the proposed grounds of appeal had such prospects of success that it would be unjust to decline to hear the application for leave to appeal. For the reasons which follow, we are not so satisfied. On the contrary, we consider that there is little merit in any of the proposed grounds of appeal.

9 In order to explain that conclusion, it is necessary to set out, in short detail, the circumstances of the offending, and the judge's reasons for sentence, before turning to each of the proposed grounds of appeal.

10 The offences were committed by the applicant on JK Milling Pty Ltd ('JK Milling'). The applicant was employed at the Horsham branch of JK Milling, initially as a maintenance manager in approximately 1999. He commenced work in quality assurance in early 2000, checking incoming and outgoing grain. In 2010, the applicant was appointed a grain merchant with JK Milling. His duties included buying grain from farmers for JK Milling, the sale of stockfeed products from the mill, and the sale of substandard product away from the mill. Each of the offences were committed by the applicant in the course of his duties which involved receiving and accounting for grain at the Horsham premises.

11 The applicable procedure for the sale by growers of grain to JK Milling was as follows. When a grower wished to sell grain to JK Milling, a purchase contract was raised setting out the relevant details. The contracts included the metric tonnage of the grain to be received, the name of the grower, the price paid, the date of the contract, and the delivery period. When the grain, the subject of the contract, was delivered to JK Milling, it was received at the testing stand. There the grain quality was checked to ensure that it met the required standard, and the truck was weighed, unloaded and tared off. That process determined the weight of the grain that was unloaded. Following that process, two copies of a weight ticket were generated, one of which was retained by JK Milling, and the copy of which was provided to the truck driver. The weight tickets included, inter alia, the grower's name, the grain variety, the silo that the grain was to be placed in, the registration number of the vehicle, the first name of the driver, and the gross and tare weights of the delivery. After the grain was received into storage, a further contract was raised in the grower's name. At the end of each week, a tax invoice was raised setting out the deliveries and contracts, in the name of the grower. Once that documentation was completed, it was conveyed to the head office in Brisbane. There, the bank account details, contained in the documentation, were cross-referenced against the grower's bank account, and payment was made into that account.

12 In essence, the applicant committed the offences charged by creating false documentation which caused funds to be paid into his own bank account from JK Milling as a consequence of the documentation fraudulently prepared by him. The offences were discovered by his employer as a result of events that occurred on 28 August 2015. On that date, a fellow employee became suspicious about a weight ticket and tare that had been entered by the applicant into the system in respect of a delivery, purportedly made on that date, but which the fellow employee believed could not have taken place then. The fellow employee informed the general manager about the delivery. When the applicant was questioned about it, he said that the delivery had been made that day. However, when the general manager checked the grain hopper, he concluded that no such delivery could have been received. When he questioned the applicant about it, he admitted that there had not been a delivery of the grain. Those circumstances constituted the offence alleged in charge 6, that the applicant attempted to obtain a financial advantage, namely payments in the sum of $41,985.55, from JK Milling by deception.

13 The applicant was immediately dismissed from his employment with JK Milling. A subsequent audit of the company's business records revealed that the applicant had arranged for bank account numbers to be altered in the computer system of JK Milling, either by a verbal or written request to the administration manager, or by sending an email to the head office in Brisbane. The bank account numbers were, in that way, changed to the applicant's personal bank account, which enabled payment to be fraudulently received by him.

14 Ultimately, it was discovered that on 27 separate occasions between 11 May 2011 and 17 August 2015, the applicant, had, in that way, fraudulently procured the payment to himself of funds from JK Milling totalling $357,728.65. On each occasion, the applicant had fabricated a delivery of grain to JK Milling by creating false weight tickets, each of which included fictitious or incorrect registration numbers. The applicant included on those tickets the names of six different accounts that belonged to retired farmers, family members or a deceased relative.

15 The fraudulent receipt by the applicant of those funds comprised charges 1 to 5 on the indictment. Each charge alleged the receipt by the applicant of payments by such deception in the course of specified periods of time between 11 May 2011 and 17 August 2015.

16 The losses sustained by JK Milling as a result of the applicant's fraud were the subject of an insurance indemnity. In turn the insurer, exercising its rights of subrogation, sued the applicant and obtained judgment in the amount by which he defrauded JK Milling. Subsequently, the applicant paid $200,000 in part satisfaction of that judgment.

17 The applicant was arrested by police on 9 September 2016. When interviewed on that day, he admitted to the fraudulent deceptions. He ascribed his conduct to the stress that he was under in the course of his employment, as well as mental ill health suffered by him, and the breakdown of his marriage. The applicant stated that he had been under unrealistic pressures and that he had worked long hours. As a result, he drank excessive quantities of alcohol, which in turn had adversely affected his relationship with his wife and children.

18 The applicant was born on 25 November 1969 and was brought up on a farm 25 kilometres from Horsham. He completed Year 11 at Horsham Technical School. After leaving school, he initially worked on the family farm, then he worked as a fitter and turner for 12 years, having completed his apprenticeship in that trade. As noted, the applicant commenced employment with JK Milling in December 1999.

19 The applicant married in his early 20s, and there were two sons born to the marriage. In 2007, he began to suffer from symptoms of depression. He consulted a general practitioner in Horsham, and was prescribed the antidepressant medication Duloxetine. At the same time, he resorted to the excessive consumption of alcohol. As a consequence, his marriage deteriorated, and at the time of the plea, it had come to an end.

20 After his dismissal from JK Milling, the applicant consulted a clinical psychologist, Dr Tara Darby. He attended weekly therapy sessions with Ms Darby in order to manage his symptoms of depression. Ms Darby considered that his symptoms were consistent with a diagnosis of Major Depressive Disorder with associated suicidal ideation. In her report, Ms Darby considered that the applicant lacked insight or experience to recognise the impact that his ongoing stress was having on his ability to function effectively, as a result of which he had begun to experience symptoms of depression, low mood, irritability and distance in his personal relationships. Ms Darby considered that the applicant's mental health at the time had contributed to his offending behaviour.

21 The applicant was examined by Dr Remy Glowinski, a consultant psychiatrist, in August 2016. Dr Glowinski considered that the applicant suffered symptoms suggestive of a form of depressive illness, which consisted of either an adjustment disorder with depressive features, or possibly a Major Depressive Disorder. His consumption of alcohol was such that he met the criteria for a significant alcohol abuse disorder. Dr Glowinski expressed the view that there was a complex motivational nexus behind the applicant's offending, involving his drinking, his depressive symptoms and his perception of being mistreated by his employer.

22 The applicant was also examined by Dr Andrew Carroll, a consultant forensic psychiatrist, in November 2016. Dr Carroll concluded that the applicant had suffered a Major Depressive Disorder of moderate severity which was then in remission. In light of his heavy alcohol use, he also had an alcohol abuse disorder of at least moderate severity. Dr Carroll considered that the applicant was clinically depressed with the Major Depressive Disorder throughout the time of his offending. He considered that the underlying motivation for the applicant's offending was to obtain temporary respite from his feelings of powerlessness and anguish by striking back at his employer in a covert way. The applicant's depressive distortion of judgment and loss of perspective were such that at the time he felt his conduct was justified as a form of retribution. Thus, Dr Carroll considered that the applicant's depressive illness at the time had a meaningful causal connection with his commission of the offences. Dr Carroll further expressed the view that the applicant was not currently mentally ill. However, if he was sentenced to a term of imprisonment, he would be separated from his treating psychologist, which would result in a significant risk that imprisonment could have an adverse effect on his mental health.

23 In the course of the plea, Dr Carroll gave evidence in accordance with his report.

24 In sentencing the applicant, the judge set out the circumstances of the offending, the applicant's background history, and the psychological evidence to which we have referred. In light of that evidence, the judge accepted that the applicant's poor state of mental health at the time of the offending mitigated his culpability in accordance with the first four principles enumerated in R v Verdins.[6] In particular, the judge considered that the weight to be given to both general deterrence and specific deterrence should be moderated. His Honour took into account, as mitigating factors, the applicant's plea of guilty, his remorse, and the fact that he had cooperated fully with investigating police. His Honour considered that the applicant's prospects of rehabilitation were excellent. He also took into account that the applicant had arranged to recompense the insurance company for more than one-half of the amount that he had fraudulently obtained as a consequence of his offending. The judge concluded by stating as follows:

... Your criminal activity has had devastating effects, particularly upon the employees at the mill in Horsham and the customers of that company and, of course, the company itself having lost income and reputation. Your behaviour is to be condemned in the strongest of terms. Again, I am conscious of the principles of Verdins' case and you are (sic) intelligent man and you should have acted in a much different fashion.[7]

25 The notice of application for leave to appeal against sentence contains four proposed grounds, namely:

Ground 1 - The learned trial judge erred in failing to take into account

(a) the payment of $200,000 made by the applicant to the insurer that reimbursed the victim.

(b) the reimbursement of the insurer.

Ground 2 - The learned sentencing judge erred in finding that JK Milling Pty limited had lost income when all losses had been paid by insurance.

Ground 3 - The learned sentencing judge erred in finding that the applicant had received a 'considerable benefit' in pleading guilty to a rolled up count.

Ground 4 - The learned sentencing judge erred in failing to take into account principles 5 and 6 of the matters that are relevant to the sentencing of persons with impaired mental functioning in Verdins.

Ground 5 - The individual sentences, the totality of the sentences, and orders of cumulation were manifestly excessive in the circumstances.

26 Those proposed grounds of appeal, and the written case filed with the Court in support of them, were prepared by counsel who was different to counsel who represented the applicant on the oral hearing of the application. On that hearing, counsel did not seek to rely on grounds 1, 3 and 5. However, counsel was concerned that if an extension of time were granted to the applicant, the original counsel might seek to rely on those grounds. Accordingly, and out of an abundance of caution, she did not abandon any of those grounds.

27 As already mentioned, we consider that there is little merit in any of the proposed grounds of appeal. Indeed, we would venture that the first four grounds of appeal are entirely devoid of any merit.

28 The first proposed ground of appeal is without substance. In his reasons for sentence, the judge expressly noted that the applicant had arranged to recompense the insurance company an amount over one-half of the sums that were fraudulently obtained by the applicant's activities. While the judge did not expressly state that the applicant had repaid the insurer that amount, it is clear that, in the context of the information provided on the plea, his Honour took that circumstance into account.

29 The second ground is, similarly, without merit. As a result of the applicant's offending, JK Milling was deprived of a total sum of $357,728.65 by the successive depredations by the applicant between May 2011 and August 2015. The claim by JK Milling on its insurer, and the payment by the insurer of that claim, did not occur until after the offending was discovered in August 2015. Thus, during the four-year period of the applicant's offending, JK Milling made successive payments, based on the fraudulent invoices generated by the applicant, for grain which it did not receive, and from which it did not derive any income. In that way, JK Milling bore the losses inflicted by the applicant's depredations over a four-year period.

30 In addition, the victim impact statement filed on behalf of JK Milling disclosed other financial losses incurred by the company, including the costs of a staff review, loss of productivity, the costs of additional audit requirements arising from incorrect stocktake figures, and legal costs. Further, as a result of the applicant's fraud, the insurer of JK Milling required it to expend substantial funds on increased security and it also increased the insurance premium payable by JK Milling.

31 In those circumstances, the judge was entirely correct to observe, in his sentencing reasons, that the applicant's criminal activity had resulted in the loss by JK Milling of income and reputation.

32 In support of ground 3, counsel for the applicant (in the written case) contended that the applicant received no benefit in pleading guilty to a rolled up plea. Counsel noted the judge's reference to R v Jones,[8] in which Charles JA outlined the nature, and function, of a rolled up count, in the sentencing process. Counsel submitted that, unlike in Jones' case, the applicant derived no advantage or benefit from pleading to five rolled up counts, in lieu of the 24 separate counts that were contained on the original indictment.

33 The point, sought to be relied on in support of proposed ground 3, is based on a misconception of the judge's observation that, by the compression of the 27 separate counts into five rolled up counts, the task of the sentencing judge was simplified and '... may be thought by an appellant to give him a considerable benefit in the term'.[9]

34 That remark followed a detailed explanation given by his Honour to the applicant of the nature and effect of the five rolled up counts to which he had pleaded guilty. In doing so, the judge quoted sections of the judgment in Jones, in which Charles JA had noted that the practice of using rolled up counts, in a case involving a series of individual offences, simplifies the task of the sentencing judge and works to the advantage of the prisoner.[10] The particular advantage, so described by Charles JA, arose from the fact that, in that case, by rolling up a large number of discrete offences into one rolled up count, the maximum sentence for the offence charged was 10 years' imprisonment, as contrasted to a theoretical maximum sentence of 240 years. In the present case, the sentencing judge, having quoted passages of the judgment in Jones, then proceeded to provide the same explanation to the applicant as to the theoretical benefit that might be thought to derive from pleading guilty to rolled up counts.

35 Accordingly, proposed ground 3 is without substance, and has no prospects of success.

36 In support of ground 4, counsel for the applicant acknowledged that, on the plea, counsel then acting for the applicant had conceded that the fifth principle, enunciated in Verdins, would have little weight, and the sixth principle would not be applicable. As a consequence, the judge accepted that the psychiatric evidence established each of the first four bases, upon which the applicant's psychological condition was relevant, as identified by the Court in Verdins, but did not take into account the mitigating factors described in the fifth and sixth bases.

37 In this application, counsel submitted that the concession, so made on the plea, was inconsistent with the evidence of Dr Carroll, who stated that the applicant would not be able to receive in prison the kind of treatment that he had received at the time of sentencing, so that he would be at significant risk of relapse in his condition. In that way, it was submitted, the judge erred in failing to take into account, as a mitigating circumstance, that, as a consequence of his psychiatric condition, there was a serious risk that imprisonment might have a significant adverse effect on his mental health.

38 As earlier noted, in his report, Dr Carroll had stated that, because the applicant would not have access to his treating psychologist whilst in prison, there was a significant risk that imprisonment would have a significant adverse effect on his mental health. However, Dr Carroll qualified that view, by also noting that, in light of the significant improvement that the applicant had made during the previous year, Dr Carroll would be 'reasonably confident' that the applicant would not relapse into the severity of the episode that he suffered between 2011 and 2015. Dr Carroll also stated that, as the applicant would be in receipt of mental health monitoring and pharmacotherapy in prison, he 'would be cautiously optimistic' that the applicant would not be at a high risk of suicide in prison. In cross-examination, in the course of the plea, Dr Carroll confirmed those views, in particular accepting that he would not expect that the applicant's condition would deteriorate in custody to the level of it before he was arrested. He said that there were a number of protective factors present, at the time of the plea, that were not present at the time of the offending.

39 In Verdins, the Court described the sixth way, in which impaired mental functioning might affect the sentencing, as follows:

Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[11]

40 In light of the evidence of Dr Carroll, it could not have been maintained on behalf of the applicant, on the plea, that there was a serious risk that imprisonment might have a 'significant adverse effect' on the applicant's mental health. Accordingly, there was an appropriate basis for counsel, on the plea, to make the concession relating to the non-application of each of the last two principles stated in Verdins. In that respect, it is significant that, counsel initially made that concession before Dr Carroll gave evidence on the plea, and he repeated it after Dr Carroll had given that evidence. In the circumstances, counsel was correct to make the concession, and it was entirely appropriate for the judge to accept and rely on it. Accordingly, there is no substance to proposed ground 4.

41 In support of proposed ground 5, counsel (in the written case) submitted that, in light of a number of mitigating factors that attached to the applicant's offending, and to his personal circumstances, the individual sentences, the orders for cumulation, and the total effective sentence, were each manifestly excessive. In particular, counsel relied on the following matters: the applicant's age and lack of previous convictions; his early plea of guilty; the fact that he had repaid $200,000; the stresses to which the applicant was subjected at work which, it was contended, had played a causative role in his offending; the admissions made by the applicant at the time of his dismissal from employment and in his interview with the police; the applicant's domestic stresses which resulted in the breakdown of his marriage; and the evidence of Dr Carroll as to the applicant's psychiatric history, including his need for anti-depressant medication since 2007. Taking those matters into account, it was contended that the sentences imposed on the applicant, and the total effective sentence, were each manifestly excessive.

42 Each of the mitigating circumstances, relied on by counsel for the applicant, were referred to by the judge in his reasons for sentence, and were relevant to the determination of the sentences that were imposed on the applicant. On the other hand, the offending by the applicant was particularly serious. Over a period in excess of four years, the applicant engaged in a course of defrauding his own employer. In doing so, he acted in gross breach of the trust that his employer reposed in him.[12] The conduct of the applicant in perpetrating the frauds was calculated and planned. As a consequence, he was able to defraud his employer of a substantial amount of money.

43 The respondent led evidence, on the plea, by which the prosecution sought to contradict the assertion by the applicant that he was overworked and underpaid in the period of the offending. However, even accepting that the applicant had such a perception, it did not provide any excuse or justification for his conduct. Notwithstanding the applicant's psychological condition at the time, he was clearly fully able to understand that his conduct was wrongful. The fact that he was able to conceal it from his employer for a period of more than four years reflects the degree of planning and stealth by which he committed the frauds.

44 Taking those matters into account, and giving full weight to each of the mitigating circumstances relied on by the applicant, it could not be reasonably maintained that the individual sentences, the orders for cumulation of the sentences, or the total effective sentence, were wholly outside the range of sentencing dispositions available to the judge.[13] On the contrary, the individual sentences, and the total effective sentence, were appropriate and reasonable.

45 In summary, then, the delay by the applicant in filing an application for leave to appeal against sentence was particularly lengthy. In those circumstances, it behoved the applicant to adduce appropriate evidence, and in particular documents, that supported the excuse that he has proffered for the delay in making that application. The applicant has failed to put forward any adequate materials to that effect. Rather, he has relied on two brief, and uninformative, affidavits filed by his solicitor. The proposed grounds, upon which the applicant would seek to rely in support of his application for leave to appeal against sentence, are singularly lacking in any merit. Taking those matters into account, the applicant has failed to make out any appropriate basis upon which this Court should accede to the application to extend the time within which the applicant might seek leave to appeal against the sentences imposed on him. It follows that that application must be refused.

[1] DPP v Barber [2016] VCC 1869 (_'_Sentencing Remarks') [55].

[2] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613-14 [30]-[32] (French CJ, Hayne, Bell and Keane JJ).

[5] Bowling v The Queen [2013] VSCA 87, [17] (Redlich JA); Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA); Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59] (Priest JA).

[6] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins'), 276 [32].

[8] [2004] VSCA 68 ('Jones').

[10] Jones [2004] VSCA 68, [13].

[11] Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[12] Cf R v McLean [2000] VSCA 217; (2000) 2 VR 118, 138 [44] (Tadgell JA); DPP v Truong [2004] VSCA 172, [20] (Batt JA); DPP v Felton [2007] VSCA 65; (2007) 16 VR 214, 230 [49] (Kellam AJA).

[13] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].