Criminal Law - Appeal and new trial - Appeal against sentence - Sentence manifestly excessive or inadequate - Computer related fraud - Public servant misappropriated $398,000 over eight years - Sentence of three years' imprisonment with one year suspended and non-parole period of one year not manifestly excessive.

R v Verdins [2007] VSCA 102, 16 VR 269; Brown v The Queen [2020] VSCA 212, 62 VR 491, referred to.

Judgment Number: [2023] TASCCA 2

1. The appellant, Jacqueline Broomhall, misappropriated a substantial sum of money in the course of her employment in the Tasmanian Health Service. In September 2022 she pleaded guilty to one count of insertion of false information as data, one count of computer related fraud, two counts of forgery, and two counts of uttering. The total amount misappropriated by her was $398,534.28. She misappropriated money on over 300 occasions during a period of a little over eight years, between November 2008 and February 2017. On 23 September 2022 Jago J sentenced her on the six charges to three years' imprisonment, with one year of that sentence suspended, and a parole ineligibility period of one year.
2. Ms Broomhall appealed against that sentence, contending that it was manifestly excessive. This Court heard that appeal on 7 March 2023 and dismissed it, reserving its reasons for publication at a later date.
3. Although the notice of appeal did not assert any specific error on the part of the learned sentencing judge, counsel for the appellant argued that her Honour did not give sufficient weight to the application of the principles discussed by the Victorian Court of Appeal in R v Verdins [2007] VSCA 102, 16 VR 269. For the same reasons as those now stated by Estcourt J, I concluded that the Verdins principle_s_ had not been given insufficient weight, concluded that the sentence was not manifestly excessive, and joined in the order dismissing the appeal.

1. This appeal against sentence was dismissed by the Court on 7 March 2023 after hearing the appellant. The following are my reasons for joining in the order of the Court.
2. On 23 September 2022, the appellant, Jacqueline Maree Broomhall, pleaded guilty to one count of insertion of false information as data, contrary to s 257E of the Criminal Code, one count of computer related fraud contrary to s 257B(c) of the Code, two counts of forgery contrary to s 278 of the Code and two counts of uttering contrary to s 279 of the Code.
3. In summary, over a period of about eight years, the appellant falsely entered into the Tasmanian Health Service Financial System, a series of false or altered patient claims for reimbursement, unlawfully obtained for herself the amount of $398,534.28 from her employer and directed that amount into bank accounts operated by or controlled by her.
4. The appellant was convicted on all counts by Jago J and was sentenced to a single sentence of three years imprisonment, the last 12 months of which were suspended on condition that she not commit any offence punishable by imprisonment for a period of eighteen months following her release from custody. The learned sentencing judge ordered that the appellant be eligible for parole after she had served one-half of the period of actual imprisonment.
5. The appellant has appealed against that sentence on the sole ground that it was manifestly excessive. The principles relevant to such an appeal are well known. See for example Hall v Tasmania [2015] TASCCA 6 per Pearce J at [51]-[52].
6. The appellant's written submissions state:

"In effect the Appellant's position is that insufficient weight was given to the application of Verdins principles, and this arose from the erroneous assumption that the reports of psychiatrist Dr Hyde did not constitute a 'Verdins' Report'. Additionally, it is argued that when totality and Verdins' principles are considered together the sentence imposed was crushing, especially given the Appellant's suitability for community service."

1. The learned sentencing judge did not erroneously assume that the reports of Dr Hyde were not Verdins reports. It is clear from her Honour's comments on passing sentence, when read in their entirety, that she meant only what she in fact said, namely, that "[t]he reports with which I have been provided do not directly address the Verdins principles." (Emphasis added.)
2. In Brown v R [2020] VSCA 212; 62 VR 491 the Victorian Court of Appeal set out the Verdins principles as follows at [20]-[21]:

"[20] In Verdins, this Court reformulated, and extended, principles first gathered together in R v Tsiaras, one of the earliest decisions of the Court of Appeal. In Verdins, the Court said that impaired mental functioning, whether temporary or permanent ('the condition'), was relevant to sentencing in at least six ways, as follows:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. 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.

[21] A point of particular emphasis in Verdins was that the sentencing court should not be concerned with diagnostic labels which, by themselves, could provide no assistance in assessing the impact of the relevant condition on the offender at the relevant time(s). Instead, the court's assessment should depend upon, and be informed by, what the expert evidence showed."

1. The learned sentencing judge considered Dr Hyde's reports carefully, and in some detail, as they engaged the relevant Verdins principles. She said:

"I accept you suffer from some significant mental health difficulties. I have received and considered a number of reports from psychiatrist Dr George Hyde. Dr Hyde started treating you after the incident where you had intentionally driven your motor vehicle into an oncoming truck following your detection for these matters. He has diagnosed you with Bi-Polar Affective Disorder Type 2. Dr Hyde notes that initially you were diagnosed and treated for Major Depressive Disorder. He opines that this was a mis-diagnosis and that the correct diagnosis is Bi-Polar Affective Disorder. He refers in his report to two incidents which, in his view, exacerbated your mental health condition in the lead up to these crimes. He refers to an alleged incident of sexual harassment in your then workplace as well as alleged episodes of workplace bullying. Dr Hyde opines:

'The increased level of stress as a result of the alleged sexual harassment and alleged bullying, would have likely resulted in breakthrough mood episodes of Mrs Broomhall's undiagnosed and untreated Bi-Polar Affective Disorder, making her more likely to have impaired judgment and undertake impulsive actions... It is my opinion that her untreated Bi-Polar Affective Disorder would have significantly impacted upon her capacity to make reasonable judgments in the workplace... It is my opinion that her Bi-Polar Affective Disorder became clinically apparent in approximately the year 2000, eight years before her employment with the Department of Health in 2008...I believe Mrs Broomhall's undiagnosed and untreated hypomanic episodes (as part of her Bi-Polar Affective Disorder) would have contributed to her actions of alleged misappropriation of funds.'

In a second report, Dr Hyde also opines that your misdiagnosis and treatment for Major Depressive Disorder with anti-depressants, may have worsened your Bi-Polar Affective Disorder. He states:

'Unfortunately, it is very likely that the treatment she was receiving for the period of 2008-2017 for her then diagnosis of Major Depressive Disorder was most likely making her actual condition (Bi-Polar Affective Disorder) clinically worse ...

Mrs Broomhall was significantly, chronically and frequently mentally unwell with untreated Bi-Polar Affective Disorder through no fault of her own, or of her treating practitioners. It is also my opinion that the extent to which she was mentally unwell during this time would have likely affected her decision making capacity, levels of impulsivity and capacity to think clearly.'

It is necessary to consider the extent to which the defendant's mental health condition contributed to the offending behaviour and the extent to which this impairment should appropriately affect sentence. The reports with which I have been provided do not directly address the Verdins principles. It is noteworthy that the ability of Dr Hyde to comment on the link between the defendant's mental health and the offending behaviour, is restricted by the fact that he did not treat her until February 2017. The opinion he offers as to the likely impact of her mental health condition upon her behaviour for the period 2008 - February 2017 is provided retrospectively. His reports comment upon direct clinical observations that he has undertaken since February 2017, but it is not clear from his reports what information, other than from family members, he had access to which described the behaviours or mental health of Mrs Broomhall in the period 2008 - 2017. What is apparent, however, is that the defendant clearly suffers from a significant and long term mental health disorder. The severity of that mental health disorder in the past has seen her regularly consult with, and be treated by, mental health professionals. It has also seen her attempt to take her life on more than one occasion.

Taking all those matters into account, I am satisfied that the defendant's mental health contributed in some unspecified way to the commission of the crimes. The defendant's poor mental health makes this a case whereby her moral culpability is lessened and that justifies a tempering of the role general deterrence and denunciation ought to play in the sentencing process. I also accept that the defendant's mental health condition is such that a period of imprisonment will be more onerous upon her than for a person who does not suffer from such mental health difficulties. To that end, some leniency is justified, but I have nothing before me to suggest prison services cannot safely accommodate a person who suffers from Bi-Polar Affective Disorder

That being said, it must also be borne in mind that the fraudulent behaviour went on for a very long period of time and whilst I accept Mrs Broomhall suffered from her mental health condition for all of that period of time, I am not of the view that she did not appreciate or have insight into her wrong doing. Indeed, some of her behaviours clearly suggest to the contrary. Throughout all of this period of time, Mrs Broomhall was still working and was still able to make day to day decisions and attend to day to day tasks associated with that employment. So, whilst I am prepared to sentence on the basis that general deterrence and denunciation should be moderated because the defendant's moral culpability is reduced, the application of those sentencing principles should not, in my view, be entirely eliminated from the sentencing exercise." (Emphasis added.)

1. A little later in her comments on passing sentence the learned sentencing judge returned to the extent of the modification to sentence warranted on the basis of the Verdins principles. Her Honour said:

"Even making allowance for the defendant's mental health condition and the reduction in moral culpability that flows, this nevertheless remains a very serious case of fraud involving a very substantial amount of money taken over a long period of time by an employee in whom a high level of trust was placed. In a sustained, deliberate and methodical manner, Mrs Broomhall used her knowledge of the Patient Assistance Scheme to dishonestly benefit herself. Throughout that time, the defendant committed numerous separate acts of dishonesty. She actioned 331 fraudulent transactions into bank accounts operated or controlled by her. This was not a short lived, nor spontaneous enterprise. She did not voluntarily desist. It only stopped when it was discovered. Whilst I accept the severity of the sentence should be moderated because of the mental health condition to which I have referred, it cannot be moderated to the point that the sentence fails to respond to all applicable sentencing principles...

There is no question this is a difficult sentencing task. Mrs Broomhall, I accept your life has been impacted by a significant mental health condition which is relevant to sentencing in the ways that I have enunciated. You are entitled to credit for the fact that you have paid restitution in the sum of $300,000.00. These factors have to be measured against the fact you embarked upon a sustained course of serious criminal conduct involving a substantial amount of money. Abuse of trust by trusted employees is unfortunately not all that uncommon and there is a need to impose a sentence which condemns such behaviour, even if the condemnation is tempered because of your mental health." (Emphasis added.)

1. From the foregoing extracts from her Honour's comments on passing sentence it can be clearly seen that the learned sentencing judge identified and applied each of the applicable Verdins principles and moderated the appellant's sentence accordingly. Thus it cannot be said that she erred by giving insufficient consideration to those principles. In any event, the question for this Court on this appeal is not whether her Honour gave sufficient weight to Verdins considerations, it is whether the sentence is manifestly excessive in all of the circumstances of the case. In my view it is not.
2. In Perri v Tasmania [2022] TASCCA 3 this Court dismissed an appeal by Rachael Perri, against her sentence of six years' imprisonment with a non-parole period of three years and six months imposed by Jago J on 9 December 2021 in respect of 25 counts of computer-related fraud contrary to s 257B(c) of the Criminal Code, and one count of fraud contrary to s 253A of the Code.
3. In that case I said at [10]:

"McCulloch v Tasmania [2010] TASCCA 21 was a case in which the appellant stole over $1.2 million from her employers over a period of three and a half years. She was charged on 346 counts of computer-related fraud, contrary to the Code, s 257B(c). Tennent J sentenced her to seven years' imprisonment, and ordered that she not be eligible for parole until she had served five years of her sentence. Blow J (as he then was), with whom Porter and Wood JJ agreed, said at [10]:

'10 Counsel provided the learned sentencing judge with information about sentences imposed in eight Tasmanian cases involving thefts or misappropriations of sums between $200,000 and $1.7 million since the late 1980s. Details of those cases and several others were provided to this Court on the hearing of the appeal. I think it is fair to say that those cases do not reveal any tariff for misappropriations of the magnitude of $1.2 million or thereabouts. Each case depends on its own facts, particularly on the nature of any position of trust occupied by the offender, whether the offender had any significant prior convictions, and whether the offender pleaded guilty or went to trial. Significantly in my view however, it seems clear that no one convicted of crimes of dishonesty in Tasmania for at least 25 years has received a sentence involving a non-parole period as long as five years. It also appears that in the last 25 years only three offenders have been sentenced to more than six years' imprisonment for crimes of dishonesty: R v Room, 25 August 1989 (8 years); R v Durovic, 12 February 1993 (8½ years); Tasmania v Pannala, 12 December 2008 (7 years, with 3 years suspended in lieu of parole).'" [Emphasis added.]

1. In Perri the amount involved of $970,221.47 was well over twice as much as is involved in the present case although the length of the offending was only a little over half. However, recognising that there is no tariff for these crimes and that sentences in other cases are frequently unhelpful, I am of the view that Perri and McCulloch and the sentences I have referred to in the passage from McCulloch set out above, provide a useful yardstick. As does the decision of this Court in Director of Public Prosecutions v Kendall [2021] TASSCA 10 in particular at [25]. That case involved a similar amount of money as the present and the period of offending was significantly shorter. This Court sentenced the respondent to a term of imprisonment of four years with 12 months suspended and a non-parole period of 18 months. In my view the sentence in the present case simply cannot be said to be unreasonable or plainly unjust and thus is not manifestly excessive.
2. The appellant also complains that, "because of the relevance of the mental illness in relation to offending, and the impact of the mental illness at the time of sentence, it was an appropriate case for the whole (sic) suspension of the term of imprisonment." The learned sentencing judge acknowledged and answered that submission in her comments on passing sentence when she observed:

"It was argued on behalf of the defendant that a period of imprisonment would 'serve no purpose'. If it was only issues pertinent to the defendant that the sentence must address, such a submission may carry weight, but that is simply not the case. The sentence must be reflective of the overall seriousness of the criminal conduct and be just in all of the relevant circumstances."

1. Her Honour was of the same view in relation to home detention when she noted:

"I had Mrs Broomhall assessed for a home detention order. Mrs Broomhall is not considered suitable because of her mental health condition and the adverse impact home detention is likely to have upon it. Regardless of that assessment, I have decided, in any event, a home detention order would not be an appropriate sentence to impose. This matter is simply too serious. In all of the circumstances, a period of imprisonment must be imposed."

1. I respectfully agree. A wholly suspended sentence, even coupled, as the appellant suggests, with a substantial period of community service, would have been a totally inadequate response to the appellant's criminal conduct.
2. Finally, the appellant contends that:

"[T]hat the imposition of a global sentence involving a custodial period, it is submitted, was an error. While a global sentence may in many instances appropriately address the issue of totality where sentencing for multiple crimes, consideration of mercy is still required. Moreover, the requirement to serve two years imprisonment with a non-parole period of half, was by reason of the state of the Appellant's mental health, a crushing sentence."

1. There can be no complaint as to the non-parole period as it was the minimum allowed by law. As to totality I repeat what I said in Perri at [6], namely:

"As to the issue of totality raised by the notice of appeal, the following observations of McLure JA in the decision of the Western Australian Court of Appeal in Taylor v The State of Western Australia [2015] WASCA 72, at [27]-[31] as to the relevance of the totality principle in cases of multiple offences are instructive:

27 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.

28 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

29 Sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect.

30 Manifest excess applies to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.

31 The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.'" (Emphasis added.)

1. And in Coles v Tasmania [2013] TASCCA 9, I set out two passages from decisions considering the totality principle. At [26]-[27] I noted as follows:

"26 Gaudron and McHugh JJ observed, obiter, in Griffiths v R [1989] HCA 39; (1989) 167 CLR 372 at 393:

'It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Reg v Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice (1985), p 282; Hall, Sentencing in New Zealand (1987), p 195. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.'

27 In Attorney-General v Tichy (1982) 30 SASR 84, Wells J said at 92-93:

'It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct ...'."

1. There is no error in imposing "a global sentence" in a case such as this provided that the sentence is appropriate to the total criminality of the appellant. In a case such as this, involving a long series of closely related crimes of dishonesty, the issue of totality involves the same question as whether the sentence is manifestly excessive. As can be seen, in my view, it is not. To my mind the effective sentence bears "a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally".
2. Indeed, I am of the view that it is hard to imagine a more careful and thorough analysis of the appellant's personal circumstances, the significance of her psychiatric disorder and the need to balance an appropriate moderation of sentence with the nature of the appellant's fraud, involving, as it did, a very substantial amount of money, taken in a sustained, deliberate and methodical manner, over a long period of time, by an employee in whom a high level of trust was placed. I respectfully agree with the outcome of that analysis.
3. For the foregoing reasons I joined in the order of the Court that the appeal be dismissed.

1. I have had the benefit of reading the reasons of Estcourt J. For the reasons his Honour gives, I joined in the order dismissing the appeal.
2. The appellant's single ground of appeal is that the sentence imposed was "manifestly excessive". Such a ground is an assertion that "...having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases.... there must have been some misapplication of principle.": R v Pham [2015] HCA 39, (2015) 256 CLR 550 at 559 [28] per French CJ, Keane and Nettle JJ, "even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58]. It is a difficult ground to establish and can only succeed where it is shown that the sentence imposed is in all the circumstances wholly outside the range of sentences open to the sentencing judge: Ellis v The Queen [2018] VSCA at [30].
3. It is trite to say that sentencing is an individualised exercise and sentences are not binding precedents (Dalgleish (a pseudonym) [2017] HCA 41), but an appellate court's analysis in such cases necessarily involves a consideration of comparable sentences against the circumstances of the instant case. It goes beyond an analysis of the statement of sentencing reasons in the particular case, engaging a wider analysis of comparable cases, in order to determine whether the sentence imposed is unreasonable or plainly unjust. If it is error is inferred.
4. At hearing the appellant's complaint was that the sentencing judge had failed to give sufficient weight to evidence which engaged the principles articulated in R v Verdins & Ors [2007] VSCA 102 and failed to reflect a proper application of the totality principle (see Johnson v The Queen [2004] HCA 15, per Gummow, Callinan and Heydon JJ). It was submitted that a different sentence was required to properly reflect that evidence and a correct application of the requirement for a result which was proportional and not crushing.
5. By those submissions the appellant identified "where and how" (in the language of Wong, above) it was asserted the sentencing judge fell into error. That is an assertion of specific error in respect of a matter material to sentence, rather than inferential error of the type pleaded in the ground of appeal. The analytical pathway to a result is different. It requires an analysis of the sentencing judge's reasons for the sentence imposed. Upon that analysis, if material error is identified the sentence must be set aside even if it is within the range of sentences for such cases: Kentwell v The Queen [2014] HCA 37, 252 CLR 601, French CJ, Hayne, Bell and Keane JJ. This is so because "it cannot be said with confidence" that the error "did not affect the exercise of the sentencing discretion": Turnbull v The Queen [2019] NSWCCA 97 at [36] per Simpson AJA; Ierace J agreeing.
6. The outcome would not have been different, but the point is not always an academic one because a material error, even if relatively inconsequential, would have required this court "to exercise an independent sentencing discretion": see Turnbull (above) at [36]; and Kentwell (above) at [42]:

"When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Sentencing Procedure Act] and any other Act or rule of law require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence." (My emphasis).

1. Thereby the appellant would have engaged this Court in the sentencing exercise afresh leaving open to submission and in turn consideration "... a range of sentences": Kentwell (above).
2. The appellant's case might thus have been better served if the Notice of Appeal asserted specific error, (as an additional ground if "manifest excess" was claimed in any event).
3. To have done so would have more appropriately engaged the issues raised.