DPP v Felton [2007] VSCA 65

DPP v Felton [2007] VSCA 65 - VSCA 2007 case summary — Zoe

[5]

4 This is an appeal brought by the Director of Public Prosecutions pursuant to s 567A of the Crimes Act 1958. The appeal is brought against sentences imposed by the County Court at Melbourne on 15 September 2006 upon the respondent, Abbe Jane Felton.

5 On 4 September 2006 the respondent pleaded guilty to 15 counts of theft. On 15 September 2006 the respondent was sentenced to an aggregate sentence of nine months' imprisonment in respect of Counts 1, 3, 4, 5 and 7 appearing on the presentment, and it was ordered that she undertake a Community Based Order ("CBO") for a period of two years with special conditions in relation to Counts 2, 6, 8, 9, 10, 11, 12, 13, 14 and 15 appearing on the presentment. Furthermore, the learned sentencing judge ordered that the aggregate term of nine months' imprisonment be wholly suspended for a period of two years.

The factual background

6 The factual circumstances under which the respondent committed the offences to which she pleaded guilty are that from February of 2002 she was employed as a receptionist/administration officer by Ideation Pty Ltd. In the course of her employment the respondent came to be responsible for the payment of outstanding invoices to creditors of her employer at the direction of its directors. The company which employed the respondent operated two accounts with the ANZ Bank, both of which were linked to an internet banking facility which was password protected. Many suppliers requested that their invoices be paid via this internet banking facility and in order to facilitate the prompt payment of invoices the respondent was given access to the online banking facility, and advised of the passwords necessary to operate that facility. Between 14 July 2003 and 26 July 2004 the respondent used the internet banking facility to make a total of 102 unauthorised electronic transfers from the two bank accounts to one of nine accounts that were either in her name, or controlled by her. The total amount of those unauthorised transfers was $158,807. None of the 102 payments related to any invoices actually received by the legitimate business of the employer of the respondent. She resigned her position on 30 July 2004 and soon after her resignation her criminal activities were detected. The respondent made full and frank admissions as to the fact of her thefts when interviewed by police in February of 2005. However no adequate explanation was given as to the precise disposition of the monies stolen. In the course of her record of interview she told police that she had used the money to "help pay the bills". She told police that substantial funds of money were put into her partner's account without his knowledge.

The Grounds of Appeal

7 The Director of Public Prosecutions brings this appeal because he considers that the sentences imposed were inadequate and considers, as s 567A of the Crimes Act requires him to do, that an appeal should be brought in the public interest. The grounds of appeal on which the Director relies are:

[7]

The evidence upon the plea

8 The evidence put before the Court on the plea was that the respondent who was born on 29 September 1983 was aged between 19 and 20 years at the time of the commission of the offences. She had entered pleas of guilty at the committal in February 2006, at which time the matter proceeded by way of hand-up brief. Forensic psychologist, Jeffrey Cummins, gave evidence before the sentencing judge, in the course of which he stated that he had obtained a history from the respondent that she had had a dysfunctional upbringing, and had not "adequately inviduated" from her mother. In turn she had formed a dysfunctional and problematic relationship with her de facto partner when she was aged 17 years. The judge was informed that the respondent had not informed her mother as at the date of the plea of the fact that she had been charged with the offences. It was said that the de facto partner of the respondent was not in regular paid employment, was a heavy user of cannabis and was "extremely controlling". Mr Cummins expressed the opinion that the respondent suffered from "battered wife syndrome" as she had been physically and emotionally abused by her de facto partner. He contended that the reason for the offending by the respondent was that she wished to please her partner by providing for him. Mr Cummins stated that in psychological terms she was "under duress to re-offend".

9 The hearing of the plea was adjourned from 24 August 2006 to 4 September 2006 to enable the mother of the respondent to be informed of the offences and to give evidence. The mother of the respondent did give evidence on the adjourned date and stated that she had observed "the aftermath" of assaults of the respondent by her partner, being bruises on her arms and legs. She had also observed damage to the walls of the respondent's home caused by the respondent's partner and observed a knife and baseball bat on his side of their bed. She gave evidence that she had encouraged the respondent to leave her partner and take the children to live with her and that the respondent had done that, although the respondent's partner continued to attend her home every day to see the children.

The submissions of the Director as to Ground 1

10 In respect of ground one, that is the submission by the Director that the sentence was manifestly inadequate, it is submitted that the circumstances of the case mandated an immediate custodial sentence well in excess of the nine months that her Honour imposed and then wholly suspended. In support of this ground the Director contends that in fixing an aggregate sentence of imprisonment and in ordering that the sentence be wholly suspended for a period of two years, the sentence of the judge failed to reflect the gravity of the offence, failed to take into account issues of specific deterrence and failed to take into account the aspect of general deterrence. In addition, it is contended that her Honour gave too much weight to factors going to mitigation, failed to give sufficient weight to the number of offences, and to the length of the period of offending, and to the maximum penalties applicable to the offence of theft. Furthermore, it is contended that the sentencing judge gave insufficient weight to the breach of trust demonstrated by the respondent and failed to take into account sufficiently the effects of the offending upon the victim. It is further argued that the sentencing judge gave insufficient weight to the fact that Counts 1 to 8 and 10 to 15 were rolled up counts. In particular, the Director relies upon the gross breach of trust involved in the thefts and the fact that the total sum stolen ($158,807) was significant, and that the financial and emotional consequences to her then employers was also of significance. In addition, it is submitted by the Director that it is most relevant that the respondent cloaked many of her withdrawals with the appearance of legitimacy by using actual credit details, that she used nine separate bank accounts in which to deposit the stolen money and that the money has not been recovered, and furthermore that the circumstances in which the money has been spent are not known. It was argued that in this case general deterrence and denunciation, as well as specific deterrence, were of great relevance and required a significant term of imprisonment with an immediate custodial component.

The submissions of the Respondent as to Ground 1

11 The respondent, through her counsel, submits that in all the circumstances the sentences imposed cannot be characterised as being manifestly inadequate. The respondent relies upon the early plea of guilty, and upon the extensive admissions made by the respondent together with her remorse and lack of previous convictions. Her counsel points to her young age at the time of the offending and to the evidence before the learned sentencing judge that she was vulnerable and required both professional treatment and support, and the support of her mother. The respondent, through her counsel, submits that rehabilitation in the particular circumstances was of particular significance and in these circumstances it was open for the learned sentencing judge to impose a sentence which would maximise the respondent's prospects of leading a law abiding life.

The submissions of the Director as to Ground 2

12 The second ground upon which the Director relies is the fact that the learned sentencing judge imposed an aggregate sentence of nine months' imprisonment for Counts 1, 3, 4, 5 and 7. In doing so her Honour relied upon the recently amended s 9 of the Sentencing Act 1991 which now provides:

[13]

13 It is submitted by the Director that this ground of appeal raises an important issue for this Court's consideration. To his belief it is the first time that an aggregate sentence imposed by a judge of either the County Court or Supreme Court is to be considered by the Court of Appeal. The Director argues that on its face the amended section does not define clearly the nature and scope of the power to impose an aggregate sentence, nor does it define the manner in which a judge can properly exercise the discretion to use that power.

14 The Director submits that in the circumstance of this case it was not open to the sentencing judge in the sound exercise of her discretion to impose an aggregate sentence. It is conceded that as the counts on the presentment were "a series of offences of the same or a similar character" the judge had power to impose an aggregate sentence pursuant to s 9(1) of the Act, but that in doing so her discretion miscarried. In particular, it is submitted that by reason of the fact that the five counts for which the aggregate sentence were imposed were all "rolled up counts" of theft, incorporating as they did, 70 individual instances of theft involving $91,971.91 over a 12 month period, a degree of cumulation was required. Furthermore, it is submitted by the Director that the imposition of an aggregate sentence in the circumstances of this case, does not enable scrutiny of the sentence, and in particular of the means by which the sentencer has arrived at the ultimate sentences. For instance, it is argued, that it is not clear whether her Honour would have imposed total concurrency if individual sentences had been imposed, or alternatively whether or not the aggregate sentence imposed by her allowed for a degree of cumulation between the counts. Either way, it is submitted that the sentence is inadequate. The Director contends that total concurrency in the circumstances of this case was inappropriate, but if there were to be any cumulation, then inappropriately compressed sentences were imposed for the individual counts in order to reach a nine month aggregates sentence. It is submitted that either way, the objective gravity of the respondent's offending was undervalued by the sentencing judge.

Aggregate Sentences

15 In order to consider the submission made by the Director that in the circumstances of this case the imposition of an aggregate sentence was not open to the sentencing judge as a proper exercise of her discretion, it is necessary to examine the history and the nature of aggregate sentences. In 1997, the Sentencing and Other Acts (Amendment) Act gave power to magistrates to impose an aggregate sentence. The Second Reading Speech of the then Attorney-General stated that the amendment was being introduced "to restore the faith and confidence of the public in the criminal justice system".[3] In her Second Reading Speech and under the heading "Simplifying Sentencing" the Attorney-General made the following comments on the purposes of aggregate sentencing in the Magistrates' Court:

[21]

20 If the intention of the legislation is to enable the Court to "more clearly explain to the community" the total sentence being imposed on an offender, the question arises as to whether such a sentence is intended to replace orders for cumulation of sentences, which may otherwise be made were it not for the power to impose an aggregate sentence. First, it should be observed that by reason of s 16 of the Sentencing Act ".....every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment ... imposed on that person, whether before or at the same time as that term." Section 9 of the Sentencing Act provides that an aggregate sentence must not be imposed in circumstances where the offender is a serious offender within the meaning of the Act, or where the offences comprise at least one offence committed by the offender while released under a parole order for one offence committed at another time. Clearly the reason for this is that the Sentencing Act provides that both serious offenders, and those who commit offences whilst released under a parole order, must have their terms of imprisonment served cumulatively "unless otherwise directed by the Court".[11] However, the amending legislation does not deal otherwise with the question of concurrency or cumulation.

21 Aggregate sentencing powers have been available in South Australia since 1992.[12] The power to impose an aggregate sentence has been the subject of a number of appellate judgments in South Australia. The first of these is R v Nixon,[13] a decision of the South Australian Court of Criminal Appeal. In that case the question arose in the course of the re-sentencing of the appellant as to whether the Court of Criminal Appeal should impose an aggregate sentence in respect of three armed robberies. Mathieson and Duggan JJ concluded that it was appropriate to do so. Matthieson J said as follows:[14]

[32]

"In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.

In some cases the only safe course to follow will be to approach the sentencing process initially as one would do if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability as a general rule of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.

In the present case I have considered it desirable to follow the approach outlined in Major. Taking that approach, I arrived at a head sentence of about 18 years, as did the sentencing judge. I arrived at that sentence without reducing the sentence that would otherwise have been imposed by reference to the considerations usually referred to as the totality principle. I do not consider that the sentence I arrived at should be reduced on that account."

[45]

"A person who is convicted of more than one indictable offence, not tried summarily, is entitled to know, when sentenced, what penalty is imposed in respect of each individual offence. The matter is somewhat analogous, for practical purposes, to the position in the civil sphere where a single verdict is taken for a plaintiff who sues upon two or more separate causes of action. The verdict is applicable to all causes of action and, if one be later found to be unsustainable, the verdict cannot stand at all: Cutts v Buckley (1933) CLR 189 at 198-9. By parity of reasoning it is, generally speaking, or may be, material also to the Court of Appeal considering an appeal against conviction or sentence to know what penalty was imposed in respect of each offence if there was a conviction for more than one. If there were an appeal against conviction alone, and, for example, the conviction on one of several counts were set aside and a new trial ordered, the whole of a single undivided sentence would necessarily fall: cf. Bartlett v R (1990) 100 ALR 177 at 185. It would presumably be necessary for the Court of Appeal to impose sentence anew in respect of those of the convictions which were not set aside, the total sentence having fallen, yet such a task might very well be frustrated by the pendency of the new trial because the Court of Appeal could not know what kind of a sentence might be imposed for a conviction upon a new trial. For reasons such as that - and there are no doubt others - the practice in this State has long been not to impose an undivided sentence where there has been a conviction on two or more counts joined in the one presentment or indictment. The position was, if I may say so, succinctly summed up by Brennan J, in Ryan v R [1982] HCA 30; (1982) 149 CLR 1 at 22-3. Moreover, at 25, his Honour said: 'A global sentence is not usually passed in Victoria; indeed, it may be illegal'. His Honour was there referring to the passing of a single sentence in respect of two or more convictions upon the same indictment.

The position upon an appeal following conviction and sentence for an offence tried summarily is very different, at least in Victoria. An appeal to the County Court under either s 83 or s 84 of the Magistrates' Court Act 1989 following summary conviction, whether for a summary offence or an indictable offence tried summarily, necessitates the setting aside of the order of the Magistrates' Court and the County Court conducts a re-hearing. The appeal to the County Court cannot be embarrassed by any failure of the Magistrates' Court to impose a separate sentence in respect of each offence of which the appellant was convicted in the Magistrates' Court.

An interpretation of sub-ss (3) and (4) of s 4K such as the learned judge accorded to them is not necessitated by the language they use and is capable of producing mischievous or inconvenient results. No violence to the language is done by confining the application of the provisions to cases tried summarily. If that is done any potential mischief and inconvenience is avoided."

[53]

46 Accordingly, if an aggregate sentence is under consideration it is necessary for the sentencing judge to identify, in accordance with the above principles, separate events giving rise to specific counts, or groups of counts and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s 9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent. To fail to do so would substitute aggregate sentencing for the existing law and practice relating to the structure of multiple sentences, an intention which was clearly not intended by the amended s 9 of the Sentencing Act introduced last year.

47 In my view, to include an unstated element of cumulation in an aggregate sentence does not provide for the transparency required in the sentencing process. It does not enable proper analysis by the community, the offender, or an appellate court of the sentence and in particular of the unidentified components of the aggregate sentence. On the other hand, if the aggregate sentence is to comprise partially, or wholly, appropriate cumulation it will be necessary for the sentencing judge to identify the basis and nature of that. In effect the only safe course will be to approach the sentencing process in accordance with the general principles set out in Grabovic, and as one would do if the discretion provided for by s 9 of the Sentencing Act did not exist. It is necessary that the approach be similar to that suggested by Doyle CJ in R v Major.[38] That is that if an aggregate sentence is imposed, using s 9 of the Sentencing Act then the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process consideration must be given to whether the sentences imposed should be concurrent or should have some degree of cumulation. As Olsson J said in R v Major, when an appropriate aggregate sentence has been arrived at it is necessary to "stand back and review the result in light of the totality principle".

48 It must be recognised that the imposition of aggregate sentences has been commonplace in the Magistrates' Court since the amendments gave that Court power to impose such sentences more than a decade ago. In my view there is a sound basis to distinguish between what is necessary in imposing an aggregate sentence in relation to indictable offences being heard in the County and Supreme Courts, and what is necessary in relation to matters heard summarily in the Magistrates' Court. As both Ormiston and Tadgell JJA observed in R v Bibaoui, it is necessary for an appeal court to understand not only the penalty imposed, but the reasoning behind the imposition of each penalty. As pointed out by Tadgell JA the position upon an appeal following conviction and sentence for an offence tried summarily, is very different from an offence not tried summarily, in that an appeal to the County Court involves a re-hearing of the proceeding. This, together with the fact that in the Magistrates' Court reasons for sentence are usually given orally and in summary form is a proper basis for distinguishing what is the necessary approach to aggregate sentencing in the superior courts.

Conclusion as to Ground 1

49 The offences committed by the respondent were serious indeed. They involved a gross breach of trust. The thefts were repetitive, being committed on average every week over a 121/2 month period. The total sum of $158,807 stolen from the respondent's employers was substantial and caused them significant financial and emotional damage. The thefts were conducted in a devious fashion, many withdrawals being cloaked by an appearance of legitimacy by use of the names of actual creditors of the business and by the stolen money being deposited in nine separate bank accounts by the respondent. The stolen money has not been recovered nor was any adequate explanation provided to the sentencing judge as to how the sum stolen was spent or otherwise disposed of by the respondent.

50 True it was that the matters in mitigation put before her Honour were of significant weight, and that she regarded rehabilitation as being at the "forefront" of sentencing consideration.

51 In my view, nevertheless, a sentence of nine months' imprisonment wholly suspended for two years in relation to five counts involving 70 individual thefts totalling $91,971.19 over a 12 month period and a sentence of a CBO as an aggregate sentence on the remaining ten counts of theft involving $66,836 over a similar period is, in all of the circumstances of this case, manifestly inadequate. This is all the more so when the sentencing judge did not accept the respondent's explanation to police that the money stolen had been spent on "ordinary living expenses" and where the judge considered that there did not appear to be any adequate explanation for where the sum of almost $160,000 had "disappeared" to in a period of a year. In my view, the gravity of the criminal conduct involving as it did a large number of separate criminal acts required the making of multiple separate decisions. Furthermore, in my view the sentencing judge fell into error in the use of an aggregate sentence to combine for sentencing purposes a series of counts which were the subject of a "rolled up" plea, and by failing to give adequate reasons as to whether the sentences imposed were wholly concurrent or on the other hand involved elements of cumulation. On this basis I would allow the appeal.

52 Having come to this conclusion, it is necessary in my view for this Court to resentence the respondent, taking into account the principle of double jeopardy.

53 I would re-sentence as follows:

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