DPP v Najjar [2009] VSCA 246

1 I will ask Justice Coghlan to deliver the first judgment.

2 On 6 April 2009 the respondent pleaded guilty in the County Court at Melbourne to seven counts of theft. The thefts took place between January 2003 and July 2006 and were all from the respondent's then employer, Tristan Housewares Australia Pty Ltd. The total amount involved was $806,745.40.

3 The seven counts were 'rolled-up' counts each covering a period of about five or six months. Each count was accompanied by a schedule which set out the individual transactions, of which slightly fewer than 400 were identified.

4 On 7 April 2009 the respondent was sentenced as follows: count 1, six months; count 2, 12 months; count 3, 15 months; count 4, 15 months; count 5, 12 months; count 6, six months; count 7, four months. One month of the sentence on count 1, four months of the sentence on count 2, six months of the sentence on count 4, four months of the sentence on count 5, one month of the sentence on count 6 and one month of the sentence on count 7 were ordered to be served cumulatively upon each other and upon the sentence imposed on count 3. The total effective sentence was two years and eight months, with a non-parole period of 14 months.

5 It is against those sentences that the Director of Public Prosecutions, by notice of appeal dated 6 May 2009, brings this appeal. Although the notice of appeal purports to set out grounds of appeal, there is in fact one:

the sentence imposed in respect of each of the counts on presentment No 800669274, the total effective sentence and the non-parole period are manifestly inadequate in all the circumstances.

6 The Notice of Appeal lists nine particulars which are attached as Appendix A to these reasons.

7 It can be observed that complaint is made about almost every feature of the sentence imposed. The particulars suggest that not enough weight was given to any circumstance that might have increased the sentences. Conversely, it is suggested that too much weight was given to every feature found by the learned sentencing judge to act in mitigation. The utility of such unfocused particulars is doubtful.

8 In the submissions filed on behalf of the appellant, reliance was placed upon the well known passage from R v Clarke,[1] which in this state has been treated as setting out the principles applicable to appeals brought by the Director of Public Prosecutions.

9 The appellant relies upon the passage in the judgment of Charles JA in which his Honour set out the circumstances under which a Crown appeal may be brought, relevantly, as his Honour noted,

(e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[2]

10 The question of sentence involves the exercise of a discretion by the sentencing judge. It entails a process of intuitive synthesis of all factors relevant to sentence. On appeal, what must be shown is that a substantial wrong has in fact occurred.[3]

11 Plainly there is room in the sentencing process for the exercise of mercy. The often quoted passage from King CJ in R v Osenkowski[4] bears repetition:

It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

12 It seems to me that the real thrust of the submissions made on behalf of the Director was that the objective seriousness of the offending, and in particular the amount involved, the breach of trust and length of time over which the offending occurred, could not have led to a sentence of this kind. That was particularly so given the degree of culpability of the respondent and the impact upon the victim. It was submitted that even when the matters in mitigation were taken into account, the sentence imposed was entirely outside the range. That was so with regard to the individual sentences as well as the degree of cumulation or both in combination. The same argument was advanced with regard to the non-parole period.

13 It was submitted that when this case was viewed as a whole it represented a serious example of offending of its kind. It involved a very large amount of money and the respondent was guilty of a gross breach of trust. The thefts took place over an extended period. The offending conduct was persistent, although perhaps not all that sophisticated. The respondent made various attempts to conceal her offending. In addition, the effect on the victims, both corporate and individual, was significant.

14 The Director does not contend that the learned sentencing judge failed to give any weight to these matters, only that he did not give them sufficient weight.

15 Of course, the matters personal to the respondent had to be considered. The findings made below were guardedly in favour of the respondent. She is 35 years of age and has no prior convictions. Her background has been difficult, having suffered from depression as a result of a marriage marked by abuse. This had led on to a gambling addiction.

16 There were, however, features of this case that were somewhat out of the ordinary. These included the fact that the respondent was at the time of sentencing

pregnant and about to be separated from her 14-month-old twins. When referring to the non-parole period, his Honour said:

There are good reasons why a merciful sentence should be imposed in the circumstances of this case.[5]

That remark seemed to be referable to more than simply the non-parole period. It is noteworthy that in the long list of particulars provided by the appellant, no complaint was made about his Honour's observation that this was a case where an element of mercy was appropriate, and that matter was confirmed in argument this morning.

17 It should be remembered that the respondent was required to serve a period of two years eight months' imprisonment and that she would not be eligible for parole for at least 14 months.

18 The sentence could be described as a merciful one. Many judges may have imposed a lengthier term. The sentence in this case should not be viewed as providing any guidance for future cases of a broadly similar nature. However, in all the circumstances, I am not persuaded that the sentence was manifestly inadequate. In addition, had I entertained any doubt about the matter, I would have exercised the residual discretion to dismiss the appeal. That is particularly so in circumstances where the prosecutor in the court below declined the opportunity to put a range of sentences to the sentencing judge, despite the fact that she was asked whether or not she had instructions on the matter. The plea in this case had taken place substantially after the decision of this Court in Director of Public Prosecutions v MacNeil-Brown.[6]

22 The order of the Court is that the appeal is dismissed.

23 Not as part of the order, the Court grants the respondent a certificate under the Appeal Costs Act 1998.

In imposing a sentence of 6 months' imprisonment on each of counts 1 and 6, 12 months' imprisonment on each of counts 2 and 5, 15 months' imprisonment on each of counts 3 and 4 and 4 months' imprisonment on count 7 and in ordering a total effective sentence of 2 years and 8 months' imprisonment and in fixing a period of 14 months' imprisonment before the Respondent was eligible to be released on parole, the sentencing Judge -

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b) failed to sufficiently deter the offender or other persons from committing offences of the same or similar character;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to have sufficient regard to the maximum penalty prescribed for the offences;

(e) failed to have sufficient regard to the nature and gravity of the offences;

(f) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offences;

(g) failed to have sufficient regard to the impact of the offences on the victims;

(h) failed to have sufficient regard to aggravating features of the offending and in particular -

• the sophisticated nature of the offending, including the steps taken to conceal the offending,

• that the offending caused the business to collapse, and

• the abuse of trust involved in the offending, as the offences were committed against her employer over a period of three and a half years;

(i) gave too much weight to mitigating factors concerning the offender, in particular -

• the abuse suffered and traumatic experiences from her first husband,

• the underlying issues of depression and symptoms of post-traumatic stress,

• the onerous effect of a term of imprisonment due to her unresolved depression and other psychological issues and separation from her children, and

[1] [1996] VICSC 30; [1996] 2 VR 520, 522.

[2] Supra 522. See also DPP v Bright (2006) 163 A Crim R 536, DPP v Rose and Miller [2005] VSCA 275 and DPP v Johnston [2004] VSCA 150; (2004) 10 VR 85.

[3] House v R [1936] HCA 40; (1936) 55 CLR 499, 505.

[4] (1982) 30 SASR 212, 212-3.

[6] [2008] VSCA 190.