DPP v Raddino [2002] VSCA 66

Court of Appeal (Vic)|2002-05-08|Before: PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A.

Criminal Law - Crown appeal against sentence - Theft of moneys from bank in breach of trust - Gambling - Whether gambling addiction a mitigating factor - Sentence of two years' imprisonment with 18 months' suspension not manifestly inadequate.

I shall ask my brother Chernov to give the first judgment in this matter.

On 24 January 2002, the respondent, who is now aged 41, pleaded guilty in the County Court at Melbourne to one count of theft. The maximum penalty for the crime is 10 years' imprisonment. After hearing a plea in mitigation made on her behalf, the learned sentencing judge sentenced her to two years' imprisonment and ordered that 18 months of that term be suspended for a period of two years. The result was the imposition of an effective term of six months' imprisonment. The respondent had no prior convictions.

The Director of Public Prosecutions now appeals against the sentence on the ground that it is manifestly inadequate. In the notice of appeal four particulars are provided in support of this ground. I will refer to them later, but for the present it need only be mentioned that Ms Pullen, who appeared for the appellant, confirmed that her case was that the head sentence was patently inadequate and that in those circumstances the period of suspension was unduly long.

Before considering counsel's submissions on the adequacy of the sentence, I will briefly outline the circumstances which led to the offending. The respondent was born in Italy and entered Australia with her parents when she was three years of age. For the past 17 years she has resided with her parents and siblings (until they left home) in the family home at Glenroy. Subsequent to her father's sudden death in December 2000, she became the principal carer for her 62-year-old insulin dependent, diabetic mother who also suffers other major health problems.

At school, the respondent was an above average student who gained entrance at a tertiary institution to undertake an accounting and economics degree but she did not complete her studies. Her working life commenced when she joined the Commonwealth Bank in 1981. She was progressively promoted within the bank and at the time of her apprehension had been working as an Assistant Manager at its Moonee Ponds branch for almost 12 months. The respondent was a diligent worker who, typically, worked a 12-hour day, usually arriving at work before others. She rarely took any leave due to illness and worked during most of the rostered days off. Because of the workload to which she was subjected, the respondent found the job stressful. It was said that, apart from her family, the bank was her life.

Being an unmarried daughter, and given her cultural background, home and parental responsibilities fell largely upon the respondent's shoulders with the result that, for many years, she has led a lonely life with very few outside activities. She was described as a "loner" and often during the working week had lunch in the car by herself. Approximately three years before the commission of the offences, however, the respondent entered into a relationship with a man who introduced her to gambling at poker machines. She soon became addicted to this form of gambling and even before that relationship ended, had begun to attend poker machine venues alone. Thereafter, she gambled at the poker machines regularly, mostly five nights per week. According to Mr Cummins, a clinical psychologist, who prepared a report in relation to the respondent which was tendered to the sentencing judge, the respondent developed a gambling problem which he described as "pathological". The situation, no doubt, led to the offending which occurred over a 12-months period commencing on 24 October 1999 and ending when she was detected one year later, on 24 October 2000. By that time the respondent had stolen over $400,000 from the bank.

There is no doubt that the respondent had exploited the position of trust she held in the bank in order to commit the offence and to prevent detection. As will be seen, the respondent's modus operandi in committing the crime was quite naïve and it was only a matter of time before she was caught. The circumstances of the offending can be briefly summarised as follows. One of the respondent's key responsibilities at the branch was to replenish cash in the automatic telling machines ("the ATMs"). The process by which this was to occur involved the respondent attending the treasury department of the bank, which was located in the room in which the safe was kept, prior to the bank opening for business, and obtaining cash for the purpose of re-loading the ATMs. The money would then be placed in the night safe at the branch from which it would be accessed during the day, when time permitted, for replenishing the machines. The respondent managed to procure the situation that, when she took money out of the night safe for the purpose of re-loading the ATMs, she retained some of the cash, in notes of $50 denomination, for herself.

The respondent circumvented a number of procedural checks and balances which had been instituted by the bank for staff to follow when dealing with such large amounts of cash. First, there was a procedure which required that two people be involved in the process of loading the teller machines. To that end, two custodians and two deputies had been appointed at the branch to undertake that task. One of the custodians was the respondent. The prescribed procedure required that the two custodians (or one custodian and one deputy) be present at all times during the removal of the cash from the night safe and during the loading of the ATMs. The respondent avoided following this procedure and often loaded the machines by herself. She was able to do this by encouraging the other custodian to attend to another ATM which was located at the other end of the teller room.

The respondent also managed to falsify the bank's records so that the cash deficiency in them would not be disclosed. During the offending period she personally kept all the accounting records in relation to the amount of cash being loaded into the machines. Those records were meant to be reconciled in relation to each machine once a month and the bank procedure required that two individuals carry out a reconciliation of the cash in the teller machines. The respondent, however, carried out the reconciliation of the accounts on her own and then obtained from a junior person, or her colleague custodian, the required signature on the form to sign off on her reconciliation. The form would then show on its face that the requisite procedure had been followed with two individuals participating in the count.

The respondent also managed to circumvent the security procedures pertaining to the keypad combination on the ATMs. In order to access them, the procedure in place required that one combination be in the possession of a custodian and his or her deputy and the other combination be held by the other custodian and deputy. As such, at any time there would be a team of two that had one combination and a like team that had the other. Both combinations were required to gain access to the ATMs. Apparently the respondent had managed to obtain the combination from the other team and, so equipped, was able to enter both combinations into the teller machines in order to gain access to them and to the money.

The total amount stolen by the respondent from the bank over the period was $412,040. Some of the money was used by the respondent to pay off debts but the vast majority of it was lost gambling at poker machines. The respondent, through her superannuation, made restitution in the sum of $62,000. She also forfeited the $80,000 of the bank's contribution to her superannuation but that money was not a gain for the bank because it was retained by the superannuation fund which is a separate entity.

In approximately October 2000, the bank detected discrepancies in the records as to the moneys that were used to replenish the ATMs. When first interviewed by a bank investigator about this, the respondent was not forthright in her response to his queries; she admitted gross breaches of banking procedure but not to theft. In November 2000, she was dismissed for such breaches. In July 2001, however, when she was interviewed by the police, the respondent made full admissions in relation to taking the money and falsifying the bank records in order to cover up the theft.

There was evidence before the learned sentencing judge in the form of a statement of Bruce Alan Smith, who was a Detective Sergeant attached to the Moonee Ponds CIB and who was the informant in the case, in which he said that he had known the respondent personally for several years prior to her arrest. He emphasised the qualities she brought to her work, her onerous responsibilities at home and her lonely life. His view was that the respondent took to gambling in order to fill the void in her life. He also stated that, because the respondent felt so disgraced by her own conduct, she had not been able to tell her family and friends what she did. These matters are mentioned in Mr Cummins's report which also summarises the respondent's rather pathetic and lonely life which, at least in part, explained her preoccupation with gambling.

I now turn to the Crown's claim that the sentence is manifestly inadequate. Before considering the particulars on which the appellant relies for its principal contention, it is necessary to mention that this is a Director's appeal and the principles which govern appeals of this nature have recently been summarised by Winneke, P. in Director of Public Prosecutions v. Whiteside and Dieber[1] in the following terms:

"Those principles ... are collected in such authorities as Griffiths [1977] HCA 44; (1977) 137 CLR 293; Malvaso [1989] HCA 58; (1989) 168 CLR 227; 43 A Crim R 451; Everett and Phillips [1994] HCA 49; (1994) 181 CLR 295; 74 A Crim R 241; and R. v. Clarke [1996] VICSC 30; [1996] 2 VR 520; (1996) 85 A Crim R 114. Those authorities make it clear that the court's jurisdiction under s.567A of the Crimes Act to interfere, at the instance of the Director of Public Prosecutions, with a sentencing discretion already exercised against a respondent, should only be used in those rare cases where, inter alia, it is necessary to maintain proper sentencing standards and principles. The court does not interfere with a sentence merely because it thinks that it is less than it would itself have imposed; rather it only intervenes when material error in reasoning is discerned, or such inadequacy as is indicative of error or departure from principle (Dodd (1991) 57 A Crim R 349 at 351, per Gleeson CJ, Lee CJ at CL and Hunt JA)."

It is also necessary to bear in mind the general principle that when on a Crown appeal this Court decides to re-sentence the offender, it should ordinarily give recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than it considers should have been imposed at first instance[2].

Turning now to the appellant's specific claims, Ms Pullen contended under cover of the first particular that, in the sentence imposed, his Honour had failed to reflect sufficiently the gravity of the offence and of the offending. Counsel pointed to aspects of the offending which demonstrated its gravity, namely, that it occurred on a regular and sustained basis (several times per week) over a twelve-months period; that the respondent held a position of trust with her employer and, in particular, in relation to the re-loading of the ATMs; that the amount stolen was very large; that the respondent circumvented the bank's procedures aimed at preventing such theft and falsified records to disguise her criminal conduct; that she did not admit her wrongdoing when first questioned by the bank's internal investigator and that she had paid only little by way of restitution.

There is no doubt that the offence is a very serious one as is reflected in the maximum penalty of ten years' imprisonment fixed by Parliament for the crime. Similarly, the offending was of a very serious kind for the reasons highlighted by Ms Pullen. It is equally clear, however, that, as counsel conceded, his Honour recognised this by characterising the offending as being in "the serious category of dishonesty" and requiring sufficient condign punishment. Ms Pullen contended that, although his Honour referred to these matters, the sentence he imposed failed to reflect the gravity of the offending.

Counsel then argued in support of the second particular that his Honour also failed to take into account sufficiently the principles of general deterrence notwithstanding that they were referred to in the sentencing remarks. Mr Stuart, who appeared before us for the respondent, submitted, correctly I think, that general deterrence was considered by his Honour as being of importance in the sentencing disposition. This is made clear, not only from the sentencing remarks but also from his Honour's many references in the course of hearing of the plea in mitigation to this principle and to the need to impose a custodial disposition, given the gravity of the offence and of the offending.

Under cover of the third particular Ms Pullen further contended that his Honour gave too much weight to factors going to mitigation. It was said that this is reflected in his Honour's sentencing remarks: " ... I have taken all those matters and all mitigatory matters into account and I can certainly say that were it not for these factors you would receive a much less lenient sentence". Moreover, it was said that there was no character evidence called on the respondent's behalf, nothing had been repaid by her by way of restitution other than the forfeiture of "some" of her entitlement to superannuation and there was no explanation for her apparent ability to cease her pathological addiction to gambling upon detection. Counsel also relied in this respect on what the respondent's counsel said during the plea, namely, " ... it was very difficult to really find out anything about the client".

It is convenient to deal first with the extent of the respondent's restitution of the stolen funds. The fact seems to be that the respondent has made what restitution she could, being in the order of $62,000 (and she also forfeited approximately $80,000 of the bank's contribution to her superannuation entitlement). Although the amount that she repaid the bank is but a fraction of what she stole, it amounted to all or nearly all of her money and the fact that she has been unable to repay more cannot be treated as an aggravating factor in the sentencing disposition. On the contrary, the amount paid by her to the bank, given her financial circumstances and the amount she forfeited, are matters that can be properly taken into account for sentencing purposes as mitigating factors.

It is true that no character evidence was adduced on the respondent's behalf by way of viva voce evidence, but the statement of former Detective Sergeant Smith, to which reference has been made earlier, was placed before his Honour without objection from the Crown. Furthermore, Mr Cummins's report, which was also before his Honour, was relevant to a proper understanding of the respondent's circumstances. What counsel said to his Honour in the course of the plea as to the difficulty of "finding out anything" about the respondent does not detract from the relevance of the above mitigatory evidence. In any event, the inability to call character witnesses merely confirms that the respondent led a very lonely life and that she was too humiliated and upset to tell others, including her family, what she had done.

Ms Pullen submitted that there was little by way of mitigation that was put before his Honour. I cannot accept that submission. In my view, the respondent's otherwise exemplary character was clearly made out and accepted by his Honour as was her genuine remorse and the unlikelihood of her repeating the offence. There were other mitigating factors to which Ms Pullen herself referred and to which I will refer later. They were clearly relevant for sentencing purposes and clearly had to be, as they were, weighed against the relevant aggravating factors.

Although Ms Pullen relied in support of her case on his Honour's remark that, but for the mitigatory matters which he had taken into account, the sentence would have been "less lenient", in my view, that is no more than a recognition by the learned sentencing judge that the sentence was in fact lenient. And so it probably was, but it does not necessarily follow that the sentence is manifestly inadequate, particularly for present purposes.

I now turn to the fourth particular sought to be relied upon by the Crown in support of the ground of appeal, namely, that his Honour erred in concluding that, since the respondent's case was "unusual", it was appropriate to treat her gambling addiction as a mitigating factor. The Court formed the preliminary view that this attack on the sentence was quite discrete from the "manifest inadequacy" ground that has been asserted in the notice of appeal and, if it was sought to be pursued, it should constitute a separate ground of appeal. That this should be so is made clear by the Practice Statement CA1 of 1996[3], which states:

"Manifest excess is not to be used as an umbrella under which to shelter discrete contentions such as that the judge made a mistake as to the facts or that the sentence violates the principle of parity[4]."

Ms Pullen was apprised of the Court's view on this issue and, in the result, sought leave to amend the notice of appeal accordingly. We gave counsel leave to argue the complaint, but reserved for later determination the question whether the leave sought should be granted.

The particular passage in the sentencing remarks which was the subject of attack by the appellant was in the following terms:

"... I do consider there is a degree of unusualness in this case that would allow me to treat the background as constituting a degree of mitigation. Having said this, in other words, having accepted that in your case the motivation behind your thefts and all round background circumstances do constitute a degree of mitigation ... "

His Honour then found it necessary to balance that against the aggravating factors. Ms Pullen submitted that:

(a) Unless the case was "unusual", in the sense that the circumstances of the case reduced the importance of general deterrence, the respondent's addiction to gambling could not be treated as a mitigating factor.

(b) There were no such "unusual" circumstances in this case.

(c) His Honour's conclusion that there was a "degree of unusualness in this case" was, in any event, contradicted by his earlier view on the matter which he expressed to counsel during argument, namely, that there was nothing unusual about people with good backgrounds and no prior convictions dealing with large amounts of money, gambling them away and ending up pleading guilty to defalcation.

(d) Consequently, his Honour's sentencing discretion miscarried and the respondent should be re-sentenced and, in undertaking that task, this Court should not treat her gambling addiction as a mitigating factor.

It is convenient to dispose first of the contention referred to in paragraph (c) above. It is trite that the observations of a sentencing judge on a particular subject during the hearing of a plea in mitigation cannot be sensibly regarded as his or her final views for the purpose of the sentencing disposition. It is obvious that, after hearing the plea in mitigation, the judge considers, inter alia, all the evidence and submissions put to the court and then constructs what he or she considers to be the appropriate sentence. In doing so, the judge may well depart from the views he or she put forward during submissions. Such views are necessarily tentative and are often raised, inter alia, for the purpose of testing the strength of a line of reasoning or to encourage a deeper analysis of a point by counsel. In this case, it is plain that his Honour's relevant observations during submissions were of a general nature and were not intended to be the expression of his sentencing views pertaining to the case before him. Thus, there is no basis for attacking this aspect of his Honour's reasoning on the ground that it does not accord with what he said in the course of the hearing of the plea in mitigation.

In support of the contention that the respondent's addiction to gambling could not be treated as a mitigating factor unless the case was "unusual", the appellant's counsel relied primarily on what was said by Southwell, J. in R. v. Martin[5]. In that case, which was a Crown appeal, the court was concerned with whether the sentencing judge had placed undue weight on the respondent's prospects of rehabilitation from his pathological gambling problem at the expense of the elements of deterrence and retribution. The court concluded that his Honour erred in that regard. The leading judgment was given by Crockett, J. In the course of his concurring judgment, Southwell, J. (with whom Nathan, J. agreed) said[6]:

"... it would be an unusual case where evidence of addiction to gambling will significantly reduce the importance of the element of general deterrence."

It is important to note that his Honour's observation was confined to the situation where it might be claimed, as it was in that case, that the gambling addiction had significantly reduced the importance of general deterrence as a sentencing consideration. His Honour did not say, however, that a gambling addiction can never be taken into account as part of the relevant circumstances as a mitigating factor. Moreover, in R. v. Pascoe[7] and in R. v. Petrovic[8] (to which the appellant's counsel referred in submissions) each offender had engaged in fraudulent conduct in obtaining funds from those who could "ill afford it" for the purpose of feeding the offender's gambling habit. In considering the appropriateness of the respective sentences, this Court recognised that, in appropriate circumstances, a gambling addiction might be treated as a mitigating factor[9]. Each case must, in this respect, be treated on its own facts, and often it comes down to what weight should be given to such factor in the overall sentencing considerations, but recognising that, as Tadgell, J.A. said in R. v. Cavallin[10]:

"It is ... important that the public does not assume that a crime which is to some extent generated by a gambling addiction, even if it is pathological, will, on that account, necessarily be immune from punishment by imprisonment."

It is plain that in this case his Honour did not treat the respondent's gambling addiction as reducing, in the sense referred to by Ms Pullen, the importance of general deterrence as a sentencing consideration. What his Honour did was to treat the respondent's whole background, including her gambling addiction, as "constituting a degree of mitigation" rather than regarding the gambling addiction as reducing the operation of general deterrence as a sentencing factor. Thus, his Honour did not infringe the principle stated by Southwell, J. to which reference has been made and the principle stated by the Court of Criminal Appeal in Moffat[11]. Moreover, in my view, on a fair reading of the sentencing remarks, there is no basis for contending that his Honour gave undue weight to this factor.

In the circumstances, this proposed new ground would fail and, consequently, no manifest injustice would accrue if the appellant's leave to amend the notice of appeal is refused. In the circumstances, I would refuse the application for leave to amend the notice of appeal.

I now turn to the question whether the sentence is manifestly inadequate.

In my view, for the reasons given, there is nothing in the sentencing remarks that demonstrates that the sentence is manifestly inadequate. Thus, unless the sentence on its face is so inadequate that it calls for the conclusion that his Honour must have made an error of principle in arriving at the sentencing disposition, the appeal must fail. This Court has often said that a ground of manifest inadequacy does not admit of a deal of argument. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly inadequate or it does not.

31 It must be borne in mind that the question whether the sentence is obviously inadequate does not raise for consideration what sentence this Court would have imposed on the respondent had it been in the shoes of the sentencing judge, but rather whether the sentence in question is outside the range of sentences available to the learned sentencing judge given the operation of the principle of double jeopardy applicable to Crown appeals. In sentencing the respondent his Honour had to fix a sentence which properly reflected the gravity of the offence and the offending, taking into account matters personal to the respondent, including mitigating factors, as well as the applicable sentencing principles. In my opinion, that his Honour did this is clear from his sentencing remarks. When consideration is given to the whole of his Honour's sentencing remarks it is apparent, as I have said, that the judge was conscious of the gravity of the offence and of the offending. He was also well aware of the need to impose condign punishment and to construct a sentence that would reflect the importance of general deterrence. Nevertheless, it is also clear that his Honour was influenced by the combination of mitigating factors relevant to the sentencing disposition including the respondent's age, her previous exemplary character, her lonely life, the fact that she was genuinely remorseful, the loss forever of a working position which had become a substantial part of her life and her scant prospects of obtaining a like position. The sentence imposed by his Honour was lenient, as this experienced judge recognised. It seems to me that his Honour's "sympathy [was] reasonably excited by the circumstances of the case"[12] and led to a merciful disposition which was not inappropriate in this case[13].

It is my view that, in the circumstances, the sentence cannot be regarded as manifestly inadequate for the purposes of the Director's appeal. It follows that, in my opinion, the appellant has failed to demonstrate that the sentence is manifestly inadequate and, consequently, the appeal should fail.

I agree. I shall add that, while the learned judge did say something about the effect of a suspended sentence after he pronounced sentence, he failed to comply with s.27(4) of the Sentencing Act 1991.

The order of the Court is that the appeal of the Director of Public Prosecutions for Victoria stands dismissed.

A certificate is granted to the respondent under the Appeal Costs Act.

[1] [2000] VSCA 142; (2000) 1 V.R. 331 at 335-336. See also Lowndes v. The Queen [1999] HCA 29; (1999) 195 C.L.R. 665 at 671, 679; Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321.

[4] See R. v. McCorriston [2000] VSCA 200 at [3] per Winneke, P.

[7] Court of Appeal, unreported, 29 April 1998.

[9] See Pascoe at 4 per Winneke, P. and Petrovic at [19]-[21] per Charles, J.A.

[10] Unreported, Court of Appeal, 24 July 1996 at 10.

[12] R. v. Osenkowski (1982) 30 S.A.S.R. 212-213 per King, C.J.

[13] See also R. v. Miceli [1997] VSC 22; [1998] 4 V.R. 588 at 594 per Charles, J.A.

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