Dyason v The Queen [2015] VSCA 120

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 Between 11 August 2003 and 26 November 2010 the appellant, Coral Maree Dyason, worked as a finance officer at St John's Village. St John's Village is a residential aged care facility in Wangaratta. It is owned by the Anglican Diocese of Wangaratta. It has an independent board of management. During the relevant period it serviced 387 residents and employed 210 staff.

2 Between 1 July 2004 and 26 November 2010 Ms Dyason systematically diverted funds belonging to St John's Village to herself, both in cash and through some 47 bank accounts used by her for this purpose. The total amount which she dishonestly obtained was approximately $1.4 million. After some repayments by her and the reversal of a transaction by the bank, that amount was reduced to approximately $1.3 million. Her fraudulent activities were brought to an end when a particularly large fraudulent payment was queried by the bank with the chief executive officer of St John's Village who then instigated an enquiry. Ms Dyason was stood down and the following day she sent email messages to the local Bishop and to St John's Village management confessing to what she described as a betrayal of trust and friendship on her part. Within a few days she made some repayments totalling approximately $60,000 and the bank reversed the queried payment which was a little over $43,000.

3 A firm of chartered accountants conducted an initial investigation at the request of the management of St John's Village, as a result of which the matter was referred to the police. On 30 June 2011 Ms Dyason met with the police and asked for certain financial records which she said would assist her in identifying the misappropriated money. She was provided with those records. On 15 November 2011 Ms Dyason met police investigators again. A record of interview was conducted and Ms Dyason produced a 14 page spread sheet which detailed the transactions she identified as misappropriations by her. An investigation was then carried out by a Victoria Police forensic accountant and search warrants directed to financial institutions were executed.

4 Ms Dyason was charged on summons on 11 September 2013. On 15 October 2014 she pleaded guilty to seven charges of obtaining property by deception before a judge in the County Court. The seven charges respectively related to each of the seven financial years between 1 July 2004 and 30 June 2011.

5 The County Court judge imposed an aggregate sentence of five years' imprisonment on the seven charges and fixed a non-parole period of three years. Ms Dyason had been on bail until approximately two weeks prior to her appearance in the County Court when she had requested that her bail be cancelled. Pre-sentence detention of 12 days was declared. A restitution order in the sum of $1,303,543 was made.

6 Ms Dyason sought leave to appeal from the sentence imposed on a number of grounds. She was granted leave to appeal by Redlich JA in this Court on one of those grounds, and on one amended ground. The ground upon which she was granted leave to appeal was the following:

The sentencing judge erred in inferring that there were many clients of St John's Village who were not provided with assistance by reason of the appellant's offending.

7 The amended ground upon which she was granted leave to appeal was the following:

In all the circumstances of the offending and of the offender, the sentence imposed was manifestly excessive because the purposes for which the sentence was imposed would have been achieved by imposing a Community Correction Order in combination with a much shorter term of imprisonment.

8 Victim impact statements by Joseph Caruso, the chief executive officer of St John's Village at the time, David Evans, a board member of St John's Village, and Diane Costello, whose mother was a resident at St John's Village at the relevant time, were tendered by the prosecution on the plea.

9 Counsel on behalf of Ms Dyason tendered two reports from treating psychologists, Ms Ruth Rowlands who practises in Yarrawonga and Ms Irene Vermooten who practises in Whyalla, South Australia. Ms Rowlands also gave oral evidence.

10 References were also tendered from the city librarian at the Whyalla Public Library, where Ms Dyason was employed between 2011 and 2014, Ms Dyason's mother, Ms Dyason's ex-husband, a number of friends, and the parish priest at the Catholic Church in Whyalla and a member of the Anglican Church in Whyalla. Documents recording qualifications which Ms Dyason has obtained since the offending, or which she is in the process of studying for, in the field of librarianship, were also tendered.

11 The sentencing judge gave careful and detailed reasons for the sentence which she imposed.

12 After setting out the circumstances of the offences and referring to the victim impact statements the following passage appears in the sentencing reasons. We quote it in full because it is the basis of the specific error ground. Her Honour said:

So although clearly at law, the victim in this theft is an unincorporated association, there are many flesh and blood victims of your crime. The real victims are, in truth, the elderly people in our community that your employer would have been able to provide assistance to with the money you stole. Those victims can of course not be precisely identified, and the assistance which would have been otherwise available to them cannot be precisely identified either.

However, it is the reality that you have not stolen from an institution which was seeking to make a profit to be swallowed up by the corporate world. You have stolen from an institution which is dedicated to the care of some of the most vulnerable persons in our community.[1]

13 Her Honour referred to the importance of general deterrence in relation to crimes of this kind which she described as easy to commit, difficult to detect, and usually committed by persons holding a position of trust who are otherwise of good character.[2] She found that Ms Dyason had been 'extremely co-operative' in assisting police with their enquiries,[3] and that she had pleaded guilty at the first available opportunity.[4] The sentencing judge found the evidence of remorse to be 'extremely persuasive',[5] and said that whilst only a fraction of what had been stolen had been paid back what had been paid back was all that Ms Dyason had.[6]

14 The sentencing judge referred to the considerable delay which had occurred between discovery in November 2010 and sentencing, almost four years later. She indicated that, whilst that delay was the result of the nature of the offences and the lack of police resources to investigate complex transactions, the delay was nevertheless a significant mitigating factor.[7]

15 The sentencing judge referred to the counselling Ms Dyason has undertaken both in Victoria and in South Australia and found that she had done everything which she possibly could to address her offending behaviour and to attempt to rehabilitate herself.[8] The sentencing judge accepted the opinion of Ms Rowlands that the offending arose as a result of psychological conditions from which Ms Dyason suffered arising out of a difficult childhood. In substance, she suffered from depression and a lack of self-esteem. The stolen money was used, in a sense, to 'buy' the approval which she was seeking.[9]

16 The sentencing judge found that in the circumstances the need for specific deterrence had little application in the case.[10]

17 The sentencing judge referred to the references which had been tendered and found that Ms Dyason was a person otherwise of good character.[11]

18 The sentencing judge observed that there was no evidence that any of the money was stolen as a result of need arising out of health or financial issues.[12] The money had been spent on 'lifestyle' expenses, overseas travel, gifts to friends and donations to charities. Whilst much of the money taken could not be traced, there was no evidence that any of it had been retained at the time of apprehension other than the sums she repaid.[13]

19 The specific error ground asserts that the judge inferred that there had been 'many clients of St John's Village' who were not provided with assistance by reason of the appellant's offending. This analysis of what the judge said was repeated in the submissions made. It was suggested that there was no evidence that residents of St John's Village received any less treatment than they would have received as a result of the offending. It was submitted that there was no evidence that private individuals had suffered and that her Honour had mistakenly conflated the distinction which ought to have been drawn between the institutional victim, St John's Village, and the private individuals who were residents of St John's Village.

20 In our view this ground, and the submissions made in support of it, mischaracterise what the sentencing judge said. The sentencing judge did not say that the residents of St John's Village had been affected. She said that 'elderly people in our community' had been the 'real victims' because St John's Village 'would have been able to provide assistance' to such people with the stolen money. The judge made it clear that these 'victims' could not be identified and that the assistance which might have been available to them could also not be identified.

21 It seems to us that her Honour's observations were appropriate and correct. St John's Village is a charitable institution. Its sole purpose is to provide care to aged members of the community. If it had $1.3 million less than it would otherwise have had over the relevant period, its capacity to provide that care was affected. The judge did no more than state the obvious.

22 In a footnote to the appellant's written submission reference is made to the fact that in the depositional material there are indications that there may have been some insurance cover in relation to the loss. We were not taken to that material but even if there were insurance cover that would not alter the correctness of the judge's observation that during the relevant period St John's Village's resources were less than they otherwise would have been.

23 The manifest excess ground focussed upon recent statutory amendments to the provisions of the Sentencing Act 1991 governing community correction orders ('CCOs') and upon this Court's recent guideline judgment in relation to CCOs in Boulton v The Queen.[14] The amended ground expressly directs attention to those matters.

24 Ms Dyason was sentenced on 15 October 2014. In September 2014 the relevant provisions of the Sentencing Act concerning CCOs were amended in two ways.

25 First, s 5(4C) was introduced which reads as follows:

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in ss 48F, 48G, 48H, 48I and 48J are attached.

26 Secondly, s 44 of the Sentencing Act was amended so as to increase the period of imprisonment with which a CCO could be combined from three months to two years.

27 Those provisions were operative at the time Ms Dyason was sentenced but she was sentenced before the guideline judgment in Boulton which was handed down on 22 December 2014.

28 The guideline judgment in Boulton explains the wide potential application of CCOs. The guidelines annexed to the judgment indicate that in every case the Court should consider: whether the crime in question is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; and whether a CCO, either alone or in conjunction with a sentence of imprisonment (which cannot exceed two years), would satisfy the requirements of just punishment. The Court emphasised in Boulton that CCOs are punitive, although obviously not as punitive as imprisonment, and observed that the new legislative regime would require courts to re-examine the types of offending that attract imprisonment.

29 In the plea hearing before the sentencing judge counsel did not address arguments to the significance of the amendments which became operative in September 2014. It can fairly be said that the significance of the amendments was elevated by the guideline judgment in Boulton which was not delivered until after her sentence. In those circumstances we permitted counsel for Ms Dyason to make, and rely upon, submissions directed towards the appropriateness of a CCO in the context of the manifest excess ground, by reference to the amendments and the guideline judgment in Boulton, notwithstanding that those arguments had not been made on the plea.[15]

30 The submission made on Ms Dyason's behalf was that a CCO combined with a period of imprisonment of up to two years would achieve the purposes for which sentence was to be imposed and that the sentence which was imposed was manifestly excessive. As the argument developed in the course of oral submissions, the focus was upon the extent to which the reasoning concerning the sentencing of so-called 'white collar' offenders in DPP v Bulfin[16] remained operative in the light of the judgment in Boulton. It was submitted on behalf of Ms Dyason that the analysis in Boulton required a reconsideration of Bulfin given this Court's emphasis upon the punitive operation of CCOs.

31 On behalf of the respondent it was submitted that the relevant reasoning in Bulfin, more recently reiterated by this Court in DPP v Gregory,[17] was relevantly unaffected by the guideline judgment in Boulton.

32 In Bulfin this Court considered a sentencing appeal from an offender who had pleaded guilty to a variety of offences involving fraud and deception concerning public investments of many millions of dollars. The offender pleaded guilty early, was remorseful, co-operated with authorities and agreed to give evidence against other accused, and was otherwise a person of good character. A submission was made on behalf of the offender on the sentencing appeal that in 'white collar cases' there should be a 'wider than normal gap' between the head sentence and the non-parole period.

33 Charles JA, with whom Winneke P and Callaway JA relevantly agreed, rejected that submission. He referred to the fact that white collar offenders usually had no prior criminal history and that the prospects of rehabilitation of such offenders were generally very high. He observed that specific deterrence would often not feature largely in the sentencing consideration. He said, however, that these features had a tendency to distract attention from the importance of general deterrence. Charles JA then said the following:

The motivation to engage in conduct of the kind here under consideration may spring from many sources: a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few. Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme. Many of these matters were discussed by this court, similarly constituted, in R v Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12 September 1996); see also R v Cave (1988) 32 A Crim R 484 per O'Bryan J at 487. The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.

For persons first contemplating corporate criminality, a sentence which requires an offender to spend a substantial term in actual custody by virtue of the non-parole period fixed, is, in my view, much more likely to focus their attention and have real deterrent impact than a longer head sentence, much of which is likely to be served on parole after the offender's release from custody. If this view be correct, to fix an unduly short non-parole period, would, in cases such as the present, be quite subversive of the whole concept of general deterrence, notwithstanding that a significantly longer head sentence was imposed. The sentencing practice discussed in Corbett must be understood with those considerations firmly in mind.[18]

34 The reference to Corbett was a reference to R v Corbett,[19] a decision of the New South Wales Court of Criminal Appeal concerning a fraudulent medical practitioner, which was substantially the basis for the submission that a wider than normal gap between the head sentence and the non-parole period was an appropriate way in which to address the need for general deterrence on the one hand, and the fact that the offender had no prior criminal history, was unlikely to reoffend, and had good prospects of rehabilitation on the other.

35 As was submitted by counsel for the respondent, Charles JA's analysis in Bulfin was relevantly adopted by this Court more recently in Gregory.

36 Counsel for Ms Dyason relied heavily upon the analysis of the punitive elements, or potentialities, of a CCO as explained in Boulton in submitting that the combination of a sentence of two years or less and a CCO with appropriate conditions would not give rise to the concerns addressed in Bulfin and in Gregory. In that context the punitive aspects of the various conditions mandated, and those which might be imposed, on a CCO, as considered in Boulton, were addressed.

37 As Boulton explains, the mandatory conditions which always exist on a CCO and the additional conditions which can be imposed have significant punitive elements. The community work condition is the only condition which the legislation describes as being for the purpose of punishment (s 48C(2)), but that does not detract from the reality that the other conditions have punitive operation. This Court has emphasised the need to re-evaluate the types of offending which attract imprisonment in that context.

38 It seems to us, however, that none of that affects the continuing relevance of Charles JA's analysis in Bulfin. Imprisonment is clearly more burdensome and more punitive than a CCO. Depending upon the particular circumstances, parole might be more or less punitive than a CCO. An offender on parole is subject to the Adult Parole Board, both in relation to whether parole is granted at all and in relation to cancellation of parole, and the imposition and variation of conditions. An offender on a CCO is not. On the other hand, a CCO might be for a longer duration than would normally be the case in relation to a parole period. In Ms Dyason's particular case a CCO might be more burdensome in one respect than parole because a transfer interstate could be more difficult. Ms Dyason was living with her mother in Whyalla, South Australia prior to going into custody. We will not embark upon a detailed comparison as it is unnecessary to do so.

39 We reject the submission that a short period of imprisonment combined with a CCO is relevantly to be distinguished from the position addressed in Bulfin, a period of imprisonment with a wide gap between the head sentence and the non-parole period, on the basis that the former is sufficiently punitive whilst the latter is not. It seems to us that all of the considerations addressed by Charles JA continue to apply to a situation where a short period of imprisonment combined with a CCO is the sentence in the same way as would be the case where a period of imprisonment is imposed with a short non-parole period and a wide gap between the non-parole period and the head sentence.

40 This is not to suggest that a sentence involving a CCO would never be appropriate for a 'white collar' offender, but rather that the considerations referred to in Bulfin, as reiterated by this Court in Gregory, remain relevant.

41 In the light of those conclusions it seems to us that the submission that this sentence is manifestly excessive must be rejected. The ground of manifest excess will only succeed if it can be shown that the sentence was wholly outside the range of sentencing options available.

42 In this case most of the features to which Charles JA referred in Bulfin are present. Ms Dyason abused a position of trust to fund her lifestyle. She undertook a carefully calculated course of conduct over a long period, involving repeated deliberate acts of dishonesty and substantial amounts of money. Her position enabled her to disguise her conduct, which she successfully did for several years.

43 Given the nature of this offending, and notwithstanding the significant mitigating factors which the sentencing judge took into account, this sentence is clearly within the range of sentencing options available.

44 The sentencing judge did not expressly address the question of whether these crimes were so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment would suffice to satisfy the requirements of just punishment or whether a CCO, either alone or in conjunction with a sentence of imprisonment (which cannot exceed two years), would satisfy the requirements of just punishment. It is unsurprising that she did not do so given that the sentence was before the guideline judgment in Boulton. But it seems to us that she did reach that conclusion. She accepted everything put in mitigation on behalf of Ms Dyason, but her reference to general deterrence reflected the analysis in Bulfin, which in our view continues to be applicable.

45 Given the nature of the offending, the amounts involved, and the duration over which the offending occurred, these offences were so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment would suffice to satisfy the requirements of just punishment and a CCO, either alone or in conjunction with a sentence of imprisonment (which could not exceed two years), would not satisfy the requirements of just punishment in this case. This is because of the importance of general deterrence in cases of this kind.

[1] DPP v Dyason (Unreported, County Court of Victoria, Judge Harbison, 15 October 2014) ('Reasons') [17]-[18].

[13] Ibid [10]-[12] and Summary of Prosecution Opening [14]-[15].

[14] [2014] VSCA 342 ('Boulton).

[15] See Romero v The Queen (2011) 32 VR 486, 489 [11].

[16] [1998] 4 VR 114 ('Bulfin').

[17] [2011] VSCA 145; (2011) 34 VR 1, 18 [66] ('Gregory').

[18] [1998] 4 VR 114, 131-2.

[19] (1991) 52 A Crim R 112.