Heller v R

COUNSEL: M. Dennis (Applicant) J. Girdham (Crown)

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/4292

McCLELLAN CJ at CL SIMPSON J HISLOP J

Monday 20 October 2008 Victoria HELLER v R Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 SIMPSON J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty to seven charges (sequences 1, 2, 3, 7, 8, 11 and 13) of obtaining money by deception contrary to the Crimes Act, 1900, s 178BA(1). The maximum penalty for such an offence is imprisonment for five years. A number of other charges under s 178BA(1) (sequences 4, 5, 6, 9, 10, 12 and 14) were taken into account pursuant to a Form 1 under the Crimes (Sentencing Procedure) Act, 1999, s 32. 4 The applicant also pleaded guilty to three counts of doing an act intending to pervert the course of justice contrary to the Crimes Act, 1900, s 319. The maximum penalty for such an offence is imprisonment for 14 years. 5 On 21 September 2007 the applicant was sentenced by Sorby DCJ in respect of those matters as follows:

(a) Sequences 2, 11 and 13 - concurrent sentences of imprisonment for a fixed term of 12 months to commence on 8 September 2007 and conclude on 7 September 2008;

(b) Sequences 1, 7 and 8 - concurrent sentences of imprisonment for a fixed term of 18 months to commence on 8 September 2008 and conclude on 7 March 2010;

(c) Sequence 3 with Form 1 matters taken into account - imprisonment for 2 years to commence on 8 September 2009 and conclude on 7 September 2011;

(d) Intending to pervert the course of justice - concurrent sentences on each count of non parole period of 2 years imprisonment to commence on 8 March 2011 and conclude on 7 March 2013 with a balance of term of 2½ years to commence on 8 March 2013 and conclude on 7 September 2015. 6 The effective overall sentence imposed was thus imprisonment for a non parole period of 5½ years and balance of term of 2½ years. The effective overall sentence for the s 178BA(1) offences was a fixed term of four years imprisonment. 7 The applicant has sought leave to appeal against sentence on the following grounds: "Ground 1: The sentencing judge erred in failing to properly apply the principle of totality in respect of the matters for which the applicant came for sentence and the matters for which the applicant was already serving a sentence. Ground 2: The sentences for each count of Perverting the Course of Justice are manifestly excessive. Ground 3: The overall effective sentence is manifestly excessive." 8 The facts relating to the s 178BA(1) offences, put shortly, were that the applicant had been employed by a company as a financial officer from 2 September 2001 to 2 September 2005. As such she was responsible for preparing the company's finances, payroll, payables, receivables and general accounting requirements. She also performed the role of office administration manager and assistant to the chief executive officer. During the course of such employment she obtained a total sum of $434,934.37 by deception. None of this money has been repaid. The applicant left that employment shortly before she was to be sentenced for offences which occurred during previous employment. Her dishonesty was discovered soon after she left by the financial officer who replaced her.

The offences were as follows: · Sequence 1 - 18 transactions of transferring money directly to the applicant's bank account disguised as payments to another employee; · Sequence 2 - 5 transactions involving the transfer of money into her own and her daughter's account whilst adjusting the company records so that the money was disguised as payments to an insurer; · Sequence 3 - 18 transactions involving the transfer of money to her own account and her daughter's account whilst representing in the company books that the money was paid to an insurer; · Sequence 7 - 32 transactions involving depositing money into her own account whilst manipulating payroll schedules so as to hide the discrepancies; · Sequence 8 - 12 transactions of depositing money into her own account whilst recording such payments as payments to another company; · Sequence 11 - 8 transactions of depositing money into her own account, disguising such transactions as payments to government entities; · Sequence 13 - six transactions of paying money into her account under the guise of paying wages to fictional employees.

The Form 1 offences were of a similar nature. 9 Prior to the employment giving rise to these charges, the applicant had been employed as a bookkeeper with another company. In such employment she had received numerous cheques on behalf of the company. She diverted some of those cheques to her own account, typically changing the payee details on the cheques to her own name. She was charged with numerous offences in breach of the Crimes Act, 1900, s 300(2). The offences commenced in December 1998 and continued until at least April 2001. The applicant was charged on 21 August 2001. The total sum of money involved was $288,184.09. Of this sum, the applicant repaid $24,437.50. She pleaded guilty and was ultimately sentenced by Woods DCJ on 8 September 2005 to imprisonment for two years commencing on 8 September 2005 and expiring on 7 September 2007 with a balance of term of two years imprisonment to commence upon the expiration of the non parole period and to expire on 7 September 2009. 10 The applicant sought to postpone being sentenced for the offences with the earlier employer by obtaining lengthy adjournments on the basis she was suffering from a cerebral aneurism. This gave rise to the three counts of intending to pervert the course of justice. The facts in relation to those counts were as follows: · Count 1 - on 28 November 2003 a document purporting to be a medical report signed by a medical practitioner was tendered to the court. The document stated the applicant was being treated "for a cerebral aneurism in which she will need surgery as soon as possible to reduce the risk of rupture... In my opinion, I feel Victoria will be unfit to appear in court on 5 December 2003. Full recovery time for this surgery should be 8-10 weeks." The proceedings were adjourned from 5 December 2003 to 13 February 2004 as a result of that report; · Count 2 - on 13 February 2004 the applicant tendered to the court a report dated 6 February 2004 purportedly from a professor of medicine who had signed with his initials. It stated: "Ms Heller has been diagnosed with cerebral aneurisms, which occur due to a weakness of the arteries in the arterial wall of the brain." The report continued that the professor had operated for the condition but due to re-bleeding further surgery would be required as soon as possible. The full recovery time was 9-12 months. The applicant was not fit to appear in court on 13 February 2004. The proceedings were adjourned until 21 May 2004 by reason of that report; · Count 3 - on 21 May 2004 a further report was tendered to the court by the applicant, again purportedly from the professor of medicine who had signed it with his initials. This report claimed the applicant had undergone further surgery and had to attend hospital twice a week for further treatment. The applicant obtained a further adjournment in reliance upon this medical report. 11 The medical reports were false. They had been prepared by the applicant herself. The signatures were forgeries. The applicant had not been diagnosed with a cerebral aneurism nor had she undergone any surgery in relation thereto. 12 His Honour made the following findings as to subjective matters:

(a) The applicant was born in 1960 in New Zealand. She migrated to Australia when she was 20. She achieved a year 10 level of education.

(b) Her employment history involved working with various companies in office work, data entry and account keeping and as a financial officer.

(c) Her criminal record, save for the offences for which she was sentenced by Judge Woods, revealed relatively minor traffic matters.

(d) The applicant did not give any evidence at the sentencing hearing. A psychologist's report was tendered reporting the applicant's statement that she had experienced a fundamental shift in her attitude and mood since being imprisoned on the earlier sentence and that she recognised the effect on others of her offending. His Honour accepted the applicant had developed some insight into offending behaviour and was remorseful for what she had done.

(e) In custody the applicant had availed herself of every opportunity to rehabilitate herself and an impressive number of certificates of attainment were tendered.

(f) His Honour considered the applicant was unlikely to reoffend.

(g) He was prepared to accept the applicant's rehabilitation and need for further rehabilitation constituted special circumstances which enabled him to vary the overall statutory ratio.

(h) The applicant had entered pleas of guilty at the first opportunity and was entitled to a full discount for the utilitarian benefits of the pleas.

Ground 1: The sentencing judge erred in failing to properly apply the principle of totality in respect of the matters for which the applicant came for sentence and the matters for which the applicant was already serving a sentence. 13 The basic principle of totality is that adopted by the High Court in Mill v The Queen (1988) 166 CLR 59 at 63 and confirmed by the High Court in Johnson v The Queen (2004) 78 ALJR 616 at [18] that: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when…cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'" 14 In R v AEM [2002] NSWCCA 558 it was held: "…the principle of totality requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved." 15 In R v Postiglione (1995-1996) 189 CLR 295 at 307-308 McHugh J observed: "Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence. The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon [(1994) 71 A Crim R 459 at 466]: 'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.'" 16 The totality principle was designed, inter alia, to avoid a "crushing sentence" in the sense that "…an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint" - R v MAK [2006] NSWCCA 381 at [17]. 17 In Cahyardi v R [2007] NSWCCA 1 at [27] it was held: "…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality; can a sentence for one offence comprehend and reflect the criminality for the other offence. If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 18 In R v Hammoud (2000) 118 A Crim R 66 Simpson J said at [7]: "Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle." 19 The applicant submitted his Honour failed to properly apply the principle in R v Gordon in that he failed to consider the total criminality involved in the offences before him coupled with the two year sentence imposed by Judge Woods. He submitted this was to be concluded from the following matters:

(a) His Honour did not refer to the facts of the earlier matters at all.

(b) His Honour referred to the overall effective sentence for the matters which were before him, and not the overall effective sentence for all matters, including those for which the applicant was dealt with by Woods DCJ.

(c) His Honour found special circumstances in the following terms: "I am prepared to accept that the offender's rehabilitation and the need for future rehabilitation and possible treatment constitutes special circumstances which enable me to vary the overall statutory ratio."

(d) The overall effective sentence consists of a non parole period of 7½ years imprisonment and a total term of 10 years imprisonment. The effect of special circumstances therefore is that it does nothing more than restore the statutory ratio that would have existed but for matters of accumulation of separate sentences. The variation would have been explicable on the grounds of totality alone. His Honour's reasons on this issue suggest that his Honour was not considering an overall effective sentence that would include within it the matters dealt with by Woods DCJ.

(e) There was no specific reference to the authorities of R v Gordon and Mill v R . 20 His Honour was well aware of the facts of the offences for which the applicant was sentenced by Woods DCJ. A copy of Judge Woods' remarks on sentence was tendered and his Honour made reference in the first page of his remarks on sentence to the overall sentence imposed by Judge Woods and observed that the victims and modus operandi were different in that matter to the present. I would infer that his Honour was mindful of the principles of totality and the decisions in Gordon and Postiglione to which his attention was specifically drawn during the sentencing hearing, although he made no specific reference to either case or to the case of Mill in his remarks on sentence. His Honour concluded a parole period of 2½ years was required for rehabilitation and the need for future rehabilitation and possible treatment. This required a finding of special circumstances. A finding of special circumstances would not be required in order to achieve this if a combined head sentence of 10 years was applicable. 21 In my opinion, his Honour did not fail to have regard to the offences for which the applicant was sentenced by Judge Woods in the context of the totality principle. After determining the sentences which he proposed for each offence as required by Pearce v R (1998) 194 CLR 610, his Honour said: "I now turn to the overall sentence. The offence to which the offender is currently serving a sentence with a non parole period complete on 7 September this year involved different victims and were committed doing a different modus operandi and I therefore think that the starting point of any sentence I impose should be 8 September 2007. Applying the principle of totality, I further consider that the offences for fraud should be partly concurrent and partly cumulative, as should be the three offences of pervert the course of justice, the latter arising out of the same course of conduct…" 22 His Honour thus determined that the matters the subject of sentence by Judge Woods were discrete and independent criminal acts, the criminality of which was not comprehended by the later criminal acts which were before him. In my opinion, this was an available and appropriate exercise of his Honour's discretion. His Honour had regard to the relevant principles and applied them in a manner which was within his sentencing discretion. The combined sentences have not resulted in a crushing overall sentence or one disproportionate to the applicant's total criminality. I reject this ground of appeal.

Ground 2: The sentences for each count of Perverting the Course of Justice are manifestly excessive. 23 As to the counts of intending to pervert the course of justice, his Honour in his remarks on sentence said: "These facts reveal objectively serious offences and they strike at the heart of the system of criminal justice in this State. These facts reveal a clear and planned course of conduct engaged in over a number of months to intentionally mislead this court for the offender's own advantage, to delay her sentence and inevitable gaol term to be imposed. The methods adopted by the offender were relatively sophisticated and successful, Woods DCJ accepting the medical certificates and reports as genuine. While the offences were not as serious as, say, interfering with a Crown witness they are still objectively serious and general deterrence is important because of the need to protect our system of justice, which depends so much upon the honesty of citizens who appear before these courts." 24 Later in his remarks on sentence his Honour said: "In relation to the three counts of intent to pervert the course of justice, these offences are also objectively serious. Interfering with the justice system was carried out by the offender by forging medical certificates and reports which were relied upon by a judge of this court in granting adjournments while toward the lower end of the scale of such offences, it still is very serious. It involved a planned course of conduct for a number of months and a sophisticated and successful attempt to convince the court of serious medical problems based on forged certificates. At the time the offender was on bail for the offences. The system of justice is fundamental to our democratic way of life. If the integrity of the justice system is tampered with, the democratic fabric of society is affected. General deterrence is very important in this sentencing exercise to send a message to the community that such activities will not be tolerated. The seriousness with which the community views these offences is demonstrated by the maximum penalty of 14 years imposed by the legislature. I consider that the appropriate sentence for each of these three offences is two years imprisonment." 25 The applicant accepts the finding of objective seriousness made by his Honour but submits that a consideration of statistics shows that the sentence imposed for those offences stands outside the prevailing pattern for that level of objective seriousness. 26 Judicial Commission of NSW statistics in respect of offences of this type produced by the applicant based upon a small sample of cases (27) showed that between October 2000 and September 2007 there was only one case in which a higher sentence had been imposed and only two cases in which a higher non parole period had been fixed. The majority of sentences were for a non parole period of one year (56 percent) whilst 15 percent were for a non parole period of 18 months. 27 In evaluating sentence the Court may have regard to statistics such as those provided by the Judicial Commission and to similar cases in determining sentence patterns and the appropriate sentencing range - R v Bloomfield (1998) 44 NSWLR 734 at 739, though caution must be exercised in the use of such material as the sentence depends on the facts of each case and bare statistics tell a judge very little which is useful - see Wong v R (2001) 207 CLR 584 at 605. 28 The maximum penalty applicable here is 14 years imprisonment. This is a reflection of the seriousness with which the public, through the legislature views the type of criminal conduct with which we are here concerned. It is through the maximum penalty that the legislature manifests its policy and it is the initial consideration when determining the appropriate sentence - R v Zamagias [2002] NSWCCA 17 at [11], Markarian v R (2005) 79 ALJR 1048 at [31]. 29 In Markarian the High Court held at [27]: "As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 30 His Honour found that these offences were toward the lower end of the scale of such offences but were still very serious. In my opinion, his Honour's sentence of 2 years with a balance of 2½ years was within his wide sentencing discretion. It is relevant that each of the offences was committed whilst the applicant was on bail; that though each offence of intending to pervert the course of justice involved a distinct act of criminality separated by some months, the sentences were ordered to be served concurrently and each sentence was effectively reduced by six months as a result of being made partially concurrent with the sentence for sequence 3. I reject this ground of appeal.

Ground 3: The overall effective sentence is manifestly excessive 31 Counsel for the applicant conceded the individual sentences for fraud were within the appropriate range but submitted that when the sentence imposed by Judge Woods was taken into account with the sentence imposed by Judge Sorby, this resulted in a non parole period of 6 years, which was manifestly excessive by reference to a number of other cases to which he referred. He also relied upon the submissions previously noted in respect to the sentence for intending to pervert the course of justice. 32 As to the s 178BA(1) offences, his Honour found:

(c) the applicant was a trusted employee who breached that trust;

(d) she systematically defrauded the company of a large amount of money over a considerable period of time;

(e) she used different methods to direct funds into her own accounts for her own purposes, some funds coming from her fellow workers' superannuation funds;

(f) she destroyed company records to cover her tracks and left her employer in a difficult position to piece together what had actually happened;

(g) the motivation for the offences appears to be greed alone;

(h) a serious aggravating factor was that at the time of the offences the applicant was on bail for other fraud matters;

(j) while retribution, the protection of society and rehabilitation are important considerations in this sentencing exercise, deterrence, both specifically, and, relevantly, general deterrence, are important to send a message to the community at large that such activities face condone [sic, condign] punishment must play an important part. 33 In R v Mungomery (2004) 151 A Crim R 376 at [5] Spigelman CJ observed: "…the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition. It will often be appropriate for a sentencing judge to refer only to an impression that s/he acquires from reading relevant prior judgments and from the range of statistics available on the Judicial Commission's database." 34 The sentencing decisions of this court to which reference was made do not in my opinion establish that the overall effective sentence is manifestly excessive. I have already rejected submissions that the sentences for intending to pervert the course of justice were manifestly excessive. In my opinion, the overall effective sentence was within the legitimate sentencing discretion of the trial judge. Accordingly, I reject this ground of appeal 35 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act, 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79]. 36 In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. 37 I propose the following orders:

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.