1 Between 1997 and 2008, Patrick James Keane, 58, was the administration manager of the Pakenham and District Golf Club. As such, he was responsible for managing the club's finances. He had previously had a 28-year career with the Commonwealth Bank of Australia. He was single and he lived alone.

2 Upon his retirement from the Bank, Keane received a large superannuation payment but, as a result of at least mismanagement and possibly fraud on the part of a financial adviser, he lost a large portion of that fund. Subsequent to this event he began to gamble heavily on poker machines. It was in this context and following inevitable losses that he began to steal money from his employer. He also drank heavily.

3 Between 2004 and 2008, Keane stole over $433,000 from the club. Of this amount, approximately $349,000 was cash which he ought to have deposited in the club's bank account and did not, $31,000 was salary he paid to himself to which he was not entitled and $51,000 was money he took from the club's bank accounts by writing cheques to himself or effecting electronic transfers to his own accounts.

4 On 19 April 2010, Keane pleaded guilty in the County Court before her Honour Judge Jenkins to nine counts of theft, each representing an amount stolen in a particular way during a particular period and totalling the full amount involved.

6 On 22 October 2010, Keane was granted leave to appeal by Redlich JA. His appeal to this Court proceeded on five grounds, four of which relied upon alleged specific errors and the fifth of which alleged that the individual sentences imposed, the total effective sentence and the non-parole period were manifestly excessive. Those grounds of appeal were not argued in the order they were set out in the appellant's full statement of grounds of appeal.

7 The first ground argued by counsel for Keane was that the sentencing judge erred by failing to take into account the delay between the conclusion of the appellant's offending and the date upon which he was sentenced.

8 On 26 May 2008, Keane telephoned the president of the golf club and told him that he had been stealing money from the club. He told him he did not know how much but that it was a large sum. The president did not want the matter to involve the police, but Keane insisted that the police be notified. The following day he was interviewed by police. He co-operated with the investigators, and, with one minor exception, made a full confession. Despite this, he was not charged until 6 October 2009 - over 16 months later - and was not sentenced until 29 April 2010, a further seven months later.

9 The evidence before the sentencing judge was that from the time he made that confession in late May 2008 up until he was sentenced he took significant steps towards his rehabilitation. He first saw a psychologist, Charles Huson, a few days after he was interviewed by the police and continued to see him regularly until about November 2008. Mr Huson reported that:

[Keane] engaged very positively in therapy from the outset. He attended regularly, never breaking appointments. He undertook all homework assignments and completed them week by week. When recommended to join Alcoholics Anonymous (AA), Patrick enrolled immediately and attended his first meeting on the same day. He continued to attend meetings frequently and regularly until quite recently. Patrick was also referred to Gambler's Help Southern for treatment. Again he attended regularly ...

10 Keane also received counselling from Robin Bart of Gambler's Help Southern from about November 2008 because, having entered into a composition with his creditors (including the golf club), he could not afford to continue to attend a private psychologist. Although Mr Huson was cross-examined, his evidence as to Keane's diligence in seeking to address his problems was not challenged; nor was his evidence as to a number of suicide attempts made by Keane.

11 In the second half of 2008, Keane sold his only significant asset, his house, and entered into an insolvency agreement which enabled him to make restitution to the golf club as best he could. As a result of this action approximately $149,000 was repaid. He was subsequently dependent upon social security benefits and upon his brother who provided accommodation for him.

12 The question of delay was not addressed by Keane's counsel before the sentencing judge although significant submissions were made with respect to his rehabilitation. In her sentencing remarks her Honour made no mention of the delay, either in the context of rehabilitation or otherwise.

13 In this Court, the Crown contended that as delay had not been put forward as a mitigating factor by Keane's counsel before the sentencing judge, the Court should not now permit it to be argued. Reference was made to Romero v The Queen,[1] where Redlich JA pointed out that a sentence appeal is not a re-hearing of the plea in mitigation. In its supervisory role, this Court will not lightly entertain arguments that could have been but were not advanced on the plea. His Honour was there speaking in the context of counsel attempting to put an argument as to the application of Verdins principles[2] on appeal when reliance on these principles had been specifically eschewed below. He excepted the situation where there was compelling material available on the plea that was not used or understood and which demonstrates there has been a miscarriage of justice. Significantly, in this Court, the Crown did not address the substance of this ground. Counsel argued only that, as it was not put to the sentencing judge, it should not be permitted to be relied upon now.

14 In this case, the delay between the appellant's confession and his sentence was obvious and undisputed. The appellant, in effect, pleaded guilty before he was even charged and, it can be inferred, stood ready to be sentenced at the earliest possible opportunity. Although counsel for Keane put arguments to the sentencing judge as to his rehabilitation during the almost two years which passed between his drawing his employer's attention to his thefts and his being sentenced, he did not argue that the delay itself ought to be taken into account.

15 In R v Todd,[3] a case where a lengthy delay had been caused by the prisoner's having to serve a sentence in Queensland before he was sentenced in New South Wales, Street CJ said:

...where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.[4]

Although the delay in Todd was much longer than it was in this case, much shorter periods of delay have been considered to be relevant in other cases, particularly where the delay has '[left] room for life to be ordered according to plan in the meantime'[5] or where the prisoner has 'striven to establish himself in a settled and regular way of life'.[6]

16 In R v Merrett,[7] this Court was concerned with sentences for theft imposed on prisoners five years after the offences were committed. Maxwell P commented on the inordinate delay and on the fact that the only explanation offered for it was inadequate. His Honour referred to Duncan and quoted from Street CJ's judgment in Todd.[8] He also referred to R v Cockerell[9] and R v Tiburcy[10] and noted that two of the appellants with which the Court was concerned, who had extensive criminal histories, had not offended at all in the five-year period during which they awaited sentence and the other appellant had also demonstrated rehabilitation, at least to a significant extent.[11] With respect to the relevance of delay his Honour said:

[it] lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular, it focuses attention on issues of rehabilitation and fairness.[12]

17 Another consequence of delay will often be anxiety and uncertainty experienced by an accused over a long period whilst his fate is undetermined. In R v Miceli,[13] a period of 12 months elapsed between the appellant's confession to authorities and his being charged and a further 14 months elapsed before he was sentenced. He had defrauded the Commonwealth by claiming diesel fuel rebates to which he was not entitled. In the period between his confession to authorities and his being sentenced he negotiated substantial repayment to the Commonwealth and underwent what was described by Tadgell JA (with whom Winneke P and Charles JA agreed) as 'a most anxious time'.[14] The sentencing judge rejected delay as a mitigating factor. The Court upheld Miceli's appeal. Tadgell JA said:

Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life. That is what happened here.[15]

18 Both of the psychologists whose reports were before the sentencing judge, as well as the counsellor from Gambler's Health Southern, commented on the apparent high level of anxiety experienced by Keane during the period between his confession and his being sentenced. During that period, he arranged for such restitution as he could make to be effected and sought to address his gambling and drinking problems. He was entitled to have the 'powerful mitigating factor'[16] of delay in this case taken into account. Having regard to the sentence imposed by the sentencing judge and the fact that delay was not mentioned in her Honour's sentencing remarks, it should be inferred that delay was not taken into account in the determination of Keane's sentence. This caused, in the particular circumstances of this case, a miscarriage of justice. It was a material sentencing error requiring that Keane now be re-sentenced. The fact that his counsel failed to raise delay on the plea in this instance should not deprive Keane of the significant mitigatory benefit of having delay taken into account. This ground of appeal is upheld.

19 This ground claims that the sentencing judge erred in treating the following two circumstances as aggravating factors:

(a) that staff of the golf club had been deprived of their employment entitlements by reason of Keane's depredations; and

(b) that Keane had made 'only' partial restitution.

20 In listing a number of factors which her Honour considered to have been aggravating features in Keane's offending, she referred to the loss incurred by the golf club. Her Honour said:

The financial loss was very significant, given the nature and size of the Club, and is ongoing. Furthermore, staff of the Club have been denied their rightful employment benefits and many staff and members have had to voluntarily contribute their time...

It would appear that the sentencing judge reached these conclusions solely on the basis of the victim impact statement of the golf club's president, which she reproduced in full in her sentencing remarks. There was no other evidence before the Court upon which these findings could have been made.

21 For a matter to be taken into account as aggravating for the purposes of sentencing it must be established beyond reasonable doubt.[17] The club president's statement could not, on its own, permit the findings her Honour made. It stated, under the heading 'Financial Loss suffered as a result of the crime', '[i]n addition, there was no provision for Long Service Leave, Holiday Pay etc, totalling $66690.73 for the 7 staff'. The president's statement, which was declared on 8 April 2010, does not suggest that the club ceased trading or was wound up as a result of financial difficulties caused by Keane. Had that been the case the president would presumably have said so.

22 The golf club's legal obligations to its staff could not be affected by Keane's conduct. The club was legally obliged to meet those obligations whilst it continued to exist. It is unclear what the club president meant by his reference to there being 'no provision for Long Service Leave, Holiday Pay etc' but, whatever he meant, it could not be concluded to the required standard on the evidence available that 'staff of the club have been denied their rightful employment benefits'. On the evidence before the Court, the sentencing judge was entitled to find that the club had suffered a significant financial loss, with consequent effects upon its operations and its capacity to serve its members and that this was a relevant aggravating factor in sentencing. However, her Honour was not entitled to find the more serious aggravating factor that employed staff of the club suffered financially by the loss of employment benefits to which they were legally entitled. This part of ground 2A is made out. However, this will have little effect on the final determination of this appeal as the appellant's success on ground 3 already entitles him to be re-sentenced.

23 The second part of ground 2A concerns the sentencing judge's finding in paragraph 79 of her sentencing remarks as to the club's financial loss and in particular her reference to Keane's having repaid 'only' approximately $149,000. The appellant argued that by this statement her Honour meant that the fact that Keane had not reimbursed the golf club for the whole of its loss was an aggravating factor to be taken into account against him in sentencing.

24 The making of restitution after a theft is a mitigating factor which an accused is entitled to have taken into account in their favour, but the failure to make restitution or the failure to do so totally is not an aggravating factor. In the passage complained of, the sentencing judge is not saying that it is. Her Honour is merely quantifying the golf club's total loss, taking into account Keane's restitution after selling his house. Moreover, in addressing the appellant's counsel's plea in mitigation in her sentencing remarks, the sentencing judge referred to Keane's 'partial restitution of the amount stolen' as a mitigating factor. She was correct to do so. There is, accordingly, no substance in the second part of ground 2A.

25 This ground concerns an alleged denial of procedural fairness by the sentencing judge relating to her failure to alert the appellant that she was considering making a finding that his offending had deprived club staff of their legal entitlements and treating this circumstance as aggravating his offending. As ground 2A has been upheld with respect to this finding, there is no need to address ground 2B further.

26 This ground complains that the sentencing judge was in error in rejecting a submission that the appellant's impaired mental functioning should have been taken into account in arriving at an appropriate sentence.

27 In reviewing the appellant's personal history, her Honour referred to his early poliomyelitis and its treatment and long term effects. She referred to his education, his employment at the Commonwealth Bank and then at the golf club, his paucity of personal relationships and his generally poor physical health. Her Honour reviewed the evidence given by psychologists Charles Huson and Kate Earl, and was critical of both of them. She noted that Mr Huson attributed Keane's offending behaviour to various psychological conditions. She said that Mr Huson regarded those conditions as:

...a constellation of psychological conditions which he diagnosed as: severe and chronic elevated anxiety; depression; probable post traumatic stress syndrome; and alcohol and gambling addiction. He further described you as an isolated and marginalised figure who became incapable of making rational choices.

28 Her Honour commented that she considered Mr Huson's assessment to be 'more descriptive than analytical'. She thought he lacked objectivity and was critical of his being unable to adequately assess or explain Keane's ability to maintain employment and 'apparent normal social and family relations'. She thought his diagnosis of probable post-traumatic stress disorder was tenuous. Whilst the sentencing judge was entitled to be critical of a witness, many of her criticisms were not the subject of any cross-examination by the Crown.

29 With respect to Ms Earl, her Honour noted that it was her opinion that Keane's pathological gambling addiction and alcohol abuse would have impaired his ability to make rational decisions. She also noted that Ms Earl considered that any term of imprisonment would be likely to result in Keane suffering from greater depression and an elevated anxiety level. Her Honour concluded that reliance on Verdins in Keane's case was 'misconceived'.

30 The sentencing judge reviewed in detail a number of authorities which led her to the conclusion that it would be rare for a gambling addiction to give rise to a mitigating factor in sentencing for offences of dishonesty. However, the appellant's argument in respect of this ground is not that the judge ought to have mitigated Keane's sentence because he had a gambling addiction, but rather that, in reaching the sentence she did impose, she did not take sufficient account of the opinions of the psychologists as to his pre-existing and long-standing depression and anxiety. Mr Huson considered that the anxiety and depression which he found on his assessment in 2008 and subsequent visits, as well as Keane's alcohol abuse and gambling addition, were a result of prior life experiences and the circumstances in which Keane found himself. Ms Earl described Keane as having suffered from 'long standing depression and an anxiety disorder which has emerged in response to environmental and personality characteristics'. Both psychologists referred to the significant destabilising effect the loss of a large portion of his superannuation would have had upon him. That these mental impairments pre-existed his gambling addiction and subsequent criminal behaviour seems the only reasonable inference from the evidence.

31 Leaving aside completely the question of Keane's gambling pathology, the psychological evidence leads to a conclusion that his underlying anxiety and depression, probably originating in what must have been a far from normal childhood and subsequent adulthood, played some part in leading him to aberrant behaviour of which his criminality was the final chapter. Whilst the application of Verdins principles in these circumstances would not necessarily result in Keane's offending being regarded as an inappropriate vehicle for general deterrence, his long-standing mental impairment - his anxiety and depression - ought to have entitled him to some mitigation, at least by reference to his reduced moral culpability and the risk, as specifically deposed to by both psychologists, of imprisonment having an adverse effect on his mental health. Although the sentencing judge referred to having taken the depression that she considered afflicted Keane at the time of sentence into account to some extent, she ought to have taken some account of his long-standing mental health problems in the context of his offending.

32 This ground of appeal should be upheld to the extent described above.

33 Having regard to all relevant circumstances surrounding Keane's offending, both aggravating and mitigating, most of which have already been extensively canvassed, the individual sentences imposed by the sentencing judge as well as the total effective sentence and the non-parole period which she fixed are outside the limits of a reasonable discretion. They are manifestly excessive.

34 Examination of the individual sentences passed by her Honour shows that they were related, to some extent at least, to the sum of money involved in each count. Whilst this is, of course, an entirely appropriate way to approach sentencing where a large number of counts are involved, in this instance the individual sentences imposed are excessive, particularly for those counts involving the larger depredations. The orders for cumulation made by her Honour, presumably designed to accommodate the principle of totality, have resulted in a total effective sentence which is also excessive. Whilst, by reference to the total effective sentence imposed, the non-parole period fixed by her Honour was not inappropriate, it will need, of course, to be adjusted in light of the lower total effective sentence that will be imposed on re-sentencing.

35 In this case, there is no obvious reason why nine counts were laid in the presentment to which Keane pleaded guilty. Although he used a number of different techniques to steal various different amounts from his employer, his offences should be characterised as all being intimately connected and as part of the one criminal episode. There is, accordingly, no reason why the presumption in s 16(1) of the Sentencing Act 1991 should not have effect in this case to enable all Keane's sentences to be served concurrently. The new non-parole period fixed should be less than what might be thought to be usual to enable the appellant to undertake further steps towards his rehabilitation whilst living in the community with access to services recommended by the psychologists who gave evidence before the sentencing judge.

36 The appellant should be re-sentenced as follows:

He should receive a total effective sentence of 2 years and 6 months' imprisonment in respect of which a non-parole period of 1 year and 6 months should be fixed.

It should be stated, pursuant to s 6AAA(1) of the Sentencing Act 1991 that had the appellant not pleaded guilty, he ought to have received a total effective sentence of 4 years' imprisonment with a non-parole period of 2 years and 9 months.

2. The sentences imposed by the County Court on 29 April 2010 are set aside and in lieu thereof the appellant is sentenced as follows:

3. The total effective sentence is thus 2 years and 6 months' imprisonment.

4. A non-parole period of 1 year and 6 months is fixed.

[1] [2011] VSCA 45.

[2] That is, the principles set out in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins') regarding the effect of impaired mental function on sentence.

[3] [1982] 2 NSWLR 517 ('Todd').

[5] R v Kane [1974] VicRp 90; [1974] VR 759, 767 (Gowans, Nelson and Anderson JJ).

[6] Duncan (1983) 9 A Crim R 354, 356 (Wallace, Brinsden and Rowland JJ).

[7] [2007] VSCA 1; (2007) 14 VR 392.

[9] [2001] VSCA 239; (2001) 126 A Crim R 444.

[10] [2006] VSCA 244; (2006) 166 A Crim R 291.

[11] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400-2.

[13] [1997] VSC 22; [1998] 4 VR 588.

[16] R v Liang (1995) 124 FLR 350, 356 (Winneke P), cited by Vincent AJA in R v Schwabegger [1998] 4 VR 649, 659; R v Cockerall [2001] VSCA 239; (2001) 126 A Crim R 444, 447 (Chernov JA).

[17] R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA); Anderson v The Queen [1993] HCA 59; (1993) 177 CLR 520, 536 (Deane, Toohey and Gaudron JJ).