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THE COURT:

The sentence

1. Joshua Leighton pleaded guilty to 23 counts of theft contrary to s 308 of the Criminal Code 2002 (ACT). On 4 November 2016 the primary judge sentenced Mr Leighton to a total of four years’ imprisonment and set a non-parole period of 19 months to commence on the first day of imprisonment, 4 November 2016, and to end on 3 June 2018 (R v Leighton [2016] ACTSC 354).

2. Mr Leighton, who was represented for his hearing on sentence but unrepresented for this appeal against sentence, contends that the sentence was too severe having regard to three matters, being:

(a) the alleged extortion to which he was subjected by Timothy McLeod, the employee of the ACT Public Trustee with whom the thefts were arranged;

(b) the alleged blackmail and extensive domestic violence to which Mr Leighton was subjected in his prior relationship; and

(c) Mr Leighton’s mental health history.

The primary judge’s remarks on sentence

3. The primary judge noted that a “comprehensive Statement of Facts” was tendered (at [2]). He summarised the thefts in these terms (also at [2]):

The thefts arise from a fraud against the Public Trustee of the Australian Capital Territory (ACT) (the Public Trustee) whereupon you received monies paid from the Public Trustee into your bank account for purported maintenance work on client properties. You did not undertake that work. The monies were deposited pursuant to an arrangement between yourself and an employee of the Public Trustee, who for present purposes I will identify as UN [Mr McLeod]. You were a tradesperson who had previously conducted a small amount of legitimate work on client properties for the Public Trustee.

4. At [3] his Honour noted:

These thefts occurred between 26 March 2010 and 2 September 2013. The total amount deposited into your bank account as the proceeds of these thefts was $675,734.00. While there were only 23 charges, the Statement of Facts makes it clear that a number of those charges were rolled up charges involving a number of transactions. There were, in total, 116 fraudulent financial transactions and 2 goods transactions involved in these offences.

5. Other relevant facts included the following (at [5]-[7]):

6. Monies were then paid into your account in accordance with those requisitions [that is, the false invoices for work not performed]. You would withdraw that money as cash on the same day that it was deposited. Under your agreement, you gave UN 60 per cent of each such payment and you retained 40 per cent. You have admitted that you did not do any of the work particularised on the cheque requisitions. You and UN used the money to visit brothels, to gamble on poker machines and also for everyday expenses such as bills and rent.

7. UN, ET [another employee of the Public Trustee] and another contractor have been charged with offences arising out of these events. They have pleaded not guilty and they are awaiting a trial date. You have given an undertaking to give evidence against them at any trial. Your evidence would relate primarily to UN and the nature of the arrangements between you.

8. You were first charged with these offences in the Magistrates Court on 10 November 2015. On 16 December 2015, you entered pleas of not guilty to all charges and the charges were adjourned for case management hearing. The charges were thereafter adjourned from time to time until, on 18 July 2016, you entered pleas of guilty and the charges were committed to this Court for sentence. Your matter was heard in this Court on 21 July 2016 and ultimately the matter came before me for sentence hearing on 10 October 2016, at which time you adhered to your pleas of guilty.

9. We note that, subsequently, Mr McLeod pleaded guilty to four rolled-up counts of theft involving 402 separate transactions and a total of $1,087,227.55 of defrauded funds. Mr McLeod has not yet been sentenced. Two others, Stephen Evans (a contractor) and Donald Savanhu (an employee of the Public Trustee), were sentenced after Mr Leighton.

10. In terms of the subjective features relevant to Mr Leighton’s sentence, the primary judge identified that Mr Leighton had a minor criminal history which could be ignored (at [8]). A number of people gave evidence on Mr Leighton’s behalf including his brother who referred to “the negative impact he believes your former relationship with your former partner had upon you” (at [13]), a close friend who said that “at the time of these offences you were experiencing financial hardship and that you had also been a victim of domestic violence” (at [16]), his father who said that Mr Leighton had been the subject of abuse and domestic violence for many years (at [20]), and others who all described the offences as out of character.

11. The primary judge noted also that:

(a) “[o]bjectively these are serious offences” (at [21]);

(b) Mr Leighton “engaged in a systematic course of theft of large sums of money from some of the most vulnerable members of our community” (at [22]); and

(c) the offences “were planned and premeditated” (at [22]).

9. His Honour considered that the period over which these offences occurred, the nature of the victims, and the amounts involved, meant that the offences fell in a range from the top of the bottom range of offences of this nature, to the top of the middle range (at [22]).

10. The primary judge accepted that Mr Leighton was remorseful and had been going through a difficult personal and professional period of his life (at [23]). He accepted that Mr Leighton was not the instigator of the offences, but was a crucial participant in them, but was unlikely to re-offend (at [24]). While Mr Leighton’s pleas of guilty were not entered at the earliest opportunity, they were entered at a relatively early time for which his Honour gave a 20 per cent discount on sentences (at [25]).

11. The primary judge also noted that Mr Leighton had undertaken to give evidence against his co-accused, as a result of which he gave a further 30 per cent reduction on the sentences (at [26]-[28]).

12. The primary judge accepted that there was a real need for general deterrence particularly given that the offences were hard to detect and involved the employees of the Public Trustee (at [29]-[30]).

13. The primary judge considered it impossible to sentence on the basis that later offences were more serious than earlier offences and, instead, distinguished between the offences based on the amounts stolen (at [31]).

14. The primary judge accepted that, given Mr Leighton’s good prospects for rehabilitation, a lower than usual non-parole period should be set (at [32]).

Leave to rely on further evidence

15. Mr Leighton’s submissions in support of his appeal dealt with matters which were not before the trial judge. Accordingly, we informed Mr Leighton that he would need to apply for leave to rely on further evidence. We permitted Mr Leighton to give this evidence orally on the basis that, having heard it, the respondent would be able to cross-examine him and both parties thereafter may make submissions about the admission of the evidence.

16. Mr Leighton gave evidence that while he had told his Legal Aid solicitor about the threats from Mr McLeod, the domestic violence and threats he had suffered from his ex-partner in the 10 years leading up to the offence, and the impact of these on his mental health, his barrister did not refer to these details during the hearing on sentence.

17. Mr Leighton said that during his relationship with his ex-partner he was bashed, strangled, had his teeth knocked out and was hospitalised. The situation was very distressing. His ex-partner found out about the stolen money almost straight away as she monitored his bank accounts and demanded that he keep giving her money from the frauds. She threatened to inform on him and told him that if he did not keep giving her half the money he received he would not be able to see his children. He feared for his children’s safety generally given his ex-partner’s behaviour and would do anything to see them.

18. Mr Leighton acknowledged that he had been a willing participant in the fraudulent scheme at the start. However, after about three to six months he wanted to stop. Mr McLeod also threatened him and said Mr Leighton would be “sharkbait” if he stopped. Mr Leighton was afraid of Mr McLeod who was a “big bloke”.

19. While Mr Leighton had never been diagnosed with a mental health problem, he now realised that the domestic violence which he had suffered had affected his mental health.

20. In cross-examination Mr Leighton agreed that he had read the Statement of Facts before it was tendered in evidence and agreed with it. He agreed that his ex-partner’s threats that he would not see his children were tied up with her threats to inform on him if he did not continue to steal the money. He believed that if he was imprisoned as a result of her informing on him, he would not see his children. He said that although he did spend some of his share on gambling as referred to in the summary version of the Statement of Facts (at para 50) he, in fact, had little to spend as he had to both pay household expenses and give half of the money to his ex-partner. He said that he did not tell the people who gave character references for him about the extent of the domestic violence he had suffered. He agreed that his mental health issues were a result of stress by reason of his relationship with his ex-partner and his fear of being caught for his offences.

21. The respondent submitted that Mr Leighton should not be granted leave to rely on this further evidence as it could not have any material effect on his sentence. The threats by his ex-partner relevant to the continuation of the offences were that if he stopped she would inform on him, as a result of which he would not see his children. The threats thus involved his fear of being caught for his offences. The threat by Mr McLeod was referred to in the summary Statement of Facts (at para 50) and Mr Leighton not only continued to participate in the scheme, but also continued to take his 40 per cent share of the stolen money. Mr Leighton’s mental health does not approach the threshold that applies to an assessment of the impact of a mental health condition on criminal culpability (for example, as discussed in R v Verdins [2007] VSCA 102; 16 VR 269).

22. We rejected the further evidence. Our reasons for doing so follow.

23. First, the principles which apply to resolution of an application to adduce further evidence on appeal as permitted by s 37N(3) of the Supreme Court Act 1933 (ACT) were recently re-stated in Jovanovic v The Queen [2015] ACTCA 29 in these terms:

24. Ordinarily, further evidence will not be admitted on an appeal if it was available, or could reasonably have been obtained at the time of the hearing: Hillier v The Queen [2008] ACTCA 3; (2008) 1 ACTLR 235 at [160]. Different considerations may apply where there is a question about whether an irregularity in the proceedings has prevented a party from putting his or her case effectively: Hillier at [161]. A decision to withhold evidence at trial will weigh heavily against its reception on appeal: Hillier at [164]. 23. As noted in Hillier at [160], s 27(1) of the Federal Court of Australia Act 1976 (Cth) similarly provides that when hearing an appeal, the Court may “in its discretion receive further evidence”. In August v Commissioner of Taxation [2013] FCAFC 85 at [116] the Court observed: The authorities make it clear that in exercising the discretion [to receive further evidence] the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result. At [119] the Court further explained: ...it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result. (citations omitted)

25. In Browne v The Queen [2006] ACTCA 15 the following points of principle were also made (at [8]-[14]) which are relevant to Mr Leighton’s application:

26. In CDJ v VAJ (1998) 197 CLR 172, the court was of the view that the common law provisions, which very significantly restricted the use of fresh evidence on appeal, were not restricted when there were statutory provisions governing its acceptance. The High Court took the view that the restrictions contained in the court’s earlier decision of the Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 were not necessarily applicable where there was statutory authority to receive fresh evidence. However, in CDJ the majority of the High Court, McHugh, Gummow and Callinan JJ, at [111], did place some restrictions on the use of such material when they said: ... Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) [a statutory equivalent of s 37N cited above] should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. It should be noted that this case was a Family Law Act appeal involving children, where there is an over-riding statutory requirement to act in the best interests of the child. 9. Further, the court went on to say (at [113]): In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of [the equivalent section]. 10. Stress has been laid in subsequent decisions of appellate courts, such as the decision of the Full Court of the Federal Court in Guss v Johnstone [2000] FCA 1455, that an appellate court needs to be satisfied that such evidence would be likely to have produced a different result had it been available at the trial. … 11. In R v Fordham (1997) 98 A Crim R 359, the New South Wales Court of Criminal Appeal made the point that fresh or new evidence would only be received by that court if it were shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. It was said by the court, Howie AJ, with whom Hunt CJ at CL and Smart J agreed, at 377: As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

27. Furthermore, the Court would need to be satisfied with the explanation offered for the evidence not having been put forward at the trial. Whilst the common law rules are not applicable so as to fetter the Court’s discretion, they will continue to provide useful guidance as to this aspect. There is no indication that the necessity to spell out the powers of the Court of Appeal upon the establishment of this Court involved any intention to alter the well-established rules for the conduct of criminal appeals.

28. A case which might be said to bear some similarity to the present is that of R v Goodwin (1990) 51 A Crim R 328 where Hunt J (as he then was), with whom Grove J agreed, said that with specific reference to sentencing appeals for the admission of fresh evidence: What must be established is: (1) that the additional material sought to be put before this court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant’s legal advisers at the time of those sentencing proceedings. 14. Although this was a decision before CDJ, it is not inconsistent with the principles expressed in that case and, in the case of sentencing appeals, offers a useful rule of thumb in assessing whether such evidence should be admitted …

29. Insofar as the evidence of Mr Leighton being the victim of domestic violence is concerned, the significance of that evidence was its impact on Mr Leighton’s mental health. In Verdins the Victorian Court of Appeal examined the principles relevant to the consideration of mental health issues in assessing moral culpability for crimes. Maxwell P, Buchanan and Vincent JJA said: 25 It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the Court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held — correctly, in our view — to be capable of reducing moral culpability. 26 Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of: (a) impairing the offender’s ability to exercise appropriate judgment; (b) impairing the offender’s ability to make calm and rational choices, or to think clearly; (c) making the offender disinhibited; (d) impairing the offender’s ability to appreciate the wrongfulness of the conduct; (e) obscuring the intent to commit the offence; or (f) contributing (causally) to the commission of the offence. (citations omitted)

30. There is no evidence which would satisfy any of the identified requirements. While it is not the end of the inquiry that Mr Leighton has not been diagnosed with any mental health condition, the evidence does not indicate that there is any proper foundation to conclude that his moral culpability for his crimes was impacted by the stress and distress which he experienced as a result of his relationship with his ex-partner. The primary judge had evidence of the negative impacts on Mr Leighton as a result of the relationship, to which the primary judge referred at [13]-[16] and [20]. The further evidence does not add to that evidence. Accordingly, it could have no bearing on the sentences imposed.

31. Insofar as the evidence of Mr Leighton being the subject of threats by his ex-partner are concerned, it is apparent that the focus of the threats was that the ex-partner would inform on Mr Leighton as a result of which he would be imprisoned and the ex-partner would ensure he did not see his children. Fear of detection and consequences of crime is not a matter that could have had any bearing on the primary judge’s assessment of the sentences to be imposed.

32. Insofar as the evidence of Mr Leighton being the subject of threats by Mr McLeod is concerned, evidence to this effect was included in the Statement of Facts. In para 50 of the summary Statement of Facts, it was recorded that Mr Leighton told police that Mr McLeod threatened Mr Leighton when Mr Leighton asked to cease the arrangement. In the full version of the Statement of Facts, it was recorded at para 707(h) that when Mr Leighton told Mr McLeod he wanted to stop, Mr McLeod said had to continue or he would end up as “shark bait” and that Mr Leighton was frightened of Mr McLeod. It may be acknowledged that the primary judge did not refer to this part of the evidence. While this does not mean that it may be inferred the primary judge was unaware of the evidence or failed to take it into account, as the respondent submitted, this is not the kind of evidence that could have had a material bearing on the sentences in any event. Mr Leighton not only continued to be a participant of the scheme, but also continued to take his 40 per cent share of the stolen funds.

33. Otherwise, it is relevant that Mr Leighton was legally represented for the hearing on sentence. He was aware of and accepted the accuracy of the Statement of Facts. For the further evidence to be admitted in the present case would be inconsistent with the nature of appellate review. A trial is not a rehearsal for an appeal. Unless the appellate court can be satisfied that admission of the further evidence is in the interests of justice, the evidence should not be permitted to be relied upon in the appeal. In the circumstances of the present case, we would need to be satisfied that there was a real prospect that the further evidence would have led to a different sentence before we would grant leave for the further evidence to be received. As we consider that the further evidence, to the extent that it was not already before and considered by the primary judge, could not have made any difference to the overall sentence and non-parole period imposed, leave has to be refused.

Other matters

30. The parties otherwise relied on their written submissions. Mr Leighton’s main proposition was that his sentence was too long once the evidence referred to above was taken into account. As we have not granted leave for Mr Leighton to rely on the further evidence, we must reject this proposition.

31. It is apparent that the most comparable case to that of Mr Leighton is that of Mr Evans, another contractor involved in the same dishonest scheme. The primary differences between the two cases are that the total of the money stolen in the case of Mr Evans was $287,393.85 of which Mr Evans retained 50 per cent, the other 50 per cent going to Mr McLeod, and Mr Evans’ undertaking to give evidence against Mr McLeod was characterised by the Crown as of significantly less utility than that of Mr Leighton. Mr Evans also pleaded guilty. He was sentenced to a total of three years and nine months in prison with a non-parole period of 17 months (R v Evans [2017] ACTSC 218). As the sentencing judge in R v Evans noted at [19]-[20], the real point of difference between Mr Evans and Mr Leighton was the substantially lesser amount which Mr Evans was involved in stealing. Once it is accepted, as it must be, that nothing in Mr Leighton’s circumstances reduced his moral culpability for the offences, it is apparent that the sentences of each of Mr Leighton and Mr Evans reflect the facts of each case.

32. The sentence of Mr Savanhu to a suspended sentence on the basis of entry into a Good Behaviour Order for two years (R v Savanhu [2017] ACTSC 217) has to be understood in light of the fact that the number of fraudulent transactions was far less than in the case of Mr Leighton and Mr Evans (36 in total for Mr Savanhu) and the amount involved was also far smaller, being $28,000. The case does not compare to that of Mr Leighton.

33. Mr Leighton also referred to R v Schofield [2016] ACTSC 98 in which Mr Schofield was sentenced on pleas of guilty to eight offences of theft. Mr Schofield stole from his employer, a Commonwealth agency. The amount involved was $1,415,200. The money was spent on Mr Schofield’s expenses including luxury items. The scheme by which Mr Schofield defrauded his employer involved a “significant degree of planning and sophistication” (at [26]). Mr Schofield, who pleaded guilty and had no prior offences and was previously of good character, was sentenced to five years imprisonment, with a non- parole period of three years. We do not consider this to be a similar sentence to that of Mr Leighton. Both the head sentence and the non-parole period are materially longer than the sentence imposed on Mr Leighton.

34. We are satisfied that the sentence imposed on Mr Leighton is not manifestly excessive. Having regard to the evidence which was before the primary judge, the sentence was not plainly unjust or unreasonable. The further evidence could not have had a material bearing upon the sentence for the reasons given above. As the respondent submitted, Mr Leighton received a 50 per cent reduction on sentence on account of his plea of guilty and undertaking to give evidence against Mr McLeod. His sentence reflects his participation, over a period of three and a half years, in a scheme which netted Mr Leighton a total of $270,295.60 and defrauded the Public Trustee of $675,739 in total. But for Mr Leighton, the fraud could not have occurred or continued. Despite his fears, Mr Leighton continued to accept 40 per cent of the stolen money. The scheme ended only because of its discovery by the Public Trustee. In these circumstances we accept the respondent’s submission that:

[Mr Leighton] was afforded as much lenience as could be given to him, comprising a generous 50 per cent discount off his head sentence, in addition to a lower than standard parole period. The objective seriousness of these offences is such that the term of imprisonment and non-parole period imposed were unquestionably just and appropriate.

35. The orders of the Court are:

36. Appeal dismissed. 2. The sentences are confirmed.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 30 November 2017