Marasco v The Queen [2016] VSCA 85

Mr John Cain, Solicitor for the Office of Public Prosecutions

1 Following a trial by jury the applicant was found guilty on 2 November 2015 with respect to 21 charges of theft and nine charges of obtaining a financial advantage by deception. He was sentenced by his Honour Judge Stuart on 20 November 2015 as follows:

1, 4, 5, 6, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 27, 28, 29, 30, 32, 34

Theft (s 74 of the Crimes Act 1958)

Aggregate sentence of 12 months' imprisonment with a 2 year CCO

Obtain financial advantage by deception (s 82 Crimes Act 1958)

12 months imprisonment; 2 year CCO with supervision and treatment conditions and 400 hours unpaid community work

Other relevant orders: Forensic Sample Order; Compensation Order ($26,084.96)

2 The applicant now seeks leave to appeal against sentence on the following grounds:

The learned sentencing judge erred in;

(a) mistaking the Applicant's absence of cooperation as the explanation for the delay;

(b) failing to take into account a material consideration that the delay exacerbated the Applicant's anxiety and depression; and

(c) failing to acknowledge that the delay constituted an additional punishment.

3 The applicant commenced an apprenticeship as a motor mechanic in August 2003. He was employed in a family business in which there was a close relationship between the owners and the employees. The applicant did not demonstrate the necessary aptitude to become a mechanic but because he was seen as trustworthy and able to explain work to customers, he was appointed office manager in August 2007.

4 Between 31 October 2008 and 29 June 2010 the applicant engaged in some 30 transactions of dishonesty. The total amount stolen, together with the financial advantage gained was $26,084.96.

5 Insofar as the thefts were concerned, the applicant would typically receive cash from a customer, provide an original invoice, keep the cash, fail to record the cash transaction in the petty cash and delete the record of the invoice from computer records. The applicant also engaged in overwriting invoices to delete a cash customer's name and apply invoice numbers to credit customers, enabling him to keep that cash. He also used unrelated credit card receipts from customers and applied those credits to cash transactions, keeping the cash.

6 He obtained a financial advantage by deception by using unrelated credit card receipts from customers to apply those credits to his own account, in order to buy car parts for his own benefit.

7 The applicant was interviewed by police and made a no comment record of interview in December 2010. Some 181 charges were laid against the applicant on 28 July 2011. A forensic accountant retained as an expert witness by the prosecution provided a report on 14 June 2012. A three day contested committal took place in July 2012 and the applicant was committed to stand trial on all charges. The matter was listed for trial on 5 August 2013 but was adjourned as no judge was available.

8 In June 2014 the applicant made this application for discontinuance on the basis of a report by an expert forensic accountant engaged on his behalf.

9 The matter was re-listed for trial on 1 September 2014. The prosecution sought an adjournment to obtain a second statement from the forensic accountant whom it had retained to respond to the statement of the forensic accountant engaged by the applicant. After this was obtained, negotiations between prosecution and defence resulted in the applicant being presented on only 34 of the original charges on which he was committed to stand trial.

10 The trial commenced on 5 October 2015 and ran through until 2 November 2015.

11 In the course of his reasons, the sentencing judge, amongst other things, characterised the offending as opportunistic and becoming as needs to be more elaborate, repetitious and deceitful. It was made possible by the applicant's appointment as office manager, which had occurred mainly because the applicant was trusted by the victim employers. The applicant was duplicitous, and committed gross breaches of trust motivated by greed.

12 Although much of the contents of the victim impact statements filed in the matter were set aside, there were some passages relevant to sentencing. The effects of the applicant's offending were not limited to financial loss. The offending had radically changed the way the business operated from being one which operated in an environment of trust to one where all employees were now regarded with suspicion.

13 The sentencing judge referred to the procedural history of the matter and accepted that the applicant's life had been placed on hold during the years over which the prospect of conviction hung over him. His Honour said:

It has been put that there has been considerable delay in this matter coming to its final conclusion. You were interviewed by the police in December 2010, charged the following year with some 181 charges on 28 July 2011.

Forensic accountant Gerard Curtin produced his first statement in relation to his analysis of the APS business records on 14 June 2012, the committal having been held some few days earlier.[1] He later produced a second, more comprehensive statement, which was the backbone of the prosecution case against you at trial.

This matter has been previously listed on two occasions, 5 August 2013, when the matter was adjourned, and then later on 1 September 2014, as a result of the Crown's desire to obtain what became Mr Curtin's second statement. There has been, therefore, a delay of some five years from the last offending date on 29 June 2010. I am now, in mid-November 2015, to sentence you after a period in excess of five years.

You at the time of this offending were aged between 22 to 24 years old, and are now 29 years old. Life has moved on for you, to a degree, with you marrying on 28 March 2009, which was during the offending period. I accept that your life has been placed on hold, including commencement of having your own family.

In the judgement of Tadgell JA in R v Idolo, Fulvio,[2] his Honour considered this issue of delay and stated:

Apart from sheer elapsed time, the question whether a delay is undue may be determined by reference to a range of factors. Among these I may mention the nature of the offence, its complexity, its sophistication, the extent of investigation by the authorities that is necessary in order to prepare a charge for it and proof of it, and, if a series of offences, the period over which they were committed, the degree of co-operation with the authorities by the suspect or accused person and, conversely, any lack of it, or indeed any obstruction of the authorities by him or her. Of course, I am not intending to be exhaustive in that catalogue. What is undue delay deserving of mitigation of punishment is essentially a matter of degree to which common sense is to be applied.

Upon the discovery of irregularities in the accounting system, it was necessary in particular for Mrs Brennan to carry out what became an exhaustive review of the business' accounts. Anomalies had to be detected. Where possible, clients were contacted and asked to provide original invoices, for you had destroyed the original invoices of the company.

The exercise involved considering not just the 30 transactions here, but all transactions, in order to isolate alleged offending, identify the perpetrator and later for the authorities to determine what matters ought proceed to trial. This is illustrated by the fact that 181 charges were originally laid, whereas 34 charges were on the trial indictment.

The need not only for there to be an analysis, and an extensive one, of the business' records over a lengthy period of time, but also for preparation for trial became apparent to me time and time again during the course of this trial, where but for the meticulous preparation by the forensic accountant called by the prosecution, Gerard Curtin, there would not have been any successful prosecution.

Thus there has indeed been delay. That is due to the duration of the offending period, the complexity of the investigation, and the need to present the accounting records and other business records in an intelligible way to the jury.

You did not cooperate with the authorities. That is not to be held against you in any way, but it also gives explanation to the delay here. For what was necessary was to discover what you did, and how you did it: a painstaking exercise. Thus delay here is of less importance than it would otherwise be. Nonetheless, the delay here for a young man, now 29, must be taken into account, although I only give it some weight.[3]

14 His Honour also referred to the applicant's personal background. The applicant was aged 29 (having been born 3 July 1986). He had completed schooling until Year 10 and then commenced his apprenticeship with the business at which he offended.

15 He married on 28 March 2009. Since being dismissed from the position in which he offended in June 2010 the applicant had found other employment in mechanical plumbing for a period of some three years and then with an air conditioning business from 2013 onwards. At the time of sentence he was undertaking an apprenticeship in the occupation of mechanical plumbing and was due to finish that apprenticeship in 2016. He was also working as a courier. A number of references had been tendered to the Court demonstrating perceptions that the applicant is industrious, trustworthy and honest. His Honour accepted that the applicant was entitled to call upon his previous good character and the absence of any re-offending in the lengthy period since the offences but regarded the references as describing the apparent characteristics that had enabled the applicant to offend as he did.

16 The judge noted that the applicant had not shown any remorse nor had he demonstrated insight into his offending. The judge identified the need for general deterrence as the principal sentencing factor, together with specific deterrence, just punishment, and denunciation of the applicant's conduct.

17 It can be seen the proposed ground of appeal is directed to the circumstances and effects of the delay that occurred between the applicant's dismissal from his employment in June 2010 and his sentence in November 2015.

18 The complaints made are specific and are not simply complaints about weight given to the fact of delay as was the case in the matter of Pesa v The Queen.[4]

19 After argument, it is apparent that the first ground of complaint is better expressed as being that the trial judge 'misapprehended the reasons for delay in this case'.

20 Substantial delay between the apprehension of an offender and the date of sentence will mitigate the sentence provided the delay is not attributable to the fault of the defendant.[5]

21 In Mill v The Queen, the High Court approved of the well-known observations of Street CJ in R v Todd:

... 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.[6]

Delay may stand as a powerful mitigatory feature. If the accused has not re-offended in a lengthy period between offending and sentence, it will tend to show that there is an enhanced prospect of rehabilitation. There is also a question of fairness in the event that a matter is left hanging over an offender's head during an apparently leisurely process of investigation and prosecution. The longer the period of delay, the greater its likely weight as a mitigatory circumstance, particularly when the delay is not attributable to the conduct of the accused. Again, whilst it is not necessary for delay to operate as a circumstance of mitigation, that it be unexplained, the fact that it is not attributable to the conduct of the accused will likely make it of greater significance.[7]

23 Some delay is almost always necessary if white-collar crimes are to be properly investigated. Nevertheless, I accept the applicant's submission that to a significant degree the delay in this case was not his fault.

(1) The applicant was initially charged with 181 charges but only 34 were ultimately proceeded with and he was not convicted of all of these.

(2) After committal, no steps were taken in the prosecution for a period of some two years. Also, during this period a trial date fell through because no judge was available.

(3) In June 2014, the applicant supplied a forensic accountant's report with respect to the evidence in support of an application for discontinuance of the proceeding. He was entitled to take this course and to engage in ordinary plea bargaining in consequence of it.

(4) Nevertheless, a further trial date was adjourned in September 2014 and the trial did not in fact proceed until October 2015. When it did so it proceeded on a greatly reduced basis.

24 In Chandler,[8] Maxwell P and Weinberg JA held that the conventional process of plea negotiation does not constitute disentitling conduct except where the behaviour of the defendant can be characterised as 'deliberate delaying tactics'.[9]

25 The Court in Chandler also approved the observation made in R v Merritt, Piggott & Ferrari:

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay ... focuses attention on issues of rehabilitation and fairness.[10]

26 In the present case, it is apparent first that much of the delay was due to hearing dates falling through as a result of no fault of the applicant. Secondly, the exchange of expert reports and consequent negotiation resulted in a very material reduction in the number of charges. It cannot be regarded as a case of deliberate delay tactics. The acquittal on four of the remaining charges also confirms this conclusion.

27 Accordingly, the applicant was entitled to the full benefit of his good record since the offending and apparent rehabilitation. He was also entitled to allowance for the ongoing stress and anxiety the delay had caused him.

28 It was specifically submitted on the plea that the applicant had suffered from anxiety and depression which had been aggravated by the delay in resolving the matter. The applicant's counsel placed reliance on a psychologist's report from Stephen Brown dated 16 November 2015. This stated:

1. Mr Francesco Marasco has been attending regularly scheduled fortnightly-monthly psychology counselling since March 2013.
2. Mr Marasco has attended his treatment on a regularly scheduled fortnightly-monthly basis following his Medical Doctor's referral that he access psychology assistance to support him with addressing his mental health issues of anxiety and depression that became significantly aggravated following his involvement in current court matters.
3. Mr Marasco has maintained full-time employment as a Courier Driver. He remains hopeful of returning to finish his remaining 6-months of workplace training and study requirements enabling him to complete his Mechanical Plumbing Apprenticeship.
4. Mr Marasco retains the full support of his wife and family. Mr Marasco has maintained regular diet and daily exercise as well as sleep hygiene routines that have assisted him with managing and constructively coping with his stresses.
5. Mr Marasco, circumstances permitting, intends to continue attending regularly scheduled psychology treatment on a fortnightly-monthly basis for the foreseeable future. Mr Marasco's future psychology treatment will remain focused upon monitoring his mental health, to further consolidate his problem solving, communication and stress management challenges that have previously manifested in his periodic difficulties with anxiety and depression.
6. I am of the opinion that Mr Marasco remains at a low risk of reoffending.[11]

29 This report was not challenged by the prosecutor but the sentencing judge did not refer to it in his sentencing remarks. In my view, it did bear directly on both considerations of just punishment and rehabilitation in this case.

30 Although the sentencing judge accepted that the applicant had put his life on hold pending a resolution of the charges against him, he did not take into account the applicant's anxiety and depression.

31 The sentencing judge was of course correct to emphasise that the offending involved:

• extended and repeated duplicity and dishonesty over a 20 month period;
• a gross ongoing breach of trust; and
• a serious impact upon the victim employers.

The sentencing judge was also correct to emphasise that the applicant had demonstrated no remorse or apparent insight into his offending.

32 Nevertheless, the amount involved in the dishonesty was relatively limited, being approximately $26,000. The applicant was a relatively young man at the time of the offending (being 22-24 years old) and had no prior convictions. The five year delay which occurred between the discovery of his offending and the date of sentence was substantially due to matters which were not the applicant's fault. He had demonstrated a capacity to work and live honestly over that period. He was married and living a stable life. His prospects of rehabilitation must be regarded as good. The delay in the matter had also caused him continuing anxiety and stress as corroborated by the psychologist's report and this constituted a material consideration and an additional punishment.

33 In my view, the grounds of appeal are sufficiently arguable to justify leave to appeal save that I would re-formulate paragraph (a) to state 'misapprehending the explanation for delay in this case'.

34 In all the circumstances to which I have referred, I would vary the sentencing judge's order to substantially substitute time served for the term of imprisonment imposed, while maintaining the imposition of the two year Community Corrections Order.

36 The order of the Court will be that leave to appeal is granted, that the appeal is treated as instituted instanter and allowed, that the term of imprisonment imposed by the sentencing judge be set aside and varied to 160 days, that the sentencing judge's orders, including the imposition of a two year Community Corrections Order are otherwise confirmed.

37 The Court further declares that the prisoner has served 159 days by way of pre-sentence detention and directs that that declaration be entered on the records of the Court.

[1] The respondent's submissions to this Court confirm that this is an error. The committal occurred after production of the initial forensic report.

[2] [1998] VSC 276.

[3] DPP v Marasco (Unreported, County Court of Victoria, Judge Stuart, 20 November 2015) [21]-[30] (citation in original).

[4] [2012] VSCA 109.

[5] Chandler v The Queen [2010] VSCA 338 and the cases there cited ('Chandler').

[6] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 64 quoting R v Todd (1982) 2 NSWLR 517, 519.

[7] [2009] VSCA 260 [22] (citations omitted); applied in Chandler [2010] VSCA 338 [16].

[8] [2010] VSCA 338.

[10] Chandler [2010] VSCA 338 [19] quoting R v Merritt, Piggott & Ferrari [2007] VSCA 1; (2007) 14 VR 392, 400 [35].

[11] Report of Stephen Brown, Psychologist, dated 16 November 2015. Emphasis added.