Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Computer-related fraud and other fraud - Gambler misappropriated $940,221 from employer over three years four months and defrauded credit card company of $30,000 - Sentence of six years' imprisonment with non-parole period of three years six months not manifestly excessive.

1. On 9 December 2021 Jago J sentenced the appellant, Rachael Perri, to six years' imprisonment, with a non-parole period of three years and six months, in relation to 26 crimes of dishonesty. She appealed, essentially contending that her sentence was manifestly excessive. On 10 March 2022 this Court dismissed her appeal, reserving its reasons for publication at a later date. My reasons for joining in the order dismissing the appeal accord with those now published by Estcourt J.

1. The appellant, Rachael Naomi Perri, has appealed against her sentence of six years' imprisonment with a non-parole period of three years and six months imposed by Jago J on 9 December 2021 in respect of 25 counts of computer-related fraud contrary to s 257B(c) of the Criminal Code, and one count of fraud contrary to s 253A of the Code.
2. The appellant appeals on the grounds that:

"1 The Sentence and the non-parole period are manifestly excessive and offend the principle of totality, because of the following matters:

1. Failing to take adequate account of the Appellant's degree of gambling disorder as being 'at the most extreme end';
2. in all these circumstances the Court placed too great an emphasis upon considerations of general deterrence and harm to the victims;
3. in setting the non-parole period failed to take account of the Appellant's prospects for rehabilitation and gave undue weight to her previous conviction in 1997."

1. Subparagraphs 1a, 1b and 1c are in truth not grounds of appeal at all, but arguments or submissions as to why the sentence is manifestly excessive. Nonetheless, as will be seen, I have considered each of them separately.

1. The task of this Court on an appeal of this nature needs to be borne steadily in mind. It has been explained many times in this Court and in others. A relatively recent restatement of the relevant principles is to be found in Hall v Tasmania [2015] TASCCA 6, where Pearce J said at [51]-[52]:

"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

52 The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]."

1. As to the issue of totality raised by the notice of appeal, the following observations of McLure JA in the decision of the Western Australian Court of Appeal in Taylor v The State of Western Australia [2015] WASCA 72, at [27]-[31] as to the relevance of the totality principle in cases of multiple offences are instructive:

27 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.

28 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

29 Sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect.

30 Manifest excess applies to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.

31 The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally."

1. In Coles v Tasmania [2013] TASCCA 9, I set out two passages from decisions considering the totality principle. At [26]-[27] I noted as follows:

"26 Gaudron and McHugh JJ observed, obiter, in Griffiths v R [1989] HCA 39; (1989) 167 CLR 372 at 393:

'It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Reg v Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice (1985), p 282; Hall, Sentencing in New Zealand (1987), p 195. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.'

27 In Attorney-General v Tichy (1982) 30 SASR 84, Wells J said at 92-93:

'It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct ...'."

1. Because the learned sentencing judge's comments on passing sentence are comprehensive, yet extensively reasoned, I set them out in full. Her Honour said:

"Rachel Perri has pleaded guilty to 25 counts of computer-related fraud contrary to s 257B(c) of the Criminal Code, and one count of fraud contrary to s 253A of the Criminal Code. The 25 counts of computer related fraud were committed in the course of her employment as a practice manager with Tasmanian Veterinary Services Pty Ltd (trading as Tasmanian Animal Hospitals). The single count of fraud relates to her submitting an on-line application to Virgin Money (Citigroup Pty Ltd), for a Visa credit card using her husband's personal details and driver's licence number. The frauds committed by the defendant on Tasmanian Veterinary Services Pty Ltd and Citigroup Pty Ltd total $970,221.47. The fraudulent behaviour continued over the course of three years and four months. It only ended when there was a restructure within the business and her position became redundant.

Throughout this period, the defendant conducted 475 fraudulent transactions which resulted in $940,221.47 being debited from Tasmanian Veterinary Services business accounts and credited to various bank accounts, credit cards and personal loan accounts in her name. Additionally, the defendant used the Virgin Money Visa card she had fraudulently obtained, to make purchases and payments to her benefit in the amount of $24,218.08.

Between 9 February 2016 and 7 June 2019 the defendant accessed and utilised two separate bank accounts belonging to Tasmanian Veterinary Services to conduct the fraudulent transactions. The main business Commonwealth bank account was used for the majority of the defendant's offending. From that account there were 450 dishonest transactions. A second Commonwealth bank account, also belonging to Tasmanian Veterinary Services, was utilised on a further 25 occasions.

As practice manager, the defendant was in a trusted position. Her duties included processing payroll, human resources, account management, and she was solely responsible for the payment of business expenses and associated liabilities from the two Commonwealth bank accounts operated by the business. The defendant used various methods in an attempt to conceal her offending. They included:

(a) Fraudulent amounts being recorded in MYOB (the accounting system used by Tasmanian Veterinary Services) against various creditor expenses accounts. Payment was purportedly made to the creditor using the ComBiz business banking system, but the creditor's bank account number was changed to one of the bank account numbers held by the defendant.

(b) Further, fraudulent amounts were recorded in MYOB against creditor expense accounts that were not used by the business, or were false. Payment was then made for that purported expense but again the bank account number to which the payment was directed was one of the bank accounts held by the defendant.

(c) Thirdly, the defendant would record fraudulent entries in the form of reimbursement to the owners of the business and then direct payment for such reimbursements to one of her own bank accounts.

(d) Fourthly, the defendant would create fraudulent payments purportedly for the benefit of creditors of the business, but then direct those payments to one of her own bank accounts.

To hide her dishonest behaviours, the defendant would generate false entries in MYOB to offset the fraudulent transactions. She would create false reimbursements and false creditors and would create false entries in MYOB to offset the payments made. She would process payments in MYOB for a higher amount than the genuine transaction, and would bank deposits for items such as supplier rebates and training incentives, so as to offset the false withdrawals from the business's bank accounts.

By utilising these various methods the defendant was able to ensure the bank reconciliations balanced, and suspicion was not raised as to the fraudulent transactions.

The degree of planning and deceit involved in the defendant's fraudulent behaviour was significant, in my view. For a period of over three years she was able to utilise her position of trust to commit repeated acts of dishonesty. The sophisticated methodology the defendant used to cover her fraudulent activities was such that even though Tasmanian Veterinary Services used external accountants to review the accounts at the end of each financial year and prepare relevant income tax returns, the fraudulent activity was not detected.

On 12 June 2019, the defendant's position was made redundant following a restructure of the business.

In August 2019, anomalies were discovered in banking transactions following a query from one of the Directors regarding a reimbursement. This led to the company's Chief Financial Officer conducting a substantial audit of the accounts and associated banking transactions relating to the business's bank accounts. The audit involved many hours of investigation. It was not completed until 27 May 2020.

On 24 April 2020, the Virgin Money Visa credit card was cancelled after police discovered the application was fraudulent. The amount owed on the credit card as at that date was $24,218.08. Business records indicated the defendant had used the credit card to make purchases and payments to her benefit. She had made one fraudulent transfer of monies from Tasmanian Veterinary Services accounts to that credit card on 7 September 2016 in the sum of $2,736.20.

On 20 November 2019, Tasmania Police executed a search warrant at the defendant's residence. Following that search, the defendant participated in an electronic record of interview. Immediately upon the allegation being explained to her she admitted guilt. She went on to make full admissions to the offending telling police, among other things:

(a) She had been playing a gambling game on Facebook called Hearts of Vegas for the past four years. The game involved her purchasing virtual coins or credits to be used in the game. The credits could never actually be turned into real money.

(b) She could not explain why she played the game when there was no prospect of monetary gain.

(c) She also said 'I got myself into so much trouble but decided that I might as well keep going until I got caught ... I couldn't see a way out ... I never thought that I would get away with it ... I was waiting for a knock on the door from police'.

(d) The defendant said she was humiliated by what she had done.

(e) She admitted to having a ten year gambling addiction that had resulted in her incurring considerable financial losses.

Subsequently the defendant co-operated with police, provided them with her mobile phone, laptop and associated passwords, together with her email address, Apple ID and Facebook account logins and passwords. Her co-operation, and her admissions, count in her favour.

The defendant was arrested on 22 July 2020. She first appeared in the Hobart Magistrates Court on 14 December 2020 and was committed to this Court on 7 June 2021. By 31 August 2021 she had indicated through her counsel that she would be pleading guilty to the charges.

I accept the defendant's plea of guilty is an early one. It is indicative of her acceptance of responsibility, facilitates the course of justice and avoids the need for what would be a lengthy and potentially complicated trial. Although there had been a substantial internal audit conducted by the Chief Financial Officer of Tasmanian Veterinary Services, and a thorough investigation by Tasmania Police, had the matter proceeded to trial it is feasible that further forensic accounting would have been necessary. The plea of guilty has mitigatory value in the sentencing process.

The defendant is now 49. She has two adult children. She maintains the support of those children. Following the detection of her fraudulent behaviour, however, her marriage came to an end.

The catalyst for Ms Perri's offending appears to be the need to satisfy a severe gambling disorder. There is no evidence the commission of the crimes arose from need, but nor is there any suggestion the crimes were committed to support an extravagant lifestyle. Tendered on the sentencing hearing was a forensic psychiatric report prepared by Dr Michael Jordan. Dr Jordan opines the defendant suffers from a severe gambling disorder. It appears as though she has suffered from this gambling disorder for most of her adult life.

'[5] Ms Perri indicated that she had not partaken in any further gambling type behaviour since November 2019. Prior to that she described two decade long periods of intense gambling. Throughout those periods she was often cognitively preoccupied with the pursuit of gambling and had made repeated albeit unsuccessful efforts to control her gambling. She noted that when she attempted to pull back on her gambling, she had become restless but accepted that she had gradually been spending increased amounts of money on the pursuit over many years ...'.

By way of gambling history, Dr Jordan's report notes as follows:

'[10] Ms Perri indicated that she accessed the Launceston Casino 'the day I turned 18' ... she very quickly became thrilled by various gaming machines but in particular pokies in and around that period. She recalled on one of those early sojourns into the Casino, how she won $26.00 from a starting point of $1.00 and 'it went on from there'. She continued to concentrate on poker machines in that era but soon ran into financial difficulties. That provoked her stealing funds from a contemporaneous employer which she stated was approximately $30,000 over a 1 to 1½ year period. She would eventually be charged and convicted with a significant number of stealing offences related to the acquirement of those funds.

[11] The legal process had the effect of Ms Perri attempting to reduce her gambling and ... for the next approximate 10 year period (between the ages of 25 and 35), she resisted all gambling opportunities.

[12] Ms Perri returned to gambling again towards the end of the 2000s ... she quickly began to accumulate debt again and estimated that approximately 10 years ago she had debt of approximately $200,000. She indicated that she had taken out a suite of loans and at one stage had nine separate credit cards. ... She recalled one session where she spent almost 16 hours continuously playing a machine.

[13] Ms Perri's gambling habits changed with the advent of mobile phones and various gambling apps. In 2014 Ms Perri began on-line gambling and a particular game known as Hearts of Vegas. This game allows the player to access an electronic poker machine and funds were provided by virtual coins... ... the winnings as virtual coins cannot be redeemed for any monetary benefit.

[15] Between 2014 when she began using the app and 2017 when she indicated that she started to draw funds from her employer, she continued to accumulate debt. This continued to take the form of multiple credit cards and at least three personal loans. By 2017 Ms Perri was struggling to make the minimum payments on the various credit cards and loans and this appeared to precipitate her fraudulent activity.

[18] Ms Perri would meet all those criteria placing her level of (gambling) disorder in the severe category. Ms Perri has had significant problems with gambling for extensive periods of her adult life. It is noted that it led to previous legal transgressions when younger and this pattern has occurred again. It is considered that her gambling disorder was the most significant factor in her fraudulent activity. As has been outlined above, most of her more recent gambling interactions have been essentially mindless with no hope of any financial gain. ... Ms Perri merely gambled for the joy of gambling. The level of fraudulent activity is very significant and again is testament to the severity of Ms Perri's gambling disorder.'

I take into account the entirety of Dr Jordan's report. I accept the defendant suffered from a severe gambling disorder. It is necessary to consider the extent to which this mitigates sentence. In Johnstone v Tasmania [2011] TASCCA 9, Blow J (as he then was) noted at paragraphs 13 and 14:

'[13] Much has been written as to whether, for sentencing purposes, a gambling addiction should be treated as a mitigating factor and, if so, what weight should be given to that factor. Redlich JA undertook a thorough review of the principal authorities in R v Grossi [2008] VSCA 51; (2008) 23 VR 500 at pars [47]-[57]. At the risk of oversimplifying, I think it can be said that the following principles emerge from his Honour's analysis:

• In the words of Redlich JA at par [52],'It would be an unusual case where evidence of addiction to gambling would have any significant effect upon the importance of the element of general deterrence.' (See also R v Powell (2001) 81 SASR 9; Assi v R [2006] NSWCCA 257 at par [27]; Garnsey v Stamford [2002] TASSC 43; (2002) 131 A Crim R 427 (Underwood J (as he then was)) at pars [11]-[15].)

• Stealing because of a gambling addiction should be regarded as less morally culpable than stealing because of pure greed, or stealing in order to fund some other criminal activity: R v Grossi at par[51]; Vu v R [2006] NSWCCA 188 at par [74] per Hall J; R v Henry (1999) 46 NSWLR 346 at par [225].

• Gambling addiction has been treated in the same manner as conditions induced by drugs or alcohol which, as a general rule, do not require any significant moderation of sentencing considerations such as denunciation and deterrence: R v Grossi at par [53].

• A gambling addiction, like any other mental condition, may or may not reduce moral culpability. Whether it should do so and, if so, the extent to which it should do so, will usually depend upon the nature and effect of the symptoms, its effect on the mental capacity of the offender, and the nature and seriousness of the offences committed: R v Grossi at par [55].

[14] In this case the learned sentencing judge was not provided with a report from a psychiatrist or psychologist, though she was provided with a pamphlet that outlined some of the characteristics of a gambling addiction. However the facts as to the appellant's gambling activities during the relevant 6½ weeks spoke for themselves, and the Crown did not dispute an assertion by defence counsel that his conduct was attributable to a gambling addiction. In the light of R v Grossi and the cases referred to by Redlich JA, I do not consider that this Court should treat as mitigatory the fact that the appellant offended, and offended on a massive scale, because of a gambling addiction. However I do regard it as very significant that he had no insight into his gambling addiction, nor as to the extent of the losses he was causing, until after he ceased offending. There are a number of very powerful mitigating factors that are relevant in this case, but the gambling addiction, of itself, is not a significant one.'

Further, in Deakin v Tasmania [2016] TASCCA 19, Wood J noted:

'[39] There was no assertion in the plea in mitigation before the sentencing judge that the gambling habit had impaired the appellant's mental functioning or contributed to the offending conduct. The sentencing judge was not provided with a report from a psychiatrist or a psychologist that established a nexus between the appellant's gambling habit and his offending, or that suggested that his habit had any effect upon his mental functioning. Even if such a nexus had been established and his mental functioning had been affected, there would have been a need to assess the nature and severity of the symptoms and whether his impaired mental functioning had any of the effects stated in Verdins at [26]. Impaired mental functioning may reduce an offender's moral culpability if it had an effect such as impairing an ability to exercise appropriate judgment, or to think clearly, or to appreciate the wrongfulness of the conduct. In any case, the nature and seriousness of the offence may suggest that moral culpability is still significant, and general deterrence must remain an important objective.'

Bearing those authorities in mind, I note that here there is no suggestion in the report of Dr Jordan that the gambling disorder from which the defendant suffered was to such an extent as to impact upon Ms Perri's mental functioning. There is no proper basis to consider that the factors enunciated in Verdins are enlivened.

Certainly the gambling addiction provides a motive for the commission of the crimes and an explanation for their occurrence. I do not consider the Court should place any significant mitigatory weight upon the fact the defendant offended in the manner she did, because of her gambling addiction. Gambling being the motive for the offending remains a relevant factor when assessing her criminality and moral culpability, but this has to be tempered against the fact that the offending occurred over an extended period of time and involved a very large amount of money. The defendant had a degree of choice to exercise as to how she might finance her addiction, and she chose on 475 separate occasions to defraud an employer who had placed considerable trust in her.

Moreover, I am satisfied the defendant had insight into what she was doing, knew she should stop, and elected not to. This is apparent from the comments she made to police in her record of interview when she said - 'I got myself into so much trouble but I decided that I might as well keep going until I got caught'. In light of this, in my view, any reduction in moral culpability is slight, at best.

And of course, the defendant has a prior conviction for stealing from an employer to fund her gambling habits. She was convicted in the Launceston Court of Petty Sessions on 23 February 1998 for 25 charges of stealing on complaint 22919/97, and a further 3 charges of stealing on complaint 20245/97.

She received by way of sentence 12 months' imprisonment wholly suspended on condition she commit no offence of stealing for a period of 3 years on the first complaint, and a 2 month period of imprisonment concurrent and also wholly suspended, on condition she commit no offence of stealing for 3 years on the second complaint. I am told the offences relate to stealing from her then employer, Bruce Stevenson's Toyota. The defendant was employed as a clerk and stole money that she had received for payment of a motor vehicle and stole funds that were daily takings that she was responsible for banking. Regard is had to the length of time that has passed since those convictions, the considerably smaller amount of money involved, and the age of the defendant at the time those offences occurred. The defendant cannot claim, however, that she is of prior good character. She has stolen money from an employer before to fund a gambling addiction.

I have taken into account the character references provided on behalf of the defendant. Those references indicate that she is well-regarded, competent and professionally capable. Ms Perri has been able to obtain employment since the commission of these crimes. She was, until being placed in custody, employed as a practice manager at the Hobart Animal Hospital. She has held that position of employment since August 2019. The references indicate her employers are aware of these crimes, but nevertheless consider her a valued and skilled employee. In my view, the references carry little weight in the sentencing process, particularly when measured against the very serious offending committed by the defendant over a long period of time, and the fact she has previously stolen from an employer. These factors negate any claim of good character. The fact she is obviously a capable employee, however, is relevant to the prospects of rehabilitation, if the defendant is able to successfully address her gambling disorder.

It is noteworthy that Ms Perri has not repaid any of the stolen money to Tasmanian Veterinary Services nor Citicorp. She has made some repayments on other outstanding bank and credit card debts but that is of no assistance to the victims here and does not provide any redress for them. It is unlikely they will receive any payment. It is possible a small proportion of the loss may be recovered from the sale of real estate, but the home owned by the defendant and her husband is heavily mortgaged. Her husband will be entitled to some of the equity in the home. Repayment of the loss in those circumstances is unlikely.

I accept Ms Perri is now remorseful for her conduct. Her early plea of guilty, and co-operation with police, is reflective of that. She has also made a number of comments to others, referred to in the references, suggesting she is remorseful for her behaviour. But again, the value of that remorse in the sentencing process has to be measured against the fact Ms Perri continued with her offending behaviour over a very long period of time in circumstances where she must have appreciated the impact her dishonest behaviour would have on the well-being of a small business and its partners.

I take into account the fact Ms Perri has been endeavouring to address her gambling addiction. She has been attending Gamblers Anonymous for a period of about two years. She has also been seeking psychological assistance and undertaking cognitive behaviour therapy. It is likely that Ms Perri will require ongoing assistance given the severe nature of her gambling addiction. As noted in Dr Jordan's report, 'Ms Perri will always remain susceptible to future periods of gambling. Her degree of gambling disorder is at the most extreme end and will always leave her vulnerable into the future.' Her efforts at addressing her gambling addiction count in her favour, but personal deterrence remains an important sentencing consideration.

The defendant's crimes have had a significant effect upon the business Tasmanian Veterinary Services. I have read the victim impact statement prepared on their behalf. It is trite to say a loss of this magnitude from a small business has an enormous impact, let alone the feelings of betrayal that have been experienced as a consequence of the defendant's behaviour.

This is a case of very serious fraud involving a very substantial amount of money taken over a long period of time, by an employee in whom a high level of trust was reposed by her employer. General deterrence and denunciation are predominant sentencing considerations. The defendant committed a gross breach of her employer's trust. As practice manager she was solely responsible for the payment of business expenses and associated liabilities for the business. In a sustained, deliberate and methodical manner, she used her knowledge of the operations of the business to dishonestly benefit herself and conceal her fraudulent behaviour over several years. Throughout that time the defendant committed numerous acts of dishonesty. She actioned 475 fraudulent transactions. She did not voluntarily desist from her fraudulent behaviour. It only stopped when her position was made redundant.

In all of those circumstances, a substantial term of imprisonment must be imposed. In the hope the efforts made by the defendant to curb her gambling addiction may prove sustainable, I will make allowance for parole. I will impose one sentence. It is, in my view, the most appropriate way to reflect the entirety of the criminal conduct and take into account principles of totality."

1. In my view it is hard to imagine a more careful and thorough analysis of the appellant's personal circumstances and the significance of her gambling addiction. I agree with her Honour's assessment of the case as one "of very serious fraud involving a very substantial amount of money taken over a long period of time, by an employee in whom a high level of trust was reposed by her employer."
2. McCulloch v Tasmania [2010] TASCCA 21 was a case in which the appellant stole over $1.2 million from her employers over a period of three and a half years. She was charged on 346 counts of computer-related fraud, contrary to the Code, s 257B(c). Tennent J sentenced her to seven years' imprisonment, and ordered that she not be eligible for parole until she had served five years of her sentence. Blow J (as he then was), with whom Porter and Wood JJ agreed, said at [10]:

"10 Counsel provided the learned sentencing judge with information about sentences imposed in eight Tasmanian cases involving thefts or misappropriations of sums between $200,000 and $1.7 million since the late 1980s. Details of those cases and several others were provided to this Court on the hearing of the appeal. I think it is fair to say that those cases do not reveal any tariff for misappropriations of the magnitude of $1.2 million or thereabouts. Each case depends on its own facts, particularly on the nature of any position of trust occupied by the offender, whether the offender had any significant prior convictions, and whether the offender pleaded guilty or went to trial. Significantly in my view however, it seems clear that no one convicted of crimes of dishonesty in Tasmania for at least 25 years has received a sentence involving a non-parole period as long as five years. It also appears that in the last 25 years only three offenders have been sentenced to more than six years' imprisonment for crimes of dishonesty: R v Room, 25 August 1989 (8 years); R v Durovic, 12 February 1993 (8½ years); Tasmania v Pannala, 12 December 2008 (7 years, with 3 years suspended in lieu of parole)." [Emphasis added.]

1. Of interest, in McCullough, the orders of the Court were to quash the sentence appealed against of seven years' imprisonment and the related order as to parole, and to substitute a sentence of six years' imprisonment and an order that the appellant not be eligible for parole until she had served three years six months of that sentence.
2. Ground 1 of the notice of appeal asserts that the appellant's sentence was manifestly excessive because of a failure by the learned sentencing judge "to take adequate account of the Appellant's degree of gambling disorder as being 'at the most extreme end'."
3. In his written submissions, counsel for the appellant, Mr Barns SC contends that "while there is no issue that the learned sentencing judge was right concerning the Verdins issue, a severe gambling addiction where there is impact on a person's mental functioning", or as Dr Jordan terms it, "a pattern of cognitive distortion" is still a matter relevant to moral culpability and reduces general and specific deterrence.
4. I cannot accept that submission. Dr Jordan at [23] of his report said:

"Those with severe gambling disorder also show a pattern of cognitive distortion. Two common classes of distortion that have been studied are the illusion of control and the gamblers fantasy. The illusion of control refers to irrelevant features of a game that create a sense that one is developing some kind of skill over an outcome that is in fact determined by chance. Gamblers are more risky and more confident when they make irrelevant choices (eg, choosing their lottery numbers) or when they exert instrumental action (eg, throwing a dice). In the gambler's fallacy (sic), gamblers make incorrect deductions when observing sequences of random outcomes such as coin tosses or red/black outcomes in roulette. Gamblers expect small fragments from distribution to be representative distribution itself whereas in reality, runs in streaks fairly common in random sequences. These cognitive distortions have led to efforts for psychological treatment, eg, cognitive therapy, to enable gamblers to correct these cognitive areas, reducing the motivation for future gambling."

1. That does not speak to mental impairment that would reduce moral culpability. Dr Jordan is referring to two quite specific aspects of cognitive distortion, neither of which suggest that the gambling disorder from which the appellant suffered was to such an extent as to impact upon her mental functioning. As the learned sentencing judge observed in her comments on passing sentence, the appellant "had insight into what she was doing, knew she should stop, and elected not to".
2. In his report Dr Jordan also sets out a number of questions that were posed for his opinion by the appellant's solicitor. Question 3 is as follows:

"In your opinion, did our client's psychological/psychiatric condition cause or contribute to her offending and to what degree? Do you consider that her gambling addiction or some other psychological illness was the significant contributing factor that led to her offending?"

1. Dr Jordan's answer to that is somewhat opaque, but again, to my mind it raises no question of mental impairment such as would reduce moral culpability to any significant extent. Dr Jordan said:

"Ms Perri has had significant problems with gambling for extensive periods of her adult life. It is noted that it led to previous legal transgressions when younger and this pattern has occurred again. It is considered that her gambling disorder was the most significant factor in her fraudulent activity. As has been outlined above, most of her more recent gambling interactions have been essentially mindless with no hope of any financial gain. It is also noted that somewhat unusually, Ms Perri had no other significant substance misuse disorders or attraction for any particular expensive lifestyle. Often gambling disorders can be a fruitless effort to gain finances in order to maintain another aspect of lifestyle. This was not the case with Ms Perri - Ms Perri merely gambled for the 'joy' of gambling. The level of fraudulent activity is very significant and, again, is testament to the severity of Ms Perri's gambling disorder."

1. No modification of the appellant's sentence is called for, much less warranted on the basis of anything contained in Dr Jordan's report. Certainly none founded upon Verdins or upon any other legal principle of which I am aware, and the notion runs contrary to what was said by Redlich J in R v Grossi [2008] VSCA 51, 23 VR 500 and adopted by Blow J in Johnstone v Tasmania [2011] TASCCA 9 as set out by the learned sentencing judge in her comments on passing sentence.
2. Ground 2 of the notice of appeal asserts that the appellant's sentence was manifestly excessive because "in all these circumstances the Court placed too great an emphasis upon considerations of general deterrence and harm to the victims".
3. As has been noted above, the learned sentencing judge said on passing sentence:

"General deterrence and denunciation are predominant sentencing considerations. The defendant committed a gross breach of her employer's trust. As practice manager she was solely responsible for the payment of business expenses and associated liabilities for the business. In a sustained, deliberate and methodical manner, she used her knowledge of the operations of the business to dishonestly benefit herself and conceal her fraudulent behaviour over several years."

1. What her Honour said was entirely correct in principle. As counsel for the State, Ms Wilson pointed out in her written submissions, Pearce J succinctly stated the principle in Williams v Tasmania [2014] TASCCA 2 at [21] as follows:

"Employers who entrust employees with the control of money are entitled to expect honesty from them. The courts play an important role in ensuring that those who may be tempted to steal money in breach of trust should expect harsh punishment. Only then will sentences operate as an effective deterrent."

1. In my view there is no question of the learned sentencing judge having placed "too great" an emphasis on the need to have regard to the consideration of general deterrence. Her Honour remained alive to other considerations personal to the appellant. She noted, "[h]er efforts at addressing her gambling addiction count in her favour, but personal deterrence remains an important sentencing consideration". That was, with respect, a correct statement when one has regard to the degree of insight the appellant had into her offending, and her prior conviction for similar offending.
2. Ground 3 of the notice of appeal asserts that the appellant's sentence was manifestly excessive because the learned sentencing judge "in setting the non-parole period failed to take account of the Appellant's prospects for rehabilitation and gave undue weight to her previous conviction in 1997".
3. The non-parole period represents approximately 58% of the total effective sentence imposed. Nonetheless, the appellant's counsel submits that there was no reason to impose a non-parole period beyond the minimum period required.
4. After recounting the appellant's efforts towards rehabilitation the learned sentencing judge said:

"In the hope the efforts made by the defendant to curb her gambling addiction may prove sustainable, I will make allowance for parole. I will impose one sentence. It is, in my view, the most appropriate way to reflect the entirety of the criminal conduct and take into account principles of totality"

1. In Butt v Tasmania [2018] TASCCA 3 Pearce J, said at [68]:

"A parole ineligibility period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5. There is no presumption that the non-parole period should be the minimum: Pickrell v Tasmania [2011] TASCCA 13 at [13]. However, a long parole ineligibility period may make a sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 per Porter J at [56]-[59]. In Gill v The Queen [1990] TASSC 37, Crawford J (as he then was), with whom Neasey J agreed, commented on the effects of not making an order that a defendant be eligible for parole at the earliest possible time:

'The making of an order by a sentencing judge extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by the sentencing judges before making an order extending the non-parole period'."

1. Counsel for the appellant observes that the learned sentencing judge did not address specifically why the appellant was not to be eligible for parole at the earliest possible time, however as was said by Blow CJ (with whom Wood J and Marshall AJ agreed), in Hodgetts v Tasmania [2018] TASCCA 15, 29 Tas R 301 at [23]- [24]:

"23 There is no rule that 'if a sentencing judge decides that an order providing parole eligibility should be made, the order should provide for parole eligibility after serving one half of the term of imprisonment, unless [the judge is] persuaded that a longer period of ineligibility is required': Pickrell v Tasmania [2011] TASCCA 13 at [13].

24 There is no reason why a judge who has decided to impose a sentence that comprises a head sentence of imprisonment and an order specifying a non-parole period should not simply summarise all the matters that he or she has taken into account in deciding what sentence, or what package of sentencing orders, is appropriate. Ordinarily it will be crystal clear that the specified non-parole period, whether it is half of the head sentence or a longer period, is the minimum time that the sentencing judge considers that justice requires the offender to serve after taking into account the degree of seriousness of the offending and all circumstances relevant to the offender. See Wright v Tasmania [2010] TASCCA 7 per Tennent J, with whom Wood J agreed, at [41]-[44] and per Porter J at [47]-[52]; Mortyn v Tasmania [2018] TASCCA 2 per Estcourt J, with whom Pearce J and Porter AJ agreed, at [14]-[16]."

1. The learned sentencing judge took into account all matters relevant to both the head sentence and parole ineligibility, including the need for general deterrence and denunciation, personal deterrence, the position of trust that the appellant held, the number of her dishonest acts, the fact that she did not stop offending until she was caught, her prior conviction and her insight into her offending, as well as the magnitude and duration of that offending and ultimately her plea of guilty. To my mind it is "crystal clear" that the specified non-parole period, was the minimum time that the learned sentencing judge considered that justice required the appellant to serve after taking all those matters into account. At approximately 58% of the sentence it cannot, in my view, be said to render the sentence manifestly excessive.

1. To my mind none of the matters raised in the notice of appeal as suggesting manifest excess have any substance. I do not need to consider in any detail the relevance or otherwise of the comparable sentences referred to by counsel for the State. As Blow J said in McCulloch in the passage set out above:

"I think it is fair to say that those cases do not reveal any tariff for misappropriations of the magnitude of $1.2 million or thereabouts. Each case depends on its own facts, particularly on the nature of any position of trust occupied by the offender, whether the offender had any significant prior convictions, and whether the offender pleaded guilty or went to trial."

1. The sentence imposed by her Honour was within the parameters of her sentencing discretion. As I have already observed, this was a very serious fraud involving a very substantial amount of money taken over a long period of time, by an employee in whom a high level of trust was reposed by her employer. I detect no error. The sentence in this case cannot be described as unreasonable or unjust.
2. On 10 March 2022 this Court dismissed the appellants appeal, reserving its reasons for publication at a later date. These are my reasons for joining in the order dismissing the appeal.

1. I joined in an order dismissing the appeal for the reasons stated by Estcourt J. I would add a brief additional comment. Within the single ground of appeal that the sentence was manifestly excessive and offended the principle of totality are the assertions that the learned sentencing judge "failed to take adequate account" of the appellant's gambling disorder, "placed too much emphasis" on general deterrence and harm to victims, and, in setting the non-parole period, "gave undue weight" to her previous conviction. The contention that those factors were relevant to sentence is obviously correct. The learned sentencing judge properly took each into account. But it cannot be said that the sentencing judge failed to give sufficient weight, or gave too much weight, to any of those factors unless the sentence is manifestly excessive taking into account all matters relevant to sentence: TAP v Tasmania [2014] TASCCA 5 at [30]; Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313 at [17]; Butt v Tasmania [2018] TASCCA 3 at [53].