R v Boyes [2004] VSCA 97

R v Boyes [2004] VSCA 97 - VSCA 2004 case summary — Zoe

[7]

After that the appellant carried on business alone from the property of one Margaret Interlandi, who also became his office manager, and it was in the course of conducting it that he committed the offences to which he pleaded guilty. The circumstances in which the offending occurred were these. The business proved to be a failure but notwithstanding this the appellant sought to continue its operation by engaging in fraudulent conduct, including the drawing of cheques in payment for products, which the appellant procured from suppliers, when he knew that there were insufficient funds in the corresponding bank accounts to meet them. Thus, over a period of some 13 months, the appellant drew 37 worthless cheques in favour of various suppliers, falsely representing to each that the cheques would be met when he knew or was reckless to the fact that there were insufficient funds in the bank accounts to meet them. In this way, said the Crown, the appellant gained a financial advantage for himself or his company and these transactions formed the basis of all but one of the counts. The remaining count, count 20, involved the appellant fraudulently obtaining a cheque by deception from Victoria WorkCover Authority in the sum of $9,630.00 in the following circumstances. On the recommendation of the Repatriation Centre, which the appellant attended because of his spinal injury to which I have referred, the Authority authorised the purchase for his use of a four-wheel motor cycle in order to enable him to return to farm work. The appellant placed an order for it and, without taking delivery, persuaded the supplier to issue him with an invoice which showed that the motor cycle had been paid for. He then used that invoice to support his fraudulent representation to the Authority that he had paid for the equipment and, as a result, was given a cheque for the above amount. The appellant did not complete the transaction with the supplier, but paid the $9,630 into his account and used it for his own purposes.

[16]

The appellant gave evidence in support of the plea in mitigation, but most of it was concerned with attempting to excuse his fraudulent conduct and to lay the blame on others for the lack of funds that resulted in his cheques being dishonoured. Almost no mention was made of the state of his health or of his concern that imprisonment will or might have an adverse effect on it or that it will or might be a greater burden on him by reason of his injuries. Essentially, the same can be said of submissions made by counsel, in the sense that the thrust of them sought to put a gloss on the appellant's presentation of the worthless cheques. Counsel did, nevertheless, press the claim, as I have said, that there should be mitigation of the sentence on the basis of the appellant's poor health. In that context, and after taking his Honour in some detail through the contents of Dr Rawicki's report, as I have mentioned, counsel emphasised that his Honour should take into account for sentencing purposes not only the appellant's pain and suffering but also that "he will be doing it hard" whilst in prison. He submitted that "a man of [the appellant's] injuries is going to do it harder than an able bodied man of his age", to which his Honour responded (not surprisingly, I think,): "Sure....compared to someone else who is fit, in the prison system between the two of them, he's going to have greater difficulty." The appellant also relied on the psychiatric report of Dr Ruth Vine, dated 15 November 2002, which noted that the appellant presented as a person who believed that he was innocent of the charges and who sought to shift the blame for the offending to the Whites. He claimed that they had wrongly removed the money from the accounts thereby causing them to be without funds when the cheques were presented for payment. It seems that the appellant also claimed to Dr Vine that, because he was "on the road" when the cheques were given to the victims, he was unaware that there was a lack of funds to meet them. His Honour also heard oral evidence from Ms White and Ms Interlandi, who were called by the prosecution in rebuttal of the appellant's contentions made during his evidence, as to the circumstances in which the worthless cheques were circulated by him.

[28]

Whether imprisonment will be a greater burden on an offender because of his disability will depend on the applicable circumstances. In some cases it may be obvious enough that the impairment is such that it will cause the burden of imprisonment on the offender to be greater. In other cases, however, in order to determine if that is the case, it may be necessary, for example, to compare the advantages of the prison system, in so far as they relate to the disability, with corresponding disadvantages to the offender to see if, on balance, the burden on him of imprisonment will be increased by his disability. Such an analysis was undertaken in Eliasen where the applicant sought to have his sentence reduced on the basis that he was diagnosed as HIV positive, a condition that, although present at the time of sentence, was then undiagnosed and became known only thereafter. Crockett, J. considered[3] that the evidence before the appellate court demonstrated that the burden of the sentence to be served by the applicant would be increased because of the disease from which he suffered, and that his "condition [would] be worsened by the incarceration". In the circumstances, therefore, his Honour concluded that both limbs of the Smith test were made out by the evidence. In the context of considering if the first limb applied, however, his Honour analysed, inter alia, the advantages and disadvantages of the prison system to the applicant. As to the former, he took account of the availability in prison of medical facilities dedicated to the treatment of AIDS sufferers and the better acceptance by prisoners of persons suffering from the disease. In considering the disadvantages to the applicant of the prison system, however, Crockett, J. compared his position in a number of respects - his access to the general prison system and to low security prison - with that of a prisoner without such a disease. Essentially, on the basis of that comparison, his Honour concluded that the applicant's burden of imprisonment would be increased by reason of the disease. There was no suggestion by his Honour, however, that this issue was to be resolved on the sole basis that the burden of imprisonment on the applicant would be more onerous than on an ordinary prisoner.

[29]

It is true that in Bailey, Lee, J. said[4] that the courts take into account, for sentencing purposes, circumstances that make imprisonment of the offender with a disability more burdensome than for an ordinary prisoner. This observation could be taken to suggest that, once such a situation is established, the burden of the offender's imprisonment is necessarily treated as being greater and as having been brought about by his disability, and thus, his disability is to be treated as a mitigating factor. In my view, however, his Honour did not seek to lay down any such rule. That is apparent when his Honour's statement is viewed in context. Prior to making the observation, the learned judge cited with approval the test in Smith for determining if an offender's ill health mitigates punishment and, although he said that "considerations of health are in this category", he illustrated what he said, not by reference to disability constituted by ill health, but by reference to situations where the offender's disability was created by other circumstances that were likely to increase his burden of imprisonment, such as having to serve the sentence under protective custody because of the nature of the offence, for example, child sexual abuse, or because it has or may become known that the offender has helped police. It is understandable that, in those situations, the increase in the burden of imprisonment of such an offender occurs only because he is required to serve his term of imprisonment in conditions that are necessarily more onerous than those applicable to ordinary prisoners. Where the offender's disability is his ill-health, however, as I have explained, the mere fact that this makes it more burdensome on him to serve the sentence when compared with other prisoners does not necessarily mean that his ill-health has made the burden of imprisonment greater for him. Importantly, Lee, J. did not say that, for the purpose of establishing the first limb of the Smith test, it is not necessary to demonstrate that the burden of imprisonment to the offender will be greater because of his state of health.

[43]

Not surprisingly, this ground was not pressed with vigour. It was said in support of it, for example, that his Honour erred in characterising the plea of guilty as a late plea given that the appellant so pleaded not long after the Crown withdrew 11 counts on 23 October 2003. It is not clear, however, when the appellant first told the Crown that he would be prepared to plead guilty if it abandoned these counts. Be that as it may, even if the appellant had indicated on an earlier occasion that he was prepared to plead guilty to the remaining counts, there was little else that could be advanced by way of mitigation of sentence other than his physical disability. The fraudulent conduct was serious and persistent. It was calculated and involved the commission of 37 offences over a considerable period - 13 months - against a number of people who could ill-afford to lose, in total, approximately $110,000. Moreover, it was practised on those who trusted the appellant to provide good consideration for their products and, as the victim statements show, his fraudulent conduct had a significant detrimental effect on most of the victims. In his sentencing remarks, the judge acknowledged that the appellant had pleaded guilty and that, consequently, he was entitled to a sentencing discount that reflected the utilitarian value of the plea and the appellant's preparedness to facilitate the course of justice.[11] But his Honour also found that the appellant had shown no remorse for his offending conduct and that he sought to lay the blame for the offences on others. Further, the learned sentencing judge concluded that the appellant did not have reasonable prospects of rehabilitation, particularly in light of his criminal history. These findings were clearly open to his Honour. It should also be noted that the judge took the view that, while the appellant's offending in New Zealand and New South Wales could not constitute prior convictions for sentencing purposes, such conduct was relevant to the consideration of the appellant's prospects of rehabilitation and it was not contended before us that his Honour erred in that regard. The judge further emphasised the importance in the sentencing disposition of specific and general deterrence and the need to impose just punishment. Importantly, as I have said, his Honour also sought to give effect to the principle of totality, saying in that regard: "the punishments which I must impose are to a large extent cumulative; but having due regard to the imperative that the sentence not crush you, I must, when considering the totality of the sentences, reflect that objective." Finally, the sentencing judge also took into account the contents of the five victim impact statements, which outlined the primary claims made by the victims that, as a result of the appellant's fraudulent conduct, they suffered, variously, financial hardship, stress, anger, embarrassment and, in the case of Ms White, the dissolution of her marriage and loss of her home and farm.

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Parties