R v Deakes [2002] VSCA 136

Ms Kay Robertson, Solicitor for Public Prosecutions

2. I shall ask my brother Eames to give the first judgment in this matter.

6. The applicant seeks leave to appeal against sentences imposed by a judge of the County Court on 25 May 2001. The applicant pleaded guilty to two counts of theft contrary to s.74 of the Crimes Act 1958, and two counts of obtaining financial advantage by deception contrary to s.82(1) of the Act. The maximum penalty for each offence is ten years' imprisonment. I will set out the individual sentences later, but for the moment it is sufficient to note that the effective sentence as to all offences was four years five months, with a non-parole period of three years being fixed.

9. The offences were committed between 7 March 1996 and 26 April 1999, during which time the applicant was employed by K & M Vesey Pty Ltd, a relatively small family trucking company, and it was that company which was the victim of the dishonesty in all cases. Throughout the period of the offences the applicant had been employed by the company as its office manager.

12. When the applicant commenced employment with Vesey's the company operated approximately seven trucks and during his term of employment that increased to 15 or 17 trucks. The company operated in Colac and was essentially a husband and wife operation, with Mrs Vesey working in the office and attending to the administration and accounting affairs of the company. She worked with the applicant and had trusted him completely.

15. The applicant was initially charged on 92 counts but finally pleaded guilty to four counts, which may be described as being "rolled-up" counts, which each allege a number of separate offences, a course which would have infringed principles of duplicity, save for the fact that it is adopted by agreement of the applicant for the purpose of sentencing.

18. Count 1 is a count of theft. By his plea the applicant admitted that between 7 March 1996 and 1 April 1999 he stole 50 cheques to the total value of $101,575.11 belonging to the company. He was authorised to complete cheques for the payment of company accounts and he presented them to Mrs Vesey for signature on behalf of the company.

21. As to 12 of the 50 cheques, Mrs Vesey signed them by virtue of the applicant's false representation as to the identity of the payees. He deposited those cheques into his own bank account. Thirty-six of the cheques purported to have been signed by Mrs Vesey, but her signature had in fact been forged by the applicant. As to the remaining two cheques, the evidence did not disclose whether the signatures were forgeries, but the plea of guilty admitted the theft of those as well.

24. With respect to the 12 cheques on which the genuine signature of Mrs Vesey appeared, the system applied by the applicant was merely to proffer details on the cheque butts, which were different to the details on the cheque, with the proceeds going either to his own bank accounts or in payment of personal items.

27. Count 2 was a count of obtaining financial advantage by deception, and by his plea the applicant admitted that between 24 May 1996 and 16 October 1997 he overpaid himself wages on some 13 occasions, thereby obtaining the sum of $5,200. In obtaining that money he deceived Mrs Vesey by having her sign a cheque to cover the total wage bill of all employees out of which the bank drew funds on the company account to pay the wages of each employee in the sums listed on the wage sheet which had been completed by the applicant.

30. Count 3 was a count of theft during the period between 28 April 1997 and 18 March 1998. That count involved three cheques which were drawn in favour of the company by third parties, but which were deposited by the applicant into his own account. Those cheques have a total value of $11,870.

33. Count 4 was a count of obtaining a financial advantage by deception and involved the use of a credit card in the period between 19 January 1998 and 26 April 1999. Using the credit card, which the company had provided to the applicant for the payment of company expenses, on ten occasions he paid personal debts or purchased goods for his personal benefit to the total value of $2,732.60. The total value of the dishonest gains of the applicant was $121,377.71.

36. After hearing submissions on sentence, the learned sentencing Judge sentenced the applicant on count 1 to imprisonment for a term of three and a half years, on count 2 to imprisonment for nine months, on count 3 to imprisonment for 18 months, and on count 4 to imprisonment for six months. Three months of the sentence imposed on count 2, six months of the sentence imposed on count 3 and two months of the sentence imposed on count 4 were ordered to be served cumulatively with the sentence imposed on count 1. That produced an effective sentence of four years and five months. His Honour fixed a non-parole period of three years and declared that there had been five days pre-sentence detention. His Honour made an order for restitution in the sum of $121,377.71.

39. An application for leave to appeal pursuant to s.582 of the Crimes Act was heard by a judge of this court on 3 August 2001, whereupon he dismissed the application. The applicant has now elected to have the application for leave to appeal determined by the Court of Appeal.

42. There are three grounds identified in the notice of application for leave to appeal. They complain, first, that the sentence was manifestly excessive; secondly, that the judge gave no weight or insufficient weight to the pleas of guilty and to remorse of the applicant; and thirdly, that the judge failed to give any or any sufficient weight to the medical condition of the applicant and hardship which would flow therefrom by virtue of imprisonment.

45. Mr Hannebery, who appeared pro bono for the applicant, abandoned so much of ground two that complained that his Honour had not given adequate weight to remorse. It was conceded that his Honour was entitled to conclude that there was no remorse shown by the applicant, a wise concession in my view, since the evidence clearly supported that conclusion. The third ground was not abandoned, but Mr Hannebery said that he would address no argument in support of that ground.

48. The applicant commenced work with the company on 4 October 1995 after answering an advertisement for the position of office manager. He took over the duties of Mrs Vesey, whose age and state of health made the task onerous for her. The applicant effectively took control of the administration of the company's business and the principals of the company placed their trust in him.

51. The first of the offences was committed in March 1996, only some five months after the applicant had commenced employment. The first offence was also committed within days of the expiration of a two-year period of a suspended sentence of imprisonment for fraud offences. Before dealing with the circumstances of the present offences, it is appropriate to say something about the prior offences.

54. The applicant admitted prior convictions which had been imposed in the County Court at Geelong on 4 March 1994. On that date, upon his pleas of guilty, he was convicted on one count of obtaining property by deception and sentenced to nine months' imprisonment, and on one count of theft, for which he was sentenced to imprisonment for eight months, three months of which were to be served cumulatively with the sentence on the first count. With respect to those two counts, there was a total effective sentence of 12 months and the whole of the term was suspended for a period of two years.

57. In addition, the applicant was sentenced on the same day to six further counts of obtaining property by deception and four further counts of theft, and as to those ten counts he was sentenced to a community-based order for a period of two years with a program condition that he perform 450 hours of unpaid community work.

60. The twelve prior offences were committed between December 1992 and April 1993 when the applicant was employed at Telstra. Those offences were committed by the applicant with the assistance of his brother and involved the ordering of goods, such as stereos and white goods, from suppliers and forwarding the invoices to Telstra for payment as though they were Telstra items.

63. In addition, the applicant raised bogus orders on a company jointly owned by the applicant and his brother, as a result of which Telstra paid those accounts.

66. The applicant and his brother were jointly ordered to reimburse Telstra $47,500, and the applicant, although himself liable for the whole sum, repaid the sum of $24,300 only. His brother repaid no amount of the sum due.

69. The learned sentencing Judge noted the similarity in the dishonest conduct which occurred on the previous occasion to that which arose on this occasion. In sentencing the applicant, his Honour had regard to factors personal to him. The applicant was born on 4 August 1964. He is married with two children, aged eight and six at the time of sentencing. He only had limited education, having left school at the age of 14, but he obtained and held gainful employment for most of his working life. He commenced his own trucking business at the age of 20 as a subcontractor, then bought a second truck a year later. He then sold both trucks and purchased a semi-trailer for interstate haulage. The business failed due to the breakdown of the truck.

72. Between 1989 and 1994 the applicant worked at Telstra, holding the position of purchasing officer, as earlier discussed, and subsequently he obtained the job at Vesey's. After leaving Vesey's, shortly before his dishonesty was discovered, the applicant commenced a trucking business in which he employed a driver. At the time of sentencing, the business produced an income of approximately $8,000 per month, from which sum he paid his driver a wage.

75. I turn first and briefly to the ground of appeal relating to the state of the applicant's health. A medical report, dated 9 May 2001, from a general practitioner, Dr Walder, was considered by his Honour.

78. That report disclosed that the applicant had last been seen by the doctor in January 2001, and he had made a diagnosis of grade two ulcerative oesophagitis as well as duodenitis, the symptoms of which condition the applicant had first raised with Dr Walder in June 2000. Dr Walder reported that he had not seen the applicant since January 2001, but he reported that in his opinion the applicant's health problems were quite significant and "would also be extremely difficult to manage if he was to receive a prison sentence".

81. The other health condition was that raised, but vaguely, in a report from forensic psychologist, Mr Ian Joblin. Mr Joblin noted what he called a number of underlying psychological difficulties which the applicant experienced relating in particular to his emotional state concerning his mother's death when the applicant was aged fourteen. Her premature death was due to cancer, which had been diagnosed when she was pregnant with the applicant, and for which she received no treatment at that time because of her pregnancy.

84. Mr Joblin opined that he was concerned with the applicant's preoccupation with his mother's death and suggested that there were underlying psychological factors which had not been the subject of investigation by a psychiatrist. His Honour accepted Mr Joblin's opinion that such investigation was appropriate, but Mr Joblin did not in fact make a diagnosis of any mental illness as such, nor did he suggest that any mental health factors had a bearing on the offending.

87. His Honour said that he did not place weight on the statement in the medical report concerning the difficulties the applicant's medical condition might present if the applicant was imprisoned. He noted that the applicant had been able to work, had not been on medication and had not seen a doctor for a considerable time. In my view, his Honour was not obliged to give any greater weight to mental or psychological factors as being relevant in sentencing the applicant for fraud and dishonesty offences, which in this case were calculated deceptions, had occurred over years, and as to which no mental or physical health problems appeared to play any part.

90. Whilst the impact of imprisonment on the health of an offender may be taken into account in appropriate circumstances[1], his Honour was entitled to give little weight to that factor in this case, the limited evidence here not being such as to establish that any such health problems would be of significance if a sentence of imprisonment was imposed.

93. As I have said, no argument was addressed in support of this ground of appeal and in my view no error has been shown in the manner in which the judge dealt with the submissions as to mental or physical health of the applicant. That ground has not been made out.

96. I turn then to ground 2, which complains that insufficient weight was given to the pleas of guilty.

99. His Honour said that he would take into account the pleas of guilty, but noted that they were entered very late, and noted too that he placed no reliance on the pleas as being an expression of genuine remorse. Counsel for the applicant concedes that his Honour was entitled to so conclude.

102. His Honour expressly stated that he was giving credit to the applicant for the pleas of guilty in the context of his having saved the State the trouble and expense of a trial by so pleading. His Honour recognised too that by the pleas of guilty the applicant had saved Mrs Vesey, in particular, from giving evidence at the trial, she having been subjected to hostile cross-examination at committal.

105. Counsel for the applicant contended that his Honour should have also given weight to the fact that although the applicant had until late in the day contested the charges, he had also made a number of pre-trial admissions which would have reduced the length of the trial, had it proceeded, and have made the calling of many witnesses unnecessary. Mr Hannebery submitted that such cooperation in ensuring the efficient disposition of the trial was a mitigating factor which had to be taken into account, but which had not been acknowledged by his Honour.

108. Mr Hannebery was unable to cite any authority in support of his contention that cooperation in pre-trial management processes in this way was a factor which ought to be taken into account in favour of an accused who pleads guilty before trial, in addition to being given credit for the fact that by virtue of the plea the costs and inconvenience of a trial were avoided.

111. Counsel referred to s.5(2C) of the Sentencing Act 1991 which requires the sentencing judge to have regard to the conduct of the offender in connection with the trial as a factor indicating the presence or absence of remorse. There was no remorse in this case, and that is not disputed. Section 5(2D) states that in having regard to s.5(2C) the judge may have regard to the extent the accused person complied with the provisions of the Crimes (Criminal Trials) Act 1999. Once again that section is tied to the question of remorse and therefore s.5(2D) does not take the matter any further.

114. The courts by various pre-trial processes oblige and facilitate the parties to explore means to identify the real issues in dispute, to reduce the length of the trial and to avoid the calling of witnesses whose evidence was not in dispute or whose presence was not essential. The encouragement to the parties to cooperate in this way is added to by the statutory obligations imposed by the Crimes (Criminal Trials) Act. Such pre-trial concessions and agreements are as much in the interests of the parties as they are in the broader interests of the community.

117. The pre-trial admissions made by the applicant through his counsel were in no way concessions made against interest for which he later deserved to be rewarded on sentencing. Whilst in exceptional circumstances it might be appropriate that a sentencing judge gave some credit for pre-trial admissions made by the offender, in my view, save to the extent that by virtue of s.5(2C) and s.5(2D), it is relevant to do so with respect to the question of remorse, there is no obligation on the sentencing judge to take such pre-trial concessions into account.

120. Although complaint is no longer made with respect to his Honour's finding about lack of remorse, that question remains relevant when considering whether proper weight was given to the pleas of guilty, and also to the question whether these sentences were manifestly excessive.

123. In concluding that there was no genuine remorse, his Honour noted not only that the guilty pleas were entered very late, but also that the applicant had adopted an approach, both before and after his pleas, which was inconsistent with any remorse.

126. As to count 1, during the committal proceedings and in pre-trial proceedings, the applicant through his counsel had disputed his guilt and had alleged that the cheques had been signed by Mrs Vesey. That contention was only abandoned when fresh evidence was produced, after the committal, from an expert witness. That witness gave evidence in a Basha inquiry in the County Court before the trial commenced with a jury. The expert evidence disclosed that Mrs Vesey's signature had been forged on at least 36 of the cheques, her signature having been traced on to the cheques. It was only after that evidence had been given that the applicant agreed to plead guilty to the present counts.

129. In the course of cross-examination, it had been suggested to Mrs Vesey that, in effect, she was herself involved in fraud and was a willing party to the activities of the applicant in dealing with the cheques.

132. As to count 2, it was suggested in cross-examination of Mrs Vesey at the committal that the overpayment of wages was made pursuant to an agreement with Mr and Mrs Vesey to pay the applicant the additional wages. The plea of guilty gives the lie to that contention.

135. Even as late as his interview with Mr Joblin, the applicant not only played down the seriousness of his conduct, but again asserted that Mrs Vesey knew what he was doing and had sanctioned his conduct and had herself engaged in conduct where funds were improperly transferred to a special account.

138. His Honour also noted that the two witnesses who were called to give character evidence on the applicant's behalf, had both been informed by the applicant that he was in fact not guilty of the offences, but was only pleading guilty because his lawyers had recommended that he do so and because he could not afford the cost of a trial.

141. His Honour, quite appropriately, said that it was a true measure of the applicant's guile that he had convinced those two people that he was not guilty, notwithstanding the overwhelming evidence of his guilt.

144. A victim impact statement from Mrs Vesey was presented to the sentencing judge, which disclosed the many hours of work that flowed from the applicant's offending. She asserted that she had suffered stress and had been hospitalised, but there was no medical evidence supporting that allegation. His Honour accepted however, as I consider he was entitled to do, that he could have regard to the impact statement to the extent that it reflected that Mrs Vesey suffered stress. She also said that she felt that her trust was now difficult to give to others. She had befriended the applicant and was close to his children.

147. As the learned sentencing judge noted, the losses occasioned by the dishonesty of the applicant had a very substantial impact on the business. The company was forced to sell some of its trucks and was unable to update its fleet because of the losses incurred. It had gone into debt and was now servicing an overdraft in the order of $130,000, that sum being closely related to the losses suffered by virtue of the applicant' dishonesty.

150. Mr Hannebery submitted that while the actions of the applicant had had a significant negative impact on the business, it had not forced its closure.

153. In my view, the learned sentencing judge gave proper weight to the pleas of guilty in this case and ground 2 has not been made out.

156. The main argument addressed before us was concerned with the complaint that the head sentence and non-parole periods were manifestly excessive. That is ground 1.

159. As to the complaint that the sentence was manifestly excessive, Mr Hannebery submitted that the sentences for theft were exceptionally high. He referred to passages in Fox & Freiberg[2] where the learned authors state:

"Sentences on indictment for specific offences of theft rarely exceed three or four years."

163. The emphasis that should be given is to the words "specific offences of theft". As the learned authors note in the footnote to that sentence, many of the cases reviewed were cases of multiple counts of theft and often the sentence for each separate offence was not specified. So that the authors applied only the total effective sentence which was imposed, so as to determine what was the average sentence.

166. In the present case, we are concerned with charges which are rolled up counts, which contain numerous offences under one count, for the purpose of the plea. Had all 50 offences in count 1 been the subject of separate charges and a proper allowance been made for cumulation, the effective sentence would have been significantly greater than any of the individual sentences, and appropriately so.

169. It is, therefore, potentially misleading to consider and compare the present case with sentences in cases involving only a single count, relating to one instance of dishonesty or cases where multiple instances of dishonesty are dealt with by individual counts relating to single instances of offending. It is not helpful to compare the facts of individual cases.

172. In any event, an examination of the passages and case references in Fox and Freiberg, not only in the chapter concerned with theft, but also that concerned with obtaining property by deception[3], readily produces cases which are not dissimilar to the present case and where effective sentences greater than the present appear to have been imposed.

175. Counsel for the applicant submitted that while denunciation of the abuse of trust was appropriate in this case, his Honour gave too much weight to that factor. The frauds were not sophisticated, it was submitted, and this was not the worst level of fraud offences, although the sentence was at the highest end of the scale of sentences for such offences, so it was submitted.

178. Counsel submitted that whilst specific and general deterrence were factors to be taken into account, too much weight was given to them and the applicant should not, in effect, be sentenced again for his prior offences.

181. The sums dishonestly obtained in this case are substantial. The offences took place over three years. The applicant had prior convictions which meant that very little weight could be given to his prospects of rehabilitation.

184. 61 The other area in which it was submitted that the sentence was manifestly excessive, related to the orders for cumulation. It was submitted that the orders for cumulation were inappropriate, given that the period of offending covered by the first count, totally overlapped the periods of offending covered by the second and third counts and substantially overlapped the period covered by the fourth count.

187. Furthermore, the second, third and fourth counts involved relatively small sums in comparison to the sum involved in the first offence and, so it was submitted, those factors suggested that total concurrency was appropriate. I disagree.

190. The elements and modus operandi of each of the second, third and fourth counts were discrete instances of fraud perpetrated on the company. Some order of cumulation was appropriate. The actual sentences imposed on those counts were quite modest and so too were the actual periods of cumulation. When multiple offences are being dealt with in sentencing an offender and where some order as to cumulation is appropriate, as was the case here, then, subject to the question of totality and subject to first imposing the appropriate individual sentence for each count, the sentencing judge has a good deal of discretion to tailor the orders of cumulation, so as to produce a just effective sentence. See R. v. Lomax[4]; Director of Public Prosecutions v. Grabovac[5]; R v. Mantini[6].

193. The approach adopted by the judge in this case, both as to the individual sentences and as to the orders for cumulation, betrays no error in principle. Counsel accepted that the sentencing remarks displayed that his Honour was being particularly careful in his approach to the sentencing task. In sentencing the applicant, the learned sentencing judge correctly identified each of the relevant sentencing principles which had to be taken into account and in what I respectfully regard as being a very thorough, fair and commonsense exposition, he fully considered all of the relevant issues which should apply to sentencing in this case.

196. In my view the effective head sentence and non-parole period are well within range. The complaint that the sentence was manifestly excessive is, in my view, entirely without justification. In my opinion therefore, none of the grounds of appeal has been made out and the application should be dismissed.

200. I agree. In my opinion the sentences were in fact very modest, having regard to the number of acts of fraud and dishonesty which were comprehended in the counts to which the applicant pleaded guilty.

203. As to the plea of guilty, although that related to counts which were re-formulated for the purpose of plea, it was not suggested that what had occurred earlier, so far as the applicant's case was concerned, was done otherwise than in an attempt to show that the case could not be made out, and I did not understand it to be submitted that the previous attitude of the applicant to these charges came about because of any desire to reduce the number of charges, or to suggest that some of them were not appropriate.

206. In those circumstances, I agree entirely with what Eames, J.A. has said on the subject.

213. I also agree. Despite the earnest submissions of Mr Hannebery, for which the Court is grateful in that they were made pro bono, in my opinion this application was devoid of merit.

217. The order of the court is that the application for leave to appeal against sentence stands dismissed.

[1] R v. Eliasen (1991) 53 A.Crim.R. 391; R v. Morgan (1996) 87 A.Crim.R. 104; R v. Smith (1987) 44 SASR 587.

[2] "Sentencing", Fox & Freiberg, 2 Ed, 1999, p.966

[4] [1998] 1 V.R. 551.

[5] [1998] 1 V.R. 664.

[6] [1998] 3 V.R. 340.