R v Elias [2007] VSCA 125

Ms Angela Cannon, Solicitor for Public Prosecutions

1 I agree with Ashley JA, for the reasons which his Honour gives, that this appeal should be dismissed.

2 This is an appeal by leave against sentence passed upon the appellant, Maria Elias, in the County Count on 1 December 2006. The appellant, who had earlier pleaded guilty to 19 counts of theft,[1] was sentenced on that day to a total effective sentence of 20 months' imprisonment with a non-parole period of 12 months.

3 The offences took place between 25 January 2000 and 29 October 2004. The appellant, a woman born on 3 December 1973 and a qualified accountant by profession, had been employed by Graham J Clark & Co, a firm which specialized in insolvencies and reconstructions, from 1995. In the pertinent period she was the sole employee of the firm's principal, and was responsible for the administration of bankrupt estates. It is plain that she was completely trusted by her principal in carrying out this important work. The tip of the iceberg of her offending was discovered as the result of an audit of the firm's work in mid 2004. Further investigation progressively revealed the full extent of the offending. The full picture was not finally revealed until early 2006. Most often the appellant's modus operandi involved the pretence, in effect, that payments had been made from bankrupt estates to creditors, when in fact she had diverted moneys to her own use. This pretence involved, inter alia, the falsification of records, the creation of false bank statements - by cutting and pasting - and at times the forging of signatures. The total number of cheques involved in the offending was said to total 139, this reflecting the fact that most of the counts involved the writing of multiple cheques. The total amount of money misappropriated was $176,692.93. Sometimes the cheques were made out to cash, sometimes to the appellant herself, sometimes to suppliers of services to the appellant. The last-mentioned included a personal trainer and providers of quasi medical services.

4 The victim impact statement made by the firm's principal, Graham Clark, showed that the appellant's offending had multiple consequences for his business. He was suspected of criminality, and incurred legal costs in clearing his name. His business was disrupted. Identification of the detail of the appellant's offending was time-consuming. "Rumour and innuendo" caused damage to his practice and reputation. At the time when he made his statement, only some of the stolen moneys had been recovered. There then remained a problem of pursuing recovery and ensuring distribution to the correct recipients.

5 Five grounds of appeal were set out in the appellant's full statement of grounds. At the commencement of the hearing, however, two of them were abandoned. Grounds 1, 2 and 4 were pressed.

• (a) in failing sufficiently or at all to reduce the weight to be accorded to specific deterrence and moral culpability on account of the psychological condition from which the appellant suffered at the time of the offending;
• (b) in failing sufficiently to reduce the weight to be accorded to general deterrence on account of the psychological condition from which the appellant suffered at the time of the offending."

6 The gist of the submission advanced for the appellant was that the learned sentencing judge had accepted evidence that the appellant's offending behaviour was symptomatic of "battered woman syndrome" from which she had suffered at pertinent times. In sentencing the appellant, however, his Honour had referred only to the ameliorating impact of the condition upon the significance of general deterrence in the sentencing process. Inferentially, he had not reduced the significance to be given to personal deterrence and culpability, which he should have done.[2] Moreover, a remark which his Honour made in the course of the plea implied an erroneous understanding that any reduction in the sentence to account for the reduced importance of general deterrence was required by authority to be small. That his Honour had in fact so approached the matter was demonstrated by the relatively high non-parole period which he fixed.

7 Concerning the appellant's mental state at the time of offending, the evidence - which his Honour in effect accepted, because he accepted the evidence of the psychologist, Mr Joblin - lay this way: The appellant married in 1999. Problems in the marriage commenced soon after. The relationship, which continued until the latter half of 2004, was troubled throughout. There was a "history of physical abuse" and also a "history of sexual abuse". The offending spanned the period of cohabitation. It was significant that the appellant had been employed by Clark & Co for some years before her marriage, and had not offended in that period. The appellant's perception was that her husband always found fault with her. She was not presenting or dressing correctly, the house was not looking right. In time, she "developed feelings of learned helplessness." She stole, so it was said, in order that she could look and dress better, with a view of moderating the abuse to which she was subjected. Her bizarre, aberrant behaviour - although it was atypical - was her way of attempting to relieve the source of depression and anxiety.

8 Concerning the place of general deterrence in a particular sentence, in Verdins[3] the Court identified the correct approach by reference to what had been said by Batt JA in R v Yaldiz[4] -

"General deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap."

9 The Court then discussed the concept of sensible moderation, and its application in any particular case.[5] It is unnecessary to repeat what the Court said there; and it could be counterproductive to seek to paraphrase it.

10 The aspect of reduction of moral culpability in the case of an offender affected by "impaired mental functioning" was also thoroughly explored in Verdins. The Court summarized the position this way:

"Impaired mental functioning at the time of the offending may reduce the offender's culpability if it had the effect of -

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.

As we have said, this is not to be taken as an exhaustive list."[6] [Footnotes omitted]

11 In the end, the Court restated the Tsiaras principles, so far as they were relied upon by the appellant in the present case, as follows:

"Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following ways:

1. 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both." [Footnote omitted]

12 Before turning to what his Honour said from time to time about the issue now under consideration, and the criticism which was made of what he said, I express this caveat. The case was conducted below on the assumption that the appellant's "feelings of learned helplessness"- if the judge accepted Mr Joblin's evidence - could call the Tsiaras principles into play. In this Court, counsel for the appellant contended that the Verdins restatement of principle had application; whilst counsel for the Crown accepted that Verdins could apply, but submitted that this was "not a strong situation". In my opinion, however, the existence and quality of any impairment of the appellant's mental functioning was essentially left a blank canvas on the plea. Mr Joblin's evidence was very general, and he was not cross-examined in any depth.

13 It was common ground before us that the syndrome from which the appellant allegedly suffered at pertinent times had not previously been relied upon in this State as bringing Tsiaras/Verdins principles into play in respect of offences of the present kind. Indeed, counsel for the Crown observed that hitherto the battered woman/learned helplessness situation had typically been raised in homicide cases in response to the question: why did you not leave your abusive partner?

14 What I have just said does not mean that Verdins principles could not apply in a case where learned helplessness is given as the explanation for the commission of, say, property offences. My caveat is rather that the assumptions - factual and legal - upon which the present case was conducted must be understood as being no more than that, their validity or otherwise remaining a matter for elucidation in the future.

15 Before parting from the caveat I should add this: the Tsiaras argument had as its necessary foundation the proposition that the appellant stole and then spent some $175,000 in less than four years, the money being spent on such matters as clothes and personal training. Indeed, there being evidence that the appellant had run up some $30,000 in credit card debt by the time that she travelled to London in 2004, perhaps it needed to be assumed that she had spent more than the amount of the stolen money on such matters. However superficially unlikely that might seem, it was the basis upon which the plea was conducted, and it was likewise the footing on which the appeal was conducted. No doubt the investigators had paid careful attention to the appellant's explanation where the money had gone, and were satisfied with it.

16 The pertinent remarks of the learned sentencing judge need to be set in context.

17 Counsel for the appellant submitted on the plea that special deterrence was "not a very significant factor." He referred to Mr Joblin's report, essentially on the footing that, the abusive relationship having ended, the appellant's prospects for rehabilitation were good.

18 Having submitted that special deterrence was not a very significant factor, counsel then said "General deterrence, of course it is". He cited R v Buhagiar and Heathcote.[7]

19 Concerning moral culpability, so far as I can see, counsel made no submission.

20 In all, the argument urged on this Court was scarcely, if at all, raised. There was no mention of Tsiaras.

21 I go to the way in which his Honour dealt with the issue. In the course of the plea, having referred to evidence that the appellant's offending represented her response to an abusive relationship, his Honour said that on his reading of the authorities it was a matter to take into account, but was not very significant; and that, on his reading of the authorities, that is the way in which he was obliged to treat it.

22 It was one thing to conclude, in the circumstances of the offending, that the appellant's mental state in consequence of an abusive relationship was not very significant in moderating general or special deterrence, or as bearing upon the appellant's moral culpability. It was another thing, and in my respectful opinion it was wrong, to say that authorities compelled such a view.

23 The question which then arises is whether an erroneous view of the law was reflected in the sentence which his Honour imposed.

24 In his sentencing remarks, the learned judge relevantly said this:

"It seems to me that in all the circumstances [described] by Mr Joblin and indeed yourself and your sister, I accept his diagnosis that you were suffering from a mental disorder of the type contemplated in R v. Williams (2000) V.S.C.A. 174, to the effect that general deterrence is not eliminated but still operates, albeit sensibly moderated (see also R v. Izzard (2003) V.S.C.A. 152.) or as Cummins J put it in DPP v. Kien [2000] VSC 376; (2000) 116 A.Crim.R. 339:

'An offender's clear mental disturbance short of mental impairment in law, formerly called insanity, meant that there was a reduction of the moral culpability of the offender and, further, both specific determination and general deterrence were muted'."[8]

and

" ... I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this, although for the reasons set out above must be sensibly moderated."

25 His Honour having accepted Mr Joblin's opinion that, when she offended, the appellant was suffering from a mental disorder, the significance of each of general deterrence, specific deterrence and moral culpability in the sentencing process fell for consideration. In that connection, as is shown by the two passages just cited, his Honour said little. Only fleetingly did he specifically refer to moral culpability and specific deterrence; and that was in the context of remarks about general deterrence. Other than that, his Honour's reference to "deterrence, especially general deterrence" implied some recognition of the relevance of specific deterrence as a sentencing consideration.

26 His Honour's sentencing remarks were in terms unexceptional, albeit limited. Nothing which he said assists a conclusion, one way or the other, whether the erroneous approach which he mentioned in the course of the plea was carried forward into the application of sensible moderation. It should not be assumed that this occurred. Many things are said in the course of argument which, on mature consideration, are abandoned in reasons for judgment or sentencing remarks.

27 In the event, I consider that the sentences which his Honour passed suggest a proper application of principle. There were a number of circumstances - the appellant's gross breach of trust, the sophistication of the offending, the protracted period and extent thereof, and the difficulty of detection - which in combination told strongly in favour of a substantial period of immediate incarceration. That was so despite matters - for instance the appellant's mental state at the time of offending, her previous good character, her plea of guilty, her remorse, her good chance of rehabilitation (as the judge found it to be), and her commitment to repay moneys (reflected in a Deed made 24 November 2006), which told in her favour.

28 To my mind, the sentence which his Honour imposed does not suggest that he failed to give any, or sufficient weight, to the impact of the appellant's mental state upon the significance of general deterrence, special deterrence or moral culpability. Indeed, I regard his Honour's sentence, reflecting moderation in individual sentences, and a small extent of cumulation, as merciful.

29 Counsel for the appellant, really reflecting the weakness of his client's position, conceded in argument that he could not say that a total effective sentence of 20 months imprisonment failed to adequately reflect mitigating circumstances. He was reduced to contending that the judge's erroneous approach could be discerned from the circumstance that his Honour fixed a non-parole period rather than wholly or partly suspending the sentence; or from the circumstance that he fixed a non-parole period of the length that he did. I cannot accept, however, that his Honour's disposition by way of setting a non-parole period, of the length which he did, bespeaks the error in approach for which counsel contended. To my mind, the disposition was readily compatible with proper application of principle, and strongly indicates that mitigating circumstances were given sufficient weight.

• (a) given the course of the plea, in failing to advise counsel that he was considering imposing not a wholly or partially suspended sentence but a sentence with a non-parole period, and in failing to invite submissions on that course;
• (b) in failing to impose, or in failing to give sufficient consideration to the imposition of, a partially suspended sentence;
• (c) in fixing a comparatively high non-parole period and a relatively short parole period."

30 Counsel for the appellant drew the Court's attention to a remark made by the judge in the course of the plea that the question was whether there should be suspension of "any or some" of a period of imprisonment. But then, it was said, his Honour without explanation imposed a sentence of imprisonment with a non-parole period.

31 Counsel submitted, referring to R v Downie and Dandy,[9] that the appellant had thereby been denied procedural fairness. He conceded that ordinarily it would be "well open" to a judge to fix a non-parole period rather than imposing a partly suspended sentence. But here, he submitted, the circumstances were different. The appellant had moved to London, taken up a new position, and commenced a new and positive relationship. It would aid her rehabilitation to return to London after serving whatever part of her sentence was required to be served immediately. That option would have been available had a sentence suspended in part been imposed. But it was not so when a non-parole period was fixed.[10] Setting a non-parole period was therefore "neither conducive to rehabilitation, or fair." Although counsel on the plea had said nothing about this matter, had his Honour raised the possibility of setting a non-parole period, he would or might have been apprised of this consequence.

32 If the complaint of want of procedural fairness failed then, according to the appellant's submission, the ground was in any event made out. For his Honour had failed to take a relevant consideration into account - that is, the option of imposing a sentence which was at least partly suspended, and the consequence of instead imposing a sentence of imprisonment with a non-parole period.

33 Alternatively again, counsel submitted, in any event the non-parole period was so unusually high as to invite scrutiny and demonstrate error.[11] That was because the maximum possible period of parole was only eight months out of twenty - only two months more than the minimum permissible period between total effective sentence and parole period. That difference evidently undervalued the mitigating features which the appellant called in aid.

34 In my opinion, no aspect of the submission made in connection with ground 2 has been made out.

35 As to the first aspect, it is the fact that appellant's counsel on the plea argued in favour of a suspended sentence, and that counsel for the Crown submitted that an immediate custodial sentence should be imposed. It is also the fact that on the resumed plea counsel for the appellant reiterated his submission that a suspended sentence should be imposed - his argument being that such a sentence would help his client to repay the stolen money more quickly.

36 Counsel's submissions apart, when adjourning the plea part heard, and continuing the appellant's bail, the judge emphasised the seriousness of the offences, and the appellant's then failure to make any repayment. Against that background, he said:

"It's clearly a gaolable offence. There's no issue about that. It's a question of whether or not any or some of it ought to be suspended, and as to that I can tell you I'm greatly troubled."

37 By the time that the matter came back before the learned judge, the appellant had agreed to make restitution of $166,213.16 to the ANZ Bank, and had in fact paid an amount of $4,000. That was tangible evidence of the appellant's commitment to make her thefts good.[12]

38 Following disclosure of that circumstance, and further submissions, the judge said -

" ... it's inevitable that custody will be the end result, it's a question of how much will be suspended and I suspect in the end it comes down to that."

39 In my opinion, it is clear from what his Honour said on the first day of the plea that, being of opinion that a sentence of imprisonment must be passed, he was mulling over the question whether any period of suspension would be appropriate. The alternative, obviously enough, was immediate incarceration with the fixing of a non-parole period. See s 11(1) of the Sentencing Act 1991.[13]

40 Much the same thing can be said of his Honour's second pertinent remarks. They were expressed in somewhat conjectural language, and addressed the submissions which had been made for the appellant.

41 By articulating his doubt whether any part of a sentence of imprisonment should be suspended, the judge necessarily opened up the prospect of imposing a non parole period. It was a matter for counsel to take up, if counsel saw fit. It is unnecessary, in the circumstances, to make any general observations about the respective roles of a judge and counsel in setting the sentencing agenda.

42 I turn to the second aspect of the submission. Two points should be made. First, the fact that the judge imposed a term of imprisonment and fixed a non-parole period does not mean that he did not consider the option of imposing a wholly or partly suspended sentence. It is inconceivable, having regard to the matters urged on him for the appellant, that he did not do so. Second, had it been argued on the plea that a sentence of imprisonment partly suspended would offer an opportunity for rehabilitation that would - or might - otherwise be denied the appellant, it may be that his Honour would have been persuaded to impose a sentence of such a kind. But that was not necessarily the case. He might have concluded that the appellant's rehabilitation would best be achieved by supervision in a familiar environment and with her family's support. He might well have been unimpressed, from the standpoint of the appellant's prospective rehabilitation, by the evidence pertaining to her employment in London from time to time. None of the employments had been of long duration. Again, the appellant's submission assumed that there would have been no inhibition on a person under sentence travelling to, and living in, London. If the assumption had been shown before the judge to be well-founded, it might still be that he would have regarded the sentencing alternatives as being neutral in effect. In all, the sentencing course which the judge might have taken - had a pertinent submission been made - was quite uncertain. So I would not conclude that his Honour was bound, uninvited, to conjecture what the submission might have been, and to pass upon it. Neither would I conclude that, had he conjectured its content correctly, it was reasonably likely to have altered the sentence which he in fact imposed.

43 I turn to the final aspect of the submission. Contrary to the contention advanced for the appellant, the extent of the non-parole period was not unusually high. The difference between the total effective sentence and the non-parole period was only eight months. But that reflected the fact that the total effective sentence was itself quite low. Balancing out the circumstances of the offending, and the matters going in mitigation, I would not say that the non-parole period was "so unusual as to invite scrutiny and demonstrate error." The sentence was starkly different in structure to the unexplained non-parole periods which were fixed in VZ and Pope.

"The learned judge erred in failing to take into account delay as a mitigating factor."

44 The offending took place, as I have said, between January 2000 and October 2004. Some of the offences were detected in June 2004. The appellant was first interviewed on 1 December 2004. As further offences were detected, further interviews were conducted - on 21 June 2005, 2 February 2006 and 10 May 2006. Some of the interviews were conducted, it seems, on occasions when the appellant returned to Australia for family reasons. The appellant was committed for trial, on a plea of guilty, on 22 May 2006.[14]

45 Whilst the appellant made full admissions in respect of offences which had been identified, it was not in dispute that she volunteered nothing. That must have delayed the full revelation of her offending.

46 In this Court, counsel for the Crown contended that in reality there had been no delay. Rather, there had been a complicated investigation, not unusual in a fraud case, in which the scale and detail of the offending had progressively come to light. There had been a short period between full revelation of the offending and the appellant being charged. But if there had been delay - as measured by the time between the last offending and the appellant having her day in court - then at least, counsel submitted, the circumstances to which he had referred had been relevant to the extent to which delay could operate as a mitigating consideration.

47 The learned judge accepted that there had been significant delay in the matter coming on. But he said that "in the circumstances" he "did not regard the delay as a mitigating factor".

48 The circumstances to which I referred at [44] and [45] were identified, explicitly or implicitly, in his Honour's sentencing remarks. They should be understood as the circumstances to which his Honour was referring.

49 In fact, in some respects, his Honour treated the delay as operating to mitigate sentence. He said that he could not ignore what had occurred since the appellant ceased offending. The appellant, because of her shame, had moved to the UK, taken up new employment, and formed a new and "positive" relationship. Further, the appellant had no subsequent "history of antisocial behaviour". These matters meant that her chances of rehabilitation were good.

50 Counsel for the appellant accepted that his Honour had brought circumstances which were facilitated by the delay into account in his client's favour. But he submitted that the judge had erred by not giving weight to the added anxiety which his client would have felt in having the matter hanging over her head for a long period, particularly a period during which she had "created a new life for herself and assisted the police at every turn."[15]

51 I think that the issue should be addressed on the footing, accepted by the judge, that there was significant delay in bringing the matter on. Delay is a pertinent consideration running in favour of an accused person on sentence. The extent to which it will do so in any particular case depends on the circumstances.

52 Here, although the judge said that he did not regard delay as a mitigating factor, in fact he took account of events occurring within the period of delay as mitigating circumstances. If he had concluded that the appellant, because the offences had been hanging over her head for a period of time, had been kept in a state of suspense,[16] he might have factored that in by way of mitigation. But he was not bound to so conclude; and in any event he might have decided, if this was the situation, that it should nonetheless have little operative effect. He might have considered, as Ormiston JA observed was the situation in R v Nikodjevic,[17] that here there was no uncertainty of outcome, except as to the duration of any period of imprisonment. He might also have thought, delay being attributable to the progressive revelation of the offending rather than being attributable to the prosecution,[18] that there was no consideration of fairness telling in the appellant's favour. My appreciation of his Honour's sentencing remarks is that he was affected by such matters. That, together with the sentence which his Honour imposed, satisfies me that such mitigation as he discerned in the delay and its consequences

54 For the reasons given by Ashley JA, I agree that the appeal should be dismissed.

[1] Crimes Act 1958, s 72. The maximum sentence for each offence was ten years' imprisonment. The individual sentences, and provision for cumulation, were as follows: Count 1 - 2 months; Count 2 - 2 months; Count 3 - 2 months; Count 4 - 4 months; Count 5 - 2 months; Count 6 - 4 months; Count 7 - 4 months; Count 8 - 4 months; Count 9 - 2 months; Count 10 - 2 months; Count 11 - 2 months; Count 12 - 4 months; Count 13 - 2 months; Count 14 - 2 months; Count 15 - 2 months; Count 16 - 2 months; Count 17 - 2 months; Count 18 - 2 months; Count 19 - 2 months. Count 4 was the base sentence. The sentences imposed on each of Counts 6, 7 , 8 and 12 were cumulated on each other and on Count 4.

[2] Cf R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400; R v Verdins [2007] VSCA 102.

[4] [1998] 2 VR 376, 381.

[7] (1998) 4 VR 540, 547, [15].

[8] The passage cited from Kien does not appear, so far as I can see, in the report of the case. But it was common ground that it represented the gist of what Cummins J said.

[9] [1998] 2 VR 517. There, in his sentencing remarks, the judge made an assertion of fact - the prevalence of the particular type of offending in the area - of which the accused's counsel had no notice. See per Callaway JA, particularly at 520.

[10] Although the course which the Adult Parole Board will take in a particular case cannot be forecast in advance with any certainty, counsel agreed that, as a matter of generality, a Victorian prisoner will be required to serve his or her parole in Australia.

[11] Counsel cited, by way of example, R v VZ [1998] VSCA 32; (1998) 7 VR 693, 697-698, [12]-[15], where the total effective sentence was eight years' imprisonment and the non-parole period was fixed at six and a half years; and R v Pope (2000) 112 A Crim R s 88, 596-597 [27]-[29], where the total effective sentence was 11 years and the non-parole period was nine years.

[12] There was some material also, which suggested that the appellant had attempted to make borrowings in the period 2004-2006 in order to facilitate repayment of the stolen money. The loan applications had come to nothing.

[13] It was inconceivable that a non-parole period would not be set.

[14] At that time, she faced 140 charges of obtaining property by deception, and 90 charges of false accounting.

[15] Citing R v Miceli [1998] 4VR 588, 591-592.

[16] As to which see, for example, R v Cockerell [2004] VSCA 239, [10] (Chernov JA)[2001] VSCA 239; , (2001) 126 A Crim R 444, 447, [10], cited by Nettle JA in R v Carmody [2006] VSCA 139, [16].

[17] [2004] VSCA 222 , [23] (Ormiston JA).

[18] R v MWH [2001]VSCA 196, [18] (Callaway JA). And see [44] and [45] above.