R v Felsinger [2001] VSCA 154

Criminal law - Sentencing - Multiple offences of fraud committed over 2½-year period - Applicant suffering from chronic schizophrenia - Whether judge in error in failing to moderate principle of general deterrence - Application for leave refused.

2. The applicant, who is 28 years of age, committed a large number of frauds comprising largely the obtaining of financial advantages and property by deception between March 1996 and October 1998. He was ultimately arrested in April 1999, when police approached a car in a car park in Niddrie in which the applicant was seated with his partner, one Emily Georgiopoulos, and their young child, Jesse. The applicant was taken to the police station at Moonee Ponds, where there was conducted with him a lengthy record of interview, during which he made substantial admissions. He was thereafter charged with a large number of offences and placed in custody. It would appear from his answers to police that he was concerned for the welfare of his son, Jesse, who was at all relevant times suffering from an autistic disorder. The applicant was eventually committed for trial in the County Court in November 2000 on a 56-count presentment, to which he pleaded not guilty.

5. Between the date of his arrest and this date, it had been established that the applicant was significantly psychiatrically disturbed. He is, and had for some years been, suffering from paranoid schizophrenia, which, in 1999 and the early part of 2000, rendered him unfit to plead. It would seem that this condition had not been assisted by his previous chronic drug use, particularly of amphetamines and cannabis, and his failure to take controlling medication. During this period he had been assessed from time to time by a Dr Lester Walton, a consulting psychiatrist, who, by April 2000, expressed the view that he had no concerns about the applicant's fitness to stand trial.

8. On 27 November 2000, the applicant having pleaded not guilty to the 56-count presentment, a challenge was mounted to the admissibility of the record of interview on the basis that it was not voluntary. On 29 November 2000 the judge ruled that the record of interview was admissible. Thereafter, the applicant's then counsel informed the judge that his client had instructed him to make an offer to the Crown which, if accepted, would result in a plea of guilty. The matter was adjourned to the following day, upon which the prosecutor filed over a fresh 26-count presentment, to which the applicant pleaded guilty. This presentment comprised 17 counts of obtaining a financial advantage by deception, six counts of obtaining property by deception, one count of theft, one count of attempting to obtain a financial advantage by deception and one count of attempting to obtain property by deception. The matter was further adjourned to 23 January 2001 for the plea. In the interim, namely, on 7 December 2000, the applicant indicated that he wished to again change his plea. That application was heard over a period of three days later in December 2000, and on 19 December the judge, having given considered reasons, rejected the application.

11. The plea in mitigation of penalty was heard on 23 and 24 January 2001. During the course of it evidence was called on behalf of the applicant from his father and Dr Walton. The plea was conducted on the basis that several of the counts were "representative counts". The applicant admitted 25 previous convictions from three court appearances between September 1992 and June 1995. Ten of those prior convictions related to "deception offences" similar in character to those to which he had pleaded guilty on this occasion. The applicant, it should be said, had never before been sentenced to a term of imprisonment.

14. During the course of the plea the applicant's then counsel placed much emphasis upon the applicant's psychiatric history in support of the submission made that the sentencing purposes such as general and specific deterrence should be significantly moderated. Counsel, however, accepted that a sentence of imprisonment was appropriate but suggested that it should be of the order of 18 months to two years with a short non-parole period of "six to seven months". On 9 March 2001, her Honour, having given what appear to me to be carefully considered reasons, sentenced the applicant to various prison terms ranging between one month and 12 months upon each of the 26 counts and, after making orders for cumulation to give effect to what she called "each criminal scam or scheme" used by the applicant, ordered him to serve a total effective sentence of two-and-a-half years, and further ordered that he serve a period of 18 months before becoming eligible for parole. Pre-sentence detention of 237 days was declared, which means that, as at this date, the applicant has some four months of that non-parole period to serve.

17. On 22 March 2001 the applicant applied for leave to appeal against the conviction recorded, challenging her Honour's refusal to grant leave to change the plea. That conviction application has now been abandoned. Again on 22 March 2001, the applicant sought leave to appeal against the sentences imposed and did so on three grounds:

1. The sentences imposed are manifestly excessive.

2. The judge failed to take into account or sufficiently take into account the psychiatric condition suffered by the applicant.

3. The judge failed to take sufficiently into account the effect of incarceration upon the applicant's son.

Mr Dean, who appeared today for the applicant in this Court, informed us at the outset that he was abandoning grounds 1 and 3 and would address submissions solely in support of ground 2.

24. Before turning to those submissions, it is necessary to say something briefly about the circumstances which were before the sentencing judge. It is, I think, unnecessary to recite in detail all the circumstances of the offending. That is because, first, we could not hope to replicate the very thorough recital of those circumstances which is to be found in her Honour's careful reasoning and, secondly, because such a recitation has little relevance to the sole remaining ground of appeal. It is enough to say that over a period of some two-and-a-half years the applicant embarked upon a spree of fraud in the course of which he procured credit cards and facilities by the use of false names and documents and used those facilities to run up substantial debts in the purchase of goods and services. Amongst others, he obtained American Express Cards, Diners Club Cards and Myer Cards, and, by their use and the use of falsely obtained cheques, he obtained various financial advantages and property, which included clothes, jewellery, office furniture, electrical and computer goods, a lounge suite, a spa, airline tickets, and other, similar items. The total value of the advantages and goods obtained exceeded $130,000.

27. The ease with which the frauds were practised demonstrates once again the vulnerability of our commercial credit system and its vulnerability in particular to rudimentary but nevertheless cunningly planned frauds. Such frauds are, in the main, difficult to track down and put much pressure on those involved in investigating them.

30. The applicant was a relatively young man at the time when he committed these crimes and, as I have said, had had a troubled psychiatric history. He has had a relationship with his partner for some seven years. That partnership has produced the autistic child, Jesse, who is now some six years of age, and also a young daughter, who is approximately one year old. It would seem that, notwithstanding the asserted strength of this relationship, the applicant has had a young male child as a result of a brief union with another woman. He seems to be very fortunate to have the continued support of his mother and father, who have assumed a major role in caring for Jesse whilst the children's mother looks after the second child.

33. Mr Dean submits that her Honour has failed to give sufficient weight in the sentencing process to the psychiatric illness of the applicant, who has been diagnosed, as I have said, as a chronic schizophrenic for many years. In this regard Mr Dean has relied upon the evidence of Dr Walton, who has periodically assessed the applicant for medico-legal purposes since 1992. In particular, Mr Dean relied upon the evidence which Dr Walton had given to her Honour to the effect that the impact of this particular disorder is to lower the capacity for judgment and for assessing appropriate social responses. Mr Dean submits that her Honour was in error in concluding, having regard to this evidence, that the concept of general deterrence was an appropriate purpose of punishment in the applicant's case. He submits that the sentences imposed by her Honour should have been, but were not sufficiently, moderated on account of the applicant's mental state. In this regard he put particular emphasis on Dr Walton's evidence suggesting that the applicant needed to control symptoms by medication, and that he had been informed that the applicant had not been on medication during the period of offending. In essence, it was submitted that there was error because there had been a failure to moderate the principles of general deterrence, a situation reflected not so much in the individual sentences imposed but rather in fixing the minimum term which her Honour did. There is, so said Mr Dean, nothing about the non-parole period which suggests that the applicant's illness was taken into account by her Honour in fixing it.

36. Her Honour paid particular attention to the applicant's psychiatric state during the course of her sentencing remarks and to the sentencing principles upon which Mr Dean has relied in making his submissions before this Court. She referred to the relevant sentencing principles that have been applied by various courts since Anderson[1], down to Tsiaras[2], Richards & Gregory[3] and Yaldiz[4]. She noted that she had no evidence, apart from Dr Walton's hearsay evidence, relating to the acuteness or otherwise of the applicant's condition during the long period of offending, and she paid careful attention to that evidence of Dr Walton reflecting upon the nature of the illness. In particular she noted his evidence that this particular psychotic disorder can be controlled by medication and that, even without it, a person can be in a state of remission for lengthy periods. She also noted Dr Walton's evidence that the degree of application, planning and cunning involved in these crimes was somewhat inconsistent with the notion that the applicant had been suffering from frank psychotic symptoms at the time when the crimes were committed. It was upon the basis of this evidence that she concluded that the applicant was "an appropriate vehicle for general deterrence, having taken into account the evidence of Dr Walton and the legal principles" to which she had earlier referred. In so concluding she paid regard to the nature of the crimes, the period of time during which they were committed and the planning which had gone into them. Nevertheless, as she said, it was appropriate in the circumstances to moderate the purposes of specific deterrence in imposing penalty because of the impact which the psychiatric disorder had had upon the applicant since he had been in custody.

39. 12 I have had regard to the careful submissions which have been made by Mr Dean in respect of this aspect of her Honour's sentencing discretion. I am by no means persuaded that the sentencing error which is alleged has been disclosed. It is not often that this Court is assisted by sentencing remarks, on a topic such as this, as careful as those which her Honour made. It is true that from time to time courts of this and other States have regarded crimes committed by those in a florid schizophrenic state as calling for a sensible moderation of the principles of general deterrence when imposing sentence. That has generally been done when the crimes were committed impulsively, and when the evidence demonstrated a clear and direct relationship between the crime and the psychiatric disorder. On the evidence here, such an association was not well demonstrated in the commission of these well planned crimes, and in my opinion it would be stretching the principle beyond its proper boundaries to suggest that the purpose of general deterrence should not have been given its proper weight in the sentencing process.

42. Having regard to the maximum penalties available to her Honour and the nature and extent of the crimes for which the applicant fell to be punished, it seems to me that the penalties which her Honour imposed were moderate in the extreme, and not far in advance of those for which counsel for the applicant before her had called. They were penalties which her Honour had clearly and sensibly moderated on account of the applicant's unfortunate mental disorder, certainly with regard to the application of the principles of specific deterrence. As I understand it, no dispute is raised about that on this application. Nor, despite the assertion to the contrary, can I see any basis for concluding that her Honour had, in fixing the non-parole period, departed from relevant and applicable sentencing principles. If this Court were to interfere with this carefully constructed sentence, it seems to me that we would be merely "fiddling" in a way which could not properly be justified.

45. It follows that I can find no error in the discretion which her Honour exercised. Even if I could, I would not be moved to pass any sentence other than those which her Honour passed. Accordingly, in my opinion, the application should be dismissed.

53. I agree, for the reasons expressed by the President.

The application for leave to appeal against sentence is dismissed.

[1] [1981] VicRp 17; [1981] V.R. 155.

[2] [1996] VicRp 26; [1996] 1 V.R. 398.

[3] [1998] 2 V.R. 1.

[4] [1998] 2 V.R. 376.