R v Galletta [2007] VSCA 177

Court of Appeal (Vic)|2007-08-30|Before: BUCHANAN and REDLICH JJA and KAYE AJA

CRIMINAL LAW - Sentence - "Rolled up" counts of theft from an employer over a period of nine years - Aggregate sentence wrongly imposed - Gambling addiction - Whether a factor in mitigation - Restitution - Reasons for fixing minimum term - Prospects of rehabilitation - Appeal allowed.

1 I agree with Redlich JA, for the reasons he has stated, that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

**2 The appellant, who had a gambling addiction, methodically embezzled money from his employer over a period of nine years. He pleaded guilty to 10 "rolled up" counts of theft and one count of obtaining a financial advantage by deception, and was sentenced to 4 years' imprisonment with a non-parole period of 3 years. He now appeals against that sentence having been granted leave to appeal.

3 The grounds of appeal identify error by the sentencing judge in fixing an aggregate sentence on the rolled up counts and further complain that his Honour did not take into account such restitution as the appellant had made, failed to treat the appellant's gambling addiction as a mitigating factor, placed undue weight upon the fact that the appellant at the time of sentence was employed in the Greyhound racing industry and was still gambling and did not give any or sufficient weight to his prospects of rehabilitation. It was also submitted that the head sentence and non parole period was manifestly excessive.

4 Between 1996 and 2005 the appellant, who was then aged between 29 and 38 years, was employed as an office manager and bookkeeper by Drouin Concrete Pipes and Products Pty Ltd. He was given the role of organising salaries to be distributed to all employees each week. He was required to prepare a pay sheet that listed each employee, their salaries and the bank accounts into which their salaries were to be paid. Pay sheets having been signed by a director of the company would be faxed to the Westpac Bank and the appropriate funds would then be transferred from the company's account into the accounts of the employees named on the pay sheet. In order to commit the thefts constituting counts 1 to 10 on the presentment, the appellant created a false company pay sheet that had a copy of the director's signature on it and placed his name and bank details and a sum of money that he**

wished to have transferred on the sheet. The pay sheet was then faxed to the Westpac Bank who would then transfer the sum of money set out on the pay sheet into the appellant's bank account.

**5 Each of the first 10 counts on the presentment is a "rolled up" count of theft of money from the company for each of the 10 years between 1996 and 2005. For example, count 9 relates to the period January 2004 to December 2004 during which the appellant stole approximately $56 000 by following the procedure I have described on 36 separate occasions. According to the schedule of thefts annexed to the outline of the Crown's case tendered on the plea, the appellant on some 265 occasions between 1996 and 2005 stole money from the company in this manner totalling the sum of $237 303. A compensation order in that sum was made in favour of his former employer. Evidence was adduced on the plea that the appellant was willing to have a portion of his present salary put aside in satisfaction of the compensation order that had been made.

6 The eleventh and final count on the presentment of obtaining a financial advantage by deception occurred when the appellant, who had been given the account and pin number for a telephone betting account of a friend, Kim Yuen, without authority began to access that account to place his own bets and commenced to withdraw sums of money from that account. The appellant, who was well known at the TAB in Warragul, would fill out a withdrawal slip using the account number that had been provided by Yuen and would advise staff at the TAB that he did not have his account card with him. He used the account and pin number of Yuen to withdraw the sum of $2951 between May and July 2005.

7 In August 2005 Yuen checked his TAB balance and discovered that his account had been used by the appellant without his authorisation. The matter was then reported to the police. During an investigation that followed, the theft of money from the company by the use of fraudulent pay sheets was discovered. In September 2005 the appellant attended at the Warragul police station of his own volition and was interviewed making full admissions in relation to the commission of these offences. He took investigating police to his home where a box of relevant documents was handed to them including a number of letters of confession that he had written to his employer but had failed to deliver. The sentencing judge accepted that the appellant had an addiction to gambling and that each of these offences was committed as a consequence of that addiction.

8 The sentencing judge accepted that to conceal his defalcations from the proprietors of the Drouin company the appellant, who was also the company's full-time bookkeeper, failed to pay company taxes between 2004 and 2005. If that tax had been paid the relatively poor financial position of the company would have been revealed. As a consequence of the appellant's conduct, the directors and proprietors of the company, a husband and wife, have faced severe financial hardship and have suffered ill health.

9 In fixing the terms of imprisonment on each of the counts of imprisonment the learned sentencing judge in his reasons said that on counts 1 to 10 he would impose an aggregate sentence of 3½ years. He gave no reasons for doing so. At the time of sentence his Honour did not have the benefit of this Court's decision in DPP v Felton[1] in which the recent amendment to s 9 of the Sentencing Act 1991 was examined. It permits the imposition of an aggregate sentence where an offender is convicted by a court of "two or more offences which are founded on the same facts or form or are part of a series of offences of the same or of similar character" (s 9(1)). Section 9(3) requires the sentencing judge to explain the decision to impose an aggregate sentence and the reasons for doing so in language that would be readily understood by the offender. When an aggregate sentence is to be imposed it must be supported by sufficient reasons so that transparency in the sentencing process is apparent.

10 Counts 1 to 10 constitute part of a series of offences of the same or of similar character. But it was held in Felton's case that it is not permissible to aggregate a sentence in relation to "rolled up counts" which by their very nature have already been aggregated.[2] The procedure of utilising rolled up counts can only occur by agreement with the defence and only for the purpose of a plea of guilty as the count involves a collection of offences bundled together into a single count.[3] To aggregate rolled up counts would not achieve one of the purposes of an aggregate sentence which is "to more clearly explain to the community the total sentence" that the Court is imposing.[4] As was stated in Felton, where an aggregate sentence is to be imposed it is also necessary for the sentencing judge to identify the extent of concurrency and cumulation that has been employed as the components of that aggregate sentence.[5] As sub-s (3) mandates, the reasons for imposing such a sentence must also be stated.

11 The respondent has rightly conceded that the learned sentencing judge fell into error by using an aggregate sentence to combine each of the counts which were the subject of a "rolled up" plea and by failing to give reasons as to whether the sentences imposed were wholly concurrent or involved elements of cumulation. There aggregate sentence constructed by the sentencing judge must have involved an element of cumulation as the counts on the presentment varied substantially as to the amounts that were stolen and no individual count could have supported a sentence of three and a half years. In addition no reasons were given for imposing an aggregate sentence.

12 The respondent properly concedes that the sentencing discretion must be reopened. Before turning to the question of sentence, it is convenient to deal with other grounds of appeal which bear upon the sentence which should be imposed.

13 By ground 2 it is alleged that the learned sentencing judge failed in taking into account the fact that the appellant had made full restitution in relation to count 11. Although his Honour was not told this at the time of the plea in mitigation of sentence, he was informed of this immediately prior to passing sentence. Unfortunately, the fact of such restitution does not appear in his Honour's sentencing remarks. Counsel for the respondent has fairly conceded that the making of restitution was a relevant sentencing consideration both in terms of its impact on the victim and for the purpose of considering the appellant's conduct subsequent to the commission of the offence and further conceded in oral argument that it does not appear that these considerations were reflected in the sentence imposed on count 11. That said, the respondent submits, I think correctly, that the different nature of the appellant's offending on this count and the fact that it involved a different victim required some degree of cumulation with his sentence imposed on the other counts.

14 Under ground 3 the appellant complains firstly that the learned sentencing judge failed to accord sufficient weight to the appellant's gambling addiction and secondly to his attempts to rehabilitate himself in the period between the offences and the imposition of the sentence. It is convenient first to examine the manner in which his Honour dealt with the appellant's gambling addiction. On the plea it was not in issue that the appellant had a serious gambling addiction. The material tendered on the plea including a psychiatric report warranted the conclusion that each of the offences was committed as a consequence of this addiction. It was submitted on the appellant's behalf that as he was a man with no prior convictions who was otherwise industrious and a contributor within the community, the learned sentencing judge should have treated the appellant's offending as out of character and should have taken his addiction into account in having regard to the appellant's prospects of rehabilitation.

15 Whether or not an offender's gambling addiction should be taken into account as a factor in mitigation and the weight which should be attached to it will vary according to the nature of the case. It may be taken into account as a mitigating factor.[6] It will not infrequently be the case that a sentencing judge will be entitled to conclude that it should be afforded no weight. In some cases the addiction has rather been viewed as avoiding what otherwise would have been an aggravating motive such as pure greed or a desire to fund some other criminal activity.[7] But 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.[8]

16 Counsel for the appellant submitted that the sentencing judge had wrongly disregarded it in the present case as a mitigating factor. It is not surprising that he did so as counsel for the appellant on the plea, expressly stated that he did not rely upon the appellant's gambling addiction as a factor in mitigation. As a consequence, the sentencing judge only addressed the question of the appellant's gambling addiction in terms of the element of general deterrence, observing, in accordance with the authority to which I have referred, that gambling addiction will have no significance in reducing the importance of the element of general deterrence. I discern no error in his Honour's approach in this regard.

17 Although counsel for the appellant on appeal, initially contended that the appellant's gambling obsession should be viewed as a mitigating factor because it produced irrational thoughts and impaired judgment which explained why these offences occurred this argument was but faintly pressed as it was accepted that such conditions would almost always be present when offences of dishonesty were committed as a consequence of pathological gambling.

18 The second aspect of this ground is in substance a complaint that his Honour failed to give sufficient weight to the fact that the appellant had, since he was charged, found other work and had earned the respect and regard of his present employer who had testified on the plea. The appellant had been working in a part-time capacity for the previous 12 months with Greyhound Racing Victoria transmitting data analysis to various parts of Australia and in analysing the form of greyhounds.

19 The second part of ground 3 may be considered in conjunction with ground 4 which complains that the learned sentencing judge erred in finding that the appellant should stop all forms of gambling and should not be employed in any area connected with gambling. The real complaint made under this ground arises from a comment made by the sentencing judge in his reasons that the appellant had failed to disclose the existence of his outstanding charges to his present employer. His Honour had treated the failure by the appellant to disclose these matters to his employer as a "serious and longstanding deception". It was submitted on the appellant's behalf that his Honour should not have made such an adverse finding and that in any event it was irrelevant for the purpose of sentencing. It was submitted that such a finding ignored the fact that it was not unreasonable for the appellant to take what employment he could find and that as his duties did not involve handling money or the control of any financial matters, the absence of such a disclosure was of no consequence and should not have assumed the prominence which it did in the reasons for sentence. Moreover, the employer's evidence did not reflect any such concern but to the contrary suggested a willingness to continue with long term employment. Whether the sentencing judge gave unwarranted weight to his adverse view need not be resolved as the sentencing discretion has in any event been re-opened so that we are required to take into account the additional matters that have been raised on appeal[9].

20 Under the final ground it is said that because of the appellant's early plea of guilty and his genuine remorse, his waiver of a right to committal, his co-operation with investigating police and his full and frank admissions, his good prior record and his continued employment, the sentence imposed on count 11, the total effective sentence and the non-parole period imposed were manifestly excessive. Against this, there were a number of aggravating features of the appellant's conduct which were relevant to both the head sentence and non-parole period. The appellant's offending continued over a period of nine years involving a large sum of money. His conduct involved a significant and continued breach of trust which had serious financial and health implications for the proprietors of a small family business. The learned sentencing judge was also entitled to take into account in assessing the appellant's prospects for rehabilitation that though he had gone to Gambling Anonymous he had not continued to attend, that his current job involved the analysis of greyhound racing form, that he was currently the part-owner of a greyhound and that he had continued to gamble over the last 12 months.

21 A non-parole period of three-quarters of the length of the head sentence is at the high end of the range of non-parole periods that may be fixed though longer periods may be found in the worst category of cases[10]. Whilst the imposition of such a non-parole period is not indicative of error, the sentencing judge had been urged on the plea to impose a shorter than normal non-parole period because it was said the appellant had genuine prospects of rehabilitation. The sentencing judge advanced no reasons for rejecting that submission and fixing the non-parole period which he did. A sentencing judge will not be expected to advance reasons for the imposition of a non parole period unless it is an unusual one[11]. But amongst the factors which bear upon the determination of a non-parole period is the discrete consideration of whether the confinement of an offender should be mitigated in favour of his or her rehabilitation. His Honour did not express any conclusion about the appellant's prospects of rehabilitation.

22 Counsel for the appellant also submitted that the sentence imposed on count 11 could not be justified. In addition to the error which the Crown concedes in relation to ground 2 there is some force in the submission that as the amount stolen was relatively small, an order of nine months' imprisonment with six months to be served cumulatively is difficult to reconcile with the aggregate sentence imposed on counts 1 to 10 all of which involved much more substantial amounts.

23 As the sentencing discretion must be re-opened it is unnecessary to say anything further about the sentences that were imposed. In plea mode on this appeal, counsel for the appellant directed the court's attention to matters which have occurred since the appellant has been in custody and which bear upon the appellant's prospects of rehabilitation. The court was informed that since his incarceration, the appellant had undergone an intensive course conducted by Gamblers Help at Loddon prison and that since completing that course he had continued to be involved as a peer support officer. He has almost completed a therapeutic programme known as the "Inside Out " and will serve as a liaison officer to the programme on his completion of the course. It was submitted that as a consequence of these programmes the appellant has gained an insight into his offending which has significantly enhanced his prospects of rehabilitation since his original sentence. It was submitted as it had been on the plea that a shorter than usual non parole period should be imposed so that upon his release he can be supervised to facilitate his abstinence from gambling.

I would order that one month of the sentences imposed on counts 1 to 3, three months of the sentences imposed on counts 4 to 6 and count 8, six months of the sentences imposed on counts 7 and 10, and one month of the sentence imposed on count 11 be served cumulatively upon the sentence imposed upon count 9, and upon each other making a total effective sentence of three years and ten months. I would order that the appellant serve a minimum period of two years and six months before he is eligible for parole. It will be matter for the parole board whether it considers it appropriate to release the appellant on conditions that will advance his prospects of rehabilitation from his gambling addiction. I would confirm the order made

pursuant to s 85B of the Sentencing Act that the appellant pay to Drouin Concrete Pipes and Products Pty Ltd compensation in the sum of $237 303.

25 I have had the advantage of reading the draft reasons for judgment prepared by Redlich JA. For the reasons stated by his Honour, I agree that the appeal should be allowed and that the appellant should be re-sentenced in the manner proposed by his Honour.

[3] R v Jones [2004] VSCA 68 and the cases therein referred to, [13].

[4] DPP v Felton [2007] VSCA 65, [2] (Buchanan JA); [42] (Kellam AJA).

[5] Ibid, [2] (Buchanan JA); [51] (Kellam AJA).

[6] R v Pascoe (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Winneke P, Brooking and Charles JJA, 29 April 1998); R v Petrovic [1998] VSCA 95; R v Cavallin (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Tadgell, Ormiston and Phillips JJA, 24 July 1996); DPP v Raddino [2002] VSCA 66; [2002] 128 A Crim R 437; R v Telford [2005] SASC 349; Assi v R [2006] NSWCCA 257, [27] (Howie J).

[7] Vu v R [2006] NSWCCA 188, [74] (Hall J).

[8] R v Martin (1994) 74 A Crim R 252 (Southwell J); R v Luong, Nguyen and Cao [2005] VSCA 94, [26] (Winneke P) and the cases therein cited.

[10] R v Tran & Tran [2006] VSCA 222.

[11] R v Detenamo [2007] VSCA 160, [26].

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties