R v Harris [2009] VSCA 189

1 The Chief Justice is unable to be here today. I ask Lasry AJA to deliver the first judgment.

2 On 20 June 2008 the appellant, Scott Harris, was sentenced on a total of 44 counts comprising three counts of theft, 40 counts of obtaining property by deception and one count of obtaining a financial advantage by deception.

3 The sentence imposed by the sentencing judge was as follows. On Count 16, a count of obtaining property by deception, he was sentenced to eight months' imprisonment. On Count 32, a count of obtaining property by deception, he was sentenced to 12 months' imprisonment. On Count 36, a count of obtaining property by deception, he was sentenced to eight months' imprisonment. On Count 37, also a count of obtaining property by deception, he was sentenced to eight months' imprisonment. On Count 39, a further count of obtaining property by deception, he was sentenced to eight months' imprisonment. On each of the other counts the appellant was sentenced to six months' imprisonment.

4 His Honour made the following orders by way of cumulation. Three months of the sentence on Count 16, six months of the sentence on Count 33, three months of the sentence on Count 36, six months of the sentence on Count 37, three months of the sentence on Count 39 and six months of the sentence on Count 3 were to be served cumulatively on each other and on Count 32. The total effective sentence which resulted from those orders was a sentence of 42 months' imprisonment and a minimum term of two years and six months was ordered to be served before the appellant became eligible for parole.

5 On 15 May 2009 Kellam JA granted the appellant leave to appeal against sentence. Originally there were three grounds of appeal:

1. The total effective and individual sentences and the non-parole period imposed are manifestly excessive.
2. The learned sentencing judge erred in giving no weight to the appellant's pathological gambling addiction in sentencing.
3. The learned sentencing judge erred in his assessment of the value of the courses the appellant had undertaken with the Salvation Army.

6 Before us counsel for the appellant did not press ground 2 as it had been formulated. Counsel did not contend that the appellant's moral culpability was diminished by virtue of his gambling addiction. With the Court's leave, the appellant added a further ground, Ground 4, on the topic of the gambling addiction as follows:

4. The sentencing judge erred in his treatment of the gambling addiction of the appellant in the analysis of mitigation on sentence.

7 In February 2006 the appellant was employed as a salesperson by NOS Computers at South Hallam. The witness, Colin Bakof, was the owner of the business. As part of the conditions of his employment the appellant was provided with a company vehicle and the keys to the business premises. He was also given a PIN (a personal identification number) to the debit cards used by the business in order that he could conduct banking on behalf of the business.

8 On the morning of 27 February 2006 Mr Bakof arrived at his business and noticed an amount of $5,000, a company mobile telephone, a notebook computer and his wallet containing a number of bank debit cards and credit cards used in the business were missing. Those incidents are represented by the first three counts on the presentment.

9 It appeared that the appellant had entered the premises during the night and taken the missing items and so much was clear from the video surveillance installed at the premises.

10 The appellant then used one of the stolen debit cards, a St George Bank debit card, to access funds and make purchases from a 'Power Saver' account belonging to Mr Bakof.

11 Counts 4 to 30 on the presentment dealt with the use of the stolen debit card by the appellant and they represent individual transactions that he undertook at various locations around Melbourne.

12 The appellant did not return to work after 26 February 2006 and the business vehicle of which he had possession was found abandoned in the car park of the Ferntree Gully Hotel on 1 March 2006.

13 Also on 1 March 2006, the appellant used a computer to apply online for a credit card from the ANZ Bank using the name Bakof. He gave an address on that application which was his mother's premises in Mordialloc. The credit card application was successful and the appellant was then provided with an ANZ Visa credit card which had a limit of $15,000. Those circumstances are the basis of Count 31. Count 32 related to the use of the credit card to process a transaction to the value of $15,601.

14 Following that, the appellant used the fact that he then had an ANZ Visa card in the name of Mr Bakof to transfer funds from Mr Bakof's ANZ account into the Visa card account he had opened. The transfers took place on 12 occasions between 12 and 24 March 2006. The total amount transferred from the Visa card account was $32,432.72. These incidents are identified by Counts 33 to 44.

15 Ultimately the appellant went to Queensland. Whilst there he was arrested by police and extradited back to Victoria. He was interviewed by police on 22 June 2006. Late in the interview process he gave an explanation of his conduct. He told police that while he was working at NOS Computers he started using the 'shop money' to try and recoup losses at the TAB. He then said that 'on that night', referring to 26 February 2006, he went back to the shop and took the 'commercial card' from the premises. He then gave a description of his offending and admitted that some of the proceeds of his crimes were for the purpose of further gambling.

16 As the sentencing judge noted, the amount stolen was just short of $100,000.

17 The appellant has 539 prior convictions from 14 court appearances. Those offences began in 1987 and almost exclusively involve offences of dishonesty in one form or another.

18 It is appropriate at this stage to briefly note that during the plea before the sentencing judge, evidentiary material was put forward to indicate that the appellant had developed a pathological gambling addiction. This was based on the report from Dr Sophie Reeves, Forensic and Clinical Psychologist.

19 Under cover of this ground, counsel advanced two separate submissions. The first was that the sentences imposed on Counts 15, 21, 23, 25, 40, 41, 42 and 43, all of which were counts of obtaining property by deception, were manifestly disproportionate to the criminality involved in the offences. Fundamentally the argument rested on the small amounts involved in each of those offences which varied between 20 cents and $180.01. The sentence imposed on each of those counts was six months' imprisonment.

20 Counsel for the respondent submitted the answer to this criticism is that the particular offences were committed over a period of time and constituted a breach of trust between the appellant and the employer. Counsel further submitted that a 'broad brush approach' was permissible in certain circumstances and that structural arguments such as these are to be discouraged unless they reveal an error in the instinctive sentencing synthesis. The small amounts, it is suggested, do not necessarily of themselves bespeak sentencing error.

21 In a number of cases this court has cautioned sentencing judges about ensuring that individual sentences in a multiple count presentment, 'appropriately reflect the criminality either of the specific offences or in particular of the offending' (see for example R v. Lomax[1] and R v. Coukoulis).[2]

22 So far as is practicable, individual sentences should be appropriate to the particular count. In R v Yi Yi Wang Redlich JA, with whom Ashley JA agreed, concluded that the imposition of identical sentences in relation to different counts of obtaining property by deception amounted to sentencing error where there was a risk that those sentences may have been arrived at not from any instinctive synthesis about the offences, but rather with a view to conforming with a sentence the appellant was already serving and in respect of which the sentencing judge was required to fix a minimum parole period. Noting that in some cases such a course might be permissible where, for example, there was a single fraudulent enterprise, Redlich JA referred to R v Fletcher.[3] In that case Callaway JA rejected the submission that error was demonstrated where the same sentence was imposed for fraud offences which ranged in their amount from $2,942 to $86,869.

23 Whilst the range of cases to which the 'broad brush' may be applied is no doubt wide, it is not so wide as to enable the sentence of six months' imprisonment for obtaining amounts of money by deception in amounts such as 20 cents and $5.00 on the one hand and an amount as great as $2,642 the other. Such a view is consistent with the opinion expressed by Nettle JA in R v. Samia.[4]

24 Albeit that I am of the view that no alteration should be made to the total effective sentence in this case, it is not possible to leave some of these sentences intact given that they are so disproportionate to the gravity of the offences. Therefore as to the counts which are the subject of that complaint I would allow the appeal and re-sentence the appellant as follows:

25 The second matter argued under cover of Ground 1 concerns the submission that the total effective sentence of 42 months was manifestly excessive given a number of factors. Those factors include the plea of guilty, the delay, the limited sum involved, the fact that the offending could be seen as a relapse after an offence-free period, the support of the appellant from his wife and employer, and the additional burden of imprisonment to the appellant and his family. These matters were raised with the sentencing judge. Some of them were specifically referred to in the course of his Honour's reasons for sentence.

26 It was conceded from the outset by counsel for the appellant on the plea that the circumstances of the offending required a custodial sentence. That concession was properly made given the history of the appellant and the circumstances of the offences. Whilst it might be said that the total effective sentence which resulted from the individual sentences and the orders for cumulation made by the judge was not merciful given the matters advanced on the plea, in my view it is not possible to say that any of the individual sentences (other than those to which I have earlier referred) or the orders for cumulation were manifestly excessive. The considerations on which the sentence judge relied for rejecting the submission that the time already served by way of pre-sentence detention was sufficient time in custody were appropriate. This part of Ground 1 must fail.

Ground 4 - The appellant's gambling addiction

27 This ground complains that the learned sentencing judge fell into error in coming to a conclusion about the gambling addiction suffered by the appellant by expressing the following:

I've had difficulties in connecting some of the thefts and perhaps your extravagant behaviour with in any way relating to your pathological gambling. Your offending behaviour was often well away from gambling venues. It seems to be more consistent with an episode of total irresponsibility in your life where you purposely act in a most dishonest fashion rather than aspects of your behaviour having any linkage to gambling.

28 The complaint about this observation before us was that the sentencing judge by those remarks, and without warning, took a view that some of this offending was not linked to the pathological gambling addiction. That, it was argued, was not raised during the plea and it was submitted that the link between the offending and the gambling addiction was at the forefront of the matters being put to the sentencing judge. It was submitted that by those remarks his Honour made a finding adverse to the appellant that at least some of the offending was not the result of the failure of impulse control despite the evidence to the contrary.

29 The consequence of the submission for the appellant was that the sentence reflects a view of the facts by the sentencing judge that was not only not raised with counsel, but was unduly disadvantageous to the appellant and therefore was a sentence that was too harsh.

30 For the respondent it was submitted, correctly in my opinion, that the sentencing judge was entitled to make the observation about which complaint is made. There had been discussion during the course of the plea concerning the issue of the linkage between gambling and the offending. During those exchanges the sentencing judge referred to the fact that the appellant's employer's premises had been broken into and a credit card was used to purchase goods that are not connected with gambling. His Honour expressed a lack of understanding as to how pathological gambling could apply in circumstances where offences are not connected with gambling.

31 Counsel for the appellant did not appear to dispute the proposition, though suggested the offences committed away from the race track were committed by a co-offender.

32 In my opinion there was no unfairness in the sentencing judge making this observation. He had given a clear indication of his concern about the applicability of the gambling addiction and his observations, now criticised, were open to him to make and consistent with the evidentiary material before him. I will not uphold this ground of appeal.

33 Ground 3 complains that the sentencing judge was in error in his assessment of the value of the courses the appellant had undertaken with the Salvation Army. In the course of the plea counsel drew the attention of the sentencing judge to the fact that the appellant had gone to the Salvation Army Positive Lifestyle Centre and the detail of what was involved in some of the courses was outlined. The error is said to be the sentencing judge's modification of the weight that he was prepared to accord the evidence of those courses. In particular His Honour said:

Since being released on bail in relation to these matters, you have undertaken courses with the Salvation Army. As to the nature of those courses and the qualifications of those who conducted the courses, no evidence was led. Although I am prepared to accept that you have done something to try and rehabilitate yourself since being released on bail.

34 As was pointed out by counsel for the respondent, there were shortcomings in the evidence. The judge referred to them in the course of the plea when he said,

That's the problem I have with Port Phillip and people like the Salvation Army. What's involved? Who carries out the course? How detailed are they? What was the accused's response?

35 Those queries were answered by counsel for the appellant by reference to a report which had been provided by the Positive Lifestyle Centre counsellor. It stated the appellant had been attentive, punctual, willing to put strategies in place to help him deal with problematic behaviour. But that response did not answer the questions which the judge had asked and counsel later accepted the judge's criticism that the evidence was incomplete and lacking in detail.

36 Criticism repeated in his Honour's sentencing remarks is a criticism that he was entitled to make. In my opinion there is nothing in this ground which would advance the appellant's cause.

37 I would therefore allow the appeal and re-sentence the appellant on Counts 15, 21, 23, 25, 40, 41, 42 and 43 in the matter that I have indicated in paragraph [24] above.

38 Notwithstanding the submission that, the sentencing discretion having been reopened, greater leniency should be extended to the appellant, I would make the same orders for cumulation as were made by the sentencing judge resulting in the same total effective sentence. Further, I would make the same order as his Honour made in relation to the minimum term which the appellant should be required to serve before being eligible for parole.

39 The Chief Justice has authorised me to say that she agrees. I also agree.

40 Subject to anything that counsel may wish to say the Court will make orders in this form:

1. The sentences imposed below on Counts 15, 21, 23, 25, 40, 41,

42 and 43 are quashed. In lieu thereof the appellant is sentenced as follows:

1. The sentences imposed below on all other counts and the orders for cumulation are confirmed. The total effective sentence is 42 months' imprisonment.
2. The non-parole period of two years and six months fixed below is confirmed.

5. All other ancillary orders made below are confirmed.

It is declared that the period of 628 days, including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the court that that declaration was made and its details.

[1] [1988] 1 VR 551, 558 (Ormiston JA).

[2] [2003] VSCA 22; (2003) 7 VR 45.

[3] [2002] VSCA 40.

[4] [2009] VSCA 5, in particular [7], [8] and [15].