R v Hillman [2005] VSCA 41

5. After hearing a plea in mitigation of penalty in the course of which evidence was given on behalf of the appellant by Mr David Bruce, an experienced forensic psychologist, the learned sentencing judge imposed the following sentences:

7, 8, 9, 10, 11 and 13 - Imprisonment for a period of three years.

On each of counts 2 and 14 - Imprisonment for a period of eight months.

On each of counts 4 and 12 - Imprisonment for a period of two years.

There being no order for cumulation, this created a total effective sentence of imprisonment for three years in respect of which his Honour fixed a period of two years before the appellant would become eligible for release for parole. He also made an order for compensation in favour of the victim for the sum taken.

13. Having been granted leave to do so, the appellant comes before Court seeking to overturn the sentences that have been imposed upon her.

16. As is regrettably too frequently the case, at the commencement of the hearing today counsel for the appellant sought leave to substitute grounds of appeal for those which were the subject of consideration by the member of the Court who granted leave at the time of the s.582 application. There is little point in re-stating the Court's concern about the regularity and stage at which such applications are made. However, in order to ensure that there might be no unfairness to the appellant, the matter has proceeded on the basis of the proposed substituted grounds of appeal, with the Court reserving the question of leave to amend. Those grounds read:

"1. The learned sentencing judge erred by: (a) imposing individual sentences on counts 1, 3, 5 to 11 and 13 each equal to the total effective sentence determined; and (b) ordering that they, and the individual sentences on the remaining counts, be served concurrently. 2. It was not open to the judge to: (a) reject the evidence of David Bruce, Psychologist, as an explanation of the appellant's behaviour; and (b) find that the appellant sought surreptitiously to sell her mortgaged home and deny her victims access to the proceeds. 3. The learned sentencing judge erred by having no or insufficient regard, or attaching insufficient weight, to the appellant's (a) plea of guilty; and (b) age and previous good character. 4. In all the circumstances the individual sentences imposed on: (a) counts 1, 3, 5 to 11 and 13; (b) the total effective sentence; and (c) the non-parole period are manifestly excessive."

21. A company known as XL Pty. Ltd. and trading as Excelsior Timber and Fencing operated, in effect, a family business run by two brothers, Robert and Paul Bos as directors. The appellant commenced work with the company in July 1996 as a trainee office worker under a Job Start program. Initially she was involved in invoicing, bookkeeping and general office activities but, in due course, when the office manager retired in July 1999 she assumed that role. As such, she attended to the payroll, payment of creditors and the preparation and signing of cheques. She had authority to act in all financial matters for the enterprise.

24. On 15 March 2000, the appellant resigned from her position to take up employment in a bank. However, after some weeks, at the request of her former employers, she returned to work again in the role of office manager.

27. In early 2001, the decision was made that the business's banking would be conducted through the internet in order to save on bank costs. The appellant set up and managed the system. The only people involved in the operation of the company with access to its accounts were the two directors, Robert and Paul Bos, and the appellant. On several occasions, she was requested to train other staff in the system but, perhaps in the circumstances not surprisingly, she did not do so.

30. The internet banking system employed by the company allowed bills to be paid up to a daily amount of $25,000. When several were paid on the same day, in the same transaction, only a single entry would appear in the account statement. This, of course, reduced the potential for questions to be asked about individual amounts. However, in any event it was rare for either of the brothers to look at the bank statements, as they placed their trust in the appellant.

33. On 1 February 2003, the appellant unexpectedly resigned from her position. When subsequently the bank accounts of the enterprise were examined, it was discovered that over a period of approximately two years, large payments had been transferred, through the internet, from the business's account into bank accounts held by her. These transfers were marked as wages but did not represent amounts to which she was entitled. The amounts varied and, as I have earlier indicated, totalled $160,857.04.

36. The matter was referred to the police on 13 March 2003 and the appellant was arrested and subsequently interviewed on 7 April 2003. In the course of that interview, she admitted having taken money from January 2001. Prior to the change to the internet banking system, when payments were made in cash, she would sometimes not deposit all of the moneys received. She estimated that she had taken $15,000 during that year. She stated that the theft of money would generally occur when she was verbally abused by Paul Bos. In the course of the interview, she made a number of derogatory statements concerning the two brothers, including allegations of illegal and unethical behaviour. She claimed that, despite this conduct and her treatment by them, she remained in her employment as she was unable to secure any other. Her motivation for her depredations, she claimed, was to cause her employers to suffer for what she regarded as their wrongdoing. She stated that she used the funds, that she so obtained, to gamble at poker machine venues in the anticipation that she would inevitably lose.

39. With respect to the money taken in 2002 and 2003, she stated that as she was the only one who knew how to use the system, her principals would not have been able to catch her. However, as I have mentioned, she had inconsistently stated at an earlier point in the interview that she desired to be caught and that it was for that reason that she had persuaded them to adopt the particular banking system.

43. In support of the contention raised in proposed ground 1, counsel for the appellant submitted that the sentencing judge appeared to have done little more than fix a sentence on the first count which corresponded to the total effective sentence to be handed down by him and then make all of the other sentences concurrent with it. He appeared, counsel argued, to have paid no regard whatever to the proper approach in such cases as indicated by this Court in such cases as DPP v. Grabovac[1], that is, to impose appropriate sentences on each of the individual counts and then, through orders for cumulation, create a total effective sentence that reflects the overall criminality of the offender's conduct. I will return to this ground which I will address together with proposed ground 4..

46. Next (proposed ground 2), counsel argued, that it was not open to the learned sentencing judge to reject the opinion evidence of the psychologist, Mr Bruce, as to the appellant's motivation for engaging in these offences and to conclude, contrary to that opinion that she was primarily concerned to secure money for gambling. It was a case, he submitted, in which no rational basis could be seen for his Honour's discounting of the expert's opinion and that, accordingly, he fell into error in so doing.

49. The principle upon which a court should act in such a situation was considered by the Court of Criminal Appeal in New South Wales in The Queen v. Hall[2]. Roden, J. there adopted a passage from Professor Smith's commentary on Walton in the Criminal Law Review that reads:

"If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained."

53. Of course, it does not follow that, namely because there is no contrary opinion to that expressed by an expert witness, the opinion must be accepted and a sentencing judge act upon it. As juries are regularly instructed, opinion evidence has to be evaluated in the same way as any other evidence adduced in the Court, having regard to such matters as the degree of expertise of the witness, the information upon which the opinion was based, the steps taken by the expert in order to ensure that the opinion was well based, and the limitations set by the witness or evident in the circumstances upon the opinion.

56. In my opinion the sentencing judge in the present case was not required to accept the opinion of the psychologist as there were a number of features present which can be seen to have reasonably raised questions concerning its value. There were references in the material to occasions on which the appellant had attended poker machine venues well before the events which gave rise to the charges that took place and which indicated that she may well have engaged in that activity to a greater extent than assessed by Mr Bruce. Further, as his Honour pointed out in his sentencing remarks, the appellant made a number of contradictory statements in relation to her activities in her police interview, which, I should add, had not been read in its entirety to the witness. I express some surprise that an opinion of the kind proffered was provided by an experienced witness and with an apparent degree of confidence when the record of an interview in which the appellant explained her conduct to the police had not been properly considered by him.

59. In my opinion there is no substance to this complaint.

62. The second limb of proposed ground 2 asserts that the judge fell into error in finding that the appellant sought surreptitiously to sell her mortgaged home and deny her victims access to the proceeds. What his Honour said in this context was:

"This house was acquired with a mortgage of $165,000, and apparently you tried to sell that house surreptitiously late last year and to obtain the balance of the proceeds but XL were able to obtain a restraining order in relation to the proceeds, which matter is still before the Supreme Court. I am told by your counsel that you are happy to release the sum to the company but there seems to be no explanation as to why this has not yet been done."[3]

It seems to be evident that, in making this remark, the sentencing judge was directing attention to the extent to which the appellant had demonstrated remorse or tried to effect restitution. There seems to have been no doubt that the appellant did commence the process of selling the house without the knowledge of the victims and that, in consequence, they found it necessary to secure their situation by obtaining an order from the Court. Whether or not the sale could be appropriately described as "surreptitious" and undertaken in an endeavour to deny them the balance of proceeds could perhaps be the subject of argument, but it is certainly understandable that, in view of the appellants conduct generally, a sentencing judge may have so interpreted her behaviour. Be that as it may, his Honour's doubts with respect to the matter of restitution were justified. I am unpersuaded that his remarks with regard to the circumstances under which the house was sold can be seen to imply sentencing error.

67. Next (proposed ground 3), it was argued that the sentencing judge erred in having insufficient regard to the applicant's plea of guilty, her age and previous good character. I observe that each of these matters was the subject of specific reference by him. I am unable to detect any error in his approach to these considerations.

70. In support of the contention that the sentence imposed upon the appellant was manifestly excessive (proposed ground 4), both in its total effect and certain of the individual sentences, reliance was placed upon the matters already addressed. It was also pointed out that although the prosecutor in the Court below had submitted that a custodial sentence should be imposed he clearly did not exclude the possibility that the service of that sentence may have been wholly suspended. It was suggested that his Honour may have misconceived the prosecution stance on this aspect. Upon perusal of the transcript and the sentencing judge's remarks, this contention is clearly unsustainable.

73. However returning to the complaint contained in proposed ground 1, I consider that although the behaviour encompassed by count 1 was clearly very serious, and undertaken in flagrant breach of the trust reposed in her, a sentence of three years' imprisonment upon a first offender of 43 years of age is extremely severe. In the absence of an adequate explanation as to basis upon which it was reached it must be regarded as falling outside the range of dispositions properly available to a sentencing judge.

76. Considered against that background, the possibility advanced by Mr Kassimatis that his Honour fixed on the first count a sentence which was intended to constitute the total effective sentence without regard to the seriousness of the particular offence involved and then made all other concurrent with it cannot be put aside, in my view possesses a deal of force.

79. Accordingly, I am of the view that his Honour did fall into error in the exercise of his sentencing discretion and that in consequence the leave sought to substitute the proposed grounds of appeal should be granted.

82. 24 I would allow this appeal, set aside the sentences imposed in Court below and, in lieu thereof, impose the following terms:

7, 8, 9, 10, 11, 12 and 13 - Imprisonment for 24 months

On each of counts 2 and 14 - Imprisonment for 12 months

I would direct that one month of each of the sentences imposed on counts 3 to 13 inclusive be served cumulatively upon each other and upon the sentence imposed on count 1. This would create a total effective sentence of 35 months' imprisonment in respect of which I would fix a non-parole period of 24 months.

90. I am in agreement with the reasons for judgment of the learned presiding judge and with the disposition of the appeal that he proposes.

The appeal is allowed, the sentences imposed in Court below are in set aside and, in lieu thereof, the following sentences are imposed:

7, 8, 9, 10, 11, 12 and 13 - Imprisonment for 24 months

On each of counts 2 and 14 - Imprisonment for 12 months

The Court directs that one month of each of the sentences imposed on counts 3 to 13 inclusive be served cumulatively upon each other and upon the sentence imposed on count 1. This would create a total effective sentence of 35 months' imprisonment in respect of which I would fix a non-parole period of 24 months.

The Court declares that the period of 235 days detention that the appellant has undergone to this time is to be reckoned as time already served under the sentence hereby imposed.

Without restating them we otherwise confirm the orders made for the appellant under section 86 of the Sentencing Act 1991; and section 33(1) of the Confiscation Act 1997.

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

[2] (1988) 36 A. Crim. R. 368 at 371