R v O'Brien [2001] VSCA 157

R v O'Brien [2001] VSCA 157 - VSCA 2001 case summary — Zoe

[14]

To appreciate the nature of counsel's argument under ground 1, it is necessary to have regard to passages in a lengthy transcript of the plea. In doing so, it is necessary for this Court to bear steadily in mind that we have access only to the written words detached from the atmosphere of the hearing and the contextual setting in which they were spoken. Insofar as the context of the plea can be drawn from the whole of the transcript, it would appear that the appellant was seeking to make the point that the crimes to which he had pleaded guilty were serious aberrations in an otherwise blameless life of a man who had worked long hours and earned for himself a reputation of high standing in a specialized area of the live-stock industry. It was also being put on the appellant's behalf that, whilst he had pleaded guilty to counts alleging that he had intended to "permanently deprive" the victims of their money, he had always entertained a hope - even expectation - of being able to trade his way out of difficulties so that he could ultimately recompense his victims. It was the thrust of the appellant's plea that the crimes committed were to be explained, although not excused, by his desperation to "remain financial" until the "O'Brien's Prime Black Angus" scheme, which was being put together by Landy D.F.K. Securities Pty. Ltd., was "up and running". This was, as we have said, a "managed investment scheme" in which the public was to be invited to invest by way of payments for units. The object was to develop genetically superior beef herds from overseas stock or by the importation of semen straws from select cattle which would ultimately provide quality beef for Australian consumption. So devoted was the appellant to the scheme, so it was put, that he became immersed in its implementation to the detriment of his personal finances and acquired assets. It had been expected that the prospectus would be registered by April 1999 with public participation and subscriptions by that date. That, however, did not occur, and events happened which pushed the commencement of the scheme further and further away. It was in these "desperate" financial circumstances that the crimes occurred; but that their commission had been stimulated by the "expectation" that ultimately the scheme would be implemented and the fraudulently obtained monies repaid. It was submitted that, although the nature of the offences required the imposition of a sentence of imprisonment, the circumstances warranted a sentence which could, and should, be wholly suspended.

[52]

To the contrary of the submissions made on behalf of the appellant, Mr. Coghlan - who appeared with Ms. Judd on behalf of the respondent - has submitted that the various comments made during the hearing of the plea - and to which we have referred - do not disclose any "closed mind" on the part of the judge in respect of the appellant's crimes, but were legitimate means of exploring the strength of a plea which had at its heart submissions which clearly called for elucidation to determine whether the matters being put and relied upon were, in fact, matters which called for leniency in the sentencing process. These matters, Mr. Coghlan submitted, were matters which the judge was entitled to closely explore with appellant's counsel, more particularly because counsel had not, in advance of calling witnesses, "opened" the case which he intended to make on the plea, or given to the judge any over-view of the basis upon which it would be suggested that there were extenuating circumstances which mitigated the offending. Viewed against this background, it was submitted, the various comments made by his Honour - whether taken individually or cumulatively - would not support an allegation of actual or ostensible bias. It was further submitted on behalf of the respondent that the findings of fact which appellant's counsel alleged to be erroneous, were not in fact so and that, even if they were, they played no significant role in the sentencing process. Additionally, Mr. Coghlan submitted that the finding which his Honour made of "no substantial mitigating circumstances" was a finding made solely in relation to the circumstances of the offending as distinct from matters upon which the appellant was entitled to rely in mitigation of penalty. Those matters were specifically dealt with, and taken into account, in other parts of his Honour's reasons. Finally, it was contended on the part of the respondent that the sentences which his Honour imposed were, if anything, lenient when viewed against the character of the offending. Indeed the sentences which his Honour imposed "put paid" to any suggestion that his Honour's sentencing discretion was infected by any animus against the appellant.

[65]

In this case, as we have noted, Mr. Tehan submits that his Honour "crossed the line" by interjecting and making the various comments to which we have referred in paragraphs [11]-[17] of these reasons. Although the comments display irritation, many of them raise queries which, we think, the judge was entitled to raise having regard to the nature and structure of the plea. It is not easy, at first blush, to see why or how a desire to maintain a personal cash flow in the hope that a projected scheme can be "floated to the public" should explain or justify - or mitigate the gravity of - the frauds committed by the appellant. It would appear from reading the whole of the transcript that many of his Honour's questions of witnesses and counsel were the consequence of his desire to understand how that matter could be of significance in the sentencing process, either in the sense that it demonstrated a lack of deliberation on the part of the appellant in committing the offences or created a legitimate expectation on his part to repay his victims. However, his Honour's desire to understand how these matters were being put could scarcely justify some of the comments which he made. There would seem to be no justification for suggesting to the witness Bell that he was "one of the lucky ones who always got his money"; or for the apparently sarcastic comments made to counsel and witnesses about the worth of the appellant's "beef project" (namely that it was a "tax-dodge"; that it was a scheme in which "people get ripped off no end"; and supported by computer projections, for which a gullible public might "fall", similar to a "T.V. advertisement"); for the unfavourable comments made about the appellant's use of a "service company" when acting as a consultant to Elders; for his allusion to the fact that the appellant maintained an "address" to provide an advantage in producing promotional material; or for his comment that counsel was intending to "address his comments to the back of the Court"; or for the suggestion that the appellant, or his counsel, was seeking to introduce a "class bias" into the administration of the criminal law.

[67]

There is, we think, much to be said for counsel's submissions in support of ground 1 of the appeal. Some of the judge's comments - and particularly those to which we have referred in paragraph [27] - do give rise to an uncomfortable feeling that the judge had acted in a way calculated to create in the mind of an objective observer an impression that he had formed a concluded and adverse view as to the merits of the submissions being put on behalf of the appellant, no matter how much he might have thought that they were merely aspects of a "vigorous discussion". No matter how experienced judges are in the administration of the criminal law - and this judge was very experienced - they should never lose sight of the fact that they are administering justice in the face of litigants and the public who are entitled to expect that justice will be delivered in an even-handed way. Some of the comments made on this plea were not likely to inspire such confidence. However, whilst we think that there is force in Mr. Tehan's submission, it is unnecessary for us to finally determine whether or not the judge had "crossed the line" to which we have earlier referred. Certainly, it was not suggested by counsel upon the plea that the judge had disqualified himself, although it may be that, on a sentence appeal of this nature, an appellant is not to be deprived of his rights as a consequence of a failure by counsel below to ask the judge to disqualify himself. Again that is a matter which we do not have to decide. Under s.568(4) of the Crimes Act 1958, this Court is only required to quash a sentence passed "at the trial", if it thinks that "a different sentence should have been passed". In this case, we are quite satisfied, no matter what might be said of the judge's conduct during the plea, that no other sentence or sentences should have been passed. As we have already noted, all the material which the appellant wished to put before the judge was in fact put before him. Furthermore, it is accepted that this Court is in possession of all that material; and it was not suggested that there is any further material upon which we should act in the event that we formed the view that the sentencing discretion had miscarried, or that we are at a disadvantage by reason of not having seen or heard the witnesses. Even on the assumption that the sentencing discretion miscarried, it is therefore open to us to objectively determine for ourselves whether, upon the material which we have, any sentence or sentences other than those passed should have been passed[4]. In the circumstances described, we do not think it is appropriate and in the interests of justice to remit the matter to the County Court for re-hearing pursuant to s.568(5) of the Crimes Act. Such a course might have been appropriate if there was a basis for concluding that there is, or might be, some material, not available to us, which would preclude us from forming a view whether sentences, other than those imposed by his Honour, should have been passed, or if our not having seen and heard the witnesses presented some difficulty.

[68]

It was not contended by Mr. Tehan that the individual sentences imposed by his Honour were manifestly excessive on the material available. He could scarcely have done so, having regard to the fact that each of the offences alleged in counts 1, 4 and 5 were calculated frauds committed against persons who had obviously placed their trust in the appellant. Like his Honour, we see little in the material put before him, which mitigates the gravity of that serial offending. Unlike the victims whom he chose, the appellant knew the parlous state of his finances and was well aware, at the time when he approached them, that his capacity to repay was dependent upon events beyond his control. That, no doubt, was the reason why he indulged in the subterfuge which he did. Indeed, in a report made available to the judge, the forensic psychologist, Mr. Joblin, expressed the view that the appellant was "motivated by a degree of impulsive arrogance" engendered by the pursuit of his ambition. Counts 1, 4 and 5 carried maximum penalties of 10 years; and the penalties imposed of 18 months, 24 months and 15 months respectively can only be seen as at the lower end of the range of penalties available. Mr. Tehan submitted, however, that the orders for cumulation made by his Honour were beyond the exercise of a fair discretion and led to a total effective sentence which can be seen to be manifestly excessive. We do not agree. The offences alleged in counts 1, 4 and 5 were discrete frauds practised upon three separate victims. In our opinion, the nature of these discrete crimes, the circumstances in which they were committed and the effect which they had upon their chosen victims entitled the judge to cumulate the penalties in the manner in which he did. The total effective sentence of 4 years is indeed, we think, as low as it justifiably could have been when viewed against the criminality of the overall offending. The minimum period fixed - namely 2 years and 3 months - is well below what his Honour could justifiably have fixed and indicates that his Honour was well alive to the mitigating circumstances which had been advanced on behalf of the appellant.

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