R v Racky [2003] VSCA 196

9. The appellant appeals on a number of grounds: first, that the sentence is manifestly excessive; secondly, that the judge paid insufficient regard to "the considerable and unexplainable (sic) delay", "the significant rehabilitation that had taken place" and "the illness of the appellant". That illness, it was said on the plea, was that the appellant had from an early age suffered from panic attacks, although, as the judge observed in his sentencing remarks, somewhat surprisingly no reference is made to such attacks in the psychologist's report. However that may be, the appellant appeals also on the ground that she was "not an appropriate medium for a deterrent sentence". The final ground in the notice of appeal is that the judge based his sentence "on findings that are unsafe and unsatisfactory in all the circumstances", but that ground is not now separately pursued.

12. It must be said that the appellant's offending was not insubstantial. It ran for

some three years. The appellant was employed by the relevant employer from 23 June 1993 until she resigned towards the end of 1998, finishing work on 23 December. The offences occurred between 2 January 1996 and 18 December 1998. The police investigation and interview of the accused revealed that she stole funds from her employer by drawing cheques on the employer's bank account without authority and to her benefit on a total of 147 occasions. She gambled the proceeds of these crimes in poker machines.

16. It appears that during 1996 to 1998 the appellant was responsible for the payment of accounts and wages and general bookkeeping duties. She was also responsible for the cash book and preparation of the employer's cheques. It was the employer's policy that payments to consultants and certain other payments required two signatures on the cheque, that of two directors or one director and the appellant. And the bank was so instructed.

19. Because the appellant attended to the employer's banking, the staff at the local branch of the bank knew her. On the first occasion that she stole funds from the employer, she prepared a proper cheque for her wages, but she prepared also an additional cheque for the same amount as her wages, but bearing only her signature. The cheque was accepted and was cashed, contrary to the employer's instructions. The appellant continued using this method of stealing funds for a number of months and then started stealing funds by utilising cheques that were equivalent to her fortnightly salary, not just her weekly salary. This continued for another three months and then the appellant started using cheques equivalent to her monthly salary, and subsequently twice her monthly salary. The cheques for the larger amounts the appellant deposited directly into her account at another bank. On a few occasions the appellant stole funds by using a cheque in an amount that was not a multiple of her wages.

22. Specifically, there were some 63 occasions between 2 January 1996 and 27 December 1996 when the appellant stole funds from the employer by drawing cheques without authority. The value of the 63 cheques was $54,921.97 and as the appellant was entitled, of this amount, to a salary component of $23,140, the funds actually stolen amounted to $31,781.97. That was count 1.

25. As to count 2, there were some 48 occasions between 2 January 1997 and 15 December 1997 when the appellant stole funds from her employer by drawing cheques without authority. The value of these 48 cheques was $111,640, of which amount the appellant was entitled to $23,140 for salary and so the amount stolen was $88,500.

28. As to count 3, there were some 36 occasions between 6 January 1998 and 18 December 1998 that the appellant stole funds from her employer by drawing cheques without authority. The value of the 36 cheques was $115,250 but, as the appellant was entitled to $23,140 for salary, the amount stolen was $92,110. In all the funds stolen totalled $212,391.97.

31. The appellant resigned in about September and finished work in December 1998. She told the police in her subsequent interview, which took place on 24 January 2001, that she resigned because she could not stop stealing and that she had been waiting to be caught ever since. Shortly after her resignation, it was discovered by the person who replaced her that there were inconsistencies in the cash book and this prompted the employer to have an audit done. The audit revealed that the appellant adopted five methods both to effect the thefts and then to conceal those thefts in the books. As a result of the audit, the Major Fraud Group was informed and the appellant was interviewed, as I have said, on 24 January 2001. She was co-operative throughout the interview and made full and frank admissions. She told the police, and she has consistently maintained, that the reason she committed the thefts was due to her gambling addiction and that the stolen funds were all lost. It appears that the appellant's erstwhile employer has been paid an undisclosed amount by the bank for breaching the instructions it had from its customer and, in the result, no order for restitution was sought by the Crown when the appellant came before the County Court.

34. In his sentencing remarks, the County Court judge had regard to all that I have just described. These were serious crimes, committed over a lengthy period and in breach of trust. The thefts themselves were no doubt quite straightforward, but there were then the steps taken to conceal what was happening. In his Honour's view the offending "called for immediate and actual imprisonment. It was calculated, sophisticated in its concealment and persisted in for a considerable period. The sum stolen was large. [The appellant was] only able to obtain it by [her] abuse of the trust that [her] employer had given [her]." With respect, I agree.

37. None the less, there were matters that went in the appellant's favour. Only in her early thirties by the time of sentencing, she started work at 18 and before these offences had no criminal record. She had a good work history in office work of a secretarial and accounting nature and her family was still supportive of her. She had fallen out with her husband over the offending and they were now separated. She had since returned to the workplace. In a plea in mitigation it was put on her behalf that the appellant was truly remorseful and although the judge accepted that remorse was felt, he had some reservations about its extent. The appellant had returned home in January 2000, that is, just over one year after she left her employment, and was described by two members of her family, prior to that return, as being "intelligent, articulate and confident" and, by another, as "an outgoing, happy, confident, attractive young lady". As it stands, that does not sit well with her own description of herself as awaiting discovery and remorseful; hence, the judge's hesitation.

40. In addition to the appellant's plea of guilty for which she must be given credit, there had indeed been delay in the matter coming to court. The offending was detected in 1999. In March, the employer referred the matter to the police, yet the appellant was not interviewed until January 2001. Part of the reason for that delay was the need for forensic accounting to be carried out, not once but twice, which was, again in part, due to the length of the time occupied by the offending, the number of the offences and the method employed by the appellant for covering her tracks. The police file was not given to the present informant until January 2002 and the delay since her interview twelve months earlier was not satisfactorily explained. By January 2002, the report of one of the earlier auditors had been lost and the auditor himself could not be found so that there was then a third audit, the result of which was not received until June 2002.

43. There is then the question of what was called, in the grounds of appeal, the "illness of the appellant". The judge was told that since she was an 11-year-old child, the appellant suffered from panic attacks. However, his Honour was given no expert evidence concerning those attacks and there was no mention of them in the report of the treating psychologist. It is not surprising then that his Honour was not prepared to treat those attacks as significant for sentencing purposes. The gambling itself was described by the treating psychologist as "consistent with someone with a pathological gambling problem", but in argument this morning Mr. Holdenson spoke of the illness referred to in the grounds of appeal as occurring post-offending. That, too, was a matter to which the judge was alive, and in the end, despite Mr. Holdenson's earnest submission that it should be treated otherwise, it seems to me to have been no more than a matter that had to be brought to account as part of the process of instinctive synthesis.

46. It is the fact that his Honour took all of the matters I have so far mentioned into account, including, in conjunction with the plea of guilty, the appellant's co-operation with the police from an early date and indeed from before her first interview. But, despite the matters that could be put in favour of the appellant, I see no alternative but immediate and actual imprisonment for offences of this size and seriousness, extending over such a long period and, it must be added, significantly in breach of trust. While specific deterrence might not loom large in the particular circumstances, general deterrence certainly did and in the result I see no reason to suppose that the sentences were not well within range. Indeed I think them moderate.

49. With his usual care and attention to detail, Mr. Holdenson emphasised the consequences of the delay that had occurred, delay for which he said the appellant was not responsible, or at least not wholly so. During the delay between the matter coming to the attention of the police, in March 1999, and the date upon which the appellant was eventually charged, in December 2002, the appellant, he said, had suffered much. She had changed from being an outgoing and confident person to a person who is introverted and "frightened" and her physical wellbeing had deteriorated. In her sworn evidence, the appellant's treating psychologist said that the delay had been of "incredible significance", increasing the stress suffered and the guilt felt by the appellant. It was equally important, counsel pointed out, that during this lengthy period the appellant had not engaged in any gambling, had not re-offended, had engaged in some voluntary community work and had regularly consulted with her treating psychologist, so that the appellant was now "well on the way to rehabilitation". A sentence which might curtail or put at risk that process of rehabilitation should not then have been imposed, was his submission.

52. Undoubtedly, there is force in these submissions, but given, as I have said, that the sentences were in my opinion moderate, in themselves they indicate to me that the sentencing judge took into account all that counsel now urges in favour of his client. I see no reason to suppose that the judge was not fully alive to the considerations that were urged on us this morning, and I see every reason to suppose that they were taken into account, fully and fairly. I have said already that I see nothing in the ground of manifest excess; nor do I see anything in the other grounds of appeal, which in the ultimate analysis may properly be regarded, I think, as particulars of the more general ground. As I have said, the sentencing judge expressly referred to delay and to such rehabilitation as had occurred and, for what it was worth, the so-called "illness" of the appellant. This was a case for deterrence, and the appellant was not shown to have been an inappropriate medium. As I said earlier, ground 6 was not pursued.

67. The order of the Court therefore is that the appeal be dismissed.

I certify that this and the preceding 6 pages are a true copy of the reasons for judgment of Ormiston, Phillips and Callaway, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 1 December 2003.