R v Rainford [2003] VSCA 49

R. v. Hall (1994) 76 A.Crim.R. 454 distinguished.

2. I shall ask Buchanan, J.A. to deliver the first judgment.

6. The appellant is a 30-year-old woman who was employed as a claims officer by Powercor Australia, an electricity company. The appellant handled claims for compensation by customers of the company due to events such as power surges and power failures. The appellant had access to computer programs which enabled her to generate claims and make orders for their payment.

9. The appellant recruited her father-in-law and three other persons in a scheme to assist her in stealing from her employer by making false claims and overpaying genuine claims and then ordering payment of the claims or overpayments by transferring funds to bank accounts controlled by her associates. The appellant also made fraudulent payments to bank accounts which she opened and conducted. Over a period of some 15 months the appellant made 33 payments to accounts controlled by her accomplices and 18 payments to accounts which she controlled, thereby defrauding her employer of $130,328 in all. No part of that sum has been recovered. The police estimated that the appellant's share amounted to $87,200.

12. The appellant pleaded guilty to one count of obtaining a financial advantage by deception and one count of false accounting. She was sentenced to be imprisoned for a term of 15 months on the first count and to a term of six months on the second count, the sentences to be served concurrently. It was ordered that ten months of the sentence be suspended for a period of two years.

"1. The learned sentencing judge gave insufficient weight to the co-operation that the applicant provided to the investigating authorities including her offer to give evidence against her co-accused. 2. The learned sentencing judge failed to impose a sentence that reflected issues of parity with her co-accused. 3. The learned sentencing judge gave too much weight to the issue of the corruption of co-accused. 4. The learned sentencing judge failed to give sufficient weight to the personal circumstances of the applicant and in particular her present domestic circumstances. 5. The learned sentencing judge failed to give sufficient regard to the applicant's pathological gambling addiction as identified by forensic psychologist Dr Patrick Newton as a mitigatory factor. 6. The sentences imposed upon the applicant are excessively disparate with those imposed upon her co-accused. 7. The learned judge erred: (a) in general, in his application of the principles relating to parity among co-offenders; and (b) in particular, in paying insufficient regard to the sentences imposed upon co-offenders on the basis that he regarded them as manifestly inadequate."

19. In the course of the plea the appellant's counsel tendered a report by a psychologist who made an assessment of the appellant. The psychologist recounted an unremarkable upbringing in a working class family of two parents and two children. The appellant left school at the age of 16 years and completed an apprenticeship to an electrician, although she has not worked as an electrician since completing her apprenticeship, instead working as a barmaid, account manager for an electrical wholesaler and then claims manager for Powercor. In 1996 and 1997 the appellant suffered miscarriages, which she said caused her deep distress. Her first child born in 1998 suffered serious complications as a result of being born prematurely. In the same year the appellant's mother suffered a heart attack and a blood clot led to the amputation of a leg and the appellant's marriage began to break down.

22. According to the psychologist, the events of 1998 led to significant depressive symptoms developing in the appellant from which she attempted to escape by turning to gambling on poker machines. The losses she incurred caused her to turn to embezzlement to obtain the funds she needed to continue gambling.

25. Mr Croucher, counsel for the appellant, submitted that the principle of parity was offended by the difference between the sentence imposed upon the appellant and the sentences imposed upon her accomplices. Three of the four persons who provided the appellant with the use of bank accounts in return for a share of the proceeds of the crimes were placed on community-based orders. The fourth person received a good behaviour bond.

28. The judge who sentenced the appellant expressed the view in the course of the plea that he was not bound "to follow sentences that have been imposed [upon co-offenders] if I regard them as manifestly inadequate", and later said: "I am bound to certainly not ignore them. They are considerations that enter into the sentencing process but ... ". His Honour did not complete the sentence. Mr Croucher submitted that those comments, coupled with the absence of any comparative analysis of the sentences in the sentencing remarks, his Honour's failure to mention the Crown's position that although a custodial disposition was appropriate, its form was a matter for the sentencing judge, and the disparity between the sentences, suggested that his Honour failed to pay any or sufficient regard to the sentences imposed upon the appellant's associates.

31. In my opinion the difference between the short custodial sentence imposed upon the appellant and the community-based orders and a bond imposed upon her co-offenders is readily explicable on the basis of the roles played by the offenders. The appellant devised the fraudulent scheme and personally performed its principal element, namely the manipulation of the computer to extract money from her employer. Her associates were the recipients of the payments. The appellant was not first among equals, bound to receive only a slightly more severe version of the same punishment inflicted upon her co-offenders, but rather the architect and ringmaster whose conduct warranted more severe punishment than that imposed on her acolytes.

34. Nor do I think that the sentencing judge fell into error in the way in which he approached the other sentences. His Honour may have thought that community-based orders were inadequate to reflect the criminal conduct involved in assisting the appellant's embezzlement, but was of the view that he was nevertheless not able to ignore those sentences. His Honour's treatment of the sentences imposed on the co-offenders is consistent with that of the Court in R. v. Pecora[1], where in re-sentencing an appellant the Court had regard to the sentences imposed on co-offenders but gave that factor only such weight as was appropriate in all the circumstances. This approach was followed in R. v. Kucharski[2] and R. v. Wilson[3].

37. Counsel for the appellant treated grounds 1, 3, 4 and 5 as particulars of manifest excess as well as complaints in their own right. He submitted that the failure to wholly suspend the sentence produced a manifestly excessive sentence.

40. Most of the matters relied upon by counsel for the appellant were mitigating factors of some weight. The appellant made full admissions in her record of interview, made a statement implicating her co-offenders in the belief that she would be called as a Crown witness, contacted her co-offenders and asked them to come forward, pleaded guilty at the earliest practical opportunity, displayed remorse, committed the offences as a result of her addiction to gambling and under the influence of a depressive disorder, suffered the loss of her employment and her marriage, had no prior convictions and her incarceration had an impact on her three young children. These considerations, many of which are present in other cases where workers abuse their employers' trust to steal from them, but are nevertheless significant, must be seen in the light of the crimes themselves. The appellant by a systematic course of conduct over a period of 15 months stole a considerable sum of money. The objective of general deterrence will usually carry particular weight in sentencing for crimes which spring from an easy ability to abuse a position of trust and involve a carefully calculated course of conduct over a substantial period of time. When the mitigating factors which the appellant could pray in aid are properly considered in the context of the crimes themselves, in my view the sentence of 15 months' imprisonment was well within the range available to the sentencing judge and I do not think that the sentencing judge was bound to exercise his discretion to suspend the entire sentence rather than a substantial portion of it.

43. A particular complaint was made of the sentencing judge's remark that "any discount for your co-operation in this regard should be modest". His Honour was speaking of the statement made by the appellant implicating her co-offenders in the belief that she might be called as a Crown witness and her contacting them and asking them to come forward. His Honour's remark immediately followed his observations that tracing the cheques would inevitably have led the police to the co-offenders and "it is conceivable that your assertion that the receipt of these moneys by the other four involved was dishonest would have been of some help to the Crown had one or other maintained that the receipt of this money was innocent". When the impugned remark is set in its context, I consider that it discloses no error.

46. Mr Croucher pointed to the sentencing judge's reference to the appellant's role as the principal offender and submitted that his Honour fell into the error identified in R. v. Hall[4] by treating that aggravating factor as cancelling out the mitigating factor of co-operation with the authorities. I should set out the passage in the sentencing remarks in which these two factors were mentioned. The sentencing judge said:

1 "I agree this co-operation does justify some discount on your sentence, but the issue must be put in perspective. You were the principal offender, you engineered the circumstances which caused these four other people to become involved, and if they were not already known to police when you were interviewed, the trace of the cheques which were fraudulently drawn would have inevitably led to them. It is conceivable that your assertion that the receipt of those moneys by the other four involved was dishonest could have been of some help to the Crown had one of them maintained that the receipt of this money was innocent. On the facts of your case, however, I hold that any discount for your co-operation in this regard should be modest."

50. In my opinion the sentencing judge did not ignore the appellant's co-operation with the authorities because he regarded it as cancelled by her role in the commission of the crimes. His Honour did not purport to measure one factor against the other and then rule one of them out or reduce its relevance. He considered the subject of the appellant's role in evaluating her co-operation, thereby putting it in context. In R. v. Hall, on the other hand, the sentencing judge expressly stated that mitigating factors were outweighed by the aggravating factor of the appellant's prior convictions.

53. For the foregoing reasons I would dismiss the appeal.

57. I agree. There is only one point on which I wish to add something on my own account.

60. 19 Mr Croucher referred to a well known passage in the joint judgment of Crockett and Southwell, JJ. in R. v. Hall[5]. It does not apply here, for the reasons Buchanan, J.A. has given. The learned sentencing judge was doing no more than put the appellant's co-operation, including her contacting the co-offenders and asking them to come forward, into perspective. There was no weighing of one discrete factor against another. But, in any event, I think the significance of that passage in Hall's case has been overestimated. It related to a process of reasoning that was flawed in two respects. One was the fallacy that a plea of guilty is less mitigatory the more serious the offence. The other was that the effect of that plea could be cancelled out or outweighed by an incommensurable circumstance of aggravation. As I said in R. v. Shoukan[6], "Two matters bearing on the exercise of a judge's discretion may both be important, but in different ways. Each of them has to be considered on its own merits." It may be doubted whether Hall's case says more than that.

[1] [1980] VicRp 47; [1980] V.R. 499 at 502-504.

[2] Unreported, Court of Appeal, 23 June 1997.

[3] [2000] VSCA 202; (2000) 116 A.Crim.R. 90.

[4] (1994) 76 A.Crim.R. 454 at 469.

[5] (1994) 76 A.Crim.R. 454 at 469-470.

[6] Unreported, Court of Appeal, 15th February 1996 at 10.