R v Ralphs [2004] VSCA 33

Court of Appeal (Vic)|2004-03-09|Before: CHARLES, J.A., BONGIORNO and O'BRYAN, A.JJ.A.

Criminal law - Theft - Whether appellant properly sentenced as "continuing criminal enterprise offender" - Only one offence involving more than $50,000 - Individual counts involving less than $50,000 "rolled up" to produce single counts for more than $50,000 - Such counts not qualifying as "continuing criminal enterprise offence" - Sentencing Act 1991 Part 2B and Schedule 1A discussed.

On 25 March 2003 the appellant, who is now aged 68, was committed for trial by hand-up brief procedure in the Magistrates' Court at Melbourne on 148 charges of theft. She pleaded guilty. Then on 23 May 2003 the appellant pleaded guilty in the County Court to a presentment alleging eight counts of theft, these counts "rolling up" the original 148 committal charges. It is desirable now to set out shortly the allegations contained in each count, which alleged that the following amounts belonging to the persons named were stolen on or between particular dates in counts numbered as follows -

1. $144,000 from Marie Worland between 6 July 1992 and 24 May 1995.

2. $128,254.86 from Sylvia Ladson between 5 June 1996 and 17 January 2001.

3. $168,252.44 from Leon James Ervin between 28 February 1997 and 30 October 1998.

4. $42,000 from Leon James Ervin between 27 March and 29 May 1998.

5. $27,000 from Brian Douglas Kelly between 15 November 1999 and 16 January 2001.

6. $375,745.46 from Bendigo Bank Ltd. between 8 January and 14 February 2001.

7. $202,321.25 from Virginia Anne Thornley on 18 January 2001.

The maximum custodial penalty for theft was 10 years' imprisonment.

A lengthy plea was heard, during which the prosecutor tendered by consent a statement of material facts and graphs, the contents of which were admitted by the defence. The prosecutor submitted that the appellant should be sentenced as a continuing criminal enterprise offender, an issue to which I shall turn later. A plea in mitigation was made during which various reports and references were tendered, including a report by Mr Bernard Healey, a consultant medical psychologist. Three witnesses were called on behalf of the appellant during the plea, Detective Senior Constable Nick Svarnias, Mrs Anne Clarke, the appellant's daughter, and Mr Healey.

On 26 May 2003 the judge sentenced the appellant on the eight counts as follows: on counts 1, 2 and 3, to 2½ years', on counts 4, 5 and 8, to one year's, on count 6 to 3½ years' and on count 7 to 3 years', imprisonment respectively. In making orders for cumulation, count 6 became the base sentence. The judge ordered that six months of the sentences imposed on counts 1, 2 and 3 and three months of the sentences imposed on counts 4, 5, 7 and 8 be made cumulative on count 6, making a total effective sentence of 6 years' imprisonment. The judge fixed a minimum period of 3½ years before the appellant became eligible for parole. The judge declared that the appellant was a continuing criminal enterprise offender.

Leave to appeal was granted under s.582 of the Crimes Act 1958 on 18 December 2003. The appellant now appeals on a substantial number of grounds, but it is necessary to mention some only of them -

5. The judge fell into error in declaring that the appellant was a continuing criminal enterprise offender.

6. The sentence was in all the circumstances manifestly excessive.

(a) inconsistent with the sentences on other counts; and

(a) in failing to identify to which count or counts the continuing criminal enterprise offender provisions were applied; and

(b) in applying those provisions in this case despite his indications during the course of the plea that he would do the contrary.

The facts giving rise to these offences were as follows. The period during which the offending occurred commenced in July 1992 and lasted until January 2001. Throughout this period the appellant was employed as a law clerk by Embleton & Associates Pty Ltd, solicitors, and also managed an off-line agency on behalf of the Bendigo Bank. The appellant had been employed in legal practices for over 20 years and had, as a result, acquired an excellent knowledge and thorough understanding of the management of office accounts and trust accounts. She had also become familiar with various types of financial transactions and banking procedures and practices. The appellant was authorised to negotiate and sign cheques and to conduct transactions in respect of large sums of money. As the judge put it in sentencing reasons, she, in effect, "ran the solicitors' practice and [was] the human face of the Bendigo Bank in Pyramid Hill". Over a period of just under nine years, the appellant stole a total of approximately $1.1m. Again, as the judge put it -

"Of this amount, approximately $370,000 was stolen from your employer's trust account. Amazingly, despite the persistence and regularity of your criminal conduct, detection did not occur until January 2001. The failure to expose your numerous acts of dishonesty was in no small measure due to lax auditing and monitoring by the Bendigo Bank and inadequate supervision by your employer. It is apparent that you took full advantage of the ineptitude of your principal and your employer."

Schedules attached to the presentment show that the sum of $144,000 stolen from Marie Worland was made up of 36 separate offences occurring over a period of nearly three years, the largest individual amount being $20,000 stolen on 30 December 1993. Count 2 was made up of 17 separate thefts occurring over a period of 4½ years, one of an amount of $20,000, three of $10,000, and the remainder all of sums less than $10,000. Count 3 was made up of 32 separate thefts, occurring over a period of some 20 months, the largest amount being $17,000 stolen on 29 May 1997. Count 4 involved three separate thefts and count 5 two thefts. Count 6 involved 18 separate thefts occurring over a period of some five weeks, the largest amount being the sum of $48,379.64 stolen on 30 January 2001. Counts 7 and 8 each related to single offences.

Part 2B of the Sentencing Act 1991 deals with "Continuing Criminal Enterprise Offenders" and was introduced, together with a new Schedule 1A, into the Sentencing Act by the Confiscation Act 1997. A continuing criminal enterprise ("CCE") offender is defined by s.6H of the Sentencing Act, as amended, as an offender who is found guilty, in so far as relevant, of three or more CCE offences. Such offences are set out in Schedule 1A of the Sentencing Act as follows -

"1. An offence against any of the following provisions of the Crimes Act 1958: (a) section 74(1)(theft) where the value of the property stolen is $50,000 or more; (b) section 75(1) (robbery) where the value of the property stolen is $50,000 or more; (c ) ... ."

There then follows mention of six other offences, in each case where the value of the property or financial advantage or gain improperly obtained is $50,000 or more. Section 6I of the Sentencing Act then imposes an increased maximum penalty for CCE offences, the effect of which is that a CCE offender becomes liable for a CCE offence to a maximum term of imprisonment twice the length of the maximum term prescribed for the offence. In this case, as I have said, the judge declared that the appellant was a CCE offender. Although the judge did not expressly say so, I assume that this is in consequence of the convictions imposed on counts 1, 2 and 3, and that his Honour therefore regarded himself as entitled to sentence the appellant on counts 6 and 7 on the basis that the offence of theft contrary to s.74(1) of the Crimes Act then carried an increased maximum term of 20 years' imprisonment.

During the plea, the prosecutor drew the judge's attention to Part 2B of the Sentencing Act, and submitted that the appellant fell to be sentenced as a CCE offender, since she had pleaded guilty to counts 1, 2 and 3, each of which related to amounts in excess of $50,000. The judge responded -

"That sets up the argument for finding 'continuing criminal enterprise offender' in relation to counts 6 and 7, they being also amounts over $50,000."

Defence counsel then said that when the appellant had been initially charged in the Magistrates' Court, only one individual charge related to property exceeding $50,000. He submitted accordingly that the fact that rolled up counts had been created for the trial in the County Court did not lead to the application of the CCE provisions. He argued that the presentment had been framed in its then present form for reasons of practicality and to assist all parties. There had, however, he submitted, been no three single charges relating to property more than $50,000 in value before the charges were rolled up. This issue was then taken up by the judge with the prosecutor, his Honour putting to the prosecutor that what defence counsel had submitted was correct. The prosecutor accepted the correctness of the defence submission.

Mr Croucher who appeared in this Court for the appellant argued that the submission made by defence counsel before the judge had been correct, and that the CCE provisions had no application given that only one individual transaction over $50,000 (the theft from Virginia Anne Thornley, count 7) had occurred. He submitted that it could not be the case that an offender is subject to the greater maximum penalty provided for in s.6I(1) of the Sentencing Act if two or more transactions each of which involved less than $50,000 were rolled up in one count. He submitted also that the appellant had been denied procedural fairness in addressing further argument on the matter, since the judge had indicated that the appellant's argument had been accepted, and yet sentenced the appellant on the contrary basis without giving the appellant any further opportunity to address the issue.

In this Court, Mrs Quin for the Crown conceded that the judge had fallen into error in declaring the appellant a CCE offender. She accepted that in circumstances where offences are charged as a "rolled up" count, that count does not qualify as a Schedule 1A offence by virtue only of the "rolled up" value. In my view this concession is clearly correct. The sentencing discretion is accordingly reopened, the appeal must succeed and this Court must resentence the appellant.

On the basis that the matter should now proceed as a plea, Mr Croucher submitted that despite the seriousness and duration of the offending, the individual sentences, total effective sentence and non-parole period were all outside the range properly open given the factors in mitigation. These factors included, first, the appellant's acceptance of a plea brief, with the saving of police investigation time that resulted; her extensive admissions to and co-operation with police; her early plea of guilty; her remorse; her age and health problems; her lack of prior convictions; her history of community service; that her primary motivation for the thefts was that her husband required treatment for cancer over an extended period; and the hardship she had experienced in watching her husband deteriorate and ultimately die as a result of cancer. As to the fact that the sentencing judge had imposed higher sentences on counts 6 and 7, it was submitted that notwithstanding that the amounts involved in these two counts were larger, that did not justify longer sentences in all the circumstances. It was submitted that whereas the behaviour disclosed in counts 1 to 5 largely reflected money that had been taken and applied to the appellant's use, these counts (6 and 7) related purely and simply to a shifting of funds between accounts in order to cover up frauds that had already occurred. It was submitted that no additional loss was caused by this behaviour, they being futile acts of desperation, little different from the behaviour of a person who tells an obviously false story in a pathetic attempt to avoid being charged.

Mrs Quin accepted that the foregoing factors represented matters properly to be taken into account in mitigation. She submitted however that there were a number of aggravating features in relation to this case including the duration of the offending, the planning and opportunistic nature of the offending, the breach of trust (which was significant as it involved breaches of trust from family and friends and employer), the amount involved in the thefts, the number of victims, and the fact that the victims included both individuals and financial institutions. She submitted that principles of general deterrence had particular relevance to fraud offences involving a serious breach of trust.

The judge accepted that the appellant's prospects of rehabilitation were good and that it was unlikely she would re-offend. His Honour also took account of the fact that it was conceded that not less than $500,000 had been put to the appellant's own use in one form or another. The judge said that the appellant's late husband had been the subject of numerous surgical and like procedures in particular from 1993 until his death in 1997, and that significant sums had been used by the appellant to fund his treatment. His Honour noted however that the appellant's offending had continued for four years after her husband had died and found that by far the bulk of the stolen money was used on expenditure other than medical and like expenses. As his Honour said, the offences were deliberate and calculated and the appellant was able to avoid detection by manipulative conduct, vis-à-vis both the bank's auditors and her often absent employer.

The offences were carried out over a very long period. The appellant's husband died on 25 October 1997. She continued to steal moneys in breach of trust until January 2001. General deterrence is a significant sentencing consideration. Notwithstanding her remorse, her pleas of guilty and her age, and the fact that a custodial sentence will be very burdensome for the appellant, a substantial custodial sentence was inevitable.

15 I would resentence the appellant as follows:

That six months of the sentences imposed on counts 1, 2, 3 and 7 and three months of the sentence imposed on count 4 be served cumulatively on each other and on the base sentence of three years imposed on count 6. The total effective sentence would therefore become five years and three months. I would fix a non-parole period of three years.

There should of course be no declaration made that the appellant is a continuing criminal enterprise offender. The compensation orders made below should be confirmed.

I agree with the orders proposed by Charles, J.A. and his reasons for them. I have nothing to add.

1. The appeal is allowed and the sentence imposed below, including the declaration that the appellant is a continuing criminal enterprise offender, is set aside.

2. In lieu thereof the appellant is resentenced as follows -

on counts 1, 2, 3 and 7 - to 2½ years' imprisonment;

3. The Court orders that six months of the sentences imposed on counts 1, 2, 3 and 7 and three months of the sentence imposed on count 4 are to be served cumulatively upon the sentence imposed on count 6 and upon each other. The total effective sentence is therefore five years and three months' imprisonment.

4. The Court directs that the appellant serve a minimum term of three years before becoming eligible for parole.

5. The Court declares that as of today the period of 292 days be reckoned as already served under the sentence and directs that the making of this declaration be entered in the records of the Court.

6. The compensation orders made below are confirmed.

At a glance

Court

Decision date

Before

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Judgment (46 paragraphs)

Parties