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[2006] VSCA 154
Court of Appeal (Vic)
2006-07-31
WARREN, C.J., BUCHANAN and VINCENT JJ.A.
Original judgment source is linked above.
Criminal Law - Appeal - Sentencing - Total Sentence Manifestly Excessive - Mitigating Factors - Untreated mental health condition as consideration for grounds for appeal - Harsh effect of prison on mental health of the appellant - Appellant re-sentenced.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 The appellant was convicted of nine counts of false accounting and fourteen counts of theft in the Supreme Court on 3 June 2005. She was sentenced to a term of imprisonment of four years and a non-parole period of two years. The appellant appeals against the sentence imposed.
2 There are seven grounds of appeal. Grounds 1 to 5 contend that the sentencing judge erred in the exercise of his discretion through failure to accord sufficient weight to the appellant's mitigating factors - the appellant's early guilty plea, the making of full restitution, previous good character, the vulnerability of the appellant to the harshness of the imprisonment environment and the likely impact and effect of imprisonment. Grounds 6 and 7 argue that the total effective sentence and non-parole period fixed by the sentencing judge is, in all the circumstances of the case, manifestly excessive.
3 At the time of the offending, the appellant was employed as a solicitor at the Transport Accident Commission ("TAC") specialising in legal costing of TAC files. Earlier, in April 1982, she was admitted to practise as a barrister and solicitor of the Supreme Court of Victoria and worked mostly in the area of personal injuries. She developed expertise in the area of legal costing as an employee of a specialist company, Mahlab Costing Pty Ltd ("Mahlab"), and subsequently became an equity partner in that entity. In October 1998 she commenced her employment with the TAC, having responsibility for managing a team of consultants and legal officers. In the exercise of her responsibilities, the appellant was required to approve and oversee the issue of cheques for the payment of firms of solicitors with respect to the legal costs attached to TAC files. During the period from 31 January 2000 to 22 April 2004, the appellant stole cheques and falsified accounting records in order to obtain, or to attempt to obtain, for her own benefit amounts eventually totalling $366,745.67.
4 The circumstances of the appellant's dishonesty were discovered on about 26 April 2004 when a bank officer contacted the general ledger officer of the TAC concerning a cheque dated 22 April 2004 in the amount of $26,500 as the cheque appeared to have been altered. The TAC requested a stop order be placed on the cheque and the copy of the same be sent to them. Upon receipt of the copy of the cheque, the TAC observed that the payee was the appellant, then a TAC employee. An enquiry was immediately set in train and, as a consequence, it was discovered that in accordance with TAC records the payee for the particular cheque should have been a firm of solicitors, Ryan Maloney Anderson. It was the practice of the TAC for a cheque to be generated by way of a document entitled "General Payment Authority Form". The appellant, as group manager of the legal costs department of the TAC, was authorised to approve the generation of cheques.
5 Following the discovery, the appellant was interviewed by senior staff at the TAC. Initially she denied any wrongdoing but was suspended pending an investigation. Further enquiries by the TAC revealed that the bank deposit slip in relation to the cheque first mentioned disclosed a deposit account number that accorded with the deposit account number nominated by the appellant for the payment and disbursement of her salary as an employee with TAC. Subsequently, on 29 April 2004, the appellant met with representatives of TAC and admitted to misappropriating funds and tendered her resignation. On 30 April 2004, her employment was terminated.
6 The TAC set about an internal audit and forensic accounting investigation in order to ascertain the total number of misappropriations committed by the appellant. These investigations concluded that the appellant had misappropriated 21 cheques. Nineteen of the subject cheques were deposited into the account of the appellant totalling $366,745.67. The appellant also stole two other TAC cheques that were deposited into her account but the transactions did not proceed. One of those two cheques was for the amount of $23,000, deposited on 31 January 2000, and the other cheque was for the amount of $26,500 - the cheque that the appellant attempted to deposit on 22 April 2004 and triggered the inquiry from the bank. Thus, the total amount of the cheques misappropriated by the appellant was $416,245.67.
7 The modus operandi of the appellant followed one of three ways. The appellant would intercept a cheque that was generated in the ordinary course of business, falsify TAC records and change the payee details and deposit the cheque into her personal account. A second means of perpetrating the dishonesty was for the appellant to arrange an "offline" cheque to be issued and for that cheque to be delivered to her legal assistant. Apparently, the TAC permitted "offline" cheques to be drawn where monies were required as a matter of urgency. The appellant would provide instructions to her legal assistant to request a cheque which would then be generated and be delivered to the appellant for her to send to the payee. The appellant would effect the issue of cheques in this manner by noting on the TAC file that the cheque was in payment of an "interim" award for costs. The appellant requested offline cheques for fictitious interim costs payments once the cheques were approved and sent to her. The appellant would then appropriate the cheque and alter the payee details and deposit the cheque into her personal bank account. The last method used by the appellant was to intercept legitimate cheques that were not generated by the TAC but represented monies owing to the TAC and made payable to it. This occurred on two occasions.
8 On 14 December 2004, some seven months after the discovery of her dishonesty, the appellant was interviewed by the police. She read a prepared statement in the presence of her legal representative and set out her legal background and financial difficulties that explained her dishonesty. She made full admissions regarding details of dates, amounts and numbers of the relevant cheques and, also, the dates of the two cheques for $23,000 and $26,500 for which she did not receive any benefit. The appellant made full admissions that in order to obtain the benefit of the cheques to the TAC she would authorise a cheque in the name of a false beneficiary, usually a law firm. The cheque would be produced and signed by the finance team of the TAC and delivered to her office. The appellant said that she then used a knife to scrape off the printed name of the payee and insert her own name as payee and then deposit the cheque into her own bank account. In the record of interview the appellant was asked what she spent her wages on, what she did with the monies obtained dishonestly, her reason for committing the dishonesty and related questions to which she made a no comment record of interview.
9 There was no issue between the parties that the appellant admitted her dishonesty at an early stage; namely, at the meeting at TAC on 29 April 2004, that is, three days after the discovery of the theft and misappropriation of the cheques. She pleaded guilty at the first opportunity.
10 At the time of offending the appellant was between the ages of 45 and 49 years. She was 50 years old at the time of sentence and is now 51. She came from a comfortable background and was always desirous of winning her father's approval. As a consequence, she had self-imposed high standards with respect to her educational and professional achievements. She graduated in law and qualified for admission to practice as a barrister and solicitor. She married twice and had two daughters with her second husband who were 15 and 12 years at the time of sentence.
11 She commenced working as a legal cost consultant at Mahlab in 1987 to achieve greater professional flexibility when her children were young. In 1990, the appellant became a 25 per cent equity partner at Mahlab at a cost of $100,000 for which she borrowed the entire amount. In 1991, the appellant acquired an additional 25 per cent share in Mahlab at a cost of $10,000. Later, the loan of $100,000 was paid out and substituted by a new loan to the appellant from her partner at Mahlab. The appellant believed that in accordance with the partnership arrangements she was paid a salary and the costs of her childcare arrangements during her time at Mahlab. In 1998, ten years after her commencement there, the appellant left Mahlab and learned that she was indebted to her partner for the sum of $233,701, that being the balance of her loan account with the partnership. The appellant was informed that the amount owed related to childcare costs paid on her behalf by Mahlab. As a consequence, the appellant entered into a repayment arrangement with her former partner of $3,000 per month secured by an unregistered mortgage over the family home but without the knowledge of the co-owner, her husband. The appellant found difficulty in meeting the loan repayments and used credit cards until they reached their limits. Eventually, the appellant turned to the misappropriation of cheques at her employment with TAC to meet her obligations and needs. During the period of financial difficulty and extending into the time of dishonesty, the appellant's husband was physically and psychologically unwell. For this reason the appellant kept the burden of her financial plight from her husband. At the same time, the appellant lavished money on her children.
12 Soon after the thefts were discovered, the appellant commenced seeing a psychiatrist, Dr Lester Walton. Dr Walton gave evidence at the appellant's plea hearing and a report written by him, dated 21 April 2005, was submitted into evidence at the hearing. The report was not contested by the Crown and may be regarded as an accurate representation of the appellant's history and mental state until that time. It emphasised the appellant's personal background in particular and highlighted the relevant psychological factors which contributed to her offending, including the fact she was apparently 'pathologically moulded' towards shouldering of personal problems independently, an attitude which the appellant gained from her father and which may be traced to her childhood days. In Dr Walton's view, the appellant had no formal mental state of defence open to her. However, he stated his opinion that the appellant had suffered from at least nascent depression since childhood and that clinically recognisable depression had 'clearly' emerged following the birth of her first child and it was later aggravated by the physical and psychological illnesses affecting her husband. According to Dr Walton, these circumstances, along with a situation of spiralling debt, created a mindset in which the appellant chose to bear responsibility for her financial situation alone, and which in the end tempted her towards misappropriating funds from her employer, the TAC. He noted also that the appellant impressed as remorseful and his opinion that 'to the extent the depressive issues are properly addressed', her chances of re-offending were particularly low. At the conclusion of his report, Dr Walton made a further reference to the appellant's depressive state - which he classified as 'serious' - and stated that:
"Should it be inevitable that Ms. Rollo is incarcerated, then she certainly will be a 'fish out of water' in what I would regard as the most toxic prison environment in the State. It is highly probable that her depressive condition would be aggravated...".
According to Dr Walton, the appellant was likely to require a 'lengthy' further period of psychiatric treatment - treatment which she has not in fact received during her time in prison.[1]
13 I turn then to the grounds of appeal; first of all, to the claim that insufficient weight was given to the appellant's guilty plea. The appellant admitted her dishonesty and pleaded guilty at the first opportunity. In so doing, she saved the State considerable cost and effort in prosecuting the matter. In so doing, she also demonstrated her considerable remorse. Furthermore, the extent of her remorse and its impact on her health was supported by her psychiatrist Dr Walton. Consideration of the reasons for sentence reveals that his Honour set out a careful history of the appellant, the methods and circumstances of her dishonesty, the consequences of a custodial sentence for the appellant - both professionally and personally - and matters concerned with specific and general deterrence. In particular, his Honour gave close consideration to the submission on the plea as a factor in mitigation that the appellant was not working as a solicitor at the time of her dishonesty and had not worked as a solicitor for some years. His Honour rejected the submission and said:
"A distinction can be made between the position of a solicitor in private practice who steals his client's money from his trust account and an employee who steals from her employer. The distinction relates to the reliance by the client on the solicitor and the trust placed in him by the client. However, theft from an employer also involves a gross breach of trust particularly, of course, where the employee is able to have access to the employer's funds. The significance of the employer/employee relationship and its obligations should have been clearly obvious to you because of your legal education if not because you had practised a solicitor in the past. In this somewhat limited way the fact that you were a solicitor is relevant to the sentencing process."
14 Clearly, a relevant factor in the exercise of the sentencing discretion was the fact of the appellant's early guilty plea. Indeed, his Honour observed as much at the outset of the reasons for sentence. The matter of course here is the extent of the weight attributed to the appellant in this regard. It is apparent from the reasons for sentence that the sentencing judge gave careful consideration to this factor. The ground cannot be made out at least of itself.
15 The next ground was concerned with the weight attached to the appellant's mitigating circumstances. First, the making of full restitution and good character. In my view, restitution and good character were properly considered by the sentencing judge when he referred to the appellant's excellent reputation in all spheres of her life and her lack of prior convictions. His Honour indicated that there was a strong element of general deterrence in the punishment imposed, though mitigating factors such as the appellant's early guilty plea, lack of prior criminal history, remorse, restitution and the fact that the appellant had already suffered punishment through the loss of her reputation and profession were taken into account.
16 The circumstances of the appellant remain as they were at the time of sentence, save this Court was informed that the forecast by Dr Walton as to the appellant's experience and the deleterious impact incarceration would have upon her has been fulfilled. The appellant is presently located at the Dame Phyllis Frost Centre at Deer Park. Notwithstanding Dr Walton's diagnosis, the appellant has not received any psychiatric care since sentence due to the unwillingness of her psychiatrist (Dr Walton) to visit the prison, and the apparent unavailability of psychiatrists as provided through the corrections system As was observed during the course of argument, the facilities and range of options for the treatment and management of women prisoners are limited to two prisons, Dame Phyllis Frost Centre and Tarrangower. It was said in argument that a wider range of options is available for male prisoners. Doubtless, this is attributable to the greater numbers of men in prison leading to a much larger number of facilities with commensurate flexibility and variety of options. Indeed, the different needs of women in prison is well-recognised.[2] Counsel for the appellant indicated that the appellant had received some psychological treatment just after she was placed into custody but not otherwise. The absence of actual psychiatric care remains troubling, given Dr Walton's opinion of the appellant's mental state.
17 Nevertheless, the fact of imprisonment and its impact, although predicted by Dr Walton, has proven to operate more harshly than the sentencing judge could have anticipated at the time of sentence. The total effective sentence of four years with a non-parole period of two years was moderate given the gravity of the appellant's actions. The sentence reflected the sensitivity of his Honour to the factors operating in mitigation. Indeed, the individual sentences were very moderate. However, it transpired that the appellant has been subjected to a harsher sentence than could have been reasonably anticipated. The leaving of the appellant effectively untreated reflects a punishment over and above that ordered by the sentencing judge. In my view this factor is a proper basis on which to allow the appeal. The discretion is reopened in accordance with R. v Eliasen[3] and the cases thereafter.
18 A number of matters are to be taken into account in re-sentencing the appellant. They include the following: first, the appellant had no prior criminal history; secondly, she made admissions and cooperated with the police at an early opportunity; thirdly, she is unlikely to re-offend; fourthly, she suffered a difficult psychological history that affected her at the time of the offending; fifthly, she was remorseful; sixthly, she has found the prison environment very harsh. I have already referred to the appellant's psychological history and condition and its essential lack of treatment in the prison environment.
19 The offences perpetrated by the appellant were serious. However, specific
deterrence in the circumstances of this matter do not operate as significant a factor as might ordinarily be the case. Further, I consider that general deterrence should abate given the appellant's circumstances and condition, in particular, her psychological history at the time of offending. It is also apparent that she will suffer considerable hardship in prison so that she will be punished in a manner beyond that generally contemplated as acceptable to a sentencing court.
20 Taking all the competing circumstances into account, I would re-sentence the appellant and make orders, as follows:
2. The sentences of imprisonment imposed below on counts 1 to 23 are quashed. In lieu thereof the appellant is sentenced to 18 months' imprisonment on count 1, nine months' imprisonment on each of counts 2 to 19 (inclusive) and counts 22 and 23, and 18 months' imprisonment on counts 20 and 21.
3. The Court directs that one month of each of the sentences on counts 2, 4, 6, 8, 10, 12, 14, 15, 17, 18, 19 and 22 and three months of each of the sentences imposed in respect of counts 20 and 21 be served cumulatively upon the sentence imposed with respect to count 1, making a total effective sentence of three years' imprisonment.
4. A non-parole period of 18 months is fixed.
A declaration should also be made regarding pre-sentence detention.
21 Beyond this individual appeal, it is a matter of concern that for the third time in a short period the adequacy and availability of treatment for women prisoners suffering mental conditions has arisen. In R. v. SH,[4] the Court ultimately allowed the appeal and re-sentenced the appellant because of the hardship she would suffer in prison, in part, because of the insufficient treatment of the appellant's mental condition. In R. v. Wooden,[5] the Court considered the sentencing discretion to be reopened, in part, because of insufficient treatment of the appellant's mental condition. In both cases the appellants had been treated for a short period at the Thomas Embling Hospital and then returned to the women's prison due to a
shortage of hospital beds. In the present case it was not suggested the appellant required hospitalisation. However, the appeal highlights again the deficiencies in the provision of adequate mental health services to women prisoners in the corrections system.
23 I agree in the disposition of this matter as proposed by Warren, C.J. and I do so for the reasons advanced by her in her judgment.
[1] See para. [16] below.
[2] See, for example, 'Sentencing of Federal Offenders', (2005) Australian Law Reform Commission, Discussion Paper 70, [29.12] - [29.16]; see also, Christine Tye and Paul Mullen, 'Mental Disorders in Female Prisoners' (2006) 40(3) Australian and New Zealand Journal of Psychiatry 266.
[4] [2006] VSCA 83 at [22]- [23], [28].
[5] [2006] VSCA 97 at [7].
R
Rollo [2006] VSCA 154