R v Schroen [2001] VSCA 126

Court of Appeal (Vic)|2001-08-02|Before: WINNEKE, P., CHARLES and VINCENT, JJ.A.

The applicant entered a plea of guilty before the County Court at Melbourne on 14 December 1998 to 15 counts of theft committed between November 1996 and January 1998.

She had been, during that period, employed as a clerical assistant at the Canterbury Private Nursing Home and, as part of her duties, was responsible for the preparation of fortnightly wages sheets for the payment of staff wages, including her own. Availing herself of the opportunity which this position afforded her, through the creation of false records, the applicant fraudulently secured overpayment of amounts of $2,000 to $4,000 per fortnight, totalling, over the period of 15 months involved, approximately $94,000. The offending started within a few months of the commencement of her employment and continued until the overpayments were discovered in January 1998 when an audit was conducted.

After hearing a plea in mitigation, Judge Anderson, in the County Court proceeding, imposed a sentence of imprisonment for four months on each count, with one month of each of the sentences on counts 2 to 15 being served cumulatively upon the sentence imposed on count 1 and each other. This created an effective sentence of 18 months' imprisonment in respect of which he fixed a non-parole period of four months.

The plea presented before Judge Anderson possessed a number of unsatisfactory features. It was claimed, for example, that some of the stolen money was used to pay drug debts incurred by the brother-in-law of the applicant. His Honour, after a careful analysis of the records before him, concluded that this was highly unlikely to have been the case. The assertion was advanced that the proceeds of her offences were used principally for the payment of household accounts and the acquisition of necessary items for the family of the applicant. Whilst it became clear that some of the money was so expended, it was also evident, as his Honour demonstrated, that an accurate picture was not being presented to him and that significant amounts were expended on holidays and so forth. At one stage, a character witness called on her behalf claimed to have been acquainted with the applicant for "most of her life". That person subsequently admitted in cross-examination that he was her brother, and asserted that he employed the expression "most of her life" as he was younger and not with any intention of misleading the court. His Honour rejected the evidence of this witness.

(a) that her then employer had offered her, and that she had a very, very good chance of obtaining, a Sydney-based position that would pay her an annual salary of between $100,000 and $120,000;

(b) that her employer, Konica Australia Pty Ltd, had issued her with airline tickets to travel to Sydney to attend interviews for the said position;

(c) that she had travelled to Sydney on two separate occasions to attend interviews for the said position;

(d) that she was to travel to Sydney at around 18 December 1998 to attend a third interview for the position';

(e) that if she were successful in obtaining this position, Konica Australia Pty Ltd would assist her in finding accommodation and relocating herself and family to Sydney.

These statements were false and they were made for the purpose, inter alia, of persuading the judge that the applicant would soon be able to make restitution of the stolen money if afforded the opportunity to do so. This endeavour was unsuccessful, as his Honour determined correctly that she lacked candour. He said that he would not act on her evidence unless it was independently corroborated.

The statements, however, provided the basis for a charge of perjury to which the applicant pleaded guilty before Judge Campbell in the County Court at Melbourne on 6 June 2000. His Honour, after hearing a plea in mitigation of penalty, imposed a sentence of nine months' imprisonment, the service of six months of which was suspended for 12 months.

The applicant initially sought leave to appeal to this Court against that sentence on the sole ground that it was manifestly excessive. However, on 27 July 2001, leave was granted by the Registrar of Appeals to amend the notice of application by the addition of the following grounds:

"2. That the learned sentencing judge erred in not sentencing the applicant to a fully suspended term of imprisonment. 3. That the learned sentencing judge erred in placing undue weight on general deterrence. 4. That the learned sentencing judge erred in characterising the applicant's offending as a serious example of the offence of perjury. 5. That the learned sentencing judge erred in that he failed to have sufficient regard to: (a) the fact that an actual term of imprisonment was imposed on the applicant on the 21st December 1998; and (b) the progress of the applicant since she was granted parole pursuant to the sentence imposed on the 21st December 1998; and (c) the psychiatric evidence of Dr Kornan; and (d) the effect that a further actual term of imprisonment would have on the applicant and her family; and (e) the applicant's state of mind at the time of the commission of the offence; and (f) the attitude of the prosecution to sentence; and (g) the applicant's plea of guilty."

Although the added grounds set out a number of complaints, at heart they rest upon the contention contained in grounds 1 and 2 that the imposition of a sentence involving the immediate incarceration of the applicant, albeit for a quite short period, was manifestly excessive in all of the circumstances.

It has not been contended before this Court that a sentence of imprisonment was not called for, or that the period fixed by his Honour was inappropriate, but rather that the proper exercise of discretion required that service of the whole of any such sentence should have been suspended.

No assertion has been made in any of the grounds that the sentencing judge erred in law in directing attention to the matters taken into account by him, or that he failed to have regard to any applicable sentencing principle. Grounds 3 and 5 are concerned only with the weight that it is claimed was attributed by his Honour to each of the various considerations mentioned, whilst in ground 4 the contention is advanced that he took too serious a view of the applicant's conduct. Grounds 5(c) and (e), I should add, were abandoned at the commencement of the hearing of this matter.

With respect to the view that his Honour took of the applicant's conduct, he remarked when sentencing her:

"It was, however, at least in my view, an artful concoction. It utilised some circumstances unrelated to the vaunted position carrying the salary mentioned, to fabricate a lie with the object of persuading the court that the best chance of your victims' recouping their losses was not to send you to gaol, to let you pursue that position."

"It was much urged by Mr Morrissey on your behalf that the fact that his Honour was not accepting of this, then unknown, piece of perjury diminished the seriousness of that offence. I do not entirely agree with that proposition and it was not supported by any authority. Compare R. v. Lal (1978) C.L.R.52. I regard this as a serious offence and I observe in reading the plea made by your then counsel, to Judge Anderson, the matters you swore to were heavily relied upon by her in seeking to avoid immediate incarceration ... "

"At the same time, as I have said, this is, in my view, a serious offence and attracts the principle in particular of general deterrence."

I am not able to detect error in any of these statements.

It is apparent that the integrity of the operation of the system of courts upon which, it must be remembered, our community depends for the proper determination of matters of fact in both civil and criminal proceedings, may be seriously compromised and the achievement of the ends of justice thwarted by the deliberate making of false statements on oath. It is not always easy or even possible to establish that perjury has been committed. Sometimes, unfortunately, the lie may not be exposed and the injustice which has been occasioned remain unrectified. Not only can this have a serious effect upon those with a direct interest in the outcome of the particular matter, but it may also engender a reduction of confidence in the community in the reliability of court decisions generally. For these and a number of other good reasons, the crime of perjury, particularly when committed in a curial setting, is regarded very seriously indeed. The sentencing judge correctly indicated that the principle of general deterrence will, in consequence, normally possess a high degree of significance as a sentencing consideration. As Charles, J.A. pointed out in R. v. Patniyot. and Dailakis[1], this offence can strike at the very foundation of the legal process and it would be a wholly exceptional case where the giving of false evidence on oath would not warrant an immediate custodial sentence.

Of course, the crime of perjury can be committed in a wide variety of circumstances and for a multitude of motives some of which are very substantially more deserving of condemnation than others. The consequences of the making of perjurious statements may also differ dramatically. In this context, it must be borne in mind that the offence carries a maximum penalty of imprisonment for 15 years. In the present case the applicant, in order to avoid the consequences of her earlier acts of dishonesty, brazenly presented what his Honour referred to as a "farrago of lies" to the court. That behaviour was correctly categorised by him as a serious breach of the criminal law. Acknowledging the significance of her conduct, the sentencing judge clearly did not regard the activities of the applicant as requiring the imposition of a penalty reflecting the commission of an offence in the upper range of seriousness.

Nevertheless he did arrive at the view which, in my opinion, the totality of the circumstances, including those which militated in favour of mitigation, required him to reach, that a sentence involving a period of immediate incarceration was required.

Before doing so, he took into account a number of matters advanced on behalf of the applicant. Although several criticisms have been advanced in ground 5 of the notice of application concerning the weight given to them,. I am unable to detect any error with respect to any of the matters raised. Accordingly, they can, I consider, be addressed fairly briefly. It was suggested that the ineptitude of the applicant's endeavour to mislead Judge Anderson could indeed have been counterproductive and contributed to the imposition of a sentence of imprisonment by him. Having been penalised already for its commission, the argument proceeds, the perjury offence should have been regarded as mitigated. I am not persuaded by this contention.

There is nothing to be found in either the sentencing remarks of Judge Anderson or the sentences imposed by him which is capable of supporting any suggestion that the applicant had already been punished for the offence of perjury. His Honour was clearly entitled to have regard to the applicant's lack of candour when determining an appropriate sentence for the offences before him. Her explanations concerning the reasons for offending possessed relevance when considering her level of personal culpability, the presence of any sense of remorse,

the significance of specific deterrence as a sentencing consideration and her prospects of rehabilitation. The sincerity of any offer to make restitution, which included the practical possibility of doing so, was a matter to be taken into account, as the applicant clearly appreciated by entering the witness box in person.

Accepting that his Honour was understandably unimpressed by the applicant and required corroboration of her evidence before he would act upon it, there is no indication that he concluded that she had lied in relation to the employment possibility in Sydney, or that the sentences imposed by him were influenced by any perception that she may have.

With respect to the other matters set out in ground 5, his Honour made it clear, by specific reference to almost all of them, and it is apparent from the sentence itself that he was mindful of the remainder, that he had regard to the relevant considerations. Specifically in this context, reference should be made to the hardship which was likely to be suffered by the applicant's family in the event of the imposition of an actual term of imprisonment. His Honour, as counsel before this Court has conceded, was clearly concerned about that consequence. It is evident, in my view, that the leniency of the sentence that he ultimately imposed was to a substantial extent a consequence of that very concern.

21 I have detected no specific error in respect of any of the other matters which have been raised in this Court, and I regard the sentence itself as being extremely lenient in the circumstances.

I have listened with care to the arguments skilfully put forward on behalf of the applicant by Mr O'Connell. At the end of the day, I agree with Vincent, J.A. that this application must be dismissed, and for the reasons which his Honour gives.

In my view, the sentencing judge was very merciful. I think the applicant's sentence is in all the circumstances at the very lowest end of the available range. I would dismiss the application, for the reasons given by Vincent, J.A.

The formal order of the Court will be that the application is dismissed.

The Court notes, having regard to the fact that the applicant has been on bail, that she has in fact served 11 days of the sentence imposed on her, so that she will have something in the vicinity of two months and 20-odd days to serve. That will be noted in the formal order.

Criminal law - Sentence - Perjury - Manifest excess - General deterrence - R. v. Patniyot and Dailakis [2000] VSCA 55.

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