R v Seiler [2005] VSCA 146

2 The appellant pleaded guilty in the County Court. On 27 August 2004, to four counts of obtaining financial advantage by deception in respect of each of which he was sentenced to imprisonment for three years. The sentencing judge made orders that two years of each of these sentences was to be served cumulatively upon two years of each other sentence. This created a total effective sentence of eight years. His Honour then fixed a non-parole period of four years.

3 As counsel for the Crown readily conceded in written submissions provided to the Court, his Honour clearly fell into error in sentencing in this manner. There was simply no base sentence to which orders for cumulation could properly attach and no appropriate framework against which the reasonableness of any particular order for cumulation could be assessed.

4 Setting to one side the obvious consideration that to sentence in this way is not permitted by the provisions of the Sentencing Act 1991, as Ormiston, J.A. pointed out in R. v. Nikodjevic[1], this is no mere matter of form or procedure, but one which may well result in sentences that arguably do not reflect the seriousness of individual offences in particular cases or their relationships to each other and can impact, as here, upon the appropriateness of the total effective sentence handed down.

5 In this situation, it is necessary for the Court to set aside the sentences imposed upon the appellant and to re-sentence him. Accordingly, there is no need to address the various complaints set out in the appellant's written submissions. However, I would add that, had it become necessary to do so, I would have expressed a view that the total effective sentence in this case was clearly and manifestly excessive.

6 The following description of the circumstances of the appellant's conduct is based upon the summary of evidence provided to the Court and concerning which, I understand, there is no controversy.

7 In September 2002, following the breakdown of his marriage, the appellant, who was then aged about 32 years, secured employment with TXU Australia Pty Ltd (TXU), in Melbourne, as a settlements team leader. His duties included the authorisation of payments to be made under what was effectively a form of insurance arrangement with an entity known as Energy-Koch Trading (EKT). The arrangement was designed to ameliorate the impact of an unduly mild winter upon sales of electricity and gas by TXU. It had, of course, run its season, as it were, at the time of the commencement of the appellant's employment.

8 There is nothing in the material before the Court that raises the suggestion that the appellant may have had some prior gambling problems or that he had been otherwise demonstrating irresponsibility in his handling of his own financial affairs, but in November 2002, that is, only a couple of months after he commenced work with the company, he began to experience financial difficulty. He had gambled away, in a very short period of time, most of his share of the distribution of the marital assets and his situation deteriorated such that, on 9 January 2003, he received a notice of eviction from the rented premises then occupied by him.

9 It was against this background that, on 15 January 2003, the appellant prepared a settlement authorisation voucher requesting payment of $32,645.17 to EKT. This was an entirely fraudulent request, as I have indicated, as the contract for the previous winter period had expired. The appellant altered the payment detail sheets from the earlier contract to specify that payment should be made to his own Bank of Melbourne account. He left the name of the party to be paid, EKT, unchanged, but simply directed, as I have indicated, that payment be made to himself. The documents were then forwarded to the accounts payable department. Payment was subsequently processed and paid into the account two days later, on 17 January 2003.

10 The appellant undertook this same process on twelve occasions on the dates and in the amounts detailed below.

11 The technique employed by the appellant was extremely simple with the unauthorised payments being made directly into his own account. I assume that, knowing a great deal about such matters, he must have realised that it was inevitable that he would be detected. Another curious feature of the appellant's conduct was the fact that on some of these occasions he already had substantial amounts of money in that account.

12 The appellant had no prior convictions, is obviously well qualified in business and finance, and he is apparently intelligent. He has worked for a series of major international financial institutions, and there is nothing to suggest that there was anything unstable about his prior character. When regard is had to that background, the transparency and easy detectability of what he did and what appears to have been an extraordinarily severe departure from his ordinary pattern of behaviour, it appears that the most likely explanation for his conduct is that he embarked on a course that was effectively one of self-destruction following a series of personal setbacks with which he found himself unable to cope.

13 Nevertheless, the appellant committed a large number of separate criminal acts, each possessing an extremely serious character. They required the making of multiple separate decisions and the creation of false documentation. The activities were carried on for several months and all involved fundamental breaches of the trust reposed in the appellant by his employer.

14 The offences were encompassed by four "rolled up" counts which had been formulated to cover the entirety of the period of offending and the separate criminal acts involved. So expressed, there may be a temptation to underestimate the continuing and high level of criminality associated with the appellant's conduct.

15 In considering the sentences that should now be imposed, I have taken into account the appellant's prior good character, the absence of any criminal history in his case, his early acceptance of responsibility for his conduct, the special circumstances that are likely to have contributed powerfully to the commission of the offences, and his good prospects for rehabilitation. I do not consider that the sentence to be imposed need be directed to specific deterrence, although it must reflect the seriousness of the conduct involved, the repeated breaches of trust in which the appellant engaged and the recognition by the Court of the importance of the principle of general deterrence in such cases. It is simply one of the realities of our very complex commercial activity and life in this community that those who are entrusted with responsibility, such as the appellant, must honour that responsibility. If they do not do so, then it also must be anticipated that the legal consequences will be severe.

16 Finally, there is no need, I consider, to differentiate between the sentences to be handed down for the separate counts. All involved large amounts of money and all related to several separate pieces of activity.

17 In the event, I propose that the sentences imposed in the court below be set aside and that in lieu thereof the appellant be sentenced on each of counts 1 to 4 to three years' imprisonment. I propose that nine months of the sentence imposed on each of counts 2, 3 and 4 be served cumulatively upon each other and upon the sentence imposed on count 1. This would create a total effective sentence of five years and three months, in respect of which I would fix a non-parole period of three years.

20 The orders of the Court will be:

Appeal allowed.

The sentence below is set aside and in lieu thereof the appellant is sentenced

to be imprisoned for a term of three years on each of counts 1, 2, 3 and 4.

It is ordered that nine months of the sentence imposed on each of counts 2, 3 and 4 be cumulated on each other and on the sentence imposed on count 1. The total effective sentence is five years and three months.

A term of three years is fixed before the appellant is to be eligible for parole.

The Court declares that, as at this date, the appellant has served a period of 258 days pursuant to this sentence and directs that this declaration and its details be entered in the records of the Court.

[1] [2004] VSCA 222.