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.