R v Swift [2007] VSCA 52

R v Swift [2007] VSCA 52 - VSCA 2007 case summary — Zoe

1 I will invite Nettle JA to deliver the first judgment.

NETTLE JA:

2 This is an appeal against a total effective sentence of five years and three months imprisonment, with a non-parole period of three years and six months, imposed on the appellant on 9 March 2006 after pleading guilty to two counts of obtaining property by deception (counts 1 and 6) and six counts of obtaining financial advantage by deception (counts 2, 3, 4, 5, 7 and 8) totalling more than $1.5 million.

3 The appellant was granted leave to appeal by a single judge of this court on 7 September 2006, principally on the basis that at least one of the appellant's grounds of appeal was thought to be reasonably arguable but also because the judge thought that the court may wish to give some general guidance as to the way in which inadmissible, inaccurate or inappropriately prejudicial material in victim impact statements is to be handled by sentencing judges.

Use of victim impact statements

4 It is convenient to begin with that issue. Section 95B of the Sentencing Act 1991 provides that a victim impact statement may contain particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence but that the court may rule as inadmissible the whole or any part of a victim impact statement, including the whole or any part of a medical report attached to it. The section does not specify criteria of admissibility, and so it leaves the question of admissibility largely to the common law. But, in providing what may be included in a victim impact statement, it implies that a statement of particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence is not to be regarded as inadmissible by reason only that it is hearsay.

5 Section 95D enables the court to require the victim to attend and to give evidence and thereby to give first hand evidence of the contents of the statement. But that does not mean that a statement must be excluded as hearsay unless the victim is called. A statement which complies with s 95B may be received although it is hearsay, subject of course to exclusion in the exercise of discretion. Conversely, if the contents of a statement go beyond the matters mentioned in s 95B, the statement is to that extent liable to be excluded as hearsay unless objection is waived.

6 The appellant's argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim's concerns.[1] Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material. As Vincent JA observed in DPP v DJK:

[5]

7 Hitherto, counsel appearing before sentencing judges have tended not to say a great deal about the admissibility of the contents of victim impact statements. In effect, they have left it to sentencing judges to work out which parts of a statement are admissible and may be relied upon. Such an approach is to some extent contrary to mainstream criminal practice, where the taking of objections tends to be punctilious. But it has considerable advantages, in the context of a plea, which are likely to appeal to both sides. It also accords with the observations of Charles JA in R v Dowlan and of Vincent JA in _DPP v D_JK that it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded and confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.

8 Of course, it remains incumbent on counsel for a prisoner on a plea to take objection to those parts of material known to be before the judge which counsel wishes to have treated as inadmissible against the prisoner. Otherwise, as Murphy J said in R v Halden[3] (in another but related context), if it does not appear that a sentencing judge has necessarily relied upon material to which objection might successfully have been taken, counsel cannot hope to succeed in a submission on appeal that the judge in fact relied upon inadmissible material. Furthermore, if objection is taken on a matter of substance to any part of a victim impact statement which is inadmissible, the judge should either rule it inadmissible or make it clear during the plea or in his sentencing reasons that no reliance would be or was being placed on that part of the statement.[4] But, under the existing practice, there is no reason why a judge should not make full use of relevant material in a victim impact statement, including material which goes beyond the ambit of s 95B, so long as the judge first makes plain to counsel that he or she intends to adopt that course and counsel does not object.[5]

9 As at present advised, I see no reason to alter the existing practice. It provides advantages and a degree of flexibility of which strict adherence to the rules of evidence would not permit. From the victim's perspective, it has the advantage of avoiding the need for a court appearance and, in favour of the offender, it allows the sentencing process to be completed more quickly and without the same degree of concentration on victim impact that the attendance of the victim may produce. Provided the judge makes plain his or her intention to make use of inadmissible material in the statement, the offender has the choice of either allowing the judge to adopt that course or alternatively of objecting to the use of the inadmissible material and requiring the victim to be called to give evidence of it. There is also the further protection, as the court has stated more than once before, that victim impact statements are not to be used to produce a sentence which is unfair; and articulate or emotional statements should not be used to justify a sentence which is not just in all the circumstances.[6]

Ground 2: Use of victim impact statements

10 I turn, therefore, to the applicant's grounds of appeal and so, first, to the applicant's principal contention: that the judge made use of inadmissible material in the victim impact statements, without counsel's consent, in a fashion which was impermissible and unfair. I do not accept that contention.

11 It is true that the victim impact statements contained material which went beyond the ambit of s 95B. It is also possible, although not necessarily the case, that the judge took some of that material into account. But so far from not consenting to the judge making use of the material, counsel for the appellant on the plea[7] embraced many of the facts referred to in the statements and, in a number of instances, volunteered facts which made the point even plainer than the statements. The decision to do so was clearly calculated. Counsel virtually began his submissions on the plea with a declaration that he intended to take that course:

[21]

[COUNSEL]: It was done in July of 2001. On my instructions following the death of my client's mother he received $60,000 from the sale of his late mother's house. He purchased the house in Sorrento for a price of $310,000 with his original equity in the house being 20 per cent, which I make just over $60,000. The money for the purchase came from another source, but given that the business was already in trouble any person should have clearly paid the money to the business, especially given there's already been - - -

HIS HONOUR: If he's got access to Mr Harris, but with $190,000, it's a much easier way to go about it, isn't it?

[COUNSEL]: Your Honour, this is what he did and I'm not seeking to excuse it, but the 60,000 has come not from - - -

HIS HONOUR: It didn't come out of the business.

[COUNSEL]: No, and I asked him, 'Well, why, given what was happening with the business, didn't you apply the 60,000 to the business?' and he admits that that is what any honest person, any right-thinking person, should have done. He says, 'Look, I thought that maybe I could get the business around it and I thought this was a good investment' and it's again part of that facade he was wishing to maintain and I can't put it any higher than that but that's what he was doing at the time. In relation to both the Sorrento property and the Belgrave property, there were mortgages on both those properties and payments were made through the business, but on my instructions it wasn't the case that he would receive a significant amount from this offending and then pay off a lump sum of the mortgage - - -"

...

"HIS HONOUR: How many vehicles did they have?

[COUNSEL]: Two, and they were the Audi sports car, on my instructions - - -

HIS HONOUR: When was that bought?

[COUNSEL]: It was bought prior to the first offence. In relation to the new Mercedes four-wheel drive, that was being leased, it's clearly still inappropriate, and it's worth about 80,000 or was worth 80,000.

HIS HONOUR: When was that leased?

[COUNSEL]: That was leased in 2003, your Honour.

HIS HONOUR: So a year into the offending conduct.

[COUNSEL]: A couple of years into the offending. There was the purchase - and it's referred to in Mr. Harris's victim impact statement again in relation to a late model car provided to his son, and on my instructions that was a car that was being leased again through the business, and the worth of the car was $40,000. (My emphasis)

HIS HONOUR: His wife didn't have a car? Did his wife have a car?

[COUNSEL]: Prior to the purchase of the Mercedes there was a Nissan four-wheel drive which again was, as I understand it, part of a lease plan and again being paid for by the business. As I say, having put those matters, he accepts full well that that's the wrongdoing and that is not what an honest person does. He was being dishonest and he accepts that, and as was put in the Crown opening and is accepted, in terms of the motivating factors in a general sense one is to try and keep the business going because he regarded himself as a successful businessman, his other businesses had worked and he couldn't come to admit to himself or to his friends or to his family that he had failed, and I don't seek to put that in any way as an excuse for the offending." (My emphasis)

[24]

"COUNSEL]: That's what he told - my instructions are that's what he told Mr Newton that the car wasn't running at the time.

HIS HONOUR: That's not the way it's reported in the report, as I perceive it, because Mr Newton, no doubt as you will have seen, puts great - pays great heed to this so called attempt at suicide as demonstrating a whole range of things and if that's his interpretation, it appears to me to be at odds with what you put to me last occasion and at odds with what you're putting now."

...

"[COUNSEL]: I'm seeking to obtain some information from

Mr Newton in relation to that and perhaps I won't take that any further at this stage. But I do note, Your Honour, that in any event, the prisoner had gone to the various steps that he had - now, whether ultimately he didn't go through with it, in my submission it is still a significant circumstance.

HIS HONOUR: Significant in what way?

[COUNSEL]: In terms of - - -

HIS HONOUR: How does it mitigate - if that's what you're seeking to put - how does it mitigate in defending? How is it a significant factor that you're putting? I don't follow.

[COUNSEL]: In relation to how he viewed his offending and how he viewed - - -

HIS HONOUR: How does one know that it was as a result of a sudden stab of remorse that he's committed these crimes, and I can't face the world having breached the trust of my friends, I will go and commit suicide. In that scenario it might be a significant mitigating factor. On the other hand, if a person thinks that the lifestyle that he was used to and his family was used to was all over, and all his deceptive conduct and abuse of trust had come to light, and no more could he carry on with his fraud, then he might think well, how can I put up with this? I will do what I think is appropriate in the circumstances. In the second scenario, is that a mitigating factor in some way? Is it demonstrative of any remorse?

[COUNSEL]: No, in my submission the second scenario being put, as I understand what Your Honour says is simply, well, I can't lead a grand lifestyle any more, so I will - - -

HIS HONOUR: I've been shown up, I've been caught out, therefore I feel sorry for the fact that I lost my lifestyle, lost the capacity to have the beach house at Sorrento and the lifestyle that went with it, and I can no longer pretend that I'm this successful businessman, the game is up.

[COUNSEL]: In my submission, and regardless of what Mr Newton was told, various aspects of what Mr Newton has to say are relevant on that point, in that to some degree there is an overlap between those two scenarios in that I've let everyone down, I've let my family down, I've let that façade that Mr Newton talks about, that the prisoner seems to have been incapable of letting go, the façade of a successful businessman has been lost, it would appear that plays a part as well.

HIS HONOUR: What I am seeking to find out from what you are putting to me is what is it significant of. Now you haven't put to me thus far, unless I have missed it, it may be that I've missed it and you will no doubt remind me, but for example, on behalf of your client thus far, and it may be that you are going to make additional submissions now, but thus far you haven't put that he is able to claim in mitigation remorse.

[COUNSEL]: I will be submitting that, Your Honour, but I won't be placing great weight on this incident in April of 2004, and I will be turning to matters which I say allow Your Honour to make a finding that he is remorseful." (My emphasis)

[39]

"[COUNSEL]: I might say at this stage, Your Honour, because it clearly will come up, my client was, before the offending took place, had been a reasonably successful businessman, he had the house in Belgrave, the two children had been going to Caulfield Grammar and the family drove smart vehicles, vehicles that had been leased through the business.

Now the business starts going poorly and it is conceded that Mr Swift maintains the lifestyle and the façade of a successful businessman. One of the children had left school by the time the offending starts. But there were still school fees being paid at a private school.

And there was still mortgages being paid off and I'll come to that - - -

HIS HONOUR: Don't people who get into trouble who are honest and honourable people take the hard options, or do they just rip off their friends, associates and then come along and say, 'Oh but look, I had the house in Belgrave, a smart vehicle, as you put it - I don't know what that means, you're obviously more au fait with vehicles than I am, whether that involves the Holden Commodore or involves the Rolls Royce but no doubt, you'll tell me and he wouldn't have been able to downsize, of course, because there he was, a man of substance. (Indistinct) a fraud'.

[COUNSEL]: And that's what he's here for. An honest and honourable person says, 'Business isn't going as well' tells the business partner 'Business isn't going well' - - -

HIS HONOUR: But doesn't get the business partner in at all.

[COUNSEL]: This is what the honest and honourable person would do. But if he was honest and honourable Mr Swift wouldn't be here and that's - - -

HIS HONOUR: But to say that he's done it because - well I don't know why, you haven't gone to that point yet, that he was simply trying to prop up his business affairs. I mean, this is, on the face of it, and no doubt you'll disabuse me but from what I've heard so far, he for whatever reason, sets out to create a web of fraud to get as much money as he can for his own purposes. If that's wrong you'd better tell me.

[COUNSEL]: I will tell you, Your Honour. For his own purposes includes in this case seeking to maintain that façade of a successful business man, seeking it in two ways, if you like, one, trying to prop up the business with the hope that somehow things are going to turn around, and - - - "

[58]

39 In my view, ground 2 fails.

Ground 3: Finding of no significant remorse

40 I have referred already to the judge's observations that the appellant had demonstrated some limited remorse. In support of ground 3 of the appeal, counsel for the appellant contends that that finding undervalues the weight of the Newton report; evidence that before the appellant was charged he confessed to the three victims at a creditors' meeting; and the appellant's protestations of remorse.

41 I trust it will be apparent from what I have said that, apart from the financial vulnerability of Mr Rogers, all of the information on which the judge relied was before him in the form of admissible evidence and the submissions of counsel made on behalf of the appellant and, so far as the financial vulnerability of Mr Rogers is concerned, the judge indicated that he intended to rely on the victim impact statement as establishing the appellant's knowledge of that fact, and there was no objection to the judge adopting that course. In the circumstances, in my view, it was open to the judge to assess the degree of remorse just as he did.

Ground 1: Manifest excessiveness:

42 Under ground 1, counsel for the appellant submitted that the sentence was manifestly excessive, or at least excessive, because it was almost as severe as the sentence imposed in R v Healy[10] - which involved offending over a lengthy period of time with multiple victims and many millions of dollars - and only slightly less severe than the sentences imposed in R v Bulfin[11] and R v Jenkins[12] - where the nature and gravity of the offences was considerably greater - and because of the personal circumstances of the appellant. As the court has said before, however, structural arguments are of limited assistance.

43 I doubt that Healy is really much of a comparison. The offender there was sentenced to a total effective sentence of five years' imprisonment with a non-parole period of three years for offences involving the misappropriation of $913,460 obtained from 14 clients of Sentinel Financial Management Pty Ltd; the sum of $1,586,645.50 from a bank account of a company related to Sentinel Financial Management Pty Ltd of which the applicant was an officer; and the sum of $495,315 from the bank account of another related company of which the applicant was an officer. It is true that the sums involved were larger than in this case. But the circumstances were different. The bulk of the moneys were lost in speculative investments entered into with the object of generating profits for the investors, and not in propping up personal lifestyles beyond the means of the offenders.

44 Bulfin also seems to me to provide little by way of guidance. It was a Crown appeal against a lenient sentence imposed in circumstances where the offender was remorseful, co-operated with the authorities and agreed to give evidence against other accused and the prosecutor had not urged the sentencing judge to impose a higher penalty. Like Healy, the case turned very much on its own facts and the sentence ultimately imposed on appeal could not properly be regarded as reflecting the nature and gravity of the offending. In any event, there is no tariff. Each case and each sentence depends on its own facts.

45 That leaves the appellant's personal circumstances, of which counsel stressed the appellant's age and previous good character, his early plea of guilty, what was said to be his evident remorse, the punishment already inflicted by the shame and loss of reputation, what were said to be his excellent prospects of rehabilitation, the absence of aggravating features such as protection of the offender's own assets, contumelious denial of fault or seeking to put blame on victims, and what were said to be the unusual personality traits of the appellant.

46 The difficulty with those submissions, as I see it, is that in cases of this kind offenders are frequently first-time offenders who have otherwise led blameless lives, and who upon discovery of their wrongdoing demonstrate true remorse and are unlikely to re-offend. Accordingly, as Buchanan JA observed in Healy, the principal sentencing consideration in this kind of case is general deterrence:

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