R v Swift [2007] VSCA 52

"The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made."[2]

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:

"[COUNSEL]: And to some extent I could take Your Honour through each of the offences but really, in a nutshell, that covers all of those offences - that's what he's doing and so, pointless to go through each and every offence and say, well look, the money went here, the money went there, and it's difficult to say. But what I want to do is to address, in relation to some of the items that he was maintaining, some particular matters, and I do it because they're referred to in the victim impact statement of Mr Harris." (My emphasis)

12 Counsel who now appears for the appellant argues to the contrary. In his submission, it appears from pages 55 and 57 of the plea transcript and paragraphs 25, 27, 44, 47 and 49 of the sentencing remarks that the judge made improper use of objectionable material in order to deprecate submissions made on behalf of the appellant regarding remorse; and to discount an apparent suicide attempt by the appellant; and made findings about the appellant's arrogance. But putting aside page 57 of the transcript, to which I shall come later, I cannot see that any of the mentioned passages bears that out.

13 At page 55 of the transcript the following appears:

"HIS HONOUR: That's a very difficult concept. Mr Newton [a consulting psychologist] is repeating what your client says, he's no[t] conducted any testing [he has] seen him perhaps twice, and all he can do is [say] that in his personal opinion, his expression of remorse appears to be genuine.

COUNSEL: If I can deal with one other aspect and then deal with Your Honour's comment. In relation to the victim impact statements, there is reference to the failure to apologise. My instructions are that my client has never felt that he was in a position to apologise. Whether or not that be the case, my instructions are that he was always sorry for his actions towards the victims, but felt that given their - - -

HIS HONOUR: Doesn't at least one of the victim impact statements specifically says, not a scintilla of remorse.

COUNSEL: Yes, in the sense that he's never apologised to them.

HIS HONOUR: Or in any other way expressed any remorse.

COUNSEL: Well, in relation to what's contained in the victim impact statement, in terms of how he could indicate remorse to the victim in my submission two ways that - - -

HIS HONOUR: He could pick up the phone and go around and see them and say, "I've used your money, I've blown it, and I am sorry and I did it for these reasons, please forgive me or don't forgive me", or write a letter.

COUNSEL: And I was addressing Your Honour in relation to that, and my instructions are that he felt because of the climate of hostility towards him - and he doesn't take

issue with that being understandable, it clearly is - he never felt that there was a position where he could apologise.

HIS HONOUR: He wanted to say he was sorry but he couldn't do it.

COUNSEL: Not that he couldn't do it. He didn't feel that it was a position that would be received, if you like, and - - -

HIS HONOUR: You can write a letter - - -

COUNSEL: You can write a letter but - - -

14 That passage does not imply any improper use of objectionable material. The judge's point about what the appellant said to Mr Newton is in my opinion as valid as it is obvious. Counsel confirmed that the appellant had not apologised to any of the victims and sought to justify the appellant's failure to apologise by reference to the hostility with which the appellant conceived that an apology would be received.

15 At paragraphs 26 and 27 of the sentencing remarks, the judge said this:

"26....Mr Newton reports that you are deeply ashamed of your criminal conduct and that you have expressed, to quote him, 'a heartfelt and apparently genuine sense of remorse and shame for your victims.'

27. [Counsel] submitted that you were remorseful for your criminal conduct. However you have not approached the victims because you felt that such an approach would be met with hostility. [Counsel] relied on Question 1060 in your record of interview, what you told Mr Newton in order to establish that you are remorseful. I am not satisfied on the balance of probability that you have expressed complete or significant remorse for your criminal offending, however there is some evidence of, in my view, some limited remorse."

16 I see no improper use of inadmissible material in that conclusion either. The prisoner said in answer to Q1060 of the Record of Interview, that:

"And if I had the time over again, it would never happen. And I apologise to all of those people that have been affected, and who knows, maybe at some stage I'll be able to - to - to pay them all back and"

Mr Newton expressed the opinion in his report that :

"Mr Swift expressed a heart-felt and apparently genuine sense of remorse and shame for his actions. He repeatedly stated how disappointed he was in himself and acknowledged candidly that he had betrayed the trust of people who had been close to him. Mr Swift stated that he fully accepted responsibility for his actions."

17 In the absence of any evidence of an apology, and in light of the statement made by counsel that the only excuse for the absence of an apology was fear of hostility, the judge was entitled to discount the appellant's answer to Q1060 and to discount Mr Newton's opinion. Self evidently, Mr Newton's opinion was no more reliable than the instructions on which it was based[8] and, when the judge asked counsel for the appellant where there was any evidence of remorse apart from the statements to police and Mr Newton, counsel's answer in effect was that there was none:

"HIS HONOUR: But where is the evidence that he's remorseful? I mean counsel can - you can say that but there is no evidence to support that, is there? You are just telling me what it is that he tells you he wants you to tell me.

COUNSEL: But in terms of Your Honour saying well there's no testing being done, the very issue of remorse, it always come down to what is said. Now whether or not that is genuine or not, whether it's in a letter written shortly afterwards, whether it's in a letter written weeks before the court, it always comes down to well that's just what the person has put in writing, or what is just what the person says. You can never, if you like, find from a test, yes he is remorseful, and all Your Honour is - - -"

18 In paragraph 49(5) of the sentencing remarks, the judge made reference to the appellant's arrogance as follows:

"(5) Your arrogance and the depth of your criminal offending in my view is demonstrated by:

(a) The purchase in 2001, after you had commenced offending, of a holiday house at Sorrento using the $60,000 that you had received as a beneficiary from your mother's estate to pay a deposit and then use moneys which had been stolen by you to meet mortgage payments until you were detected and charged.

(b) Your purchase of an $80,000 Mercedes four-wheel drive some two years into your offending conduct.

(c) Providing a $40,000 vehicle for your son and meeting the payments for that vehicle through the company where you put moneys stolen by you."

19 It is true that each of the matters to which his Honour there referred were mentioned in one way or the other in victim impact statements. But they were also established by admissible evidence and as a result of the following submissions put by counsel on behalf of the prisoner:

[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)

20 Counsel for the appellant argued on this appeal that the judge's reference to the $80,000 Mercedes Benz having been purchased (when in fact it was leased) showed that the judge had had regard to the impact statements as opposed to counsel's concessions in a particular which was detrimental to the judge's assessment of the nature and gravity of the appellant's offending or of his moral culpability.

21 I do not think that there is any substance in that point. I suspect that the judge was using the word "purchased" in the loose sense of "acquired on lease", just as defence counsel used it in his submissions to the judge. But even if that were not so, it surely cannot have made the slightest difference to the judge's assessment of the nature and gravity of the appellant's offending or of his moral culpability. As defence counsel said at the plea, and is obvious, it was wrong for the appellant at the same time as he was swindling his friends in order to maintain his life style to be further extending himself with the acquisition of expensive imported motor cars.

22 So far as the attempted suicide is concerned, there is simply no question of the use of inadmissible material. The judge discounted Mr Newton's conclusions because of a significant difference between what counsel said about the attempted suicide and what the appellant told Mr Newton about the attempted suicide. Indeed, as the following exchange between the judge and counsel demonstrates, counsel was sufficiently embarrassed by the difference once identified that he told the judge that he would not be placing great weight upon the incident.:

"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)

23 If all that were not clear enough, the judge then reiterated the point in paragraph 25 of the sentencing remarks, as follows:

"Mr Newton, psychologist, concludes inter alia that:

... after your offending was discovered you decompensated and attempted to take your own life. He reports that you told him you attempted to gas yourself, that you were discovered by a neighbour and taken to hospital for treatment. This account given to Mr Newton, in my view, flies in the fact of the account put to the court by your counsel. Your counsel put to the court that you had gone to Sorrento, that you had considered taking your own life, that you had made some preparations to do so by placing a hose from the exhaust into your vehicle, however you decided not to go through with it and it was after that point that your neighbour had arrived."

24 Paragraph 44 of the judge's sentencing remarks is directed to the likelihood of the appellant re-offending upon release. His Honour said:

"I have considered and determined that you have good prospects of rehabilitation. You have significant family support, you have a wider structure in the community available to you upon your release from prison, and you have a demonstrated capacity for diligence and hard work. However in my view you have demonstrated significant flaws in your character and a capacity to commit criminal offences over a long period of time and breached the trust of those closest to you."

25 Again I see nothing in that which is not supported by admissible evidence. The Record of Interview was replete with admissions of criminal offending over a long period of time, and also of admissions of abusing the trust which the victims had put in the appellant. The breach of trust was confirmed by the appellant's admissions to the psychologist, Mr Newton, which were set out in Mr Newton's report. And the character flaws were admitted in the Record of Interview and put beyond doubt by the appellant's preparedness repeatedly to cheat his friends out of very large sums of money over a long period of time. Consequently, even if counsel for the appellant had not embraced the victim impact statements as he did, any use which the judge might have made of their contents on this point could not have made any difference.

26 In paragraphs 49(1) and (2) of the sentencing remarks, the judge said that he regarded as an aggravating feature of the offending that:

"(1) The breach of trust is of the highest magnitude.

(2) You engaged in a sophisticated, well planned and executed series of fraudulent activities over a significant period of time."

27 Each of those matters was admitted in the Record of Interview and in the appellant's admissions made to Mr Newton, and each was expressly admitted by counsel for the appellant in his submission to the judge that:

"[COUNSEL]: Clearly, as indicated, Your Honour, this matter involves a breach of trust, and a significant breach of trust. The offending involves a large amount of money over a lengthy period of time. As such, it is conceded that the principle of general deterrence has a very large role to play in Your Honour's sentence, and Your Honour will also need to take into account principles of punishment and denunciation."

28 In paragraph 49(3) of the sentencing remarks, the judge said that:

"(3) You stole substantial amounts of money which were used for the following purposes:

(a) To prop up your business and maintain a façade of success.

(b) To maintain your opulent lifestyle.

(c) To meet various mortgage obligations."

29 All of that information was available to the judge from the Record of Interview and as a result of the following exchange between counsel and the judge:

"[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 - - - "

30 At paragraph 49(4) of the sentencing remarks, the judge said that he treated as an aggravating feature of the appellant's offending that he had known that one of his victims, a Mr Rogers, was financially vulnerable. The judge said:

"(4) You were aware that Mr Rogers was financially vulnerable as he had taken out a mortgage against his family home in order to invest in your bogus business ventures and you kept returning to him for further moneys."

31 I accept counsel's submissions that, were it not for the Mr Rogers' victim impact statement, that issue may not have surfaced. When interviewed by police, the appellant several times denied any knowledge of the source of Mr Rogers' investment and there was nothing about the matter in Mr Newton's report. But that said, the judge disclosed that he intended to take into account Mr Rogers' statement about the matter. And counsel did not say or imply that he objected to that course. The furthest that it went was at page 57 of the transcript as follows:

"HIS HONOUR: What you've got here, for example, as one of the victim impact statements attests to is the accused encouraging him to take a loan out against his own and only asset, his home, in order to invest in circumstances where he knew how those funds had been obtained and that he's - by what he did was he put at risk, not only the financial - the family's financial well being but the emotional well being. In other words, here you've got clear evidence of your client trading on his reputation, trading on a 30 year friendship as he's been one of the closest personal friends, and encouraging him after he was retrenched to put all his funds up to in excess of $300,000 into his business, and he says: 'Warwick Swift has not contacted myself or any member of my family since his business has gone into liquidation to show any remorse for the situation he has created due to his fraudulent activities.' (My emphasis)

[COUNSEL]: Well in relation to those fraudulent activities he's pleading guilty to those. In relation to the question of remorse, I have conceded that he has not contacted the victims. I have addressed you on that, and in my submission the factors that you can use to find remorse..."

32 If the appellant had wished to dispute the matter, his counsel needed only to object to its admissibility. In my view, by choosing not to do so, he signified to the judge that the objection was waived, and no doubt for good forensic reason. In the circumstances, I consider that the judge was entitled to do as he did.

33 Counsel for the appellant argues that an offender should not be taken to concede an otherwise unproved fact unless his or her counsel is put squarely on notice of the judge's intention to rely on it and, even then, that counsel's failure to object is not necessarily fatal to a ground of appeal based on the wrongful admission or use of the material. That point may be accepted. For what it is worth, I agree with the first part of counsel's proposition and I accept that there may be circumstances in which the second might apply. But neither part of it avails the appellant in this case. Plainly, the appellant's counsel was aware of the judge's intention to rely on the appellant's knowledge of Mr Rogers' financial vulnerability, and he did not suggest that it would be inappropriate for the judge to take that into account. It is not now suggested that counsel made a mistake, or that there is any other basis for allowing the appellant now to challenge his stance, and significantly as it seems to me, it is not now suggested that the appellant was not aware of Mr Rogers' financial vulnerability.

34 At paragraph 37 of his sentencing remarks, the judge said this:

"I have considered those submissions and conclude as follows. In my view whilst there are some similar features that exist between R v Benning and you, there are significant features that existed in that case which do not exist in your case. They include:

(a) That Benning disclosed information not known to the investigators which led to further counts being brought against him.

(b) That you used substantial amounts of money stolen to fund your lifestyle as discussed in my remarks.

(c) That Benning had made significant attempts to repay the bank.

(d) That the bank had reimbursed all of its bank customers which were victims of Benning's criminal conduct.

(e) That Benning was a bank manager and would never be likely to be in a similar position where he could re-offend and accordingly the court took the view in that case that specific deterrence was not a significant or important factor."

35 Counsel for the appellant argued in his written submissions that those observations amount to adverse findings which are potentially tainted by inadmissible material in the victim impact statements. I reject that argument.

36 The only finding in those paragraphs is that the appellant stole substantial amounts of money to fund his lifestyle and that upon release he might well find himself in a position where he would be tempted to re-offend. The former was admitted, and the latter was implicit in the facts, recorded in Mr. Newton's report, that the appellant had been in business since he was 21 years of age and was driven by a desire to succeed and impress. As the judge put it in the course of argument, in a fashion which defence counsel did not seek to dispute:

"HIS HONOUR: ... There is no doubt that your client is capable of holding a job down. If he was in a position of working for somebody and being paid a wage, no difficulty, he could do that for the rest of his life. However, your client is driven, and has been driven, based on the materials that exist in the report,[9] plus what you have put to me, to set up an empire or empires. There is absolutely no - there is no doubt that he's capable of holding down a job and perhaps supporting his family or being supported by his family, no difficulty about that. Where the risk for re-offending comes in your client's case, in my view, is that if he sets up a business, if he's then confronted with a similar situation, then the risks of him re-offending are high, because nowhere in the materials is there any basis for coming to the conclusion that - or being able to ensure that he doesn't put himself in that situation again."

[COUNSEL]: Well, one can never rule out that he can be put in that situation of running his business again..."

37 Last on this aspect of the matter, counsel for the appellant argued that it was apparent from the judge's sentencing remarks that his Honour was induced by inadmissible sections of the victim impact statements to disregard Mr Newton's opinion as to the appellant's pathological inability to face the future.

38 That argument is not persuasive either. It may be seen from the sentencing remarks that the judge gave active consideration to Mr Newton's opinion. His Honour noted the relevant aspects of the opinion in paragraph 25 of the sentencing remarks as follows:

"Mr Newton, psychologist, concludes inter alia that you:

1. Suffer from intense reactive anxiety as a result of your legal difficulties.

2. That at the time leading up to the offending...you were suffering from anxiety as a result of your perfectionist and inflexible approach to your life and work.

4. That you currently report significant depressive symptoms.

5. That the current symptoms warrant a diagnosis of chronic adjustment disorder with mixed anxiety and depressive mood.

6. That you require treatment for your current problems."

His Honour concluded, however, in paragraph 26 of his remarks, that what was said was not particularly important because it was not said that the appellant was suffering from depression at the time of offending.

"26. Mr Newton, as I understand his report, does not conclude that you were suffering from depression in the period leading up to and including the offending period as set out in the presentment..."

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:

**"**The common characteristics of those convicted of fraudulent misappropriation of moneys entrusted to them explain why punishment that acts as a general deterrent is required and why personal deterrence is of relatively little significance. The punishment marks society's condemnation of their conduct and serves as a warning that those who abuse the trust of others by defrauding them will not escape because of their previous character and the effect of conviction alone upon their future lives. As the Full Court said in R v Moffatt,[13] contrasting what it termed 'white collar' crimes with crimes of violence and theft:

'A custodial sentence sends a salutary signal to all persons, no matter how unblemished their records, that depredation of trust monies, as a trustee, in significant sums warrants gaol. It is likely that many persons in the general community will be deterred from the commission of these offences if it is generally known that prison follows.'

In DPP v Bulfin [14] Charles JA noted that those convicted of white collar crimes usually have no prior convictions and are unlikely to re-offend and said:

'A further matter is that, in the case of white collar crime, the lives of the offenders and their families will frequently have been devastated by the consequences of discovery and punishment. The present case is a very good example. It would be difficult not to feel great sympathy for the respondent's wife and family and, indeed, for the respondent himself. But I think there is a serious risk that the consequences of discovery and punishment, and the havoc that a custodial sentence usually wreaks on the lives of the white-collar criminal and his or her family, may have a tendency to distract attention from the importance that general deterrence ought to carry in the imposition of sentences for crimes such as the present.'"[15]

47 Apart from that, the judge took into account each of the matters which are now urged in mitigation of penalty and his Honour explained why he accorded to them the weight which he did. I see nothing in that part of his Honour's reasoning or in the sentencing synthesis which is indicative of error.

48 Finally, I add that, whatever may be said about the appellant's antecedents, psychological imperatives, profound remorse or prospects of rehabilitation, the fact is that he was convicted of two counts of obtaining property by deception and six counts of obtaining financial advantage by deception, extending over more than two and a half years and totalling some $1.5 million. As the judge observed, the offences were commited principally to maintain a luxurious lifestyle at the expense of others, and, in this case, the others were trusting friends of whom the appellant took calculated and cynical advantage. The maxiumum penalty for each of the offences of which the appellant was convicted was 10 years' imprisonment. In the circumstances, I do not regard a total effective sentence of only five years and three months, with a non-parole period of only three years and six months as in any way excessive.

Conclusion

49 I would dismiss the appeal.

52 The order of the Court is that this appeal is dismissed.

[1] R v Dowlan [1998] 1 VR 123 at 140, per Charles JA.

[2] [2003] VSCA 109 at [17]; see also DPP v Toomey [2006] VSCA 90 at [21].

[3] R v Halden (1983) 9 A Crim R 30 at 40-41, per Murphy J and at 35, per Lush J; see also R v Cattell (1990) 49 A Crim R 412 at 415; R v Cambareri [2001] VSCA 39 at [21].

[4] R v Dowlan [1998] 1 VR 123 at 140 per Charles JA.

[5] R v Raimondi [1999] VSCA 101 at [15], per Tadgell JA and at [35], per Callaway JA, in diss, but not in principle; R v Wilhelm [2005] VSCA 192 at [12].

[6] R v Skura [2004] VSCA 53 at [12], and see the cases there cited.

[7] Not the same counsel as appeared for the appellant before this court.

[8] R v Ahmed Din [1962] 1 WLR 680 at 685; R v Anderson [2000] VSCA 16; (2000) 1 VR 1 at 25[59]; Heydon, Cross on Evidence, Aust Ed. at [29025].

[9] Scil. Mr Newton's report.

[10] [1999] VSCA 219.

[11] [1998] 4 VR 114.

[12] [2002] VSCA 224; (2002) 6 VR 81.

[13] (unreported, Supreme Court of Victoria, 4 December 1992).

[14] [1998] 4 V.R. 114 at 131.

[15] [1999] VSCA 219 at [18].