R v Talia [2009] VSCA 260

1 John Michael Talia was found guilty after trial in the County Court on a count of obtaining property by deception.[1] On 22 August 2008 he was sentenced to three years' imprisonment, one year of which was suspended for three years. Now, by leave, he appeals against sentence. The grounds upon which he appeals are as follows:

Ground 1: That the sentence imposed was manifestly excessive.

Ground 2: That the Learned Sentencing Judge erred in that he did not take into account a relevant matter, namely that the appellant was rendered ineligible for employment as an agent's representative as a result of his conviction.

Ground 3: That the Learned Sentencing Judge erred in his characterisation of the offending, namely that he overstated the gravity of the offending conduct.

Ground 4: That the Learned Sentencing Judge erred in that he did not give any weight, or any sufficient weight, to a relevant matter, namely delay.

2 The offence took place on 1 July 2002. The appellant was then aged 47. He had no prior convictions. He was an agent's representative, employed by a company of which his wife was a director. The company held a Ray White Real Estate franchise in East Doncaster.

3 In 2001, the late Antonino Carboni was an elderly man in poor health. He vacated his long time home in Burwood East and went into a retirement home. He gave a power of attorney to Mrs Stella Garretto. It was decided to rent out the premises. Mrs Garretto approached the agency to handle the rental and to advise on necessary repairs. Advice was given and repairs were undertaken. A tenant was found.

4 In mid 2002, however, Mrs Garretto decided to sell the property. The appellant, in substance, bought it, the nominal purchaser being a company which he controlled and of which his wife was a director.

5 The purchase price was $150,000. Mrs Garretto relied upon a market appraisal made by a man named Torelli, a long-time associate of the appellant and, to some extent, upon outdated and likely conservative rate notices. The appraisal valued the property in the range of $135,000-$155,000. The person who made the appraisal did not inspect the property. He acted upon a value advised by the appellant. The true value of the property, according to the evidence, was $300,000 or more. Mrs Garretto did not take independent advice before agreeing upon the purchase price. A contract note which she signed on 1 July 2002 stated that a named company was the vendor's agent. That was not so. There was a company of that name. It was associated with another person known to the appellant. It had played no role in the negotiations.

6 Mr Carboni died in June 2003. The estate's solicitor was dissatisfied with what had occurred regarding the property. A proceeding was commenced against the appellant[2] in the Supreme Court of Victoria. In early 2006, the proceedings were settled, in substance by the appellant agreeing that the property be sold and the net proceeds remitted to the estate. The property was sold, the net proceeds $196,293 were remitted to the estate, and the estate retained the $150,000 which had been paid in 2002.

7 Going back in time, the appellant was interviewed about his purchase of the property on 10 August 2004. This was a consequence of the solicitor having brought the matter to the attention of the police in November 2003. He was re-interviewed in March 2005. A charge was laid a week after the property sale finally settled in June 2006. There was no committal hearing until April 2007. The trial was initially fixed for hearing in February 2008. That date was vacated on the appellant's application. The trial eventually took place in August 2008.

8 We have described the circumstances of the offending. This is how the learned sentencing judge characterised it, and the sentencing considerations which were thereby engaged:

Enraged rhetoric at what you have done is probably unnecessary. The facts speak for themselves. In a considered and artful way, over a significant period of weeks, not days, you cheated two vulnerable people of a large part of the real value of an elderly man's home. It was insurance for some comfortable life towards his end. You did that motivated by breathtaking greed. Perhaps inflamed by that or a diminished business ethical sense (I am in no position to particularly find on these things), you had callous, almost brutal disregard for the fate of Antonino Carboni. It was outrageously immoral behaviour. It was the more serious of course because of the professional position you held and its relationship to what you were able to do. Self-evidently, the sentencing considerations of deterrence, particularly general but also specific deterrence, your moral culpability and the need to express condemnation of what you did are very important indeed. The only just and proportionate sentence is a term of immediately served imprisonment.

9 The learned sentencing judge said this with respect to the appellant's personal circumstances:

1. You are now 53 years of age and have no prior convictions. You have been married for 27 years and have two children. Your wife and daughter work in real estate with you. When you are in prison, the business will seek to continue. As I understand it, both have relevant licences.
2. You left school at the beginning of form 5 at 16 and have worked hard and successfully since. You started a cadetship with Myers and worked in menswear retail, after a time owning and managing two franchise jeans stores. You moved into real estate at 31. You progressed as an employee salesperson to management positions and you bought into Bonds Real Estate. Your area has always been, as here, the residential market. At one stage there were two offices, and the clothing stores, it seems, were still going. Fluctuations in business fortunes, including the 1991 recession, led to reduction. By the early 1990s you owned and controlled Bonds. There was one office in the Doncaster area and you had let the clothing businesses go. You closed them.

1. There are some favourable matters personal to you, which to some extent should moderate that sentence. You must be seen to be of hitherto good character. Although the offending was as I describe and without redeeming feature in any way, you should be seen as capable of rehabilitation. You will likely suffer professionally and commercially and that will effect not only you, but also your family. I agree that imprisonment will be harder for someone like you than for many others. There has been restitution, not of the kind that often reflects remorse or insight into the evil of what you have done. However, the loss, at least to Antonino Carboni's estate, has been made good. There is no evidence before me as to how Antonino Carboni was affected by your crime during his life.

(1) Sentencing statistics - with all their limitations, and putting the particular circumstances of the offending to one side - showed that this sentence significantly exceeded the median and average custodial sentences imposed for this offence.

(2) Focussing upon the instant case, the sentence was manifestly excessive in light of -

• prospects of rehabilitation, and loss of profession;

(3) Upon the issue of the seriousness of the offence:

2.8 The judge was obviously moved by the offending, as is reflected by the somewhat emotive language used to describe it (such as 'breathtaking greed', 'callous, almost brutal disregard for the fate of Antonio Carboni', 'outrageously immoral'). Indeed, from the language used it is hard to resist the conclusion that the judge was swayed subjectively to an unreasonable extent by the circumstances of the offence.

2.9 However, even were the various epithets employed to describe the offending appropriate, the following factors, it is submitted, should have been given more prominence in the assessment of the offending:

3.1 The Appellant had 'worked hard and successfully' since leaving school at 16 years of age (Sentence at [15]). Although, however, the sentencing judge said that the Appellant 'will likely suffer professionally and commercially' (Sentence at [18]), this was, it is submitted, a significant understatement of what was the undoubted destruction of the Appellant's career in real estate.

3.2 By s. 16(1)(c) of the Estate Agents Act 1980 ('the Act') a person is ineligible to be an agent's representative (the position occupied by the Appellant) if he or she has been convicted within the last 10 years of any offence involving 'fraud' or 'dishonesty' punishable by imprisonment of three months or more. Such ineligibility automatically commences, within the terms of section 16(1A)(c) of the Act, upon the expiration of 30 days following conviction for a relevant offence.

3.3 It may thus be appreciated that the automatic 10 year period of ineligibility for the 53 year old Appellant effectively marks the end of his 22 year career in real estate. The sentence does not, it is submitted, reflect that professional destruction.

4.1 The delay, it is submitted, must have been undervalued in the sentencing process. There was a gap of six years between the offence (July 2002) and the sentence (August 2008), and four years between first interview (August 2004) and sentence. It seems to have been given no discernible weight in the sentencing process.

4.2 Delay was, however, relevant in several respects and should have been - but was not - regarded as a 'powerful mitigatory feature'. Issues such as rehabilitation and fairness (including the prospect of imprisonment hanging over the Appellant's head) should have been regarded as important in the exercise of the sentencing discretion. They should have dictated, it is submitted, a far more moderate sentence than that passed.

11 Orally, Senior Counsel focussed particular attention upon the significance of what he contended was the appellant's loss of profession and of delay in the period between the initiation of the police investigation and eventual conviction and sentence. He accepted that neither of these matters had been properly addressed on the plea, but submitted that there had been fault on both sides and that this Court should consider their merits in order to prevent perpetuation of an erroneous sentence. He accepted that the gist of the appeal was directed to grounds 2 and 4, and he directed scant attention to grounds 1 and 3.

12 Counsel submitted in writing that the appellant did not satisfy the obligation necessary to establish manifest excess of sentence. The offence had involved an egregious breach of trust comparable to an offence committed by a solicitor and deserving of condign punishment. The role of general deterrence, counsel submitted, was pre-eminent in the sentencing process to preserve the faith of the community in the integrity of the real estate industry.

13 Orally, counsel accepted that no explanation had been offered for the delay between the reporting of the matter to the police in November 2003 and the commencement of the investigation in August 2004. The same situation applied in the period between August 2004 and October 2005, at which later time a statement was taken from Torelli as a potential witness rather than as a suspect. He accepted that the appellant had been in a position of uncertainty between August 2004 and June 2006, at which later time the criminal proceeding was instituted. But he submitted that the judge, although delay had not been squarely raised on the plea, had in fact given weight to its significance when he sentenced the appellant - because he had acted on the footing that the appellant had led a blameless life before and after July 2002.

14 Upon the issue of loss of profession, counsel submitted that such a loss, on a plea, is generally relied upon - he implied legitimately - as a fall from grace. That was to be contrasted with an argument that loss of a profession is an extra-judicial punishment and so stands in mitigation.

15 In our opinion, appellant's counsel was correct not to press grounds 1 and 3. This was a serious instance of the particular offence, the appellant's conduct being calculated and perpetrated against an elderly man whose interests were represented by a person who was commercially unskilled. The offence only came to light because the solicitor for Mr Carboni's estate realised that something had gone wrong and took two steps in consequence - first, to bring a civil proceeding; and second, to inform the police about the matter. Further, the appellant at no time acknowledged his criminal behaviour. His records of interview were intendedly exculpatory. There was no evidence of remorse. True it is that Mr Carboni's estate eventually recouped the full value of the premises and that this happened before the appellant was charged. But that recoupment, a consequence of the civil proceeding, did not bespeak remorse. Rather, it reflected the great likelihood, as demonstrated by the jury's satisfaction of the appellant's misconduct to the criminal standard, that the civil proceeding would have resulted in a judgment unfavourable to the appellant.

16 In the event, although, so far as they can be of any use, the sentencing statistics relied upon by the appellant show that the sentence imposed upon the appellant was substantial, we would not have been persuaded, had grounds 1 and 3 been pressed, that they had any force. The learned judge below was correct to characterise this as a serious instance of the offence, and we would not have been persuaded that the sentence fell outside the boundaries of the exercise of the sentencing discretion.

17 Ground 4 stands, we consider, in a different light. It complains that the learned judge did not give any weight, or any sufficient weight, to delay.

18 The offence was committed on 1 July 2002. The estate's solicitor set out his concerns in a letter to the police dated 6 November 2003. The appellant and other possible wrongdoers - Mrs Garretto, Mr Torelli and the appellant's wife - were not interviewed until August 2004. This delay was unexplained.

19 The appellant was not re-interviewed until March 2005. Torelli was not re-interviewed - on this occasion as a witness rather than as a possible wrongdoer - until October 2005. Why there was more than a year's delay in re-interviewing Torelli was never explained. The civil proceeding settled in February 2006. The property sale was completed on 7 June 2006. The appellant was charged one week thereafter. He came to trial a little more than two years thereafter.

20 In all, the period between the police being notified of possible criminal wrongdoing and the appellant being sentenced was a little less than five years. The period between the appellant being first interviewed and being sentenced was four years. The period from the laying of charges to sentence was a bit more than two years. The appellant was not responsible for any of the delay except insofar as he maintained his innocence and successfully applied for vacation of a trial date in February 2008.

21 Strangely, despite the potential relevance of delay as a matter standing in mitigation of sentence, nothing was squarely said about it on the plea; and, perhaps for that reason, the learned judge said nothing specifically about it in his sentencing remarks. His Honour did refer to a little of the chronology which we have set out above, but he did not do so in a presently relevant manner. He also stated that the appellant had no prior convictions, and that he 'must be seen to be of hitherto good character'. It was submitted by counsel for the Crown, as we have already said, that the latter embraced the period up to sentence, and thus that his Honour had given the appellant credit for events encompassed by the period of delay. But we doubt that the reference upon which counsel relied conveyed any such meaning.

22 In our opinion, there is force to the submission for the appellant that the learned judge either did not bring the very considerable delay to account, or else that he under-weighed it. Delay may stand as a powerful mitigatory feature. If the accused has not re-offended in a lengthy period between offending and sentence, it will tend to show that there is an enhanced prospect of rehabilitation. There is also a question of fairness in the event that a matter is left hanging over an offender's head during an apparently leisurely process of investigation and prosecution. The longer the period of delay, the greater its likely weight as a mitigatory circumstance, particularly when the delay is not attributable to the conduct of the accused. Again, whilst it is not necessary for delay to operate as a circumstance of mitigation, that it be unexplained, the fact that it is not attributable to the conduct of the accused will likely make it of greater significance.[3]

23 In this case there were, as we have demonstrated, a series of extended delays in the overall period between offending and sentence. None were explained. Except that the appellant protested his innocence, and on one occasion obtained the vacating of a trial date, none of the delay was attributable to the appellant's conduct. The police investigation and the prosecution do appear to have been conducted at a leisurely pace. The appellant did not re-offend in the period between July 2002 and August 2008. This emphasised the fact that he was to be sentenced as a man who had offended once in a lifetime of nearly 54 years at time of sentence; and it boded well for his prospects of rehabilitation. Again, the threat of criminal prosecution did hang over him at least from August 2004, when he was first interviewed.

24 We consider, in the circumstances we have described, that the delay did constitute a strong mitigatory circumstance. Had it been so identified, we think that the judge would surely have referred to it. In the event, we are persuaded that ground 4 is made out.

25 Although the consequence of ground 4 being made out is that the appellant falls to be re-sentenced, we should address ground 2. It bears upon re-sentencing the appellant. And so we consider it for that purpose, reserving consideration whether the appellant should have been able to press it as a ground of appeal had that been necessary.

26 Counsel for the appellant was correct in submitting that the effect of a number of cross-linked provisions of the Estate Agents Act 1980 (Vic) meant that, subject to the possible operation of s 31C of that Act, his client was effectively disqualified from working in his occupation as an agent's representative - or indeed, in the real estate industry more generally - for a ten year period commencing at time of conviction.[4] Subject to one matter which we mention later,[5] we consider also that there was force to counsel's submission that, having regard to the connection between the appellant's occupation and his offence, it was unlikely that the appellant would receive a dispensation under s 31C.

27 Such a disqualification does constitute, literally, an extra-curial punishment. It was argued for the appellant that the judge should have recognised that it was of this character, and that he was obliged to factor it in as a mitigatory circumstance.

28 As we said earlier, the particular point was not squarely raised with his Honour, and it is unsurprising that he did not deal with it. Had it been raised, we think that his Honour would have been entitled to give it some weight as a circumstance of mitigation; but that he was not bound to do so. In our opinion, the disqualification, although an extra-curial penalty, did not necessarily constitute a circumstance of mitigation; and to the extent that it might have been regarded as having that character, it was a circumstance of modest weight. There seems to us to be a distinct difference between a disqualification resulting from criminal conduct in the course of the employment from which the person is disqualified and criminal conduct remote from that employment but having that consequence. Should a teacher who is denied a return to that profession after he or she criminally molests a student be entitled to have the loss of profession treated as a circumstance of mitigation? What of the legal practitioner who misuses trust moneys and is precluded from practice? These situations are different to that which obtains when the offending conduct is remote from the employment from which the offender is incidentally precluded. In the latter class of case there might be a considerably stronger argument in favour of the incidental loss of employment being treated as a circumstance of mitigation.

29 We said a moment ago that the deprivation of occupation in the present case might be regarded as a circumstance of modest mitigation. What we have in mind is that such a loss for a ten year period might be accounted disproportionate to the offending - even offending of the kind in which the appellant engaged. On the other hand, there would need to be factored in, we think, the prospect that a s 31C application might have a prospect of success after, say, five years, when it would probably have little prospect of success in the first few years after conviction.

30 In all the circumstances, if it was necessary to consider the ground, we would not be prepared to conclude that the judge erred in failing to treat the appellant's loss of occupation as a circumstance of mitigation. That is, he was not bound to so treat it. In re-sentencing the appellant, to the contrary, we think that it should be given very modest weight, essentially because of the prospect of the additional punishment being disproportionate to the offending.

31 In all the circumstances which we have described, we consider that the appellant should be re-sentenced to a period of two years and three months' imprisonment, of which nine months should be suspended for a period of 21 months from this day.

[1] Contrary to Crimes Act 1958 (Vic) S 81(1). Maximum penalty 10 years' imprisonment.

[2] And others, but nothing turns on it.

[3] See, generally R v Miceli [1997] VSC 22; [1998] 4 VR 588, 589, (Tadgell JA); R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447 [9]-[10] (Chernov JA); R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, 399-400 [33]-[36] (Maxwell P); R v Katsoulas [2008] VSCA 278 [9]-[13] (Redlich JA). Compare, on the facts, R v Thompson [2009] VSCA 13, [28]-[32] (Dodds-Streeton JA).

[4] See the definition of 'Agent's representative' in s 4, and ss 14(5)(e), 15(3), 16(1)(c), 16(2), 31, 46.