R v Wang [2009] VSCA 67

Court of Appeal (Vic)|2009-03-19|Before: ASHLEY and REDLICH JJA

CRIMINAL LAW - Sentence - Failure to fix new single non-parole period - Failure to fix base sentence before making orders for cumulation - Imposition of identical sentences to previous offending of different gravity - Sentencing discretion reopened - Whether pathological gambling addiction to be afforded any weight - Principle that Court will not increase sentence without allowing appellant to abandon - Appellant re-sentenced to give effect to Judge's intention.

1 Redlich JA will deliver the first judgment in this matter.

2 The appellant, an addicted gambler, appeals against a sentence imposed in the County Court on 9 August 2007, following her plea of guilty to a presentment containing one rolled-up count of theft (count 1) and 20 counts of obtaining property by deception (counts 2 to 19, 22 and 23), which all involved the same deception, leave having been granted in August 2008.

3 It would be supererogation to recount the facts of each of the 21 offences committed by the appellant. In summary, count 1, the rolled-up count of theft, relates to $70,000 stolen by the appellant from a Chinese company. The appellant acted as an agent of that company, selling automotive machinery in an amount totalling $193,617.75 to a business in Queensland. $50,000 of that was paid to the factory in China and an amount of about $70,000 was used for business-related expenses in Australia. The balance was appropriated by the appellant.

4 In relation to the 20 counts of obtaining financial advantage by deception, the appellant acted as an agent to a Chinese company which wished to purchase a warehouse in Vermont for the sum of $400,000. Twenty separate payments totalling an amount of $391,981.68 were made to the appellant in the belief, induced by the appellant, that the warehouse had been purchased and that these were payments towards the purchase price. In fact the warehouse had not been purchased. The amounts were stolen by the appellant. It was accepted by the sentencing judge that the funds were dissipated in satisfaction of the appellant's 'extensive and long-term gambling addiction'.

5 The Court gave the appellant leave to add four new grounds of appeal, as the errors complained of in those new grounds had been raised on the leave application and constituted the primary reason for the granting of leave to appeal.

6 On each of the 21 counts, the appellant was sentenced to three years' imprisonment. On counts 1 to 7 inclusive, the sentencing judge ordered that the sentence on each individual count was to be served concurrently 'with each other' and cumulatively 'to all other sentences imposed'. In relation to counts 8 to 15 inclusive, it was ordered that the sentence imposed on each individual count was to be served concurrently with 'each other' and that '18 months of those sentences is to be imposed cumulatively to all other sentences imposed today'. In relation to counts 16 to 19, 22 and 23, the sentence imposed on each individual count was once again to be served concurrently with 'each other' and '18 months of those sentences is to be imposed cumulatively to all other sentences imposed today'.

7 At the time of sentence the appellant was already serving a sentence of six years' imprisonment with a non-parole period of four years which had been imposed on 14 October 2005 for 13 counts of dishonesty committed between April and August 2003, a period subsequent to the present offences of deception but which covered part of the period to which count 1 relates. These offences involved the appropriation of an amount of $1.5 million.

8 The appellant was still serving the non-parole period of that sentence at the time the sentences the subject of this appeal were imposed. His Honour adverted to the need to set a new minimum term early in his sentencing remarks. His Honour completed his sentencing remarks as follows:

A total effective term of imprisonment of six years is therefore imposed on the present counts. You are eligible for parole after serving four years of the present sentences. All sentences imposed today are to be served concurrently with your present sentences. As a result, your minimum term of imprisonment has been increased by about 21 months as a result of these proceedings.

9 His Honour appears to have intended to set a new non-parole period of four years' imprisonment. The respondent conceded that his Honour failed to expressly set a new single non-parole period in respect of both sentences, as required by s 14(1) of the Sentencing Act 1991. The failure to do so meant that the effect of the orders pronounced was that the appellant was serving two non-parole periods. The new single non-parole period, had it been fixed, would have commenced on the date that the new sentence was imposed,[1] and allowance made for the non-parole period already served under the previous sentence.[2] The ground of appeal that raises this complaint has been made out.

10 It is alleged that the learned sentencing judge made a number of errors in making orders for cumulation. First, his Honour did not identify a single sentence as the base sentence.[3] Consequently, there was no base sentence to which the orders for cumulation could properly attach. Second, he ordered that groups of sentences be served 'concurrently with each other but cumulative to all other sentences imposed'.[4] His Honour would only have been permitted to make such an order if he had fixed and was dealing with an aggregate sentence.[5] The respondent does not take issue with the appellant's submission that one cannot treat the sentences as though they were aggregate sentences.[6] Moreover, count 1 was a rolled-up count. It could not be dealt with as part of an aggregate sentence.[7] His Honour could not otherwise make orders for cumulation of all or parts of the sentence of a group of counts, and it is apparent from the total effective sentence that he did not really intend that each sentence for counts 1 to 7 or 18 months of the sentences for counts 8 to 15, 16 to 19, 22 and 23 should be served cumulatively on all other sentences that he imposed. What he appears to have intended is that each sentence or part thereof that was to be the subject of an order for cumulation should be served cumulatively on each other as well as the base period of three years (counts 1 to 7).

11 Under a separate ground, complaint is made that the learned sentencing judge erred in that, notwithstanding the different amounts of money in relation to the different counts, his Honour imposed identical sentences of three years' imprisonment on every count. Where there is a single fraudulent enterprise of which the individual sentences were components, such a course may be appropriate,[8] though it may have been problematic to treat the rolled-up count of theft in the same manner as the conduct of the appellant giving rise to offences which were quite different.[9] It is unnecessary to stay to consider this last question further. This ground is also made out.

12 The appellant also complains that the sentences imposed are identical in terms to those fixed in October 2005. He points out that the present offences, with the exception of part of count 1, all occurred before the offences dealt with in October 2005. That sentence had been imposed following a trial in which his Honour said the appellant was found guilty of having stolen $1.5 million. The deception she employed was very similar to that used in the present circumstances. The sentences she received were identical to the sentences the subject of the present appeal. It is submitted with some force that this coincidence in sentences should invite appellate scrutiny, as there is a real risk that the sentencing judge arrived at end figures which were intended to conform with the previous sentence rather than being the result of any instinctive synthesis. I agree that the identity of sentences bespeaks errors, as there were plainly significant differences between the offending conduct, with the consequence that it was not reasonably open to the sentencing judge to impose the same sentence. This ground is made out.

13 It is unnecessary to express any view as to the remaining grounds, as the sentencing discretion must be re-opened and a different sentence imposed.

14 The offences were committed whilst the appellant was aged 50 and 51. The appellant was 55 years of age at the time of sentencing. She had an extensive criminal history, comprising 39 previous convictions from eight court appearances. As detailed in the reasons of the sentencing judge, the appellant admitted five appearances on charges of dishonesty between December 1992 and May 2000. The appellant was sentenced to a period of imprisonment on four of those occasions. The sentence imposed on 14 October 2005 is not a prior conviction. But it is relevant to the appellant's prospects of rehabilitation and must be taken into account to ensure that the sentence now to be fixed does not infringe the principle of totality.

15 In taking account of the appellant's prior convictions I emphasise that the appellant is not to be punished twice for her offending. Each is relevant, however, as her antecedents provide an indication of moral culpability, her prospects for rehabilitation, the existence of a dangerous propensity, the need for community protection, and the increased need for specific deterrence having regard to the failure of previous penalties to modify her behaviour.[10] In the present case they support the sentencing judge's finding that the appellant's prospects of rehabilitation are 'very poor' and that the sentences imposed should take account of the need for community protection.[11]

16 The appellant relies upon her guilty plea, albeit at a late stage, as conceded on the plea,[12] upon the contention that prison would be harder for her than other offenders due to language and cultural differences and the appellant's lack of social network, and upon the fact that her offending occurred as the result of a gambling addiction.

17 The appellant's initial grounds of appeal had also raised the complaint that the sentences failed to reflect the fact that the appellant suffered from a pathological gambling addiction. The appellant did not persist in maintaining those initial grounds, but did maintain the submission that there was an obvious linkage between her gambling and the offences, hence her moral culpability was lessened. Reliance was also placed upon the fact that the appellant had for the first time commenced to receive counselling for her addiction after she commenced to serve the sentence imposed in October 2005; but the evidence tendered showed only that she had seven counselling sessions over a lengthy period. No evidence was available as to the content of those sessions or the benefits, if any, for the appellant. The submission therefore that rested upon reliance upon the appellant's gambling condition cannot be sustained. In R v Grossi, I set out the principal reasons why a pathological gambling addiction will not ordinarily be treated as a mitigating circumstance requiring some reduction in the sentence that would otherwise be imposed. Those considerations apply without qualification to the appellant's circumstances.

56 Properly analysed, there is in my view no tension between the principle explained in Verdins and those authorities which have dealt with gambling addiction. Evidence may establish that an offender suffers from an impulse control disorder in the form of pathological gambling listed in DSM-IV-TR, the essential feature of which is 'persistent and recurrent maladaptive gambling behaviour that disrupts personal family or vocational pursuits'. The relevance of the disorder to the sentence to be imposed, is then to be assessed in accordance with the principles restated in Verdins. That assessment will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of the sentence. There are a number of reasons why that will be so. Firstly in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence. Secondly, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder. Thirdly, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning. Fourthly, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence. Fifthly, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction. This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession. Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated. The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission. Hence, by contrast to a mental condition that impairs an offender's judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct.

57 The appellant's conduct was premeditated, calculated, and systematic. Counsel for the appellant properly acknowledged that, to satisfy her addiction, the appellant had repeatedly exercised the choice to re-offend over a lengthy period and that this bore upon the weight to be given to her addiction. In my view the learned sentencing judge made no error in not mitigating the sentence to any significant extent because of the appellant's gambling addiction. The existence of the disorder did not, on that ground alone, necessitate any reduction in moral culpability or amelioration of general deterrence.[13]

18 In this case the appellant's gambling addiction should be afforded no mitigatory weight.[14] The addiction may be taken into account in order to demonstrate the absence of an aggravating motive, such as pure greed or a desire to fund some other criminal activity.[15]

19 The appellant drew attention to the sentence already being served and submitted that, as she had pleaded guilty to the present offences and had only appropriated approximately $450,000, the present offences had to be viewed differently and called for a substantially lesser sentence than that which had been imposed in the earlier case. The Court was also referred to the case of Director of Public Prosecutions v Raddino,[16] which, although involving an offender with no prior convictions, involved the appropriation of a similar amount of money of the order of $400,000. That case, it was said indicates that an appropriate sentence would be one that is considerably lower than that imposed by the sentencing judge.

20 The appellant further referred the Court to a finding of the sentencing judge that the appellant's prospects of rehabilitation were very poor. A similar conclusion had been reached by the judge who sentenced the appellant in October 2005. He found that the appellant had exhibited no indications of remorse. Since then, the appellant had pleaded guilty to the present charges and was now undergoing treatment for her gambling addiction. Whilst conceding that the appellant's considerable criminal history invited a pessimistic view of her prospects of rehabilitation, it was noted that prior to her current incarceration, and at the time of the present offences, the appellant had never been treated in any way for her gambling addiction. It was said that this desire to participate in treatment was demonstrative of her desire to rehabilitate. As this addiction is the uncontested reason for her offending, it is said that this Court should sentence on the basis that the appellant had some prospects for rehabilitation, as the appellant has never been given the opportunity to demonstrate her response to treatment of the causes of her offending.

21 Before turning to the sentences that I would impose, it is necessary to refer to what occurred in oral argument on the appeal. Counsel for the appellant made clear that he had understood that, by the sentencing judge ordering that the sentence be served concurrently with the sentence imposed in October 2005, the sentencing judge intended that only the period of one year and ten months, which the appellant had already served be additional to sentences now being imposed. He submitted that to require the appellant to serve such any additional period was manifestly excessive. Upon it becoming apparent to counsel that the Court did not share that view, counsel said that he would not wish to pursue the appeal if there was a risk of the appellant being required to serve a greater additional period of imprisonment. The conundrum for all concerned was that the appellant had not been sentenced according to law. The sentences were so flawed as to amount to no sentence at all. There thus arose an unavoidable obligation to correct the sentence, if for no other reason so that it could be understood and lawfully implemented by the Department of Corrections. In accordance with the spirit of the practice that the Court would not increase a sentence without giving the appellant an opportunity to abandon, and upon both parties inviting the Court to impose a sentence which would give effect to the apparent intent of the sentencing judge, we acceded to the parties' request; but, as we made clear, were the circumstances otherwise, we would have imposed a more substantial sentence.

22 In re-sentencing the appellant, I consider that the 20 counts of obtaining property by deception are appropriate offences for the imposition of an aggregate sentence pursuant to s 9(1) of the Sentencing Act 1991, as each of the counts is clearly part of a series of offences of a similar character. Each related to the appropriation of instalments paid by the Chinese company in respect of its attempt to satisfy payment of the $400,000 purchase price for the warehouse. As count 1, the rolled-up count of theft, cannot be the subject of an aggregate sentence,[17] it must be made the subject of a separate sentence.

23 In imposing an aggregate sentence, it is necessary to comply with the directives given by this Court in Director of Public Prosecutions v Felton,[18] and to indicate the range of sentences that are appropriate to each type of offence. In R v Grossi[19] I discussed how the reasoning behind the aggregate sentence may be made sufficiently transparent.

24 I have assumed a notional sentence of 18 months on each count of deception, and I do not regard the differences in amounts stolen under each count to require any differentiation in the notional sentence from count to count. Treating one of the deception counts as the notional base count, I would order that approximately two months of 18 of the other deception counts be served cumulatively on each other and on the notional base sentence. In assessing the appropriate cumulation to be allowed between counts, I have had regard to the principle of totality. I would therefore

impose an aggregate sentence of four years and six months. In relation to count 1, I would impose a sentence of two years' imprisonment and would order that six months of that sentence be cumulated on the aggregate sentence, making a total effective sentence of five years. I would order that three years and two months of that sentence be served concurrently with the sentence that the appellant was undergoing. I would fix a new non-parole period of four years' imprisonment, which will commence to run from the date of sentence, namely, 9 August 2007.

25 I agree with my brother Redlich for the reasons which his Honour gives. This appeal must be allowed and the appellant re-sentenced. In the unusual circumstances of the matter which emerged in the course of argument, I agree with the sentence which his Honour proposes.

We grant the appellant leave to rely upon grounds numbered 1 to 4 set out in the Full Statement of Grounds of Appeal.
The appeal is allowed.
The sentence imposed in the County Court on 9 August 2007 is set aside.
In lieu thereof the appellant is sentenced as follows:

on counts 2 to 19, 22 and 23, to be imprisoned for four years and six months, this being an aggregate sentence pursuant to s 9(1) of the Sentencing Act 1991.

Order that six months of the sentence on count 1 be cumulated on the aggregate sentence imposed on counts 2 to 19, 22 and 23.
The total effective sentence is five years' imprisonment.
Order that three years and two months of that sentence be served concurrently with the sentence passed in the County Court on 14 October 2005.
Fix a new non-parole period of four years' imprisonment.

[1] R v Rich (No 2) (2002) 4 VR 155; R v Bortoli [2006] VSCA 62, [49].

[2] R v Bortoli [2006] VSCA 62, [58].

[3] R v Nikodjevic [2004] VSCA 222, [39].

[4] The respondent properly conceded that it could not be said that the learned sentencing judge was, in terms, imposing separate counts of cumulation upon three aggregated sentences. If his Honour was to impose an aggregate sentence the Sentencing Act 1991 in sub-section 9(2) requires that he clearly state that an aggregate sentence is to be imposed. No such statement was made in the reasons for sentence.

[5] DPP v Vucko [2008] VSCA 270.

[6] DPP v Felton [2007] VSCA 65; (2007) 16 VR 214, [46]-[48]; R v Grossi [2008] VSCA 51, [38]-[41].

[7] DPP v Felton [2007] VSCA 65; (2007) 16 VR 214, [42] (Kellam AJA); R v Grossi [2008] VSCA 51, [39] (Redlich JA); R v Galletta [2007] VSCA 177, [10] (Redlich JA).

[8] R v Fletcher [2002] VSCA 40, [11].

[9] Though see R v Grossi [2008] VSCA 51, [39].

[10] See DPP v Vucko [2008] VSCA 270, [18] and the cases there cited.

[12] R v Tasker and Tasker [2003] VSCA 190; (2003) 7 VR 128.

[14] R v Galletta [2007] VSCA 177, [15].

[15] Vu v R [2006] NSWCCA 188, [74].

[19] Ibid [42]. Also referred to in DPP v Vucko [2008] VSCA 270.

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