New South Wales Court of Criminal Appeal CITATION : R v Farlow [2001] NSWCCA 348 FILE NUMBER(S) : CCA 60711/00 HEARING DATE(S) : 10/9/01 JUDGMENT DATE : 10 September 2001 PARTIES : Regina Lyndsay Frances Farlow JUDGMENT OF : Sully J at 38; Carruthers AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0066 LOWER COURT JUDICIAL Shillington DCJ OFFICER : COUNSEL : M C Grogan (Crown) P R Boulten (App) SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : Sentence -dishonestly obtain money by deception - appeal against severity - consideration of subjective circumstances when offender elects not to give evidence - consideration of early guilty plea by trial judge. LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383 R v Tripodina (2001) NSWCCA 136 DECISION : Leave to appeal granted. Appeal dismissed. - 14 -IN THE COURT OF CRIMINAL APPEAL 60711/00 SULLY J CARRUTHERS AJ Monday 10 September 2001 Regina v Lyndsay F Farlow JUDGMENT 1 CARRUTHERS AJ: Lyndsay Frances Farlow seeks leave to appeal against sentences imposed upon her at the District Court by his Honour Judge Shillington QC on 13 October 2000. The applicant had pleaded guilty at the Bathurst Local Court on 29 May 2000 to 12 counts of dishonestly obtain money by deception pursuant to s 178BA(1) of the Crimes Act 1900 which offence carries a maximum penalty of imprisonment for five years. 2 His Honour was also asked to take into account 13 other counts under s 178BA(1) on a Form 1. The date of the offences in the indictment range from 13 September 1990 to 25 November 1998. 3 His Honour sentenced the applicant to imprisonment for a term of four years to be served concurrently in relation to each of the 12 counts in the indictment to commence on 13 October 2000 and to expire on 12 October 2004. His Honour fixed a non-parole period in each case of two years and six months to expire on 12 April 2003 having, as is obvious, concluded that there were special circumstances. His Honour specifically stated that he took into account on the first charge each of the 33 charges on the Form 1. 4 The applicant was born on 18 April 1962, and commenced employment with the Charles Sturt University in October 1989. The first offence was accordingly committed less than 12 months after the commencement of her employment, and the offences continued for a period of nine years, the last matter in the Form 1 occurring in November 1999. 5 The seriousness of the objective criminal conduct on the applicant's part is evident from the agreed statement of facts tendered before his Honour: - "The offender commenced employment on the 3rd of October, 1988, at the Charles Sturt University, Bathurst campus, as a clerical assistant, with the 'Building and Grounds' Department of the campus. Her duties were to monitor the payments and expenditure of the section and report to her Manager, she alone controlled these payments. In October, 1999, the audit section of the Charles Strut University campus, Bathurst, became aware of a cheque for ELF Services, returned for alleged work performed at the Bathurst campus. An internal audit for the cheque was commenced and it was discovered the company ELF Services had not been contracted or sub contracted to perform any work at the University. The chief internal auditor of the Charles Sturt University was called in and a complete audit and investigation was commenced on the company ELF Services. It was discovered that when the local purchase orders, invoices for ELF Services, work allegedly performed were all checked these were all fraudulently raised payments. The local purchase order numbers did not exist, the work was not performed and ELF Services had not been contracted or sub contracted for any work. The investigation then traced all the invoices, and local purchase orders to the 'Building and Grounds' section of the Bathurst campus, the area controlled by the offender. The investigation revealed that the signatures of the offender's supervisors appearing on the invoices were falsified. The only person to have access to these invoices were the offender. Furthermore a trace of the suspect cheques for ELF Services revealed that they were all banked into an account for ELF Services at the Colonial State Bank, William Street, Bathurst, number 3317 0300. The auditors investigations discovered 18 offences between 18 September, 1994 and 6 November, 1999, totalling $319,760.00, on the Charles Sturt University account held at the National Australia Bank. The matter was then further investigated back to the time the offender commenced work and further offences were discovered, at the Westpac Bank prior to December, 1993, when the account of the university was centralised with the National Australia Bank. The matter was then further investigated back to the time the offender commenced work and further offences were discovered, at the Westpac Bank prior to December, 1993, when the account of the university was centralised with the National Australia Bank. Police were given the matter by the chief auditor and further investigation revealed that the offender had opened the account number 3317 0300 under ELF Services, at the Colonial State Bank Bathurst branch, the offender being the sole operator and signatory. Police have traced the following cheques from Charles Sturt University to the ELF Services account: Cheque number date deposited amount 535757 4/11/99 $15,000.00 528307 17/8/99 $15,000.00 521531 21/5/99 $15,000.00 510199 5/1/99 $15,000.00 506828 25/11/98 $20,000.00 494440 31/7/98 $20,000.00 487883 11/5/98 $4,760.00 472519 28/7/97 $20,000.00 143245 13/5/97 $25,000.00 139600 17/1/97 $20,000.00 137664 15/11/96 $10,000.00 135230 5/9/96 $15,000.00 132171 14/6/96 $25,000.00 126258 8/1/96 $25,000.00 122093 6/9/95 $20,000.00 116275 20/4/95 $20,000.00 112915 30/12/94 $20,000.00 108702 20/9/94 $15,000.00. The mentioned cheques have all been raised on false University local purchase orders, and invoices relating to ELF Services, posted to a Post Office Box 1221, Bathurst, where the offender is the nominee. The offender attended the Bathurst Police Station on 8 December, 1999, in the company of her solicitor. The allegations were put to her, she was arrested and cautioned. She informed Police she was not going to say anything or participate in anything in relation to the allegations. She was then charged with the 18 offences before the court and informed she could be charged with further matters after investigations were complete. Police have since conducted further enquiries and received documentation from banks and the Charles Sturt University revealing that the offender has raised 30 falsified payment vouchers/invoices for ELF Services which were paid to ELF Services and forwarded to her personal Post Office box, Box 1221, Bathurst, 2795. These cheques were then deposited in her account ELF Services, number 33170300 at the Colonial State Bank, Bathurst. These additional 30 matters total $161,201.00. The total compensation sought by the Charles Sturt University is $480,970.00, for the 48 fraudulently obtained ELF Services cheques. Police investigations also revealed the offender has written out cheques from her account of ELF Services between the periods 1 June, 1990 and the 30 November, 1999, for various amounts. These cheques were used to pay her regular fortnightly house rental, legal fees, various Bank Master and Visa card debts, Investments, together with a number of personal expenditures." 6 The applicant elected not to give evidence at the sentencing proceedings. However, a pre-sentence report under the hand of Ms Judy Crick, Probation and Parole Officer of the Bathurst District Office, dated 25 August 2000, was tendered. That report refers to a description by the applicant of her childhood as being traumatic and abusive. Siblings of the applicant had described the family dynamics as dysfunctional. 7 The applicant is obviously of an altruistic frame of mind and has done much over the years to assist her younger siblings, albeit, one must comment sadly, by reliance upon funds which she had fraudulently obtained in abuse of her position of trust. 8 The applicant and her partner now have a four year old daughter. The pre-sentence report contains the following passage: - "Miss Farlow readily acknowledged what she had done was illegal and therefore a criminal act. She stated, however, that her family members needed her protection and at the time she could not afford to feed, clothe and house them on her income. It seems, based on anecdotal information, that Miss Farlow opted to help family members financially and materially." 9 There was also a report by Dr Hugh Jolly, psychiatrist, dated 9 August 2000, placed before his Honour. The report is written in Dr Jolly's customary stream of consciousness style. He concludes: - "There is no evidence of major psychiatric illness which interferes in her responsibility for her actions. There certainly is an explanation for what has happened…living in a dysfunctional and abusive family, horrible memories, and (originally) a misplaced determination to protect siblings, at almost any cost." 10 The following recognisable psychiatric syndromes have, according to Dr Jolly, "played a part in shaping (the applicant's) emotions, her coping strategies (or lack of them) and her decision-making generally." (i) Acute post traumatic stress, followed by chronic Post Traumatic Stress Disorder and probable frank depressive illness through adolescence flowing on directly from childhood abuse. (ii) Diagnosed Chronic Fatigue Syndrome where a depressive component has to be considered in the early 1990's. (iii) Presently a form of "adjustment disorder" reactive to the predicament that the applicant finds herself in. 11 That adjustment disorder seems to be more related to the situation after the criminal conduct had been discovered rather than relevant to the decision-making involved in the criminal conduct. 12 According to Dr Jolly, in any event, all these things could have been argued in mitigation by the applicant's advocate, and no doubt they were. 13 The Crown has rightly argued before this Court that the weight that can be placed on Dr Jolly's views is to be considered in the context that he had a single interview with the applicant lasting some 1.5 hours. It is fair to say, I would comment, that the views which he expressed, set out in summary above, were expressed in a somewhat qualified way. An example, as the Crown points out, the evidence of the disorder appearing in the letter from Dr Jolly is subject to the consideration that the doctor's conclusions were apparently based solely on the information provided during a single interview with the applicant. This apparently included the applicant advising Dr Jolly that she had been treated by her local general practitioner, Dr Jamieson, for Chronic Fatigue Syndrome in 1991. 14 Dr Jamieson was not called in the proceedings, nor was any report by him tendered. Dr Jolly said Dr Jamieson was a more appropriate person to comment on the subject of Chronic Fatigue Syndrome than he. 15 The Crown further points out that Dr Jolly said in his report that he was unable to corroborate allegations of abuse, including sexual abuse, but that he tended to believe her. The Crown also specifically referred to the fact that Dr Jolly believed it was a "probability" that she suffered from Post Traumatic Stress. Thus, this is another case where the Court is faced with some difficulties, relevant to the subjective circumstances upon which the applicant so heavily relies by reason of the fact the applicant elected not to give evidence before the sentencing judge. 16 As a result of proceedings brought in the Equity Division of the Supreme Court, the university is likely to obtain recompense from the applicant to the extent of approximately $60,000.00, leaving a deficiency to the order of $400,000.00. 17 The applicant has no prior criminal record of relevance. 18 When dealing with the subjective circumstances, his Honour said:- "The background information set out in that report relates to her family upbringing which was obviously a very traumatic one. She is the eldest of eight siblings aged between 38 and 20. Her father is deceased. She is unaware of her mother's whereabouts and she describes the family upbringing as traumatic, abusive and in effect the family dynamics were dysfunctional to say the least. I have had the advantages of three references or letters from siblings which confirm that situation and which further confirm that the prisoner has generously assisted the younger members of the family at various times during their upbringing. One of the children in fact lived with her for a considerable period of time after he left the home when he was 16 years of age. Those are all matters to be taken into account in her favour. She herself attained the school certificate level at school and did a secretarial course at a technical college and has had various positions in that field. She ran her own business in the secretarial service field for a period until it collapsed in 1989. She has a partner and a three year old child. That child has serious health problems and it is urged upon me that that is a matter which would militate against a full time custodial sentence. Those health problems of her daughter include serious problems with asthma and a atopic dermatitis which requires special diets and consistent application of various creams. The report assesses the prisoner as a strong determined person who is currently exhibiting symptoms of stress and anxiety. She quite rightly expresses concern for her daughter. It is pointed out that during the nine odd years of these defalcations there has been no evidence of any lavish lifestyle on her part. It may well be that the funds which became available to her as a result of these defalcations have been used for altruistic purposes." 19 Realistically, counsel for the applicant concedes that a full time custodial sentence was required but submits that both the head sentence and the non-parole period are manifestly excessive. 20 Reference was made to the Judicial Commission statistics over the period April 1993 to March 2000. As to penalty type, all offenders, there is a total of 271 cases with 45 percent; namely 122 offenders receiving custodial sentences. Of that number 122, 16 (13%) received a full term of four years, as did the applicant, and two percent received a greater head sentence, namely four years and six months. 21 Mr Boulten of counsel for the applicant has put to this Court that it should read those latter statistics on the basis that only two persons out of 122 received greater head sentences than the applicant. The alternative, which with all due respect I prefer, is that the applicant falls within the top 15 percent of all offenders who received custodial sentences, so far as maximum terms are concerned. As to minimum or fixed terms, she falls in the top 17 percent of the 122 cases. We must remember, of course, that these statistics are our servants and not our masters, and some flexibility is required when considering them. One does not know, of course, across the whole broad spectrum of cases the full details of the objective and subjective circumstances. 22 As the Crown has pointed out, the figures cited in the statistics are rounded upwards, and that there are a very large number of variables inherent in the samples. Relevant factors, of course, are the amount of money involved; the period over which the offence was committed; and the presence of aggravating features such as a breach of trust. In the instant case there is a large amount of money involved, a very large period over which the offences were committed, and clearly a breach of trust. 23 The matter was only brought to the notice of the university and later the police, after the criminal conduct of the applicant had been identified or queried as a result of comments by an independent party who was involved commercially with the university. 24 The cases relied upon by the applicant are, Mr Boulten contends, indicative of an excessive penalty in the instant case. He has referred to cases involving solicitors and accountants. Two observations may be made here. One is, of course, professional people invariably suffer professional disbarment as a result of conduct of this nature. On the other hand, as Mr Boulten points out, there are countervailing factors with regard to professionals of whom the community demands a high standard of conduct. The parties have, of course, referred the Court what they contend are comparative cases. 25 The Crown refers to decisions cited in R v Tripodina [2001] NSW CCA 136 to form the basis of a submission that a sentence of 6.5 years with a non-parole period of 4.5 years would not have been outside the appropriate range. 26 The waters are a little muddied in the instant case by reason of the fact that his Honour elected to impose concurrent sentences for all of the offences in the indictment. It would have been particularly appropriate for him, and if I may respectfully say so, more consistent with principle as expounded in Pearce v The Queen (1998) 194 CLR 610 to have made one or more of the offences cumulative, bearing in mind the large number of offences and the length of time over which they were committed. 27 A major plank in the applicant's case is that it is contended on her behalf that his Honour gave insufficient weight to the early plea of guilty and its utilitarian value, particularly bearing in mind the complexity of this case, of such an early plea. The only reference which his Honour made to the plea of guilty was at the outset of his remarks on sentence when he said: "There is before the court a Form 1 listing 33 further charges of a similar character. The pleas entered before the magistrate were confirmed before me at Bathurst." 28 Mr Boulten correctly refers to paragraph 90 of the judgment of the chief justice in R v Thomson and Houlton (2000) 49 NSWLR 383 at 419 where the Chief Justice stated: - "The Court should adopt the following guidelines applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. …" 29 Mr Boulten argues that his Honour failed to adhere to that guideline. 30 Bearing in mind the vast amount of experience which Judge Shillington has had as a sentencing judge, I am constrained to accept that the brief reference by him to the fact that the pleas were entered before the magistrate and confirmed before him at Bathurst, is indicative of the fact that he was concisely, if not obliquely, informing the parties that he was taking into account those early pleas of guilty. Of course, counsel at the bar were available to assist his Honour and neither counsel considered, in the circumstances, that it was necessary to advert specifically to the guideline judgment which, by then, had become familiar to the judiciary and members of the profession. 31 Accordingly, despite the persuasiveness with which Mr Boulten argued this point, I am unable to conclude that there has been an error which would require this Court to conclude that its intervention was necessary. 32 It is further contended on behalf of the applicant that his Honour failed to give sufficient weight to the subjective circumstances, being the matter raised in the pre-sentence report, and the matters in Dr Jolly's report. I am unable to accept that contention, bearing in mind the specific reference to the subjective circumstances which I cited from the remarks on sentence. Then it is contended compendiously that the sentence was manifestly excessive, and I have touched upon this during the course of this judgment. 33 The Crown has rightly, in my view, pointed out that because of the position of trust which the applicant held for so long and which so many others - be they professionals or not - hold in this community, that there is a strong deterrent element in sentencing for the subject offence. Mr Grogan, on behalf of the Crown, indeed submitted that far from being manifestly excessive, this sentence, both from the head sentence and the non-parole period, was eloquent of a lenient approach: a sensitive and most reasonable sentence, he argued. He pointed out that there were forgeries of the names of two persons inherent in the particular offences. He further contended that his Honour gave sufficient weight to the subjective circumstances which were reflected not only in the sentences imposed by way of the head sentence, but the non-parole period. 34 This is, indeed, a sad case, particularly bearing in mind the background of the applicant, so far as one can accept it from the documentation that was put before his Honour. It is aggravated by the fact that the applicant has a young daughter who presumably is in the care of her partner. However, the objective circumstances are of such a high degree of seriousness that even when one balances them against the subjective circumstances, as found by the sentencing judge, I find I am quite unable to come to the conclusion that the sentences were manifestly excessive. 35 I take into consideration fully the argument that Mr Boulten has put, so far as the plea of guilty is concerned. I am content from an assessment of the sentences, in the light of the objective and subjective circumstances, to accept that his Honour did give the full allowance which the pleas of guilty were entitled to, albeit he made no specific reference to quantum. 36 In the circumstances, I would propose that the application for leave to appeal be granted but that the appeal be rejected. 37 SULLY J: I agree. The order of the court will be as proposed by Carruthers AJ. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.