Reported Decision : (2002) 135 A Crim R 417 New South Wales Court of Criminal Appeal CITATION : REGINA v Milagnitos MONTESINOS [2002] NSWCCA 470 FILE NUMBER(S) : CCA 60435/02 HEARING DATE(S) : 26/11/02 JUDGMENT DATE : 26 November 2002 PARTIES : REGINA (Appellant) Milagnitos MONTESINOS (Respondent) JUDGMENT OF : Mason P at 39; Sperling J at 40; Bell J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/1250 LOWER COURT JUDICIAL Nicholson DCJ OFFICER : COUNSEL : R Hulme SC (Crown) S J Odgers SC (Respondent) SOLICITORS : SE O'Connor Aitken McLachlan Thorpe (Respondent) Confiscation of Proceeds of Crime Act 1989 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Dinsdale v The Queen (2000) 202 CLR 321 R v Anderson [1981] VR 155 R v Baker [2000] NSWCCA 85 R v Brillo (unreported), NSWCCA 14 May 1997 R v Duroux (unreported) NSWCCA, 11 April 1991 R v El-Rashid (unreported), NSWCCA, 7 April 1995 R v Engert (1995) 84 A Crim R 67 R v Giarratano [2000] NSWCCA 418 CASES CITED: R v Fisher [2001] NSWCCA 143 Regina v Israil [2002] NSWCCA 255 R v J C E [2000] NSWCCA 498; 120 A Crim R 18 R v Letteri (unreported) NSWCCA, 18 March 1993 R v O'Keefe (1992) 60 A Crim R 201 R v Pangello (unreported) NSWCCA, 20 February 1992 R v Sivyer [2002] NSWCCA 410 R v Scognamiglio (1991) 56 A Crim R 81 R v Spiridonov (unreported) NSWCCA, 1 May 1998 Regina v Zamagias [2002] NSWCCA 17 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60435/02 MASON P SPERLING J BELL J 26 November 2002 REGINA v Milagnitos MONTESINOS Judgment 1 BELL J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the leniency of sentences imposed upon the respondent in the District Court at Penrith on 19 August 2002. 2 On 14 May 2002 the respondent was arraigned on an indictment that contained fifteen counts charging offences contrary to s 300 of the Crimes Act 1900. In each instance she was alleged to have used a false instrument, namely, a cheque, drawn on the account of Whitecliffe Imports, knowing it to be a false instrument, with intent to induce another to accept the same as genuine and thereby to obtain a benefit. She pleaded that she was not guilty to each count and stood trial. 3 On 24 May 2002 the jury returned verdicts convicting her of each count. On 19 August 2002 she was sentenced to concurrent terms of imprisonment ranging between one month and twenty-four months in respect of these convictions. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") each of the sentences was suspended upon the respondent entering into a bond for the term of the sentence. 4 In addition to the statutory conditions, the bonds imposed with respect to the convictions on counts 11 to 15 (attracting the sentences of twenty-four months imprisonment) contained additional conditions, namely, that the respondent accept the supervision of the Probation and Parole Service for such period as that Service deemed appropriate, provided that it was not less than nine months and that the respondent was to obey all reasonable directions of the Probation and Parole Service, including obtaining relevant counselling and treatment for clinical depression. The Court also made an order pursuant to s 29 of the Confiscation of Proceeds of Crime Act 1989. The maximum penalty provided by s 300 of the Crimes Act is one of imprisonment for ten years. 5 The facts upon which the sentencing judge proceeded were as follows. In mid-December 1999 the respondent obtained employment with Whitecliffe Imports, a small family company engaging in the business of selling carpets and rugs. Between 10 January and 14 June 2000 on fifteen occasions she deposited cheques drawn on the account of Whitecliffe Imports to accounts operated by her with the St George Bank or the National Australia Bank. The cheques were drawn in sums that ranged between $839.40 up to $18,500.00. 6 In some instances cheques had been signed in blank by the directors of Whitecliffe Imports prior to them travelling overseas. In other instances the signature of a director appeared to have been forged. The respondent was not charged with the forgery of any instrument. In no instance was the cheque a valid order for the payment of money to the respondent. The sentencing judge found that she manipulated computer entries associated with raising cheques and edited records relating to the company's suppliers in an effort to conceal her access to the funds of Whitecliffe Imports. The total amount fraudulently deposited into the respondent's account was $119,643.13. 7 The respondent defended the charges by asserting that she had a genuine belief as to her entitlement to the proceeds of each of the cheques. She contended that one of the directors of Whitecliffe Imports gave her permission to deposit the cheques into her account so that she might buy "pretty things". It was her claim that she and he were engaged in an intimate relationship. The trial judge considered this claim to have been a preposterous one. 8 His Honour indicated a number of features of the offences that gave them what he described as a surreal aura. These features included that the respondent was a new employee with no experience of the firm's accounting procedures and that, against this background, she embarked upon fraudulent activity with the frequency and rapidity of these offences. She had no need of the sums that she obtained. She expended the same on a variety of frivolous purchases. She lacked any appreciation that she could not continue to take sums of this order without the business suffering a severe liquidity crisis and her activities inevitably being detected. 9 Whilst noting that the respondent was not to be penalised for putting the Crown to proof of its case, his Honour was of the view that aspects of the defence added to the surreal aura that surrounded the matter. His Honour noted the following subjective features. The respondent was a single thirty-five-year-old woman who was born in Lima, Peru. She came to Australia aged six years. She proved to be a good student at school. Following her matriculation she studied book keeping and accounting. She commenced a degree in business administration at Southern Cross University. As a result of a major depression she was not able to complete that course. She had a history of employment which included working for a firm of stockbrokers, the National Mutual Royal Bank, the Australian Stock Exchange and Mirvac Funds Limited. In early 1999 she gave up her employment as the result of a further episode of severe depression. She resumed employment in late 1999 with Whitecliffe Imports and, within a matter of weeks, commenced upon her course of criminal offending. 10 His Honour referred to the report of Doctor Wendy Louise Walker, a clinical and forensic psychologist. The respondent had reported a history of depressive episodes commencing at the age of six years. As an adult she experienced episodes of depression in 1996, 1998 and 1999. The depressive episode of 1999 was a disabling one during which the respondent was referred to a psychiatrist and placed on medication. 11 The sentencing judge expressed some concern about the quality of the respondent's frankness, either to the Court or in her discussions with Doctor Walker, since there were some inconsistencies between evidence given by her at the trial and the history contained in the report. Despite these reservations his Honour noted that there was support for the fact that she had been suffering from depression around 1998 and 1999. In this respect he noted the contents of the report of Doctor Stein that confirmed that the respondent had been suffering from depression and that she had been treated by a psychiatrist and placed on medication. His Honour was satisfied that at the time of the offences the respondent was suffering from depression. 12 The respondent is a person of prior good character with no criminal convictions. The Crown, in the course of oral argument, conceded that a total effective sentence of two years imprisonment would have fallen within the range, albeit at the lower end of the range. In the Crown's submission the sentences are to be characterised as manifestly inadequate by reason of his Honour's further determination that their execution be wholly suspended. 13 The Crown in written submissions referred to a number of cases that were said to be broadly comparable with the present case in order to demonstrate that a sentence of two years imprisonment, the execution of which is wholly suspended, is outside the range of the exercise of sound discretion. The sentencing judge referred to these cases in the course of his detailed remarks on sentence. The Crown submitted that underlying error might be detected from this analysis in that his Honour was said to have wrongly considered a suspended sentence to be next below a full-time custodial sentence in terms of the relative severity of the sentencing options that were available to him. 14 In support of this challenge the Crown directed attention to an exchange between the sentencing judge and counsel during the course of submissions. I do not consider it appropriate to have regard to the exchanges between the judge and counsel in order to support a contention of error. The reasons for the judge's determination as to the term and nature of the sentences are to be found in his remarks on sentence. 15 In the course of those remarks, in reviewing the decision of R v O'Keefe (1992) 60 A Crim R 201, his Honour said: "I also note that many of these cases brought to my attention by the learned Crown pre-date this Court's access to suspended sentences. In (1992) O'Keefe may have been resolved as a case suitable for suspended sentences had that option been available." 16 In O'Keefe it was argued that the appropriate sentence was one directed to be served by way of periodic detention. That contention was rejected. Lee J (with whom Gleeson CJ and Priestley JA agreed) referred to the decisions of R v Duroux (unreported) NSWCCA, 11 April 1991 and Pangello (unreported) NSWCCA, 20 February 1992, as to the leniency that is inherent in sentences of periodic detention. The Crown submits that it is hardly likely that their Honours would have regarded a suspended sentence as being an appropriate alternative had it been available at the time. 17 In the Crown's submission his Honour's remark must be taken to carry with it the mistaken view that a sentence that is suspended pursuant to s 12 of the Sentencing Procedure Act is a sentence of greater severity than one to be served by periodic detention. The Crown points to the decision of this Court in R v Zamagias [2002] NSWCCA 17 for the proposition that of the alternatives to sentences of full-time custody, suspended sentences rank as of the least severity; per Howie J (with whom Hodgson JA and Levine J agreed) at [29]. 18 Having determined that no alternative to imprisonment was appropriate, the sentencing judge fixed upon sentences of which the greatest were those of two years imprisonment. It was necessary for him to next consider whether the sentences should be served in full-time custody or by way of periodic detention or whether their execution (in whole or in part) should be suspended. The length of some of the sentences imposed in this case precluded an order that they be served by way of home detention. 19 The considerations relevant to a decision that the sentence be suspended or served by way of periodic detention required that the same range of matters be addressed as those that go to the determination both that a sentence of imprisonment is to be imposed and as to the length of the term; Dinsdale v The Queen (2000) 202 CLR 321. 20 The various and, at times, competing considerations that bear on the determination that no sentence other than imprisonment is an appropriate one are not inconsistent with the further determination that the execution of the sentence be suspended or served by way of periodic detention; Dinsdale v The Queen and R v J C E [2000] NSWCCA 498; 120 A Crim R 18. 21 In J C E Fitzgerald JA (in a judgement with which the other members of the Court concurred) observed at [19]: "A sentencing judge must explain his or her decision. That might require discussion of some other sentencing options with reasons why those options were not adopted. For example, that is implicit in s 5(1) and expressly provided for by s 5(2) of the Crimes (Sentencing Procedure) Act . However, it is obviously unnecessary for every possibility to be discussed in every case. For example, it is unnecessary to explain why community service is not an appropriate sentence for a murderer. Further, the ultimate decision, for example, whether a term of imprisonment should be eight years or nine years, frequently involves a subjective judgment, based on experience as well as information, which cannot be precisely and comprehensively articulated." 22 In this case it would have been desirable for the sentencing judge to explain why he favoured a suspended sentence over one to be served by way of periodic detention. I do not consider it reasonable to proceed upon the basis that the experienced sentencing judge overlooked the fact that a sentence of periodic detention is an available option to a sentence of full-time custody in a case where a sentence of less than three years imprisonment has been imposed. I am not persuaded that his Honour erred by assuming that a suspended sentence is a more severe sentencing disposition than a sentence served by way of periodic detention. His Honour did not purport to be of that opinion. 23 As the Crown Prosecutor realistically acknowledged in the course of the oral argument, the success of this appeal depends upon the Crown making good the contention that the sentences are so unreasonable as to bespeak error. 24 The cases upon which the Crown relied to support its contention that the sentences imposed fell outside the range of discretion were O'Keefe, R v Spiridonov (unreported) NSWCCA, 1 May 1998; R v Giarratano [2000] NSWCCA 418; Fisher [2001] NSWCCA 143; R v Brillo (unreported), NSWCCA 14 May 1997; and R v El-Rashid (unreported), NSWCCA, 7 April 1995. 25 In each case full-time sentences of imprisonment were imposed. In all save Spiridonov, the offender had engaged in a systematic course of defrauding his or her employer. O'Keefe and Brillo were said to be broadly comparable with the present case. The Crown noted that in those cases the offender had pleaded guilty and been contrite. The Crown accepted that Giarratano was a more objectively serious case than the present, but pointed to the circumstance that the offender was a 26-year-old man with a wife and three children who had pleaded guilty and was sentenced to a term of four years imprisonment with a minimum term of two years. In refusing his appeal against the severity of that sentence, Carruthers J (with whom Sully J agreed) observed that the sentences were at the lower end of the range of the exercise of discretion. 26 The case of Fisher was, again, acknowledged to be objectively more serious but the Crown pointed to the circumstance that the offender confessed his wrongdoing to the police before it was detected (although the writing was on the wall), pleaded guilty in the Local Court and made some restitution. This Court allowed an appeal against the severity of the sentence and reduced the non-parole period by six months. The head sentence of five years imprisonment was confirmed. 27 In the Crown's submission El-Rashid provided some guidance. The respondent to the Crown appeal in that case was convicted after trial of two counts of using a false instrument. He subsequently pleaded guilty to two offences contrary to s 158 of the Act and a further two offences contrary to s 300 of the Act were contained in a Form I document. The respondent was an employee of the Arab Australia Limited Bank. By two forged instruments he effected the transfer of $US120,000 from a customer's account to an account for his benefit in Lebanon. He was thirty-two years of age and had no prior criminal history. An effective sentence of two years incorporating a minimum term of nine months was quashed and, taking into account considerations of the "double jeopardy" associated with a successful Crown appeal, it was increased to three years. 28 I consider that a distinction might be drawn between El-Rashid and the present case. 29 The sentencing judge set out a passage from the judgment of Gleeson CJ in El Rashid, which was directed to the significance of general deterrence and, on occasions, specific deterrence in sentencing offenders for crimes of this nature. His Honour went on to observe that those considerations played a lesser role in the present case in the light of the respondent's major depressive illness. His Honour referred to the decisions of R v Anderson [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported) NSWCCA, 18 March 1993 and R v Engert (1995) 84 A Crim R 67 in this respect. 30 The sentencing judge was satisfied that general and specific deterrence, although to be accorded less weight on account of the respondent's mental condition, were of some significance to the exercise of his discretion. It was for these reasons that he considered that sentences of imprisonment were required. It is implicit that the respondent's mental condition was of significance to the determination that followed, namely, that the execution of the sentences should be suspended upon her entering into bonds conditioned that she undertake counselling and treatment for her clinical depression. 31 The Crown accepts that the consideration of deterrence was appropriately discounted in the light of the respondent's depressive episodes. The Crown conceded that his Honour approached this aspect of the case in a way conformable with the principles recently discussed by Spigelman CJ in R v Israil [2002] NSWCCA 255 and Wood CJ at CL in Sivyer [2002] NSWCCA 410. 32 It is appropriate to refer to the evidence that was before the sentencing judge concerning the respondent's mental condition. Doctor Walker interviewed the respondent for a total of four hours on 3 and 6 June 2002. She reported that the respondent was profoundly depressed during the course of her interviews. This observation was confirmed by formal testing. Doctor Walker recorded a history that included earlier episodes of depression. She assessed the respondent as being, "in urgent need of effective psychiatric treatment and is a significant risk of suicide." She went on to say, at p 3: "While I gained no clear evidence of psychosis (formal thought disorder, delusions, hallucinations) I believe that at times Ms Montesinos' depression is so profound that she lurches along the edge of psychosis. Depressive illness can involve psychosis, with formal thought disorder, strong paranoid thought processes, delusions and even hallucinations. If she is sentenced to a term of imprisonment, this will need monitoring. … Miss Montesinos is a pleasant, educated and intelligent lady aged 35 years. She has a history of severe and protracted depressive illnesses, the first being at the age of 6 years. She has never received appropriate psychiatric treatment and is unaware that she is currently suffering Major Depression; she is at considerable risk of suicide ... Ms Montesinos, with appropriate psychiatric treatment and monitoring, would be capable of carrying out community service. If sentenced to a term of imprisonment, the risk of suicide is, in my opinion, high. With proper treatment of her recurring episodes of Major Depression (which likely has a large inherited component along with being reactive to loss and trauma), Ms Montesinos has a good prognosis for a law-abiding and hard-working life; however the likelihood of further episodes of depression is significant." 33 In Engert Gleeson CJ laid emphasis upon the sensitive discretionary considerations that come into play when judges are called upon to sentence people suffering from mental disorders. His Honour observed at p 68: "It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." 34 In R v Baker [2000] NSWCCA 85 Spigelman CJ (in a judgment with which the other members of the Court agreed) observed at [19]: "In my opinion there is no warrant for this Court to interfere with the sentencing discretion by her Honour. The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 35 The pattern of sentences revealed by the cases to which we have been referred lends support to a view that the present sentences were markedly lenient. Ordinarily, having regard to the size of the fraud and the period of time over which it was committed, one would expect sentences of full-time custody to have been imposed. However, it is not the role of this Court to substitute its view of an appropriate sentence for the view of the sentencing judge. In this case there was evidence of the respondent's mental condition such that it was open to the judge to give less weight to considerations of deterrence than would otherwise have been appropriate. The Crown accepts so much but contends that his Honour must be taken to have erred in giving too great an allowance. This is a sensitive discretionary determination and one upon which minds may reasonably differ. 36 In Dinsdale Kirby J, discussing the attitude of restraint that is conventionally applied to Crown appeals, observed at [62]: "The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains." 37 I have concluded that the Crown has failed to establish that the sentences in the circumstances of this case are so manifestly unreasonably or plainly wrong that this appeal should succeed. 38 I propose that the appeal be dismissed. 39 MASON P: I agree. 40 SPERLING J: I also agree. 41 MASON P: The appeal is dismissed. 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.