New South Wales Court of Criminal Appeal CITATION : R v Rosser [2004] NSWCCA 216 HEARING DATE(S) : 31 March 2004 JUDGMENT DATE : 1 July 2004 JUDGMENT OF : Sperling J at 1; Hidden J at 2; Howie J at 12 DECISION : Leave to appeal granted; appeal dismissed CATCHWORDS : CRIMINAL LAW: - Application for leave to appeal against sentence - thrirty-three counts of defrauding a body corporate as an officer - whether sentences structured so as to offend principles in Pearce v The Queen - whether aggregate sentence excessive LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED : Pearce v The Queen (1989) 194 CLR 610 R v Fraser [2000] NSWCCA 97 PARTIES : Regina (respondent) Jennifer May Rosser (applicant) FILE NUMBER(S) : CCA 60258/03 COUNSEL : D Frearson (Crown) R Day (pro bono solicitor for applicant) SOLICITORS : C K Smith (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 01/51/0046 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60258/03 SPERLING J HIDDEN J HOWIE J Thursday, 1 July, 2004 REGINA v Jennifer May ROSSER Judgment 1 SPERLING J: I agree with Hidden J. 2 HIDDEN J: After a trial at the District Court at Coffs Harbour, the applicant, Jennifer May Rosser, was found guilty of thirty-three counts of defrauding a body corporate as an officer, an offence under section 176 A of the Crimes Act which carries a maximum sentence of ten years imprisonment. The trial judge sentenced her on the thirty-second count to imprisonment for four years, with a non-parole period of two years and three months, to date from 8 August 2002, the day of the verdict. On each of the other counts he sentenced her to fixed terms of imprisonment for fifteen months, to date from the same day. The aggregate sentence, then, was four years with a non–parole period of two years and three months. She seeks leave to appeal against sentence. 3 Initially the applicant was unrepresented and had prepared brief written submissions. However, on the day of hearing she was represented by Mr Roland Day, solicitor, on a pro-bono basis. He argued her case with vigour and we are indebted to him for his assistance. 4 It is unnecessary to recite the facts in any detail. The applicant had been the director of the Bellwood Pre-School in northern New South Wales. Over a sixteen month period between March 1998 and July 1999 she drew cheques on the pre-school account, held by the Bellwood Pre-School Parents and Friends Association Incorporated, and banked them into her own account. Both her account and that of the pre-school were held at the same credit union. The total amount involved exceeded $80,000. Count thirty-two, which his Honour described as "the principal count", related to a cheque for $8,200. 5 The offences were committed by a mature woman with no criminal record. She is now forty-seven years old. At the time she had a drug and alcohol problem, as well as a gambling addiction. No doubt, the genesis of these personal difficulties is to be found in her disturbed background. She is Aboriginal and had a very deprived childhood, the detail of which I find it also unnecessary to recite. In her late teens and early adult years she had a number of relationships with men which were marred by violence, and fairly described by a psychiatrist who provided a report as "disastrous". As has so often been the experience within the Aboriginal community, over a two year period she had to endure the untimely death of three of her siblings. 6 Notwithstanding all this, she completed schooling to year 10 and later undertook a number of vocational training courses. Throughout the 1980s and 1990s, prior to her appointment as director of the Bellwood Pre-School, she had been employed in a number of responsible positions in Aboriginal organisations. At the time of sentence she had been in a stable de-facto relationship for some years, and she and her partner have a daughter. She has other offspring, now adults, from previous relationships. 7 Albeit somewhat guardedly, the trial judge gave some weight to the applicant's belated expression of remorse in the sentence proceedings. His Honour found that she had developed insight into her personal problems and that she had good prospects of rehabilitation. He said that the offences might have called for an aggregate sentence of the order of six years, but he reduced that term to four years in the light of her subjective case. As is apparent, he also found special circumstances. 8 Mr Day submitted that both the four year sentence and the two years and three months non-parole period are manifestly excessive, and fail to give adequate weight to the applicant's age, her prior good character and, especially, her deprived background. However, his Honour made express reference to every significant aspect of her subjective case in remarks on sentence which might fairly be described as humane. The fact remains that these offences constituted a grave and sustained episode of fraudulent activity, perpetrated by a person in a position of trust against an organisation which was both worthwhile and vulnerable. Notwithstanding the applicant's subjective circumstances, it was necessary for considerations of retribution and deterrence to be appropriately reflected in both the head sentence and the non-parole period. In my view, his Honour's disposition served that end and was clearly within the bounds of his discretion. 9 Mr Day also submitted that his Honour had failed to apply the familiar principles expressed in Pearce v The Queen (1998) 194 CLR 610, in that he appeared to have visited upon the thirty-second count a sentence reflecting the criminality of all the counts. His Honour's remarks could be read that way, although the Crown prosecutor in this Court argued that they should not. He submitted that his Honour had done no more than impose a sentence appropriate to what he saw as the most serious of the offences, then pass a series of lesser sentences commensurate with the criminality of the other offences, exercising his undoubted discretion to make all sentences concurrent. The Crown prosecutor went on to consider the approach to sentencing for multiple offences comprising a continuing course of fraudulent conduct in the light of Pearce, referring to R v Fraser [2000] NSWCCA 97, per James J at par [18]. 10 However, for the purposes of the present case I find it unnecessary to determine whether his Honour's sentencing exercise offended the principles in Pearce or to examine the approach to sentencing in cases of this kind. I am satisfied that the aggregate sentence of four years with a non-parole period of two years and three months was appropriate to mark the criminality exhibited by all the offences. To adjust the individual sentences while preserving that aggregate sentence would be a futile exercise. In my view, the question posed by s6(3) of the Criminal Appeal Act in this case is whether some other aggregate sentence should have been imposed. I am not persuaded that it should. 11 I would grant leave to appeal but dismiss the appeal. 12 HOWIE J: agree with Hidden J. ********** Last Modified: 07/14/2004 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.