Sarah-Jane Vaughan v R [2011] NSWCCA 4

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sarah-Jane Vaughan v R [2011] NSWCCA 4 Hearing dates: 1 February 2011 Decision date: 01 February 2011 Before: McClellan CJ at CL at 17 Adams J at 18 Buddin J at 1 Decision: Leave to appeal granted. Appeal dismissed Catchwords: CRIMINAL LAW - appeal against sentence - various offences of obtaining a financial advantage - breach of trust - substantial sum of money obtained - whether sentences were appropriately structured - whether overall sentence manifestly excessive Legislation Cited: Crimes Act 1900 Cases Cited: Pearce v The Queen (1998) 194 CLR 610 R v XX [2009] NSWCCA 115 Category: Principal judgment Parties: Sarah-Jane VAUGHAN (Applicant) Regina (Respondent) Representation: Counsel: F Coyne (Applicant) V Lydiard (Crown) Solicitors: Matthew Hammond Solicitors (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/129007 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-04-08 00:00:00 Before: Tupman DCJ File Number(s): 2009/129007

Judgment 1BUDDIN J : The applicant seeks leave to appeal against sentences imposed upon her in the District Court following her pleas of guilty to an indictment containing five counts. Each count alleged a contravention of s 178BA(1) of the Crimes Act 1900 which creates an offence of dishonestly obtaining a financial advantage. At the relevant time that offence attracted a maximum penalty of 5 years imprisonment. The sentencing judge was asked, when imposing sentence, to take into account five additional offences of the same kind which appeared on a Form 1 document. All five counts on the indictment as well as the Form 1 matters were in the same terms except for the amount of money involved and the periods of time over which it was obtained. 2The sentencing judge imposed an overall effective term of imprisonment of 5 years with an effective non-parole period of 3 years. In respect of each of the first four counts, the applicant received a fixed term of 2 years imprisonment. The sentence for the first count was ordered to commence on 8 April 2010, the sentence for the second count on 8 October 2010 whilst the sentences for the third and fourth counts were each ordered to commence on 8 April 2011. In respect of the final count, and after taking into account the Form 1 matters, a non-parole period of 12 months which was ordered to commence on 8 April 2012 with a parole period of 2 years was imposed upon the applicant. 3The sentence hearing proceeded by way of an Agreed Statement of Facts which revealed that the applicant had been employed as an account keeper and a personal assistant to the managing director and company secretary of Argonaut Resources Pty Limited. For the 9 years that she worked in that position the applicant was the only employee, other than the managing director, working in the company's head office. 4The sentencing judge outlined the factual background to the applicant's offending behaviour in the following terms: Her responsibilities included mail duties, book entries, presentation of invoices for the managing director to sign, the drawing of cheques for his approval and signature and carrying out telephone Internet banking transactions. She was relatively well paid in that role with a salary of just over $100,000. It was her role to present invoices to the managing director for his approval and then to pay those accounts once approval had been given. Where such an invoice was to be paid by cheque, she would then prepare a cheque for signature and arrange for the cheque to be paid to the appropriate payee. It was the practice of the company for such payments to be made on cheques signed personally by the managing director, Mr Ellis. The offender herself was not authorised to sign company cheques. There were however, in the Sydney office of the company, four signature stamps. One of those was the signature of the managing director, Mr Ellis. He was responsible for operations of the company in Australia and the stamp, I accept, was created because there was a large volume of correspondence that needed to be signed by him within Australia and it would be signed in that way ob his behalf in his absence. He did not however authorise the use of the signature stamp for the purpose of signing company cheques and the offender was not authorised to do that. In September 2008 the company's banker made contact with Mr Ellis in relation to some cheques which had been drawn on their account. He recognised the handwriting as being that of the offender and recognised that he had not authorised the payment of the monies in those cheques. He also recognised that the signature was by way of a stamp which again was not something that he had authorised. He arranged for an audit of the account and together with the bank it was discovered that there was a large number of similarly misappropriated cheques and direct debit transactions undertaken by the offender. 5A subsequent police investigation revealed that the applicant's fraudulent transactions were undertaken either by her unauthorised use of the signature stamp on cheques or by making unauthorised internet transaction transfers. When the fraudulent transactions were discovered, the applicant was in London. She was notified that her fraudulent conduct had been discovered but she nonetheless returned to Australia in the knowledge that she would be arrested. She was then charged with a large number of offences which, according to the sentencing judge, were "ultimately distilled into what are effectively, five rolled up charges ... and a further five rolled up charges [which became the Form 1 offences]". 6There were a number of features of the applicant's conduct which the sentencing judge identified as revealing significant criminality on her part. First, it involved a breach of her employer's trust. Secondly, the period of offending continued for a period of 7 years and involved 417 separate transactions. Thirdly, the amount of $2,768,598 which was fraudulently obtained by the applicant was, by any measure, a substantial sum of money. Fourthly, the applicant acted solely for the benefit of herself and family and friends upon whom she bestowed gifts in order to support what the sentencing judge described as an "extremely lavish lifestyle". 7On the other hand there were a number of factors upon which the applicant relied which Her Honour found operated to mitigate the otherwise appropriate penalty. The applicant was extended a discount of 25% to reflect the fact that she had pleaded guilty in the Local Court. Furthermore, she was entitled to additional leniency for having demonstrated remorse and also because she was a person with no prior criminal convictions. 8The sentencing judge accepted a psychiatrist's opinion that at the time when the applicant committed the offences, she was suffering from bipolar affective disorder. Her Honour also accepted that, as a consequence, she "engaged in compulsive thinking and behaviour which led to her excessive spending". Her Honour thus concluded that although the applicant knew that her conduct was wrong, her addiction to compulsive spending was the result of her psychiatric illness. Accordingly, the sentencing judge determined that the need to reflect general deterrence was, to some extent, attenuated. Her Honour also accepted the psychiatrist's opinion that the applicant's illness would make her time in custody more burdensome than would otherwise be the case. 9The sentencing judge concluded that the applicant had good prospects of rehabilitation, noting amongst other considerations that she continued to have the support of her husband and other members of her family. Her Honour observed that although the applicant had been sacked from her employment upon the discovery of her offences, she nonetheless had utilised the period of time between then and her eventual incarceration by engaging in a number of worthwhile activities. There was evidence, for example, that she had worked on a voluntary basis in the kitchen of a parish church in Kings Cross. In due course she had accepted employment in that facility where she was able to demonstrate her considerable administrative and computer skills. She ultimately became a trusted employee. She also provided services to other disadvantaged people in the community. She was also working at the time of sentence, in an administrative capacity, in both a yoga centre and in a pilates centre in Kings Cross. 10Her Honour also took into account the fact that the applicant had taken steps to repay some of the monies which she had dishonestly received. The applicant estimated that the value of monies which had been repaid, or goods which had been redeemed, to be in excess of $500,000. The sentencing judge concluded that that estimate was "probably somewhat excessive" but accepted that everything the applicant had ever owned had been handed over to her employer and that she still would have "a significant debt hanging over her head more probably than not for the rest of her life". The sentencing judge concluded that a longer than normal period of supervision in the community was warranted to enable the applicant to deal with "the inevitable consequences of spending a period [of time] in prison" and, as a consequence, made a finding of "special circumstances". 11The applicant complains that the sentencing judge erred in failing to impose sentences that were wholly concurrent. There is also a complaint that the effective overall sentence is manifestly excessive. 12In support of the submission that the sentences which were imposed should have been wholly concurrent, counsel for the applicant contended that such an outcome was warranted because the offences committed by the applicant constituted "a continuous course of criminal conduct". So much may be accepted but such a bare description of the situation does not, of itself, require that wholly concurrent sentences had to be imposed. Much turns on the facts of the particular case. In the present case, as has been observed, there were 5 separate offences which were committed over different periods of time. The sum of money obtained as a result of each offence was, on each occasion, substantial ranging as it did from $267,450.25 to $807,592.39. The offending behaviour may have been of the same kind but the charges reflected separate acts of criminality which each called for an appropriate sentence. Sentencing offenders in respect of a number of offences presents particular difficulties. Nonetheless what the sentencing judge was required to do, consistently with authority, was to impose an appropriate sentence in respect of each offence and also to ensure that the overall sentence imposed reflected the totality of the criminality. Her Honour acknowledged that task and in structuring the sentences in the manner in which she did, complied with the principles established by authorities such as Pearce v The Queen (1998) 194 CLR 610 and R v XX [2009] NSWCCA 115. I detect no error in her Honour's approach and would reject this ground of appeal. 13In advancing the submission that the overall effective sentence was manifestly excessive, counsel for the applicant submitted that the subjective features of the case were such as to warrant a significantly lesser sentence. It was not, and nor could it be, submitted that the sentencing judge did not specifically take into account all those factors upon which the applicant could rely in order to ameliorate the sentences to be imposed. 14I would reject the submission simply because even when due weight is given to those matters, the fact remains that these offences were of very considerable objective gravity. The applicant's persistent course of dishonesty over an extended period of time enabled her to obtain the benefit of a very substantial sum of money whilst she was working in a trusted position for her employer. 15During oral argument counsel for the applicant referred to two decisions which were said to be of a comparable nature to the present case. I am bound to say that I found them to be of little assistance particularly as neither of them provided any indication as to the appropriate range for this type of offence. 16When all the competing considerations that were relevant to the sentencing exercise are weighed in the balance, I am of the view that the applicant has not demonstrated that the overall sentence imposed exceeded the legitimate range of the sentencing judge's discretion. I propose that leave to appeal be granted but that the appeal be dismissed. 17McClellan CJ at CL : I agree with Buddin J. 18Adams J : I also agree. 19McClellan CJ at CL : The orders of the court will be as proposed by Buddin J.