Criminal law - Appeal against sentence - Appellant convicted of five counts of stealing as a servant - Pleas of guilty - Total effective sentence of 15 months' immediate imprisonment - Whether sentences of imprisonment should have been suspended

Sentencing Act 1995 (WA), s 6(4), s 39, s 76, s 81

Allie v The State of Western Australia [2016] WASCA 6

Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)

Carter v The State of Western Australia [No 2] [2015] WASCA 59

Collins v The State of Western Australia [2007] WASCA 108

Dimanopoulos v The State of Western Australia [2011] WASCA 62

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fogg v The State of Western Australia [2011] WASCA 11

Heaney v The State of Western Australia [No 2] [2013] WASCA 238

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McIntyre v The State of Western Australia [2016] WASCA 150

McNamara v The State of Western Australia [2010] WASCA 193

Nanya v The State of Western Australia [2016] WASCA 169

R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998)

Reynolds v The State of Western Australia [2010] WASCA 60

Skipworth v The State of Western Australia [2008] WASCA 64

Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57

Smith v The State of Western Australia [2017] WASCA 73

Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123

1. This is an appeal against sentence.
2. The appellant was convicted on her pleas of guilty in the District Court of five counts of stealing as a servant, contrary to s 378(7) of the Criminal Code (WA) (the Code).
3. Count 1 alleged that on 24 September 2015 at Mount Hawthorn the appellant, being a servant of Seaport Nominees Pty Ltd (Seaport) trading as Discus Digital Print, stole $7,370 in money, which came into her possession on account of her employer.
4. Count 2 was identical to count 1 except the sum stolen was $2,191.75 in money.
5. Count 3 was identical to count 1 except the offence occurred on 28 September 2015 and the amount stolen was $23,517.46 in money.
6. Count 4 was identical to count 3 except the amount stolen was $15,004.40 in money.
7. Count 5 was identical to count 3 except the amount stolen was $20,908.98 in money.
8. So, the total amount stolen as a servant was $68,992.59, with two offences having been committed on 24 September 2015 and three offences having been committed on 28 September 2015.
9. On 19 October 2017, Stavrianou DCJ imposed individual sentences of immediate imprisonment as follows:

1. His Honour ordered that the individual sentences be served concurrently. The total effective sentence was therefore 15 months' immediate imprisonment. A parole eligibility order was made.
2. On 17 January 2018, this court heard the appeal. At the conclusion of the hearing, the court ordered unanimously that leave to appeal be refused and the appeal be dismissed. We said that reasons for making those orders would be published later. These are our reasons.

The facts and circumstances of the offending and the appellant's personal circumstances and antecedents

1. The facts and circumstances of the offending and the appellant's personal circumstances and antecedents are as follows.
2. The appellant was employed by Seaport as a senior administration assistant.
3. Between 23 September 2015 and 29 September 2015 the appellant transferred money totalling $68,992.59 from Seaport's bank accounts to her personal bank accounts. The appellant then transferred the stolen money to other accounts in her name.
4. Seaport became aware that the money had been stolen when several creditors contacted the company and alleged that their monthly accounts had not been paid.
5. The appellant stole the money by manually changing Seaport's accounting software programme. She substituted her bank details for the creditors' bank details. The appellant implemented a number of steps to defeat the accounting software programme.
6. On or about 6 October 2015, the appellant travelled from Perth to the United States of America. She remained in the United States until on or about 3 May 2016, when she returned to Australia. On 12 May 2016, she was arrested and charged with the offences in question.
7. Shortly after she stole the money the appellant made a number of transfers of money from her accounts. The sentencing judge accepted that she applied $16,258 of the stolen money to assist her mother. However, his Honour found that 'the very great bulk of the money had nothing to do with [the appellant's] mother and it was money that [the appellant] spent either on [herself] in paying off [the] debt that [she] had incurred to the Child Support Agency of ... just under $14,000 or for [her] own accommodation while [she was] in the United States' (ts 68). His Honour also found that the appellant had used some of the stolen money to pay for her airfares to the United States, accommodation in the United States and other personal debts and living expenses.
8. The appellant was born on 13 July 1971 in the United States. She was aged 44 at the time of the offending and was 46 when sentenced.
9. The appellant is an Australian permanent resident, but is not an Australian citizen.
10. In 2009 the appellant married a woman in the United States. They relocated to Australia. The appellant stated that during her marriage she suffered emotional, physical and verbal abuse from her spouse. In December 2012 the relationship ended. However, there were protracted proceedings in the Family Court concerning their daughter, who was aged 5 when the appellant was sentenced.
11. The appellant has three children in the United States who have lived with her former husband.
12. The information before his Honour included a pre-sentence report dated 28 February 2017 and a psychiatric report dated 19 June 2017 from Dr Siva Bala, an associate professor of psychiatry.
13. In his report Dr Bala said that:

(a) the appellant had a history of recurrent depressive order, a personality marked by borderline traits and an alcohol use disorder; and

(b) her offending was not related to a psychiatric illness.

1. Dr Bala expressed the following opinions regarding the appellant's mental state and her offending:
   1. [The appellant's] offending was impulsive, unpremeditated and conducted without forethought. There is an element of recklessness to the offending and [the appellant], at the time of the offence, was preoccupied with feeling trapped and helpless, facing a possible departure ban [from Australia] and intent on finding a way out. She was aware of the wrongfulness of her actions, reproaches herself constantly and was not severely affected by mental illness to the extent that she could not have made other choices.
   2. The subsequent months when [the appellant] fled to the United States and continued to feel guilty and frightened ... confirms my opinion that [the appellant's] mental state was sufficient to allow her to reflect meaningfully on the consequences of her behaviour. Although she may have been depressed due to life stressors, she was able to work and function adequately, and my opinion is that there is no mitigation from a mental illness at the time of the offence. Hence, she was not so impaired in mental state that she could not control her actions.
2. Dr Bala noted that the appellant was 'obviously distressed and guilt-ridden about her offending'. He added that she had reported 'negative self-image, feelings of failure and hopelessness about the future'.
3. Dr Bala said that the appellant did not currently require psychiatric treatment.
4. The sentencing judge referred to the appellant's explanation for her offending as set out in a letter dated 22 May 2017 written by the appellant to his Honour (ts 68):

It's no excuse, but I'd like to offer an explanation. I was under an extreme amount of pressure from the Australian Child Support Agency in part because of what I owed and in part due to the placement of a departure ban on my passport until what I owed was paid off. My mother was falling ill in the USA and with the departure ban on my passport I could not travel if needed.

My guilt regarding my children in the USA and my inability to see my Australian daughter were taking an incredible emotional toll on me. My defamation solicitor wanted money, my ex-partner was after me for private school fees ... it left me in a state of fight or flight and I regretfully [chose] to fly with a large amount of money that was not mine to take.

1. His Honour accepted that in September 2015 the appellant was 'panicking about [her] situation', but her reaction was 'out of all proportion to the situation that [she] faced' (ts 69).
2. The sentencing judge was satisfied that the appellant had 'a genuine belief that [she] needed to go to America' (ts 69). One of the reasons why the appellant went to the United States was her 'mother's condition', but she was only able to travel there with the money she had stolen (ts 69).
3. His Honour referred to the appellant's personal circumstances and antecedents. He noted that she had suffered from depression for a number of years and in October 2016 had attempted suicide. His Honour recognised that until recently the appellant had been in full-time employment. She was now in a supportive relationship. The appellant had no prior convictions. His Honour had received written references from a number of people. The references indicated that the appellant's offending conduct was an aberration.
4. The sentencing judge made detailed reference to and took account of Dr Bala's report.
5. The appellant's pleas of guilty were not entered at the first reasonable opportunity. The appellant first appeared in the Magistrates Court on 27 May 2016. She did not enter her pleas of guilty until some seven months later, at the second disclosure committal hearing on 4 January 2017. However, the pleas were 'reasonably valuable to the State' (ts 72) and, in the circumstances, his Honour allowed a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA). We consider that the discount of 20% was, in the circumstances, generous.
6. The sentencing judge accepted that, by the pleas of guilty, the appellant took responsibility for her offending. The appellant 'panicked' and was 'desperate', but the offending involved a number of transactions and not merely one incident (ts 72).
7. His Honour found that the appellant had returned voluntarily from the United States and had surrendered to the police. She had repaid $12,000 of the stolen money. The appellant recognised that she had 'treatment needs' and had taken 'steps in that regard' (ts 72).
8. The sentencing judge described the appellant's offending as 'serious'. She was 'clearly a trusted employee'. The victim was a small business. The appellant had full access to the bank accounts and software programmes of the business. His Honour said the offending involved a 'gross abuse of trust'. General deterrence was an important sentencing factor. There was also a need for some specific deterrence (ts 72 - 73).
9. His Honour decided that the seriousness of the offences was such that only sentences of imprisonment could be justified. His Honour was satisfied that it was not appropriate to suspend the terms of imprisonment.

1. The sole ground of appeal alleges, in essence, that the sentences imposed on the appellant were manifestly excessive in that the sentences should have been suspended having regard to the circumstances of the offending, sentencing standards and the personal circumstances of the appellant.

1. Counsel for the appellant submitted that it was not reasonably open to the sentencing judge, in the circumstances, to decide that immediate imprisonment was the only appropriate sentencing option.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
3. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
4. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
5. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[1]
6. By s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

1. Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

1. Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
2. The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
3. The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
4. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
5. A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[2] Fogg v The State of Western Australia.[3]
6. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. See Dinsdale v The Queen.[4] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. See Dinsdale [86].
7. The critical question in an appeal such as the present is whether it was reasonably open to the sentencing judge to be positively satisfied that suspended or conditionally suspended imprisonment was not an appropriate sentencing option having regard to the facts and circumstances of the particular case and all relevant sentencing factors and principles. See McIntyre v The State of Western Australia;[5] Nanya v The State of Western Australia;[6] Smith v The State of Western Australia.[7]
8. The maximum penalty for the offence of stealing as a servant, contrary to s 378(7) of the Code, is 10 years' imprisonment.
9. In Dimanopoulos v The State of Western Australia,[8] McLure P (Buss JA agreeing) said that the offence of stealing as a servant is serious in that it involves the abuse of a position of trust. Consequently, significant weight is ordinarily accorded to general deterrence with a related reduction in the weight ordinarily given to personal circumstances and antecedents. The appropriate penalty is ordinarily, as a matter of fact, a term of imprisonment to be served immediately, especially where the total amount stolen is substantial and involves multiple offences.
10. However, the sentence to be imposed in a particular case ultimately depends on its individual facts and circumstances, after having regard to the maximum penalty. Previous decisions in relation to stealing as a servant may provide only limited assistance in some cases because of the very wide variety of circumstances in which offences of this kind are committed. See Reynolds v The State of Western Australia.[9] It is important, nevertheless, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of ensuring broad consistency.
11. We have examined numerous cases with at least some features comparable to the appellant's offending including R v Jeffree;[10] Bessell v The Queen;[11] Hladin v The State of Western Australia;[12] Collins v The State of Western Australia;[13] Smallbone v The State of Western Australia;[14] Reynolds; McNamara v The State of Western Australia;[15] Dimanopoulos; Zande v The State of Western Australia;[16] Heaney v The State of Western Australia [No 2];[17] Carter v The State of Western Australia;[18] and Allie v The State of Western Australia.[19]
12. Counsel for the appellant relied on the decisions in Collins, McNamara and Carter in support of her submission that, having regard to sentencing standards, it was not reasonably open to the sentencing judge to impose sentences of immediate imprisonment on the appellant. We do not accept that submission.
13. In Collins, the offender was convicted, on his pleas of guilty, of 75 counts of stealing as a servant. He was sentenced to 15 months' immediate imprisonment on each count. The sentencing judge ordered that the sentences on two counts be served cumulatively with the balance of the sentences to be served concurrently. The total effective sentence was 2 years 6 months' immediate imprisonment. A parole eligibility order was made. A majority of this court allowed the offender's appeal against sentence. The majority substituted a total effective sentence of 1 year 8 months' immediate imprisonment.
14. The total amount stolen by the offender in Collins from his employer was $56,507. That amount is similar to the total amount stolen by the appellant in the present case. The theft in Collins occurred over a period of about 10½ months, a significantly longer period than in the present case. The offender in Collins used the stolen money to fund his lifestyle. The offender in Collins was of a similar age to the appellant in the present case. The offender in Collins, like the appellant in the present case, suffered from mental health issues but, as in the present case, there was no causal connection between his offending and his mental health issues. The offender in Collins was taking prescribed antidepressant medication. He pleaded guilty at the first reasonable opportunity and cooperated with the police. The offender in Collins, like the appellant in the present case, had no prior criminal record. The sentencing judge in Collins found in effect that there was no risk of the offender reoffending.
15. In Collins, this court unanimously rejected the offender's submission that the sentencing judge erred in concluding that terms of immediate imprisonment were the only appropriate sentencing option.
16. In McNamara, the offender was convicted, after trial, of 180 counts of stealing as a servant. She was sentenced to 12 months' immediate imprisonment on each count. Two of the counts were ordered to be served cumulatively with the balance of the sentences to be served concurrently. The total effective sentence was 2 years' immediate imprisonment. A parole eligibility order was made. This court unanimously dismissed the offender's appeal against sentence.
17. The total amount stolen by the offender in McNamara from her employer was $56,136. That amount is similar to the total amount stolen by the appellant in the present case. The theft in McNamara occurred over a period of about 19½ months, a significantly longer period than in the present case. The offender in McNamara was aged 35 at the time of sentencing and had no prior convictions. The sentencing judge accepted that imprisonment would have adverse emotional and financial impacts on her family. The only significant mitigating factor in McNamara was the offender's prior good character. This court held unanimously that the sentencing judge was correct to conclude that, having regard to all relevant sentencing considerations, suspension of the terms of imprisonment was not appropriate.
18. In Carter, the offender was convicted, on her plea of guilty, of one count of stealing as a servant. She stole scratchcards to the value of $17,647, being the amount of a general deficiency. The offender committed the offence over a period of 3 months while she was employed on a part-time basis at a newsagency. The offending was discovered after the owner of the business identified discrepancies following an audit. The business had suffered a serious reduction in income as a result of the offending. The theft had seriously adverse consequences for the victim, other members of her family and the business. An employee of the business was retrenched. The offender was sentenced to 12 months' immediate imprisonment. A parole eligibility order was made. This court unanimously allowed the offender's appeal against sentence. The court held that it was not reasonably open to the sentencing judge to decide that immediate imprisonment was the only appropriate sentencing option. When this court allowed the appeal the offender had served about 3 months in custody. The court substituted a term of imprisonment of 9 months and suspended the term for a period of 9 months, commencing on the date on which the offender was resentenced.
19. The offender in Carter established on appeal that the sentencing judge had made two material express errors. Those errors enlivened this court's jurisdiction to intervene. The offender also established that the sentence of immediate imprisonment was manifestly excessive. The facts and circumstances which persuaded this court that a term of imprisonment to be served immediately was not the only appropriate sentencing option included:

(a) the offending was not sophisticated or well planned;

(b) the offender's culpability was at the lower end of the scale of seriousness of offences of the kind in question;

(c) the offender pleaded guilty at the first reasonable opportunity;

(d) the offender was relatively youthful in that she was aged 22 at the time of the offending and when sentenced;

(e) the offender had significant emotional and psychological problems;

(f) the offender had, within her modest means, made some restitution to the owner of the newsagency and intended to continue making payments until the whole of the victim's loss had been repaid;

(g) the offender had taken steps towards rehabilitation by seeking treatment for her emotional and psychological difficulties, including her gambling behaviour; and

(h) the offender was a single mother and her child, who was aged 3 when she was sentenced, had been diagnosed with autism and accompanying marked speech and language delay.

1. Carter is distinguishable from the present case. The offender in Carter, unlike the present appellant, had the benefit of relative youth. Although the period of the offending was longer in Carter than in the present case, the total amount stolen by the offender in Carter was significantly less than the total amount stolen by the present appellant. The offender in Carter, unlike the present appellant, pleaded guilty at the first reasonable opportunity. The offending in Carter was less sophisticated than the offending in the present case. The sentencing judge in Carter, unlike the sentencing judge in the present case, made material express errors which enlivened this court's jurisdiction to intervene.
2. In the present case, it was open to the sentencing judge to decide that the facts and circumstances militating against suspending the terms of imprisonment decisively outweighed the facts and circumstances militating in favour of suspension. It was open to his Honour to be positively satisfied that it was not appropriate to select a lesser sentencing option (in particular, to suspend or conditionally suspend the terms of imprisonment).
3. After taking into account:

(c) the objective facts and circumstances of the offending;

(d) the vulnerability of the victim of the offending;

(e) the standards of sentencing customarily observed;

(f) all mitigating factors referred to by his Honour, including the appellant's pleas of guilty and her personal circumstances and antecedents; and

we are satisfied that the individual sentences of immediate imprisonment and the total effective sentence of 15 months' immediate imprisonment were not unreasonable or plainly unjust.

1. Error by the sentencing judge in the exercise of his discretion should not be inferred from the sentencing outcome.
2. The ground of appeal fails.

1. The ground of appeal did not have a reasonable prospect of success. Leave to appeal should be refused and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[2] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).

[3] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).

[4] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).

[5] McIntyre v The State of Western Australia [2016] WASCA 150 [19] (Buss P, Mazza & Mitchell JJA).

[6] Nanya v The State of Western Australia [2016] WASCA 169 [53], [59] (Buss P, Mazza & Mitchell JJA).

[7] Smith v The State of Western Australia [2017] WASCA 73 [25], [51] (Buss P, Mazza & Mitchell JJA).

[8] Dimanopoulos v The State of Western Australia [2011] WASCA 62 [19].

[9] Reynolds v The State of Western Australia [2010] WASCA 60 [10] (McLure P; Owen & Newnes JJA agreeing).

[10] R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998).

[11] Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998).

[12] Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176.

[13] Collins v The State of Western Australia [2007] WASCA 108.

[14] Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57.

[15] McNamara v The State of Western Australia [2010] WASCA 193.

[16] Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123.

[17] Heaney v The State of Western Australia [No 2] [2013] WASCA 238.

[18] Carter v The State of Western Australia [No 2] [2015] WASCA 59.

[19] Allie v The State of Western Australia [2016] WASCA 6.