Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Stealing as a servant - Elderly victim - Whether sentence manifestly excessive - Extension of time - Merits of appeal - Turns on own facts

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

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

Pain v Forbes [2000] WASCA 260

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

Woods v The Queen (1994) 14 WAR 341

1 McLURE P: This is an application for an extension of time, leave to appeal and if leave is granted, to appeal against the sentence imposed for four counts of stealing as a servant contrary to s 378(7) of the Criminal Code (WA).

2 On 4 May 2009 the appellant was sentenced to imprisonment for 1 year on each count. The sentences on counts 1 and 2 were ordered to be served cumulatively resulting in a total effective sentence of 2 years' imprisonment. The appellant contends in substance that the total sentence infringes the totality principle. The manifest excess principle only applies to individual sentences.

3 The appeal notice was filed on 10 August 2009 more than two months out of time. An extension of time will only be granted if it is in the interests of justice to do so. A weighty factor in that assessment is the merits of the appeal.

4 All the counts involved money stolen from the same complainant, a 76-year-old man for whom the appellant was hired as a carer following his discharge from hospital in March 2007. The appellant worked as the complainant's carer for approximately 18 months before the commencement of her offending. The appellant's duties included cleaning, laundry and organising the complainant's meals, but did not extend to assisting with the complainant's banking or bill paying.

5 The offences were committed over a period of around nine months commencing on 6 October 2007. The offending ceased in July 2008 when the complainant's niece discovered that the complainant's bank account had been subject to a large number of withdrawals. The facts of the offences are as follows.

Count 1: On 6 October 2007 the appellant filled out a cheque for $5,000 drawn on the complainant's bank account and deposited the cheque into her own account;

Count 2: On 1 November 2007 the appellant filled out a cheque for $5,000 drawn on the complainant's bank account and deposited the cheque into her own account;

Count 3: Between 1 April 2008 and 30 July 2008 the appellant withdrew from the complainant's bank account, using automatic teller machines, a total of $19,000 ranging in amounts from $300 to $1,000;

Count 4: On 8 July 2008 the appellant sold the complainant's Ford Falcon utility for $6,000. The appellant received the proceeds of sale for her own purpose.

6 The appellant cooperated with police and made a fast-track plea of guilty. No restitution had been made at the time of sentencing.

7 The appellant was aged 38 - 39 during the period of offending. She had no prior criminal record. The sentencing judge had before him a pre-sentence report and psychological report. The appellant left school after year 10 and thereafter worked as a child care worker, nanny and carer. Her mother died when she was eight and her father died when she was 16. The appellant was very deeply affected by her father's death. It resulted in a suicide attempt and the development of an eating disorder.

8 Since the death of her father the appellant had resided with one of her brothers. She is single, has never had an intimate relationship and appears to have no assets of her own. The psychological report, which is dated 26 April 2009, states that the appellant presented as an anxious, isolated, depressed person who appeared remorseful but who had little insight into her offending behaviour. However, there was no evidence before the sentencing judge or this court that the appellant suffered from any relevant impairment, mental or intellectual, at the time of her offending in 2007 - 2008. The information before the court provided little to assist an understanding of the factors that contributed to the offending.

9 This court cannot intervene merely because it would have exercised the sentencing discretion differently. It can only intervene if a material error of fact or law is discerned in the sentencing judge's reasons or the result is unreasonable or unjust. Counsel for the appellant contended that the total sentence of 2 years is disproportionate to the total criminality of the appellant's conduct. A total sentence must bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341, 352 (Anderson J).

10 Reliance was placed on comparable cases which were reviewed in Hladin v The State of Western Australia [2005] WASCA 50, Collins v The State of Western Australia [2007] WASCA 108 and Smallbone v The State of Western Australia [2008] WASCA 167. One of the cases reviewed was Pain v Forbes [2000] WASCA 260. The cases provide limited assistance because of the very wide variety of circumstances in

which offences of this nature are committed. What aggravates the offending in this case and distinguishes it from the cases on which the appellant places particular reliance is that the property was stolen from an elderly man in the appellant's care. That presents a position of great vulnerability, financial and otherwise, abuse of which involves a gross breach of trust. Based on the material before the sentencing judge and this court, the claim that the total sentence of 2 years infringes the totality principle or is otherwise unreasonable or unjust has no reasonable prospect of succeeding. I would refuse an extension of time and dismiss the appeal.

11 OWEN JA: I have seen the reasons that McLure P intends to publish. I agree with her Honour's conclusion that leave to appeal should be refused. I also agree with her reasons for reaching that view. I wish only to add one short comment.

12 Counsel for the appellant pointed out that the complainant had a niece (who held his power of attorney) and family who were 'watching over him'. But it is difficult to see how this could have much mitigatory impact. The complainant was an elderly man who was too ill to look after his own affairs. It was no part of the appellant's duties to conduct banking transactions on the complainant's behalf. She illicitly gained access to his cheque book and to his savings card. The complainant did not give the cheques the subject of counts 1 and 2 to the appellant, nor did he know about them. He did not know she was using his savings card (count 3). Even if he consented to her organising the sale of his vehicle (it is not clear whether or not he did), he did not know she had kept the proceeds from the sale (count 4). The oversight exercised by a person holding a power of attorney might have increased the chance of the appellant's wrongdoing eventually being discovered. But it does not lessen the vulnerability of the complainant to wrongdoing by a person who had, because of her position, the means to gain access to his funds and to his banking facilities. It does not reduce the severity of the breach of trust.

13 NEWNES JA: I agree with the reasons of McLure P and with the comment made by Owen JA.