Court of Appeal (WA)|2011-03-17|Before: Lure P, Buss JA

DIMANOPOULOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 62 (17 March 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIMANOPOULOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 62

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Stealing as a servant - Whether terms of imprisonment should have been suspended - Totality principle - 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

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

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

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

1 McLURE P: This is an application for leave to appeal against sentence. On 8 October 2010 the appellant was convicted on her fast-track pleas of guilty of one count in an indictment of stealing as a servant and to an additional 174 such offences contained in a notice under s 32 of the Sentencing Act 1995 (WA). The sentencing judge imposed a total sentence of 2 years' imprisonment and a fine of $2,000.

2 The appellant contends the sentencing judge erred in failing to suspend all the terms of imprisonment or in the alternative, in imposing a total sentence that was too long.

3 The facts are as follows. The appellant was at all relevant times employed as a bookkeeper in an earthmoving business called Calautti Earthmoving. The business was owned by a family-run company, J Calautti (1979) Pty Ltd (the employer). The appellant commenced employment in 1994 and became a highly trusted employee. Between 8 July 1999 and 8 April 2006, a period of approximately six years and nine months, the appellant stole a total of $290,711.58.

4 The sentencing judge found that the appellant engaged in a prolonged period of relatively constant dishonest conduct, the thefts occurring on two and sometimes three occasions each month. The appellant made false entries in the business records in order to cover up the thefts. In February 2006, the appellant retired. Her replacement found some discrepancies which led to the conduct of an audit and the discovery of the thefts.

5 The appellant's conduct had a significant adverse financial impact on her employer. The brothers who ran the business could not understand why it was struggling financially and they had to make financial sacrifices in order to keep the business afloat. The sentencing judge found that the appellant was aware of the adverse financial impact her conduct was having on her employer and those who stood behind it. The adverse financial situation resulted in the brothers suffering varying degrees of stress, with very significant adverse health consequences for one of them, who left the family business after approximately 30 years.

6 The appellant stole the money to assist in the welfare of her three daughters and their families. She kept some of the money for herself.

7 The sentencing judge concluded that the appellant's conduct in committing the offences demonstrated a significant degree of culpability which fell towards the high end of the range of seriousness for the offence of stealing as a servant.

8 The appellant was aged 70 at the time of sentencing. She had been married for 46 years and her husband remained supportive, as did her three daughters.

9 By the time of sentencing, the appellant had repaid all the money stolen from her employer. To raise that money, she and her husband sold their home and accessed his superannuation. The appellant now has no significant assets and she and her husband live with one of their daughters.

10 At some point prior to 2006, the appellant commenced to suffer from chronic severe back pain for which she underwent six operations. She has other medical conditions including diabetes and hypertension. The sentencing judge found that the discomfort, distress and trauma occasioned by the appellant's back condition would probably continue and make serving a sentence of imprisonment more difficult.

11 The medical evidence established that the appellant had a past and lifelong history of anxiety and that in more recent years she had suffered from depression to which her back condition contributed.

12 A psychiatric report noted that the appellant had little insight into her psychological and behavioural functioning, minimised her offending, exhibited a victim mentality and struggled to feel empathy for the victims of her offences. The sentencing judge accepted that the appellant's victim mentality and lack of empathy resulted from the fact that the victims of her offending were pursuing her in civil litigation. The sentencing judge also found that the appellant's generalised anxiety disorder was a partial cause of her offending but that its mitigatory effect was limited because, inter alia, the appellant knew what she was doing was wrong.

13 The appellant had no prior record and the risk of her re-offending was regarded as low.

14 After determining that a term of imprisonment was the only appropriate disposition, the sentencing judge revisited all relevant sentencing factors and was positively satisfied that the option of suspending the terms of imprisonment was not appropriate.

15 Having regard to totality considerations, the sentencing judge concluded that a total sentence of 2 years' imprisonment was appropriate. He said:

In order to arrive at the total sentence of 2 years' imprisonment, I will structure the sentences as follows. For the indictable offence, you'll be sentenced to 18 months' imprisonment. For charge number 170 on the section 32 notice, you'll be sentenced to 6 months' imprisonment to be served cumulatively on the 18-month term.

16 The remaining sentences were ordered to be served concurrently.

17 An appellate court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law. No express error can be identified in the reasons of the sentencing judge. The appellant must demonstrate an implied error based on the sentencing outcome.

18 The application of established sentencing principles to the offence of stealing as a servant has been considered in a number of cases including Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176, Collins v The State of Western Australia [2007] WASCA 108 [18], Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57, Reynolds v The State of Western Australia [2010] WASCA 60 and McNamara v The State of Western Australia [2010] WASCA 193.

19 Those cases demonstrate that the offence of stealing as a servant is serious, involving as it does the abuse of a position of trust with the consequence that significant weight is accorded to general deterrence with an associated reduction in the weight given to personal antecedents. A consequence of the application of these principles is that ordinarily the appropriate penalty is a term of immediate imprisonment, particularly where the total amount stolen is substantial and involves multiple offences.

20 The sentencing judge was correct to characterise the offences committed by the appellant as falling towards the high end of the range of seriousness for offences of stealing as a servant. This reflects the significant breach of trust actually reposed in the appellant, the number of offences, the frequency of the offending, the nature and extent of the impact of the offending on the victims and the appellant's knowledge of the financial impact of her conduct. The appellant falls well short of establishing that the sentencing judge erred in concluding that terms of immediate imprisonment were the appropriate sentencing options.

21 Further, it is clear that the appellant's age, health problems and other mitigating factors have been appropriately reflected in a reduction to the otherwise appropriate length of the total sentence.

22 The appellant's grounds of appeal do not have reasonable prospects of succeeding. Accordingly, leave to appeal should be refused and the appeal dismissed.

Collins v The State of Western Australia

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DIMANOPOULOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 62 (17 March 2011)

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