Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Dishonesty by employee - Sentence of four years' imprisonment with non-parole period of two years and six months - Whether imposition of a parole eligibility period of greater than half the head sentence was manifestly excessive.

Judgment Number: [2011] TASCCA 13

2 The order that the appellant was to be eligible for parole when she had served 2½ years of the sentence is quashed and in its place it is ordered that she is not to be eligible for parole until she has served half of the period of the sentence.

1 The appellant was sentenced by Tennent J to four years' imprisonment with a non-parole period of two years and six months after pleading guilty to one count of stealing $414,683.74 between 7 May 2004 and 31 May 2010. She appealed against the sentence on one ground, that it was manifestly excessive in relation to both the head sentence and the non-parole period.

2 She was employed as a senior accounts clerk by the George Town Council during the period of offending. She was responsible for reconciling and paying accounts and managing the day-to-day financial affairs of the Council. She had the highest level of access to the Council's financial computer system.

3 The thefts commenced in May 2004. They involved her making a series of complicated false entries in the Council's computer system and then transferring sums of money directly into her own bank accounts. In summary, she used already paid invoices from legitimate suppliers to make payments on them for a second time, but to her own bank accounts. Sometimes she created a fictitious creditor and account, but again entered her own bank account details. After making the payments she made further false entries in the accounting system.

4 A summary of the transactions shows that she stole:

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10 separate amounts totalling $7,849.52 in 2004 commencing on 7 May;

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13 separate amounts totalling $17,076.30 in 2005;

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18 separate amounts totalling $46,482.68 in 2006;

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21 separate amounts totalling $55,465.67 in 2007;

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15 separate amounts totalling $69,590.41 in 2008;

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15 separate amounts totalling $55,739.22 in 2009; and

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13 separate amounts totalling $162,479.94 in the first five months of 2010.

5 In all there were 105 thefts totalling $414,683.74.

6 On 2 June 2010, Council officers discovered three unexplained payments totalling $28,504 to bank accounts not owned by creditors of the Council. They contacted the Council's bank which spoke to the owner of the bank accounts, who proved to be the appellant, and she assured the bank the payments were correct. However, on 4 June she went to the relevant Council officer and made admissions that she had paid the $28,504 to herself from Council funds. By that stage Council officers were suspicious of other payments. She was asked about them but denied any knowledge of further thefts. As a result, a full audit was conducted.

7 She was interviewed by police on 14 June 2010 and admitted the thefts. She said she had lost track of what she was doing and expressed shock at the total amount stolen. She claimed to be unable to recall specific transactions. She claimed that at first she took the money to repay debts owed by her former husband's business, but admitted that after that she also used the money to pay outstanding credit card bills.

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the offending continued over a long period of time, approximately six years;

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there were 105 unlawful transactions;

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the total amount stolen was large;

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although her thefts began because she needed the money to pay debts of her husband's business or credit card debts incurred as a result of them, they clearly went beyond that, particularly in the later years, and some of the stolen money was used to fund living expenses and to provide assistance to her daughter;

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the thefts in the first five months of 2010 were substantial;

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the methodology used to carry out and conceal the thefts was complicated;

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it was because of her senior position at the Council and her high level of access to the computer system that she was able to steal the money, so that the crime amounted to a serious breach of trust;

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the likelihood of the Council recovering its loss was low, particularly because at the time of sentencing she was a bankrupt.

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she was 58 years old;

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she married at 18 years of age and had one adult child;

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she had no formal training but had worked in the clerical/accounting area for most of her life;

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her husband operated a successful logging business, but it struggled to survive due to a downturn in the forestry industry;

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her husband was psychologically affected by two accidents and did not cope;

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the business suffered financially and in 2000 he committed suicide;

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she unsuccessfully attempted to keep the business going and it then ceased to operate;

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she tried to pay the debts of the business even though she may not have been legally obliged to do so, and she converted some of them to credit card debt and owed $67,000 in 2004;

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she began stealing to cover monthly repayments, although some of the stolen money was used, as we have said, for other purposes;

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she made partial admissions to her employer;

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she made admissions to the police and pleaded guilty; and

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she had no prior convictions.

10 It is emphasised that although there was only one count of stealing, the appellant's criminal conduct included 105 thefts over a period of six years, together with the making of many false entries in the Council's financial system to enable her to steal the funds and to cover up what she had done.

11 The Court is satisfied that having particular regard to the totality of her criminal conduct and to the amount stolen, imprisonment for four years was not a manifestly excessive sentence, notwithstanding the mitigating factors. The length of the term of imprisonment was consistent with many other sentences that have been imposed for serious breaches of trust by employees in relatively senior positions.

12 However, the Court is also satisfied that the non-parole period of two years six months was manifestly excessive. A non-parole period represents the minimum period of imprisonment a crime requires. Power v R [1974] HCA 26; (1974) 131 CLR 623 at 628. This was a case for which the minimum parole period of half the sentence was the only appropriate one. That is particularly so because of the offender's age, the fact that she has no record, and the likelihood that as a consequence of her detection and punishment it is extremely unlikely that she will re-offend. Indeed, in regard to that last aspect, it may reasonably be expected that she will not be trusted again to have responsibility as an employee for the funds of an employer.

13 The Court does not accept her counsel's submission that the scheme of the parole provisions of the Sentencing Act 1997 are such that if a sentencing judge decides that an order providing parole eligibility should be made, the order should provide for parole eligibility after serving one half of the term of imprisonment, unless persuaded that a longer period of ineligibility is required. No such presumption arises under the Act. What it provides in s17(2) and (4) is that a court may order that an offender is not to be eligible for parole or it may make no order, in which case the offender is not eligible for parole in respect of the sentence. Alternatively, the court may make an order that the offender is not to be eligible for parole before the expiration of such period of time as is specified in the order, which period, under subs(3), may not be less than one half of the period of the sentence. Whether the period of ineligibility should be specified as one half, or some greater portion of the period of the sentence, is left entirely within the unfettered discretion of the court. In exercising that discretion, the court may, but does not have to, have regard to the matters specified in subs(4) which are the nature and circumstances of the offence, the offender's antecedents or character and any other sentence to which the offender is subject.

14 Because the Court is satisfied that the minimum time the appellant should be required to spend in prison for her offence is two years and that for the reasons given, the fixing of a non-parole period of two years six months rendered the sentence a manifestly excessive one, the appeal will be upheld. It will be ordered that the order that the appellant was to be eligible for parole when she had served 2½ years of the sentence is quashed, and in its place it will be ordered that she is not to be eligible for parole until she has served half of the period of the sentence.