R v Adams [1999] QCA 326

Court of Appeal (Qld)|1999-08-20|Before: McMurdo P, Davies JA, White J, Before McMurdo P

1 The appellant was convicted on her own plea of guilty on 25 March 1999 to an indictment charging that on divers dates between the 18th day of April 1994 and the 5th day of April 1996 at Mooloolaba in the State of Queensland she dishonestly applied to her own use a sum of money being the amount of a general deficiency belonging to Sales Force Pty Ltd and that at that time she was an employee of Sales Force Pty Ltd and that the yield to her from the dishonest application of property was in excess of $5,000. It was admitted on her behalf for the purpose of sentencing that the amount dishonestly taken by her was $60,376.95 comprising 11 cheques totalling $10,376.95 and cash amounting to $50,000.

2 Notwithstanding her plea of guilty and the fact that, even now, it is not suggested on her behalf that she did not dishonestly take over $60,000 of the complainant's money, the appellant appeals against her conviction. She also seeks leave to appeal against her sentence which was one of four years imprisonment with a recommendation that she be eligible for parole after serving 15 months of that term.

3 The appeal against conviction was on two grounds. They were:

1. the conviction is bad in law as it was obtained in proceedings which were held in circumstances which constitute an abuse of the subject court's process.

The relief sought by the appellant, although never expressly articulated, is apparently that this Court set aside the conviction and grant a permanent stay of proceedings against her.

4 As we understood the appellant's argument, the second of those grounds was not advanced as an independent ground of appeal. Rather it was submitted that the way the indictment was framed caused or contributed to the abuse of process alleged. Other matters contributing to that abuse of process were said to be delay and the late production of evidence. However it is a little difficult to understand what that abuse of process was.

5 After some initial prevarication, the appellant admitted to fraudulently converting to her own use 11 cheques totalling $10,376.95. Indeed the case against her on those cheques was so overwhelming that she had little option. Thenceforth the dispute in the case, such as it was, was not as to whether the appellant had committed fraud[1] but rather the total amount which she had fraudulently taken. The appellant's submission, as we understand it, was that the indictment in the above form prevented the appellant from having that question - the amount which she had taken - being decided by a jury. That was, she submitted, because she had no defence to an indictment in that form. If, on the other hand, she had been charged on two separate indictments, or two counts on one indictment, one in respect of the cheques, the other in respect of the cash deficiency, she could have pleaded guilty to the first and not guilty to the second. There are a number of reasons why that contention has no substance.

6 Before turning to these reasons it should be mentioned that the appellant had earlier been charged on a two count indictment in the above form but the learned trial judge had held it to be bad for duplicity. That conclusion may be doubted but it is unnecessary to consider it further here.

7 The main and, in our view, compelling reason why there has been no abuse of process is that the appellant was indisputably guilty of the offence of which she was convicted; that is, not only of dishonestly applying the amount of a general deficiency of more than $5,000, but of dishonestly applying $60,376.95 of the complainant's money. This is demonstrated not only by the plea of guilty and the agreement as to amount for the purpose of sentencing but by the fact that, even before this Court, the appellant admits that. It may well be, as the appellant contends, that there were weaknesses in the prosecution case with respect to the cash stolen. But it is plain that, because of her undisputed guilt, she was not unfairly deprived by the proceedings of the chance of an acquittal.

8 An important consideration in determining whether a trial has been unfair is the public interest in the conviction of those guilty of crime.[2] In the present circumstances it would be unfair in the public interest to set aside a conviction for an offence the guilt of which is not only undisputed but undisputable even if there were some defect now discovered in the indictment. There is no uncertainty about the conviction.[3]

9 In any event, in our view, the indictment was not duplicitous and was, moreover, one which it was open to the prosecution to present in this case, especially in the circumstances in which a two count indictment had been ruled duplicitous.

10 The indictment was pursuant to s 408C and s 568(1C) of the Criminal Code in the form in which those sections were prior to their amendment in 1997. Neither under those provisions, nor under s 408C and s 568(3) in the form in which they now are was the indictment, in our view, duplicitous. Under the former s 568(1C) a general deficiency could be charged notwithstanding that there were a number of specific applications of property extending over a space of time and that the property came into the possession of the accused at different times and subject to different directions, conditions or duties to account. Similarly under s 568(3) one charge may encompass any number of specific frauds of the same type whether or not each act of fraud can be identified or the frauds have extended over any space of time or the property came into possession or control of the accused person at different times and subject to different directions, conditions or duties to account. Mr Devereaux for the appellant contended that it was s 568(1C) in the form in which it existed prior to 1997 which was the relevant provision, submitting that, notwithstanding that the later provision was in force at the time the indictment was presented, the change in the section was a substantive one affecting rights, not merely a procedural one. Accepting, for the purpose of argument, that s 568(1C) was the relevant provision, there is nothing in it, in our view, which is inconsistent with the indictment on which the appellant was charged. It is implicit in the terms of that section that the fact that some specific applications of property are identifiable does not preclude charging a general deficiency. Nor can it matter that the applications are of different kinds; for example some of cheques, others of cash. Once it is accepted that it was permissible to charge a general deficiency under s 568(1C) the fact that the prosecution may have chosen some other way of charging the appellant is irrelevant.

11 It is true that there was some delay in these proceedings, caused in part by the aborted trial on the two count indictment, and there was some evidence produced at the commencement of the trial which culminated in the guilty plea which was not produced in the earlier trial. But the delay was not prolonged and neither matter can justify a stay in the light of the facts already stated.

12 The appeal against conviction must be dismissed.

13 The appellant was aged 23 to 25 at the time during which she took the money the subject of her conviction. She is now 28. She has no prior criminal history.

14 The appellant was employed by the complainant as a bookkeeper. She was in charge of banking and bookkeeping generally and was one of the complainant's senior staff. She was in a position of considerable trust. Moreover her thefts occurred during a period in which a new owner had taken over the business and she must have known that, during that period considerable reliance was placed on her integrity and competence.

15 Her dishonest conduct was protracted and persistent. Indeed it continued after the employer had engaged an outside consultant to tighten up the rather lax bookkeeping system. After that occurred, when it became more difficult for the appellant to steal cash, she proceeded or continued to steal cheques.

16 This is not a case in which the appellant was a person in need or who had a compelling reason to steal. A good deal of the money which she took appears to have been used to purchase luxury items and pay for travel. Unsurprisingly her conduct had a substantially detrimental effect on the complainant's business.

17 Her plea of guilty, the learned trial judge thought, was a late one and there is no reason to think otherwise. It appears to have been made only after some negotiation and compromise by the prosecution as to the amount of cash which she took.

18 No doubt a sentence of four years imprisonment upon a woman as young as this with no prior convictions was a heavy burden, made heavier by the fact that she was pregnant at the time she was sentenced. However when to that is added the recommendation for parole after 15 months the sentence does not, in our view, exceed the appropriate range for an offence of this kind.

19 A number of sentences, said to be comparable were cited to us. The most comparable of these is Viola CA No 105 of 1996, judgment delivered 5 June 1996. In that case a sentence of four years imprisonment with a recommendation after one year was imposed by this Court on a young woman of 21 who had stolen from her employer amounts totalling $65,000 most of which she gave to a young man with whom she was infatuated. The infatuation was seen as a mitigating factor, at least in the sense of providing some explanation for the applicant's conduct in that case. That sentence in our view shows that this sentence, though high, was not manifestly excessive.

20 We would refuse the application for leave to appeal against sentence.

[1] Or misappropriation as it was called in s 408C prior to its amendment on 1 July 1997.

[2] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 61; Walton v Gardiner (1993) 177 CLR 378 at 396; and cf R v Peters NSWCCA, 23 October 1995, unreported, at 10 - 11.

[3] Cf Chew v The Queen (1991) 4 WAR 21 at 35, 64 - 65.

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