Court of Appeal (Qld)|2006-08-25|Before: McMurdo P, Holmes JA and Mullins JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Holmes JA and Mullins JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASESENTENCE – OTHER OFFENCES –where respondent convicted of stealingas a servant and sentenced to four years imprisonment suspended after ninemonths with anoperational period of five years – where respondent wasemployed as bookkeeper by a company and misappropriated $239,617.29over a 12month period – whether too much weight given to respondent’spsychological condition and other factors in mitigation– whethersuspension after 9 months manifestly inadequate R v Alexander [2004] QCA 11CA No 331 of 2003, 13 February 2004, distinguished R vAllen [2005] QCA 73CA No 21 of 2005, 17 March 2005, distinguishedRv Anderson [2000] QCA 257CA No 52 of 2000, 30 June 2000,
distinguishedR v Baunach
Cth Director of Public Prosecutions [1999] QCA 207
CA No 88 of 1999, 4 June 1999, considered R v
Fisher [2002] QCA 259
CA No 148 of 2002, 24 July
2002, considered R v La Rosa
ex parte A-G (Qld) [2006] QCA 19
CA No 287 of 2005, 10 February 2006, consideredR v Rees [2002] QCA 469
CA No 205 of 2002, 4 November 2002, consideredR v Spalding
[2002] QCA 538
CA No 241 of 2002, 6 December 2002, considered R v
Tsiaras [1996] VicRp 26
[1996] 1 VR 398, distinguished
Judgment (32 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the appellant
[2]
[2] HOLMES JA: The respondent was convicted on a plea of guilty of one count of stealing as a servant and was sentenced to four years imprisonment, suspended after nine months, with an operational period of five years. This is an appeal by the Attorney-General against that sentence.
[3]
[3] The respondent was employed as a bookkeeper by a company which sold metal products. Her duties included invoicing and the payment of bills. After it was discovered in January 2005 that the respondent had deposited a cheque for $29,969 payable to the company into her own bank account, an audit was carried out. It established that, over a period of almost 12 months, she had stolen $239,617.29 by altering payee details on the company's cheques and depositing the moneys into her bank account on 36 occasions. The respondent was confronted at a meeting of the company accountants and company personnel, and admitted that she had taken the company's money.
[4]
[4] The misappropriated money was spent, in large part, on holidays taken by the respondent, her family, her brother's family and a neighbour's family. Her sister-in-law, who was one of the beneficiaries, said in a statutory declaration that the respondent had pretended the holidays were provided free of charge by the hotels they stayed at, in return for the participants' preparing reports on the accommodation. She observed that the respondent did not appear happy on those holidays; she seemed to be under considerable strain. Some of the money was spent on a spa bath installed in the respondent's home and a boat which she had bought for her husband. By the time of sentence, the respondent had sold the boat and used the proceeds to repay $12,750 of the amount taken.
[5]
[5] The company's sales manager provided a statement to the court in which he said that the theft of the money had had a crippling effect on the company's operations: because of its loss of income it was forced to seek early payment from its customers, with a resulting loss of good will, and it was unable to pay its creditors in a timely way. It had lost tradespeople to other manufacturers and office staff were having to work on the factory floor to keep production going. The company was at risk of insolvency, and those staff who remained were under great stress as they battled to keep it viable.
[6]
[6] The respondent was aged 35 when the offending began, 37 at the date of sentencing. She has two children, aged seven years and nine years. A letter from a psychiatrist who had treated her said that she was under acute stress at the time of the offences because her alcoholic husband had threatened and abused her. (The respondent had applied for domestic violence protection orders in 2002 and again in 2006.) She had developed an adjustment disorder with depressed mood, made worse by her prosecution on these charges and her fear that her husband would not give their children proper care while she was in jail.
[7]
[7] Dr Curtis, a psychiatrist, examined the respondent in order to provide a report for use on sentencing; it was duly tendered. He noted that she had had an unhappy and unsettled upbringing. By way of Axis I diagnosis, he said that the respondent suffered from chronic adjustment disorder with anxious and depressed mood and had probably suffered in the past from episodes of major depressive disorder. (The respondent had made a suicide attempt in 1998.) As to Axis II diagnosis, he described her as "suffering from a very severe pan-neurotic personality structure involving essentially a most severe Borderline Personality Disorder". The offence was, he said, "a strange crime done by an estranged and disabled individual suffering a global pan-neurosis and a related severe Borderline Personality Disorder"; a statement which seems to have made a significant impression on the learned sentencing judge, who quoted it. Dr Curtis explained his use of the term "global pan-neurosis" by saying that it meant he was left "with the feeling that there are more sick parts rather than islands of health present in the sufferer". That is not illuminating, but presumably he meant some form of general anxiety and maladjustment, the "global" adding nothing to the "pan".
[8]
[8] Dr Curtis described the thefts as an attempt to buy acceptance and emotional security. But, he said, the respondent knew what she was doing was wrong. He stressed the age of the children and the father's alcoholism and the importance of the respondent's role in the care of her children. He also said that the respondent would become more estranged and dissociated if she were imprisoned and would require individual psychological counselling in jail, which he understood to be available.
[9]
[9] The learned sentencing judge took into account the disastrous effect of the fraud on the company which had employed the respondent. However, this was not, he said, the more ordinary case of stealing as a servant to feed a compulsion such as gambling or alcoholism. The money had been spent to maintain relationships with the respondent's husband and friends. It was also a factor that the respondent's children would have to be left in the care of her husband. His Honour expressed the view that in the respondent's psychiatric condition, a lengthy period of imprisonment would be extreme punishment, which she did not deserve, because she could not help being what she was.
[10]
[10] The Attorney-General has appealed against the sentence as manifestly inadequate, contending that the learned sentencing judge gave insufficient weight to the special position of trust occupied by the respondent, the sophisticated and sustained level of offending and the disastrous consequences for the company. It was argued that he had given too much weight, on the other hand, to Dr Curtis' explanation for the respondent's actions. The head sentence, of four years imprisonment, was within a proper range, but it ought to have been suspended after 18 months.
[11]
[11] The appellant relied on a series of cases dealing with the weight to be afforded to psychological or psychiatric conditions. In R v Fisher[1] the applicant had been sentenced to three years imprisonment for stealing as a clerk, suspended after six months with an operational period of three years. He was an assistant manager of a supermarket and had been stealing cartons of cigarettes and selling them over a period of about a year. The total value of the cigarettes stolen was estimated at about $83,000. There was an order that he pay restitution in the amount of $53,820. He had no previous convictions. Dr Curtis had given a report in that case also, to the effect that the applicant had been treated for a compulsive gambling addiction; that seemed at odds with the fact that his family finances were in credit. This Court considered that the evidence supported a conclusion that the dishonest conduct was not the result of the gambling condition. While the applicant was entitled to a reduction of sentence to give credit for an early plea of guilty and the fact that he was able to repay a sufficient portion of the amount fraudulently obtained, those factors were adequately reflected in the suspension after six months. The application for leave to appeal was dismissed.
[12]
[12] In R v Allen[2] the appellant pleaded guilty to dishonestly applying to his own use cheques and credit cards belonging to his employer, obtaining goods and services to the value of some $66,000. He was the general manager of the company defrauded. He was sentenced to imprisonment for four years, suspended after 15 months, with an operational period of five years. He had no prior convictions and had pleaded guilty to an ex-officio indictment. He had made full restitution by the sale of his family home. That was a factor which influenced the Court of Appeal very significantly in allowing the application and appeal, and altering the period required to be served before suspension to nine months.
[13]
[13] In R v Rees[3] the applicant was sentenced to three and a half years imprisonment suspended after 15 months for an operational period of three and a half years. The amount of the fraud was $51,000; part had been paid and an order for immediate restitution of the balance was met. The applicant had stolen bond money which came into her possession as property manager in a real estate business. She was 49 years old and had a child suffering from a congenital and possibly fatal heart condition. Some of the money stolen was applied to the benefit of that child. A psychiatric report suggested that the offence was committed because of the stress the applicant was undergoing. Her husband was suffering from bowel and brain cancer. The Court of Appeal varied the sentence by reducing the head sentence to three years suspended after nine months imprisonment with an operational period of three years.
[14]
[14] In R v Spalding[4] the applicant had pleaded guilty on an ex-officio indictment to one count of misappropriation and another of fraud and was sentenced to six years imprisonment with a recommendation for parole after two years. He had been a payroll master of four companies and had entered false records into the company's computer, indicating that employees were owed amounts in addition to their wages, which he then transferred into his own account. Not only did that involve a direct loss to the companies, but it increased their tax liability and sometimes meant that employees lost entitlements to benefits. The amount misappropriated was $302,873 of which the applicant received $222,378, while the Tax Office received the balance of $80,495. The applicant claimed that the companies' principal had placed him under inordinate stress at his work place. A psychologist said that this had led to an adjustment disorder with disturbance of conduct; it was possible that the applicant had misconstrued the behaviour of others; and his judgment was further impaired by excessive alcohol use. This Court took the view that the sentence adequately reflected the applicant's psychological state, which explained but did not excuse his conduct, and his co-operation, prior good history and other mitigating factors. The application was dismissed.
[15]
[15] In R v La Rosa; ex parte A-G (Qld)[5], an appeal by the Attorney-General, the respondent had pleaded guilty to stealing money from her employer, in an amount of $51,214. She was sentenced to three years imprisonment wholly suspended for three years and was ordered to make partial restitution by periodic payments, which would have amounted to about $11,000. She had worked in sales at a plant nursery and had stolen money through cash register transactions, sometimes using fake refunds, sometimes taking cash without entering the transaction, and sometimes failing to enter any record of EFT transactions. Her explanation for the offence was that she was suffering from bulimia and used the stolen money to buy food. She had pleaded guilty to an ex-officio indictment. She was 23 years old at the time she was sentenced. A psychologist's report confirmed that she suffered from bulimia and said that the prison environment would make it very difficult for her condition to be treated.
[16]
[16] Keane JA, delivering the leading judgment in this Court, began by rejecting the learned sentencing judge's conclusion that the employer's lack of stringent financial controls provided some form of mitigation. The bulimia was a factor properly taken into account, and meant that the respondent's offending was in a less serious category than that of an offender stealing solely out of greed. But it could not be said that it had adversely affected the respondent's ability to judge between right and wrong. The sentence was manifestly inadequate, given the systematic stealing of a large amount of money over a lengthy period of time. Keane JA observed that a period of actual imprisonment of 12 months would be appropriate, were it not for the fact that the respondent had been meeting her restitution obligations and that the Crown prosecutor at first instance had sought a period of nine months actual imprisonment. Suspension was not appropriate because of the need to ensure that the respondent continued to receive treatment. The sentence was set aside and a sentence of three years imprisonment, with a recommendation for parole after nine months substituted.
[17]
[17] The respondent's counsel in the present case argued that the respondent was to be regarded as suffering from a psychiatric illness which had contributed directly to the commission of the offences. He referred in particular to the decision of the Supreme Court of Victoria in R v Tsiaras[6] in which it was pointed out that serious psychiatric illness short of insanity was relevant to sentencing in a number of ways: in reducing the moral culpability of the offence; in bearing on the kind of sentence imposed and the conditions in which it should be served; in limiting the relevance of both general and specific deterrence; and possibly in rendering the sentence more onerous on the prisoner than on a person in normal health. I do not, however, read Dr Curtis' report as advancing any argument concerning psychiatric illness; rather his focus is on personality disorder, a not uncommon feature of those who commit criminal offences, reflecting more a pattern of functioning than illness. While the respondent's personality problems and unhappy circumstances were relevant in mitigation, they did not bring her within the class of case discussed in Tsiaras.
[18]
[18] Counsel made reference in oral submissions to decisions of this Court in R v Anderson;[7]R v Alexander;[8] and R v Baunach; Cth Director of Public Prosecutions.[9] In Anderson the applicant, who had disposed of property which was security for his debts, thus defrauding his creditors of some $1,500,000 dollars, was sentenced to six years imprisonment with a recommendation for parole after two years. His application for leave to appeal against sentence was dismissed. In Alexander, the applicant was sentenced to three and a half years imprisonment for multiple frauds committed by presentation of dishonoured cheques, entering hire-purchase agreements on false information, dishonestly obtaining credit and procuring stolen property. He obtained $125,000, of which about $50,000 was recovered. His application for leave to appeal was also dismissed. Neither Anderson nor Alexander can be regarded as of much relevance here. They did not involve any position of trust, and the burden of the fraud was generally spread around financial institutions unlucky enough to have provided credit in any form to the offenders.
[19]
[19] In Baunach, the respondent was sentenced to six years imprisonment with a non- parole period of one year for defrauding the Commonwealth (the Australian Taxation Office) of $800,000. His situation did involve an element of breach of trust, because his misappropriation was carried out by lodgment of tax returns on behalf of his unwitting clients. The Commonwealth Director of Public Prosecutions appealed against the sentence, submitting that a non-parole period fixed between two and two and a half years was appropriate. The respondent was a 46 year old accountant without any prior criminal history. The offence was regarded as motivated by a combination of greed and his desire to be seen as successful by his family and clients. The respondent had co-operated to some extent with the police and pleaded guilty, and it was accepted that there was not much risk of his offending again. Other factors raised in mitigation were the respondent's substantial anxiety state, his early dysfunctional family life, his poor relationship with his wife and the failure of his business. It was said he needed continuing psychological counselling.
[20]
[20] The Court of Appeal described those factors as of "some relevance in mitigation but ... not ... substantial". On the other hand, considerable emphasis was placed on the need for general deterrence. Observing that on a Crown appeal, a conservative approach was appropriate, the Court substituted a non-parole period of two years. The case has a good deal in common with the present appeal: at first instance the respondent's vulnerable psychological state seems to have been given undue weight at the expense of deterrence, resulting in an adjustment on appeal of the time actually to be served, to make it properly proportional to the head sentence.
[21]
[21] Counsel argued that the present case was not one in which the respondent stole out of greed or obtained any substantial material enrichment; indeed she had not claimed credit for the benefits she had given others. The last, I think, is not so surprising. It might have been rather difficult for her to explain her capacity to fund holidays for sizeable parties on a bookkeeper's wage. There were some material acquisitions - a boat and the spa - and while it is true that much of the money went on entertaining others, the expenditure was not altruistic. The respondent sought to gratify her own needs; although they seem to have been emotional rather than physical. The respondent's counsel also urged against regarding the failure to repay any but a very small part of the amount taken as determinative of the sentence. It is true that it is not a simple numerical exercise of adjusting the sentence according to the proportion repaid involved; but the reality, in this case, is that the harm to the victim was not ameliorated by any substantial recoupment of the funds stolen.
[22]
[22] The balance, in sentencing, between allowing for individual frailty and recognising individual responsibility is a delicate one. In this case I think that the learned sentencing judge erred on the side of the former. Too much weight was given to the respondent's wretched background and its unhappy consequences in moulding her personality. General deterrence is important in cases of this type: employers must be able to rely on the honesty of those who manage their finances. The theft was protracted and calculated. While the mitigating factors certainly warranted early release, the sentence imposed required less than a fifth of it to be served in actual custody; that was too lenient.
[23]
[23] I would allow the appeal. While not altering the head sentence of four years or the operational period of five years, I would vary the sentence by ordering its suspension after 15 months.