Court of Appeal (Qld)|2000-09-15|Before: Pincus JA, White J, Jones J

R v Blackhall-Cain; ex parte A-G of Qld [2000] QCA 380 (15 September 2000)

The respondent is 36 years of age. The offences were committed over a six week period in mid-1998. He has no criminal history.

The primary Judge, in his reasons for sentence, said that the respondent pleaded guilty at the first opportunity, having made full admissions from the outset. His Honour said that the dishonesty was not elaborate and did not involve a great deal of planning. He accepted that no-one was out of pocket because of the dishonesty, for reasons which I will mention later. The Judge also said that the respondent's career had been destroyed as a result of his dishonesty; that was a reference to the fact that he will be unable for a period of six years to carry on his former occupation, because of this dishonesty.

Mr Meredith, who has appeared for the Attorney-General today, says that the interruption or destruction of the career is a proper outcome and what one would expect from such dishonesty. He also points out that the respondent was in a position of trust in the employer firm - not only trust by the employer but trust by the community - and that he held a senior position and that these are matters which are relevant in favour of the appeal.

When the offences were committed, the respondent was employed in a position described as "registered securities representative"; that involved buying and selling shares for clients of the employer firm.

Eight of the offences, charged under s.408G of the Code, consisted of simply taking money in various ways. Count 1 involved a firm client who instructed the respondent to sell certain options. He did so and forwarded the resultant sale price to the client, but without deducting, as he should have done, a sum which was due by the client to the employer firm. The client pointed the error out and the respondent told her to send the cheque for the sum due back to him personally. He then forged an endorsement and deposited the cheque in the account of a company of which he and his wife were the only directors. In short, he stole a cheque which was the property of the employer.

Another fraud related to a sale of AMP shares on behalf of a client. In the course of this transaction, a profit of over $5,000 was made, which belonged to the firm; but the respondent stole the money by having it put into an account in a false name for the purpose of defrauding the employer.

A third case also involved AMP shares. A client received a contract note from the firm indicating that 250 shares had been sold on his behalf. In fact, no instructions had been given to sell the shares, but a cheque for nearly $5,000 was sent to the client who denied, correctly, having given instructions to sell. As in the first matter I have mentioned, the client's cheque was, at the respondent's request, sent back to him personally and he paid it into the account of the company I have mentioned.

The next matter involved a rather simple fraud. A client noticed that there was a $15,000 incorrect debit in her account and she complained about it. The respondent met the situation by arranging for a cheque for $15,000 to be drawn but it was paid, not to the client, but again into the account of the same company.

The next fraud was effected by simply arranging for a sum, which was $3,000 short of what was due, to be paid to a client. Again, that $3,000 difference went into the company account.

The last three frauds were committed by means similar to that just mentioned. There were eight cases in all, each of which involved, in essence, stealing a sum of money, and the sum taken, as I have mentioned, amounted to over $51,000.

The remaining 15 of the 23 offences were all ancillary to these thefts. Seven of them were forged cheque endorsements and seven were associated utterings of the cheques bearing the forged endorsements. The other offence, not being one presently in issue, consisted in opening an account in a false name.

There was evidence before the primary Judge that prior to the commission of these offences, the respondent had been receiving psychiatric treatment. He saw a psychiatrist on three occasions before the first offence; that is, in April, May and June 1998. The reasons for his visits were that he was depressed, suicidal and drinking very heavily. He was on anti-depressant medication.

After the offences were committed, a psychiatrist continued to see the respondent for about six months after the last offence. He spent some weeks in a psychiatric hospital, to which he had been admitted following the taking of an overdose of sleeping pills. After that three week admission, he attended what was called a psychiatric day program, two days a week for several weeks.

The psychiatrist's opinion was that at the time of the offences the respondent had been suffering from reactive depression together with alcohol abuse and that he might temporarily have met the criteria for a diagnosis of major depressive disorder. The doctor thought that at the time of the events in question the respondent was suffering from clinically significant psychiatric problems and that his high levels of depression and anxiety together with his

alcohol abuse were likely to have adversely affected his judgment.

An unusual feature of the case was that commissions were to become due to the respondent by the employer and when those commissions were paid they exceeded the sums misappropriated, so that neither the firm's clients nor the firm were out of pocket. In the way the matter was placed before the primary Judge, the offences amounted to stealing sums from the employer by various subterfuges, in anticipation of moneys which were to fall due and did fall due by the employer to the respondent. This, of course, is no excuse for the thefts, but it is to some extent a mitigating factor.

In late 1996, it appears from the history given to the primary Judge, the respondent went through a period of binge drinking at a time when his family was getting heavily into debt. This heavy drinking on one occasion produced an admission to hospital where he saw a psychiatrist and was admitted for three days. He continued to see the same psychiatrist for some weeks thereafter. There were four children of the marriage of the respondent and his wife and the marriage was said to be "pretty much breaking up by about 1997". At the time of the thefts, the respondent was paying a large amount of maintenance and by way of mortgage repayments. The Judge was told that before the offences were committed loans had been made by the employer to the respondent, the intention being that these would be

discharged out of the commissions which I have mentioned; but as it happened, in June 1998 all the loans were called in, creating a money shortage for the respondent.

It has been submitted, in effect, by Mr Meredith, that if one examines the authorities, the sentence appears to be too lenient. Among those in which fairly light or no imprisonment has been imposed are Powell, CA 61 of 1994,

22 April 1994 and also Riesenweber, CA 430 of 1996,

15 November 1996 and Mara, [1999] QCA 308; CA 170 of 1999,

6 August 1999. At the other end of the spectrum, so to speak, and particularly relied on by Mr Meredith, is the case of Symes, CA 46 of 1999, 28 May 1999. One might say that Symes stands out as a case in which fairly heavy punishment was imposed, by comparison with the other cases.

Mr Meredith has frankly conceded, and correctly conceded in my view, that the present case is one in which there might have been an inclination to impose a non-custodial sentence; but he says, in effect, it should have been resisted, despite the mitigating circumstances.

In my view, there are two difficulties about the appeal which stand strongly in the way of allowing it. One of them is that, unusually, there is unchallenged evidence of a significant psychiatric condition, not one which had arisen merely after the offences were committed, but one for which treatment was being received before the offences. There was unchallenged material before the primary Judge showing that

the psychiatric condition from which the respondent was suffering had a connection with the offences. He had never previously, being 36 years of age, committed any offence whatever.

The second feature, which I have already mentioned, which seems unusual is the "anticipation" factor. That is, there were, in fact, moneys which were to fall due to the respondent from past transactions; they did fall due, and the employer was paid out from those moneys. It is not a case where money was stolen with no real prospect of refunding it. The prospect of refunding it was already there.

On the whole, and despite the able argument of Mr Meredith, it appears to me that the three cases which I have mentioned, Powell, Riesenweber and Mara, are such as to make it difficult, if not impossible, to hold that the sentence is at a level which entitles this Court to interfere by allowing the appeal. That is, it appears to me that, although some Judges might have imposed a term of imprisonment, a non-custodial sentence was one which was within the range of a proper exercise of judicial discretion and I would therefore dismiss the appeal.

R v Blackhall-Cain; ex parte A-G of Qld [2000] QCA 380

At a glance

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Judgment (31 paragraphs)

R v Blackhall-Cain; ex parte A-G of Qld [2000] QCA 380 (15 September 2000)

R v Blackhall-Cain; ex parte A-G of Qld [2000] QCA 380 (15 September 2000)

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