R v Eveleigh [2009] QCA 257

Judgment (29 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McMURDO P: The application for leave to appeal should be refused for the reasons given by Chesterman JA.

[3]

[2] FRASER JA: I agree that the application should be refused for the reasons given by Chesterman JA.

[4]

[3] CHESTERMAN JA: On 23 January 2009 the applicant pleaded guilty to a charge that:

[5]

"... on those dates between ... 4th ... May 2008 and ... 9th ... July 2008 at Calamvale ... (she) being a servant of Woolworths Limited stole a sum of money the property of Woolworths ...and the value of the property was more than $5,000."

[6]

[4] The applicant was sentenced to a term of four years' imprisonment. The date on which she becomes eligible for release on parole was fixed for 23 March 2010, i.e. fourteen months after the commencement of imprisonment.

[7]

[5] The applicant seeks leave to appeal against sentence on two grounds: that it was manifestly excessive and that the sentencing judge failed to state that he took into account the applicant's plea of guilty contrary to s 13(3) of the Penalties and Sentences Act 1992 (Qld) ("the Act").

[8]

[6] The applicant was employed by a Woolworths supermarket at Calamvale as a cash management systems operator. Her duties included counting the money collected from the supermarket's cash registers, recording the amounts and physically preparing the notes and coins for collection by a security firm which transferred the money to Woolworths' bank.

[9]

[7] Over a period of two months and five days the applicant stole $87,900 from the supermarket's takings. She did so by an elaborate system of deception and the falsification of electronic and paper documents. Cash was counted and then put into envelopes kept in a safe until collected by a security firm. The applicant took money from the envelopes, or took whole envelopes which should have been placed into the safe. She created false computer records which purported to show that money had been put into the safe when it had not. She also falsely completed documents entitled "Armaguard Collection Summary" which were meant to record the amount of cash held in the safe pending collection by the security firm, and the separate amount in each envelope deposited in the safe.

[10]

[8] The amount of cash was separately recorded on a banking reconciliation form. The applicant falsified the collection summaries to conceal the moneys she stole. On occasions when other staff members had compiled the summary the applicant altered their records. She went to work early to attend to the falsifications so that what she had done would not be detected by her colleagues. The applicant destroyed or concealed collection summaries and receipts which should have been sent to Woolworths' transaction processing centre where, presumably, they would have revealed the losses.

[11]

[9] On each of two distinct occasions the applicant stole amounts of about $14,000. On average she stole about $9,000 per week. The thefts were discovered and the applicant identified on internal television monitors. An examination of the falsified documents also implicated the appellant. She was interviewed by her managers and after an initial denial she confessed her theft.

[12]

[10] The applicant made full admissions to the police. She offered $2,000 by way of restitution. The amount represented her entitlement to a severance payment from her employer.

[13]

[11] The applicant was paid $541 per week. Her employment was secure and she was not under any financial pressure. She had no debts. Her only financial obligation was to pay $100 a week board to her partner's parents with whom they lived. She had recently sold her house and had "enough money". The applicant accounted for the moneys stolen by saying that she had lost the entire sum playing poker machines at a local hotel. She claimed "that she would sit on the poker machines for 3 to 4 hours at a time and spent about $4,000.00 at a time". Despite winning almost $73,000 from the machines between 1 May 2008 and 30 June 2008, of the money stolen from Woolworths there was said to be "not one cent left."

[14]

[12] The applicant had an unhappy start to life. Her mother was mentally unstable and was addicted to prescription drugs. She was frequently admitted and discharged from psychiatric hospitals. The applicant, when a child, was obliged to assume responsibility for her mother. When she fell pregnant at age 16 her parents importuned her to have an abortion but offered no emotional support or comfort afterwards.

[15]

[13] According to Mr Robinson, psychologist, the applicant's addiction to gambling was an escape from the emotional and psychological legacies of her troubled youth, "the mechanism" being "the distraction of the mind which allows freedom from emotional pain while engaged in the addiction".

[16]

[14] The sentence was said to be manifestly excessive by reason of these factors:

[17]

(1) The applicant's age - 22 at the time of the offence.

[18]

(2) Her co-operation firstly by confessing her dishonesty to her employer and then to the investigating police officers.

[19]

(3) The applicant's regular weekly attendance at Gamblers Anonymous meetings which she had found helpful.

[20]

(4) Her addiction was a form of escape from the legacy of her disturbed childhood.

[21]

(5) The money was stolen from a large and financially successful corporation, the value of which was not diminished by the loss so that by operation of s 9(2)(e) of the Act, a lesser sentence was appropriate.

[22]

[15] On the hearing of the appeal only factors (5) and (6) were stressed. Despite Mr Crofton's earnest attempts at persuasion, neither has substance. While it may be right that the effect of a crime upon the victim is a relevant factor in sentencing, and to steal from the indigent may well require harsher punishment than to take from the affluent, it is not right that the theft of a very large amount of money by a servant of a large company does not also require substantial punishment.

[23]

[16] The second point is met by the observation that the offending did not come to an end by any voluntary act of the applicant's but because her theft was detected.

[24]

[17] The cases to which we were referred establish that the sentence imposed on the applicant was within range. In R v Ma'afu, unreported, Thomas, de Jersey and Cooper JJ, Qld, CA No 269 of 1990, 28 February 1991 the applicant was 26 years old with no criminal history. She was an administration officer who stole 21 cheques to the value of $77,544.35. When confronted she confessed dishonesty and pleaded guilty early. There was no restitution. The offence involved no sophistication. It was said to have been an escape from depression brought on by sexual abuse. Ma'afu was sentenced to four years' imprisonment with a parole release date set after 18 months.

[25]

[18] In R v Lawrie [2008] QCA 97 the applicant was a clerical assistant in a chiropractic practice who became friendly with the owner. Over some 20 months she systematically defrauded her employer of almost $51,000. She was a 41 year old mother of two with no criminal history. Following her matrimonial breakdown she was left in dire financial circumstances and stole to alleviate her poverty. She confessed and repaid about $10,000. The loss hit the employer hard. Lawrie was sentenced to three and a half years' imprisonment suspended after serving 12 months.

[26]

[19] In R v Ward [2008] QCA 222 the applicant was a man in his thirties with no criminal history. He was employed as the general manager in a company owned by his sister and brother in law. He stole just under $100,000 over 20 months. The manner of offending was sophisticated and involved elaborately dishonest concealment of his criminal activity. The crime had a devastating impact upon his sister. He pleaded guilty early and made substantial admissions. He was sentenced to five years' imprisonment to be suspended after 20 months.

[27]

[20] The applicant's case is a serious one of betrayal of trust by an employee on whose honesty Woolworths depended for the safe recording and banking of its income. The need for deterrence, both general and personal, is of particular importance in such cases. The sentence of four years is well within range as the cases I have referred to demonstrate. Indeed this case appears more serious than Ma'afu. The fixing of a parole eligibility date after 14 months is ample recognition of the circumstances of mitigation, both those personal to the applicant and those involving her co-operation with the administration of justice.

[28]

[21] The complaint that the sentencing judge had not referred to the applicant's plea of guilty was, properly, not pressed. Section 13(1) of the Act obliges a court imposing a sentence on an offender who has pleaded guilty to take the plea into account. Section 13(3) requires the Court to state openly that the plea was taken into account. The judge did not do so but it is clear, as the applicant's counsel acknowledged, that the sentencing judge in fact took the plea into account, as the fixing of an early parole eligibility date indicates.

[29]

[22] The application for leave to appeal against sentence should be refused.

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Judgment (29 paragraphs)

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