R v Jensen; ex parte Attorney-General of Queensland [1998] QCA 275

Court of Appeal (Qld)|1998-09-11|Before: Pincus J, Derrington J

1 Mr D P Jensen appeals against his conviction on two counts of misappropriation, and the Attorney appeals against the sentence imposed on Mr Jensen, which was one of 3 years imprisonment, wholly suspended.

2 In broad outline, the Crown case was that over a period of five years beginning late in 1987, Mr Jensen took funds amounting to well over $200,000, for his own purposes, from the accounts of two old ladies who had given him power of attorney. According to the Crown case, the two women were senile for all or most of the period during which the money was abstracted from the accounts and Mr Jensen had no authority to take it. He said in effect that the withdrawals were all authorised and that most of them constituted loans to him.

4 Mr Vasta Q.C., who led Mrs Richards for the appellant, took two points on behalf of the appellant, the principal one being that there was such an inconsistency in the jury's verdicts as to show that justice had miscarried. The women we have mentioned were aunts of Mr Jensen's wife, Veronica and Josephine McCabe. Veronica died in 1993 aged 91 years and Josephine in 1989, aged 83 years. The Crown charged three counts of misappropriation of property under s. 408C of the Code, which defines "misappropriation of property" so as to cover dishonest application to the accused's own use of property belonging to another. The Crown obtained a conviction on each of counts 1 and 2, and the appellant was acquitted on count 3; these outcomes are said to be inconsistent. Counts 1 and 2 alleged misappropriation between dates in 1987 and 1992 (count 1) and 1993 (count 2). The misappropriation alleged in count 3, on the other hand, was within a short period of time, between 8 September 1988 and 24 September 1988. To put that in simpler terms, the two counts on which Mr Jensen was convicted covered periods of about five years; that on which he was acquitted related to an early period, of a little over a fortnight. Mr Vasta argued that no rational basis on which the jury might discriminate between counts 1 and 2 on the one hand and count 3 on the other can be put forward. But Mrs Clare contends, for the Crown, that a possible explanation is that the evidence as to Veronica's mental state in 1988 might have induced the jury to have a doubt with respect to that count which was inapplicable to the others.

5 The evidence was that Mr Jensen obtained powers of attorney from each of Veronica and Josephine, enabling him to write cheques on their bank accounts, on 1 August 1984. The charges related to three accounts; the monies alleged to be misappropriated in count 1 were in an account in Veronica's name, those under count 2 were in an account in both names - i.e. Veronica and Josephine, and those under count 3 were in another account, in both names.

6 There was medical evidence about the mental condition of the two women, Veronica and Josephine, from their medical practitioner, Dr T J Bennett. He said that Josephine would not have been mentally capable of making meaningful decisions in relation to her affairs from the end of 1983. As to Veronica, Dr Bennett says that she was admitted to a nursing home on 6 June 1989 and that in "the last approximately 12 months her mental capacity was poor . . .". If the jury accepted that evidence they would have found that her capacity was poor from June 1988, before the dates alleged in respect of count 3. Dr Bennett also said in response to further questioning that he would have thought that in 1988 Veronica was "certainly not capable" of making meaningful decisions in respect of her affairs "and maybe even earlier".

7 Although Mr Vasta called the suggestion that a doubt about Veronica's mental state in 1988 might have been the basis of the jury's discrimination between counts 1 and 2 on the one hand, and count 3 on the other, merely a "theory", it is in our opinion a theory which has some foundation in the evidence. The defence put forward by Mr Jensen was that all the monies withdrawn were taken out with the general or specific authority of Veronica; in view of Dr Bennett's slight uncertainty about dates, it would in our opinion have been open to the jury to have a doubt as to whether Veronica was capable of giving rational instructions in 1988, but not to have a doubt in respect of 1989 and later years. Such a distinction might have been thought rather generous to Jensen, as on Dr Bennett's evidence Josephine was incompetent at all material times and she died in 1989. Nevertheless, such an approach has some claim to rationality.

8 The leading case on the subject is now the High Court's decision in MacKenzie (1996) 71 A.L.J.R. 91. In the principal set of reasons, Gaudron, Gummow and Kirby JJ. point out that the courts have expressed "repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense". Their Honours also drew attention to the possibility that the jury might take a -

". . . 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries".

Then there is quoted with approval remarks in a South Australian case, by King C.J., including the following:

". . . courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. . . . [s]ometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but . . . it is part and parcel of the system of administration of justice by juries".

The reasons concede that there will be cases in which the different verdicts returned -

". . . represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty".

The judges go on to mention the possibility of the different verdicts suggesting confusion, or a misunderstanding of function or the like on the part of the jury.

9 In the present case, it is hard to see that the difference in verdicts would have been likely to be due to any misunderstanding on the jury's part. The case was put to them on the basis that the result depended on whether they thought the Crown had proved dishonesty on the part of Mr Jensen and they were discouraged from discriminating between the circumstances of the three counts. But the jury were not bound to treat all the counts in the same way and might have thought that the possibility that Veronica had sufficient mental capacity in the short period covered by count 3 required them to have a doubt about that count, one not applicable to the others.

10 As a partial answer to this, Mr Vasta pointed out that some of the transactions charged in counts 1 and 2 took place on dates earlier than those charged in count 3. But the amount involved in the transactions referred to is relatively small - about $7,000. If the jury, entertaining a doubt about count 3, should also have had a doubt about the withdrawals just referred to, that would not have required them to acquit on either of count 1, which relates to withdrawals totalling over $31,000, nor on count 2, which relates to withdrawals totalling over $192,000.

11 To put the point more simply, the count in respect of which the jury acquitted was one relating to a time as to which the medical evidence might have left some doubt as to capacity, whereas the great bulk of the other transactions occurred at times when on that evidence Veronica was clearly incapable and (as to most withdrawals) Josephine was deceased. It appears clear, then, that the case is not one in which the guilty verdicts should be set aside on the ground of inconsistency with a non-guilty verdict.

12 The only other point taken by Mr Vasta was that the judge erred in letting Mr Carmody, who appeared for the prosecution below, cross-examine Mr Jensen further after he was re-examined. During Mr Carmody's first spell of cross-examination he mentioned an affidavit verifying Mr Jensen's statement of affairs made by him in relation to bankruptcy proceedings and asked a few questions based on it. Mr Carmody then told the judge his crossexamination was complete, Mr Jensen was briefly re-examined, whereupon the luncheon adjournment was taken. When that concluded Mr Carmody asked to tender the affidavit and question Mr Jensen about it. After substantial argument, the judge allowed that to be done. Mr Vasta argued that ordinarily, when cross-examination of a witness and particularly the accused has been completed, the Court will not allow it to be resumed. Accepting that, there is plainly a discretion to do so. Having carefully considered the matter, the judge exercised his discretion in favour of the prosecution and no reason appears for thinking that the discretion was exercised in such a way as to justify our now holding what was done to have been erroneous. An argument - perhaps the principal argument - advanced by Mr Vasta on this aspect was that the incident would have struck the jury as dramatic and unusual; but as Mrs Clare pointed out, there were other comparable incidents during the course of the hearing; the jury would not necessarily have regarded the further crossexamination of Mr Jensen, with respect to the statement of affairs, as particularly worthy of remark.
13 The appeal against conviction must be dismissed.

14 As we have explained, the judge imposed a wholly suspended sentence, and it was argued, in effect, that this course is plainly irreconcilable with what has been done in comparable cases. Mr Vasta, in contesting the Attorney's appeal, relied to a substantial extent upon the attitude of Mr Carmody, evinced during submissions on sentence. It is plain that Mr Carmody did not press for heavy punishment, but it seems to us that he said nothing which makes it a departure for the Attorney to press for a custodial sentence now. Mr Carmody told the judge that ordinarily an offence involving amounts in excess of $100,000 would attract a custodial term of between three and five years but that "there are cases where suspensions or early recommendations for parole have been made at very early times between four and six months". The judge asked Mr Carmody whether there were examples of very early recommendations for release being made where the sum was over $200,000 and Mr Carmody said that he could find none. It is true that Mr Carmody made some remarks in the course of his address which were favourable to Mr Jensen, such as that it was difficult to know how much of the Crown's case the jury accepted, that no further restitution than had already been made was sought by those damaged by the misappropriations and that those persons were "certainly keen on reconciliation" rather than punishment. It is also true that there was, according to the information before us, an exchange between counsel which might be treated as an encouragement by Mr Carmody to Mr Vasta (who appeared for Mr Jensen below) to ask for a non-custodial sentence. But, to reiterate, the Crown did not, below, argue that there should be such a sentence.

15 Josephine left her money to Veronica who left hers to three nieces, one of whom was Mr Jensen's wife. So the persons injured by the misappropriations were those three. The restitution referred to was in truth made by Mrs Jensen who assigned her share in the estate to her sisters, being the other two beneficiaries, and a smaller amount (some $14,600) was paid to the two sisters from the sale of Mr Jensen's family home.

16 In discussing the factors which influenced the outcome, the judge referred to the circumstances that substantial restitution had been made, that Mr Jensen had suffered greatly as a result of his misconduct as had his family, that the victims did not wish to see Mr Jensen further punished and that the case had "rather unusual features". The sentence was 3 years imprisonment wholly suspended.

17 The amount misappropriated with respect to the relevant counts was about $224,000. If, as to those counts, the jury were satisfied that the sums alleged were wholly misappropriated, then after the restitution was made the shortfall was about $35,000. This figure is arrived at by crediting Mr Jensen, so to speak, with the value of his wife's share in the estate, which she relinquished in favour of her sisters, and also crediting him with the amount received from the sale of the Jensen's family home. It was of course possible that the jury was not satisfied as to the guilt of Mr Jensen with respect to all the sums alleged to have been misappropriated, but the judge did not, as it seems to us, sentence on that basis. In the course of discussion about sentence his Honour made remarks indicating that he regarded the sum taken as being "well over the $200,000 mark" and counsel for Mr Jensen did not contest that.

18 Although the restitution came substantially from money belonging to Mr Jensen's wife, it should be taken into account in his favour. This is not to say, however, that the source of the funds should be ignored; it cannot be the law that a thief will necessarily escape punishment or receive substantially reduced punishment because he can obtain funds from a member of his family, to make restitution.

19 It was argued by Mrs Clare, on the Attorney's appeal against sentence, that a wholly suspended sentence in such a case as this is an outcome which is completely out of line with established authority. Mrs Clare argued that no decision had been put forward either before us or below which would support a completely non-custodial sentence for such a large misappropriation. This proposition may be examined with the assistance of a schedule supplied by the Crown. Of the cases there listed, that which is most helpful to the appellant appears to be Riesenweber (C.A. No. 430 of 1996, 15 November 1996) where a woman said to be genuinely remorseful pleaded guilty to a general deficiency of $40,000, which she had abstracted from the funds of her employer. A wholly suspended sentence was upheld. There, the whole amount of $40,000 was repaid; the offender was a 43 year old mother of three. The offence was committed "because of need, initially at least, generated by her husband's loss of his previous employment". There was conceded to be genuine remorse. The offender lost her job and suffered "extreme shame and loss of reputation". There had been a plea of guilty. There are, it is clear, matters which made that offence less serious than in the present case, the principal one being that the amount taken was very much less. However, the critical point in the case, as appears from the judgment of Thomas J., (as his Honour then was) was that the offender had suffered a serious injury just before sentencing which required, at that stage, much medical attention. The sentencing judge said that it would "not be humane to expose [the offender] to the discomforts of imprisonment in the circumstances" as he saw them. Holding that the case was marginal, the Court refused an Attorney's appeal. We have found no other case in the schedule which appears to give any support to the course taken here. As was mentioned during the course of argument, people involved in social security fraud are sentenced to custodial punishment for offences involving substantially lesser sums. It was said in Dwyer v. Morgan (C.A. No. 315 of 1993, 6 October 1993) that:

"commonly where substantial sums of money are obtained by fraud from the social security system, a prison term is the result".

That was a case where the offender had no previous conviction and had young children. She was sent to prison for a fraud involving $33,000.

20 There were aspects of the present case suggesting that a period of incarceration was appropriate, apart from the amount involved. Mr Jensen was in a position of trust; two old women relied on him to look after their money honestly and that he lamentably failed to do. Although Mr Jensen had no prior convictions the extent to which he was remorseful in respect of this matter was at best doubtful; he pleaded not guilty, raising what appears to us to be the rather unattractive defence that the women and in particular Veronica, despite her considerable age and very limited mental capacity, had authorised the taking of these considerable sums.

21 But the principal reasons for thinking, as we do, that a custodial sentence should be imposed are that those minded to prey on the aged to relieve them of their funds need to be strongly deterred and that, as has been argued for the Attorney, the treatment of this offender is plainly inconsistent with that meted out to others.

22 We set aside the sentences imposed below and impose instead a sentence of 4 years imprisonment, recognising what the primary judge regarded as the special circumstances of the case by recommending consideration for parole after 1 year.

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