Court of Appeal (Qld)|2006-02-10|Before: de Jersey CJ, Williams and Keane JJASeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
de Jersey CJ, Williams and Keane JJASeparate 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 SENTENCE - OTHER OFFENCES - where
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERALOR OTHERCROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - whererespondent had pleaded guilty to stealing$51,214.10 from her employer - whererespondent had been sentenced to three years imprisonment wholly suspended foran operationalperiod of three years and ordered to make partial restitution -where respondent had no criminal history - where respondent had ahistory ofbulimia - where respondent was 23 years old at time of sentence - where trialjudge sentenced on basis that bulimia droverespondent to steal - where trialjudge sentenced on basis that respondent's employer had inadequate audit systems- where trialjudge sentenced on basis that respondent's position was one of alow level of trust - whether sentence manifestly inadequateCriminal Code 1899 (Qld), s 398(2) cl 6
Channon v R (1978) 20 ALR 1, applied
R v Alexander [2004] QCA 11
CA No 331 of 2003, 13 February 2004,
applied
R v Mara
ex parte A-G (Qld) [1999] QCA 308
CA No 170 of 1999, 6
August 1999, cited
R v Rees [2002] QCA 469
CA No 205 of 2002, 4 November 2002,
cited
R v Robinson
ex parte A-G (Qld) [2004] QCA 169
CA No 102 of 2004,
20 May 2004, applied
R v Viola [1996] QCA 214
CA No 105 of 1996, 5 June 1996,
cited
Judgment (49 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the appellant
[2]
[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the orders proposed by His Honour, and with his reasons.
[3]
[2] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and there is nothing I wish to add thereto. I agree with what is said therein and with the orders proposed.
[4]
[3] KEANE JA: On 6 October 2005, the respondent was convicted, upon her own plea of guilty, of stealing money the property of her employer between 1 January 2003 and 19 July 2004. The sum involved was $51,214.10. The maximum penalty for stealing as a servant is 10 years imprisonment.[1] The respondent was sentenced to three years imprisonment which was wholly suspended for an operational period of three years. She was also ordered to make partial restitution by payments of $300 per month for a period of three years. It appears that the respondent has complied with the order for restitution to the present time.
[5]
[4] The Attorney-General appeals against the respondent's sentence on the ground that it was manifestly inadequate. It is submitted that the sentence imposed failed to reflect the gravity of the offence, failed to take into account the need for general deterrence and gave too much weight to factors going to mitigation.
[6]
[5] The complainant was a company that operated a plant nursery. The respondent was initially employed at the nursery in February 2000 as a sales assistant. She left the complainant's employment for a time but returned in May 2002. She was eventually promoted to the position of supervisor.
[7]
[6] As a result of a perceived downturn in the profits of the nursery, the complainant conducted an audit of its takings as a result of which it emerged that the respondent had been stealing from the cash register. The respondent admitted to the director of the complainant that she had been stealing money on almost a daily basis.
[8]
[7] On 26 July 2004, the complainant called in the police, and the respondent was interviewed by the police on 28 July. She made full admissions to the police of a variety of methods used by her to steal from the complainant. One method involved entering into the cash register refund transactions which did not occur and then, at the conclusion of that day's trading, balancing the till and taking the difference in cash. A second method involved taking a customer's cash payment for a purchase and not entering the transaction into the computer thereby masking the sale. The third method was more sophisticated. It involved completing an Electronic Funds Transfer ("EFT") and, after the transaction was completed on the banking system, she would terminate the transaction on the complainant's register prior to any record being entered in its computer. The customer's copy of the EFT receipt would indicate a withdrawal from the customer's account, but the complainant's system would not show a sale made. The respondent would then take the corresponding amount from the end of the day's takings and attach a false transaction record to the receipt to mask her theft.
[9]
[8] The respondent's explanation for the offence was that she was suffering from bulimia and that most of the money she stole was used to buy food.
[10]
[9] The respondent pleaded guilty to an ex officio indictment.
[11]
[10] The respondent was born on 20 September 1982. She was between 20 and 21 years of age at the time of her offending and was 23 years of age at the time she was sentenced.
[12]
[11] The respondent had no prior criminal history.
[13]
[12] The respondent was, at the time she was sentenced, in employment and earning $500 net per week.
[14]
[13] Her father has a criminal record. Her parents separated when she was 14 years of age. She has not seen her father since then. Her childhood was not happy and she has suffered from learning difficulties.
[15]
[14] According to Mr Peter Perros, a psychologist who provided a report in relation to the respondent, the respondent has a history of bulimia, a potentially fatal illness characterised by excessive eating followed by purging the stomach, usually by forcing the fingers down the throat to bring about gagging.
[16]
[15] The respondent claims to have suffered from bulimia since she was 17 years of age. It became worse when a relationship with a young man of whom she was fond failed. She lost her periods completely, her weight fell to around 30 to 32 kilograms, she suffered hair loss and her skin became "cracky and scaly".
[17]
[16] Since her treatment began in August 2004, the respondent's bulimic condition has improved. As of September 2005, her weight was said to be 42 kilograms. Her skin and hair have been restored to a healthy appearance. It is said that she has ceased purging her meals. Mr Perros concluded that she "remains quite vulnerable psychologically, and will likely experience a setback to her rehabilitation if jailed. Bulimia is a very difficult condition to treat and I think the jail environment will be counter-productive for her".
[18]
[17] The respondent is presently in a relationship with a young man. She does not have any children.
[19]
[18] Her Honour took into account the circumstance that the respondent pleaded guilty to an ex officio indictment.
[20]
[19] Her Honour noted the respondent's absence of a criminal history, and expressed the view that the respondent was unlikely to reoffend. Her Honour was concerned that even a short term of imprisonment might have catastrophic consequences for the respondent's recovery.
[21]
[20] The learned sentencing judge regarded it to be a factor of "crucial importance" that the respondent was driven to steal by her bulimic condition rather than greed. This does not appear to be entirely accurate as it appears from Mr Perros' report that she spent approximately $2,000 on clothes.
[22]
[21] The learned sentencing judge acknowledged that the offence of stealing a substantial sum as a servant "will usually attract a custodial sentence", but said that this case was to be distinguished from the usual run of such cases by reason of the respondent's age and the circumstance that she was operating in a position involving a "low level of trust". Her Honour also observed that she would take into account that the complainant's audit systems were obviously inadequate to ensure that its employees did not steal from it and that the respondent "should never have been able to steal $51,000 from this employer".
[23]
[22] It must be said immediately that the proposition that the criminality of the respondent's conduct is lessened because of the absence of stringent personal supervision and adequate financial control systems should be rejected. The complainant did not invite the respondent to steal from it, and was entitled to expect that the respondent would behave as an honest employee. It is not as though some flaw in the complainant's business arrangements led the respondent accidentally to engage in criminal behaviour. The respondent deliberately set out to help herself to money that she knew was not hers. She pursued this course over a lengthy period and avoided detection by quite sophisticated stratagems of concealment.
[24]
[23] Further, it must also be said that her Honour's conclusion that the lack of supervision and control exercised by the complainant over the respondent was a mitigating factor sits uneasily with her Honour's view that the circumstance that the respondent's position was one involving a "low level of trust" could also be taken into account in the respondent's favour. In truth, the absence of any effective oversight by the complainant in relation to the respondent's activities meant that the complainant was placing a great deal of trust in employees such as the respondent so that the lack of supervision cannot be regarded as a matter in the respondent's favour.[2] As the respondent's own conduct demonstrated in this case, if an employee chose to breach that trust then there was nothing to prevent that employee from exploiting the system that had been put in place.
[25]
[24] It is clear that where an offender has abused a position of trust in order to steal a substantial amount of money over a lengthy period of time, a non-custodial sentence can only be justified in the most exceptional case.[3] Recently, in R v Robinson; ex parte A-G (Qld),[4] McMurdo P reviewed a number of recent decisions of this Court and concluded, in words that are apposite to the present case, that:
[26]
"The concerning aspect of offences of this kind is the breach of trust. These offences involved a considerable sum of money obtained over a 14 month period. The offending was planned ... Compensation has not been made. Generally in these circumstances an offender will be required to serve a period of actual detention."
[27]
[25] In that case, an offender who suffered from a gambling addiction and had stolen $33,239 from his employer over a 14 month period was sentenced to six months imprisonment wholly suspended with an order for restitution. On appeal, that sentence was increased to a sentence of two and a half years imprisonment suspended after six months.
[28]
[26] It is submitted on behalf of the respondent that it is her bulimic condition that makes her case an extraordinary one. There are several reasons why the fact that the respondent suffered from this condition should not relieve the respondent from a term of actual imprisonment as the consequence of her actions. First, it must be emphasised that even a genuine psychiatric condition is not necessarily a reason to impose a lenient sentence. As Brennan J said in Channon v R:[5]
[29]
"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another."
[30]
[27] In the present case, there is no reason to doubt that the respondent's bulimia afforded the occasion for her to steal the money that she did. The nature of her bulimic lifestyle required her to obtain large amounts of food which must have been a source of considerable expense. It cannot be said, however, that the respondent's offending was driven only by the hunger which was an aspect of her bulimic condition. Such a conclusion is hard to reconcile with the note contained in Mr Perros' report that the respondent spent approximately $2,000 of the money she stole on clothing. Importantly, while it may be accepted that the strains of a condition such as bulimia could properly be seen as placing the respondent's offending in a less serious category than that of an offender who steals solely out of greed,[6] it is not as though a compulsion to steal was a symptom of the respondent's condition, or as though her offending was due to a condition such as depression which adversely affected her ability to judge between right and wrong,[7] or as though the stealing which did occur was altruistic in the sense that it was done for the benefit of persons other than the respondent.[8]
[31]
[28] While the respondent's bulimia should properly have been taken into account as a mitigating factor, it should not have been taken by the learned sentencing judge as serving to preclude the imposition of a custodial sentence. There is no reason to suppose that appropriate treatment will not be available to the respondent while in custody even though, as Mr Perros observed, treatment in a gaol environment may not be ideal.
[32]
[29] In my opinion, the bases on which her Honour sought to characterise the present case as one which did not require the imposition of a sentence of actual imprisonment to give effect to the powerful considerations of general deterrence which apply in relation to the offence of stealing as a servant cannot be sustained. The sentence imposed was manifestly inadequate in relation to the systematic stealing of a large amount of money over a lengthy period of time. It therefore falls to this Court to resentence the respondent.
"A review of the decisions to which the court was referred indicates that there are a number of factors which have been regarded as relevant in determining the appropriate sentence where dishonesty is involved. On some occasions the critical factor has been the amount of money lost by victims of the fraud, on other occasions the decisive factor has been the persistent and systematic offending. One cannot say that either one of those factors is generally more significant than the other. Each case has to be considered in the light of its own peculiar facts; all one can say is that the amount of money lost and the regularity of offending will always be relevant considerations."
[35]
[31] Having regard to the respondent's persistent and systematic abuse of trust over a long period and the amount of money stolen, a head sentence of three years is called for once an appropriate allowance is made for the lack of any prior criminal history.[10]
[36]
[32] When one takes into account the respondent's plea of guilty and her personal circumstances, particularly her youth and her bulimia, that sentence must be moderated to some further extent. But on no view is this case so exceptional that a substantial period of actual custody can be said to be unnecessary or inappropriate having regard to the strong claims of general deterrence in relation to this kind of offence. In my view, a period of actual imprisonment of 12 months would be appropriate were it not for the circumstance that the respondent has been meeting her obligations in relation to restitution and that this is an appeal by the Attorney-General where a period of actual imprisonment of nine months was sought from the learned sentencing judge by the Crown Prosecutor at first instance. In the light of these circumstances, a period of actual imprisonment of nine months is appropriate.
[37]
[33] Further, it is apparent that, in the respondent's own interests, as well as those of the community, the respondent should be given every incentive to continue to receive treatment for her bulimic condition. For that reason, I do not consider that a suspended sentence - in whole or in part - is appropriate in this case.
[38]
[34] In my view, the circumstances in mitigation should be reflected in a recommendation for post-prison community based release ("ppcbr") after the respondent has served nine months in actual custody.
[39]
[35] The appeal should be allowed and the sentence below set aside. The respondent should be sentenced to three years imprisonment with a recommendation for ppcbr after she has served nine months in custody.
[40]
[36] A warrant should issue for the apprehension of the respondent.
[6] See, eg, R v Woods[1999] ACTSC 60; SCC 40 of 1998, 17 June 1999 at [70] - [80].
[46]
[7] Cf R v Blackhall-Cain; ex parte A-G (Qld)[2000] QCA 380, CA No 178 of 2000, 15 September 2000 where a non-custodial sentence was imposed on an offender who, it was accepted, had always intended to refund the stolen moneys and who adduced evidence that there was a real link between a psychiatric condition from which he suffered and the offences that had been committed. Similarly, the respondent's counsel sought to rely upon R v Anderson[1981] VicRp 17; [1981] VR 155 at 157 - 159, but that was a case where the offender suffered from illnesses which severely affected the judgment of the offender.
[47]
[8] Cf R v Riesenweber; Ex parte Attorney-General[1996] QCA 504; CA No 430 of 1996, 15 November 1996 where, in what the Court considered to be a "marginal case", a non-custodial sentence was imposed on an offender who had stolen approximately $40,000 from her employer in order to support her family after her husband lost his job.
[48]
[9]R v Alexander[2004] QCA 11; CA No 331 of 2003, 13 February 2004 at [24].
[49]
[10] Cf R v Grant-Watson[2004] QCA 77; CA No 360 of 2003, 16 March 2004. In that case, the offender had misappropriated a similar amount of money and had psychiatric problems but also possessed a significant criminal history. No objection was taken in that case to a head sentence of four years.