R v Rees [2002] QCA 469

Court of Appeal (Qld)|2002-11-04|Before: McPherson, and Jerrard JJA, Mullins J, Separate reasons for judgment of each member of, the court, each concurring as to the orders made

Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The applicant was sentenced in the District Court at Townsville on her plea of guilty to an indictment charging one count of fraud under section 408C of the Code, together with circumstances of aggravation that she was an employee and that the amount was in excess of $5,000.

The sentence imposed was imprisonment for three and a half years suspended after 15 months for an operational period of three and a half years. A conviction was recorded and the applicant was ordered by 12.30 p.m. that day to pay a sum of $23,852.09 by way of restitution, which was the balance amount outstanding out of a total of $51,063.87 which had been taken by the applicant. That restitution amount was, I understand, paid in accordance with the terms of the order.

In 1993 the complainant husband and wife purchased a real estate business in which the applicant was working as a salesperson. In 1995 she took on the role of property manager, which entailed looking after the firm's listed rental properties comprising some 200 or more lessors.

Her functions included the collection of bond money from the Residential Tenancy Authority and paying those sums to the outgoing tenants or landlords according to their respective entitlements. Between November 1995 and January 1999 she embezzled sums totalling the amount of $51,063.887 referred to.

Sometimes she replaced the money, sometimes she did not, which evidently explains why only some $23,000 was in the end ordered to be repaid. The offending behaviour was discovered when the complainants commissioned an audit and the applicant's employment was terminated in March 1999.

The applicant was interviewed by police in December 1999. She made admissions concerning some of the matters, but she ceased to do so when her then solicitors advised her not to answer further questions. The committal proceedings took the form of a full hand-up, although it appears that some witnesses were nevertheless obliged to attend Court.

A trial was listed on several occasions but through pressure of Court business it was not reached. After a change of solicitors the Crown was advised that the applicant would plead guilty, which she did. An affidavit was filed on her behalf explaining the delay, which appears to have been accepted by the Crown as correctly stating the position. Restitution was available on the day of sentencing, the applicant raising a loan for that purpose.

The applicant's personal circumstances are as follows. At sentencing she was a 49 year old woman, married, with a child who suffered from a congenital heart condition that on one view may be terminal. The money taken was applied by the applicant, at least partly, in an effort to make the child happier before her expected death.

That, of course, is no excuse for criminal conduct, and the complainants' victim impact statement makes it clear that they too have suffered both domestically as well as financially through the applicant's depredations.

The applicant's husband had not been well for some years, which placed stress on their marriage. On the day of sentencing he was admitted to hospital suffering from bowel cancer, with secondary cancer of the brain. Then, or earlier, the marriage had broken up partly as a result, it would seem, of the charges laid against the applicant.

There is a psychiatric report that suggests that the offence was committed as a result of the stress that the applicant had been undergoing, but that cannot have been the only reason.

The learned sentencing Judge took account of the prevalence of the offence, the need for deterrence, and the systematic nature of the misappropriation that had taken place over a lengthy period, as well as the impact on the complainants and the harm to their business.

Giving full weight to all of these factors I nevertheless consider that the sentence was excessive judged by the pattern and level of sentences imposed in similar cases stretching over a considerable period. In that connection I will mention only the recent decisions in this Court of Queen v. Hearndon, CA 149 of 2002 (three years suspended after six months), and Queen v. Fisher, CA 148 of 2002 (three years after six months, not disturbed but characterised as at the lower end of the range).

The sentence in the present case sits rather uncomfortably with those decisions, and with a number of others that have been cited to us that present similar features, with which the subject sentence is out of line. I would therefore grant the application and allow the appeal by varying the sentence to reduce the head sentence to three years, to be suspended after nine months' imprisonment, with an operational period of three years.

JERRARD JA: I agree with the orders proposed by the presiding Judge and with the reasons. I add only that with respect to the head sentence the applicant's counsel referred this Court to a number of decisions, of which one was a matter in Hearndon.

In that matter that offender had pleaded guilty to an ex officio indictment charging the theft of some $70,000 stolen between 1st of January 2001 and 3rd August 2001. That applicant had no prior convictions, an impressive background, had $61,478 to pay as restitution at the time of sentence, and undertook to pay the balance within 12 months.

The sentencing Judge accepted that applicant was genuinely remorseful and had made full admissions. The sentence originally imposed of three years imprisonment suspended after nine months with an operational period of five years was altered on appeal by this Court by an order suspending the term of three years imprisonment after six months with an operational period of three years.

That applicant had exhibited remorseful behaviour by an ex officio plea as well as the restitution which he was ready to make and his offending behaviour was over a much shorter period. As against that, his motive appears to have been simply that he did not like working in a section to which he had been transferred.

The applicant also referred this Court to a matter of the Queen against Fisher in which judgment was delivered on the same date as that of Hearndon and after the sentences or the sentence imposed by the learned primary Judge in this application. The applicant in Fisher had pleaded guilty to stealing cigarettes to a total value of $83,387 from his employer in the 12 month period between 7 June 2000 and 21 June 2001. He had a compulsive gambling addiction and was able to make restitution of $53,820 within one month of the date of sentence.

He was ordered to make that restitution and on appeal a sentence of three years imprisonment suspended after six months for three years was not disturbed, with this Court remarking that the sentence was toward the lower end of the range for an offence of that type. That applicant, like the present one, had no prior convictions. Those two sentences make a head sentence of three years imprisonment appropriate.

The submissions by the respondent Director acknowledge that the sentencing Judge might have suspended the sentence after the applicant had served either nine or 12 months of the sentence. The written outline of argument submits that failure to do so does not render the sentence manifestly excessive.

The circumstances which underlay the applicant's offending conduct described by the presiding Judge make it understandable that she perhaps experiences difficulty in demonstrating remorse for that conduct and it is very likely that her daughter will be severely and adversely affected by the length of her mother's actual imprisonment.

In the circumstances the sentence imposed does not reflect sufficiently the totality of the matters in mitigation which included a fact of restitution of what was taken as well as the applicant's motive for the offending behaviour. The difference for the applicant between nine months imprisonment actually served and 15 months is a significant one. In those circumstances I consider a relative or a reasonable relativity in the sentences imposed on this applicant and the offenders in the matters of Hearndon and Fisher should result in the order suggested by the presiding Judge.

MULLINS J: I also agree with the reasons of the learned presiding Judge and the orders proposed.

McPHERSON JA: The application is granted, the appeal is allowed and there will be orders varying the sentence in the way I have foreshadowed in the reasons I gave.

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