_R v Sommerfeld_

Judgment (66 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] KEANE JA: I have had the advantage of reading in draft the reasons of A Lyons J. I agree with those reasons and with the order proposed by her Honour.

[3]

[2] HOLMES JA: I agree with the reasons of A Lyons J and the order her Honour proposes.

[4]

[3] A LYONS J: On 12 June 2009 the applicant was sentenced on one count of fraud as an employee involving an amount of almost $126,000. This money was taken on 20 separate occasions, in transactions which involved amounts ranging from $3,200 to $14,300. Those offences occurred when the applicant "held a responsible position with the complainant and a position of trust," with the sentencing judge indicating, "I don't think the Crown Prosecutor is being unfair when he described them as systematic fraud and a gross breach of that trust".[1]

[5]

[4] The applicant was sentenced to four years imprisonment to be served cumulatively, with an activated two and a half year suspended sentence. A parole eligibility date was fixed as 12 July 2011. That was an effective sentence of six and a half years imprisonment, with a parole eligibility date after two years and one month.

[6]

[5] A cumulative sentence was imposed by the sentencing judge because the offences for which the applicant was being sentenced in June 2009 occurred within the period of a suspended sentence which had been imposed by Judge McGill SC on 18 October 2004. The sentence imposed on that date involved similar charges and a period of imprisonment of two years and six months, wholly suspended for an operational period of four years, had been imposed. The full period of the suspended sentence was thereby activated on 12 June 2009, in addition to the four year sentence which was imposed on that date.

[7]

[6] On 15 September 2009, some three months after the imposition of the sentence, the applicant lodged a Form 28 Notice of Application for Extension of Time within which to Appeal and a Form 26 Notice of Application for leave to Appeal against Sentence.

[8]

[7] In her application for an extension of time within which to appeal, the applicant essentially lists the failure by her lawyers to advise her of her appeal rights as the basis for her application. She states that she was represented at the sentencing by the firm Irish Bentley and that after being sentenced she did not speak with her lawyers nor did she receive any written correspondence from them. She states that she was not given any advice about how to appeal or the limitation period and that she "was unaware of the 28 day time frame".[2] The applicant also indicated that her phone account was not operational for the first 25 days of her custody. She states that her mother eventually got in touch with her lawyer at the Gold Coast and was told that the solicitors would ring her but she was not contacted by the office. The applicant also contacted them in early August asking how to appeal, but similarly she did not get a reply. On 4 September 2009 she asked another inmate who was seeing a solicitor, to ask about an appeal on her behalf. She was advised to get in touch with Legal Aid and spoke to a lawyer from Legal Aid on 9 September 2009. She was then provided with assistance to lodge the forms to apply for an extension of time and for an appeal against her sentence.

[9]

[8] The applicant submits that in the circumstances, she has taken steps to bring an appeal in the shortest possible time. It would appear that the applicant signed her applications on 11 September 2009 and they were lodged on 15 September 2009 by facsimile from the Brisbane Women's Correctional Centre.

[10]

[9] The applicant therefore argues that a lack of information from her solicitors about her appeal rights was the primary reason for the delay. Counsel for the respondent concedes that the length of delay does not militate against the granting of an extension of time. The major issue which needs to be determined is whether the applicant, in fact, has reasonable prospects of success.

[11]

Notice of application for leave to appeal against the sentence

[12]

[10] In her Form 26 Notice of Application for leave to Appeal, the applicant submits that the sentence was manifestly excessive in all the circumstances. When the application was called on for hearing on 20 October 2009, the applicant advised the court that she had not been given any of the material relied on by the Crown in the appeal. An Oath of personal Service by Mary Crombie sworn 12 October 2009 was however submitted to the court which indicated that the outline of submissions, list of authorities, transcripts of sentencing remarks as well as the schedule of agreed facts from the sentencing hearing had all been served personally on the applicant on 12 October 2009 at the correctional centre.

[13]

[11] In the circumstances, the hearing was stood down for a short time to allow the applicant further time to prepare her arguments. In her oral submissions the applicant argued that there were some further factors that should have been taken into account at the sentencing hearing. In particular, the applicant submitted that she had been prepared to pay some $12,000 in cash by way of restitution and that she had advice from the complainant company that some $30,000 owing to her by way of sick leave and other entitlements would be applied towards the debt. The applicant stated that her solicitor advised her not to offer the restitution and the sentencing judge was not therefore advised of her offer of restitution. The applicant also stated that she gave her counsel instructions to seek a concurrent sentence.

[14]

[12] The record of the sentencing remarks notes that the applicant's counsel did in fact seek a concurrent sentence. However as previously noted, a period of imprisonment of four years to be served cumulatively on an activated sentence of two and a half years was imposed, with a parole eligibility date after two years and one month on 12 July 2011.

[15]

[13] The applicant was born in 1977 and was 31 years of age at the time of sentence and 29 and 30 years of age at the time the offences were committed. Significantly, as outlined above, she had pleaded guilty in the District Court to an earlier offence of stealing as a servant. On that occasion she had stolen almost $57,000 from her employer over a three month period while working as an assistant accountant. Her method had been to use blank cheques signed by the managing director, which were then filled in for an amount which was attributed to petty cash, but most of the money that was obtained was taken by the applicant and only a relatively small part was applied as petty cash. That occurred on eight occasions.

[16]

[14] The sentencing judge on that occasion commented that it was an unsophisticated process, which was likely to be quickly detected and was, in fact, fairly speedily detected after she left employment. After she was contacted by her previous employer, she made admissions and also arrangements to repay the money by regular repayments of $1,000. On that basis, most of the money was repaid prior to sentence and she was also paying 15 per cent interest on the money outstanding. The complainant company indicated that they were satisfied with her cooperation and they had testified as to the applicant's efforts to resolve the matter. It was in fact indicated in evidence before the sentencing judge on that occasion that the view of the complainant company was that they wished to be fully repaid. The judge indicated that in respect to punishment, "she is best left to serve this in the community and therefore, repay her debts to the complainant in accordance with the payment schedule".[3]

[17]

[15] In coming to the sentence that was imposed on that occasion, the sentencing judge indicated that the applicant had no criminal history and that that was a significant feature. In particular, the sentencing judge relied on the decision of R v Robinson ex parte Attorney General,[4] where the President of the Court of Appeal indicated that for offences involving a considerable sum of money, where compensation had not been made generally, an offender would be required to serve a period of actual detention. In coming to the conclusion that he did, the sentencing judge in 2004 considered that on that occasion the applicant was in a difficult situation and that the criminality involved was unsophisticated. He also indicated that once spoken to, the applicant had readily made admissions and had readily reimbursed the employer. He said also significantly, she had made sacrifices in her personal life to do that and to enable the payments to be made. He indicated in his sentencing remarks that most of the money owing had, in fact, been repaid.

[18]

[16] In all the circumstances having reviewed the authorities, the sentencing judge, on that occasion, considered that a sentence of two and a half years should be imposed, with an operational period of four years. Restitution was also ordered in an amount of $16,305.02. This meant that Ms Sommerfeld had already made restitution of some $40,000 by the time the sentence was imposed.

[19]

[17] In relation to the offence which is the subject of this application, the applicant was employed by Auslog Pty Ltd, who design and manufacture borehole logging equipment. She was employed in the capacity of finance manager from 4 February 2004 until 4 March 2008. This was a high level position within the company and she was responsible for running the financial and administration side of the business. She was required to regularly transfer funds to different creditors and reported to the Australian finance controller of Weatherford Pty Ltd, which was the multinational company which owned Auslog Pty Ltd. The manager was located in Perth. Whilst she also reported to another business manager who was based in Brisbane, she did not report directly to anyone within Auslog.

[20]

[18] The applicant was initially confronted in February 2008 about using Auslog finances to pay for her personal expenses. The applicant denied this and stated that all expenses were business related, with the exception of $1,037.44, which was for freight of personal items from the United Kingdom, which the applicant paid back shortly thereafter. An audit was then conducted and that audit revealed that an amount of $8,634.01 in petty cash had either no receipts or had been used for personal items such as fuel, shopping and parking, all of which were not covered by the company. The applicant was confronted about this on 20 February 2008 and again she stated to her manager that these expenses were business related. When she was asked if there was anything else that the business manager needed to know, the applicant replied that there was nothing.

[21]

[19] A full audit was subsequently conducted of all payments made out of the Auslog trading accounts and several transactions were identified where there was no supporting documentation. The list of unauthorised transactions identified that they had all been electronically transferred into the same account, which was in fact the account that the applicant's salary was paid into. In order to authorise such a payment two signatures were required. On the face of it, the transactions appeared to be going to creditors. However, double payments were being made and records were being falsified to enable this to occur.

[22]

[20] A formal complaint was made to police on 22 February 2008 and a pretext phone call occurred on 3 March 2008 with the applicant. During that conversation the finance manager asked the applicant to explain the payments that had gone into her bank account other than salary. The applicant indicated that she could not and that she did not know how many or how much, but she did know how it happened. She indicated that the payments had been occurring for a number of months and that she would organise to pay the money back. Police executed a search warrant on 6 March 2008 at the applicant's address at Norman Park and, after seeking legal advice, the applicant produced bank statements of her personal bank account, which confirmed the unauthorised transactions.

[23]

[21] The applicant then voluntarily went to the police station and participated in an interview. In that interview she told police that she made electronic transfers from one account to another, that these transactions were required to be authorised by two people and they were reported in the book as two payments. In order to get the second person to sign, she would produce an invoice that had already been paid. She then put through a payment straight to a general account ledger. As the applicant stated, it was a double payment.

[24]

[22] In her interview with police, the applicant indicated she had nothing to show for the money which had been taken and that she had not bought anything of significant value and she could not explain the transactions. It is uncertain as to how the money was used by the applicant. Whilst the applicant agreed that these transactions were occurring prior to March 2007, she could not indicate how long the transactions had been occurring.

[25]

[23] Significantly, on this occasion, the applicant had not attempted to pay the money back prior to the sentencing hearing. Auslog was not insured at the time for theft by employees. The summary of transactions attached to the agreed schedule of facts indicated that the first unauthorised transaction was on 23 April 2007 in the amount of $3,282.16 and that the last unauthorised transaction was on 11 February 2008 in the amount of $3,214.20. It would appear that there were 20 transactions in a period of 14 months, with the smallest amount being just over $3,000 and the largest amount being the amount of $14,300. There were some withdrawals, namely four, in excess of $8,000 and three in excess of $7,000.

[26]

[24] In coming to the sentence that he did, the sentencing judge took into account the applicant's guilty plea. He also acknowledged the fact that the applicant had a drug dependency but that she had removed herself from the circumstances which led to that drug dependency and had undertaken a measure of rehabilitation. The sentencing judge also took into account the fact that the applicant had made full admissions and cooperated with the authorities. However, the sentencing judge indicated that the charges involved were serious matters, that the applicant had already had the benefit of leniency of one judge of the District Court, and that the combination of the two offences and the amounts involved, together with the need for both general and specific deterrence, meant that a period of imprisonment was inevitable.

[27]

[25] As that second offence breached the terms of the two and a half year sentence which had been imposed in 2004, but which had been fully suspended for an operational period of four years, the judge indicated that he was required to activate the suspended sentence. It was not disputed that within two and a half years of being sentenced for the first series of offences in 2004, the applicant was once again misappropriating sums of money. It was significant that once again the applicant had offended with a similar type of offence. His Honour activated the whole of the sentence which had been suspended, given the dramatic similarity between the offences.

[28]

[26] In determining an appropriate sentence for the current offences, the sentencing judge indicated that his review of the Court of Appeal decisions meant that the range, ignoring the earlier contravention, was a term of imprisonment of between four and six years. In relation to the sentence for the current offences, a period of imprisonment of four years was imposed. In coming to that view he considered that, given it was going to be a cumulative sentence, the cumulative sentence ought not be crushing. Accordingly, the total sentence imposed was six and a half years on that basis.

[29]

[27] It would seem that both counsel at the time of sentence agreed that the appropriate range for the current offence was, indeed, between four and six years imprisonment. That range is, in fact, supported by two Queensland Court of Appeal decisions of R v Power[5] and R v Ward.[6]

[30]

[28] In the decision of R v Power, a sentence of imprisonment of six years was imposed, with a recommendation for parole at two and a half years. In that case, the appellant had pleaded guilty on the second day of trial to having misappropriated $107,969. She had misappropriated 45 cheques from a small family business, where she was responsible for paying accounts, wages and looking after the petty cash. In that case, the appellant had four children under the age of 16, the youngest being two years of age, and she was pregnant and due to give birth within weeks of the appeal being heard. In that decision the learned sentencing judge described the defendant as a very calculating criminal on the basis that she had a previous conviction in 1993 of wilfully setting fire to a building and attempted false pretences. Those two offences had arisen out of a series of acts of misappropriation of property which she had committed and was endeavouring to conceal. The misappropriated sum involved was an amount of $367,000 and there was also a circumstance of aggravation in that she was also charged as a servant. In that instance, the defendant had been sentenced to two years imprisonment with a recommendation for parole after six months. On the basis of a second similar offence a sentence of six years was considered appropriate.

[31]

[29] In that decision, reference was made to a 1997 Court of Appeal decision of R v Cheers[7] where a misappropriation of $173,000 was met with a sentence of seven years. In that case the appellant, Cheers, had no prior convictions for an offence of that kind.

[32]

[30] Reference was also made to the decision of R v Scott,[8] where a term of imprisonment of four years was confirmed in a case of misappropriation where the sum was $48,000. In coming to the penalty of imprisonment of six years in Power, McPherson JA indicated that the head sentence of six years fell fairly between the two limits of the sentences imposed in Cheers and Scott. In particular, his Honour indicated that, "[T]he applicant's previous record of convictions particularly including one for a similar and, in terms of amount, even more serious offence, obviously counts very heavily against her in the scales of sentencing justice".[9]

[33]

[31] His Honour considered that the sentence of six years imposed was appropriate and that the judge had, in fact, appropriately taken into account the appellant's family circumstances. In particular, his Honour considered that the defendant in that case had, "failed on the former occasion to take advantage of the leniency extended to her in respect of her family position, and it is not at all easy to see why she has not exhausted any goodwill that might arise from those circumstances".[10] It was also noted that the target of the defendant's deprivations was a small business conducted by a family who trusted her and who were not in a position to absorb losses of the order and magnitude involved. McPherson JA concluded:

[34]

"When all these matters are considered, and particularly the fact that she is a reoffender (sic) and has previously had leniency extended to her, I am unable to discover any basis on which this Court could properly interfere with the sentence imposed below."[11]

[35]

[32] In R v Ward[12] a sentence of five years imprisonment suspended after 20 months was not disturbed. In that case, the appellant had been charged with dishonestly obtaining, as an employee, the sum of $97,810.30. He had been employed for over eight years by a company, owned by his sister and brother-in-law, which provided security services in Brisbane. He had been raising false invoices and rosters to create the impression that work had been done which had not been done. He would then fax the documents to his sister who would authorise payments to a subcontractor. The defendant would then, by arrangement with a person connected with the subcontractor, receive the money into his personal account on the pretext that he was aiding the complainant company to engage in a tax scheme. To conceal the actual deficiency in the company's accounts, the defendant told his sister that the company was owed a substantial sum of money by a company that was going into receivership and backed this up by creating a false document, purporting to be from an accountancy firm. He also gave his sister the number for the accountancy firm, which was in fact his own phone number. When she rang he would not answer the call and she discovered, ultimately, that the company was not in receivership and that it had paid all of its debts to the complainant. When confronted, the defendant had confessed to taking the money and pretending to be the accountant.

[36]

[33] In that case there was clearly an elaborate scheme involving 85 separate transactions over a 20 month period. The victim impact statements had indicated that there was a gross breach of trust involved and that it put a strain on the family relationships of the complainants, as well as their business reputation and their financial position. There was only one payment of $50 ever made by way of reimbursement. In that case the defendant was 32 to 33 years of age at the time the offences were committed and he had no criminal history. The Crown Prosecutor at sentence had proposed a range of four to five years imprisonment, with a parole eligibility date after 12 to 18 months. Defence counsel had submitted that the head sentence should be no more than four years. The applicant had no gambling or drug addiction, but was simply in financial trouble through living beyond his means. He had previously been in good employment, including three years with the Victorian police force. In that case a review of previous decisions indicated:

[37]

"... a five year head sentence may be a substantial one but is appropriate in the circumstances of this case. It is not manifestly excessive. The attempt to evade responsibility by further dishonest conduct when challenged is a significant aggravating feature. Suspension after 20 months, in my view, adequately recognises the mitigating factors."[13]

[38]

[34] A review of those decisions therefore clearly indicates that a sentence range of four to six years was, indeed, the appropriate range to be considered. This was the conclusion the sentencing judge also reached as he considered:[14]

[39]

"The Court of Appeal decisions seem to me to have been fairly summarised by Mr Farr and the Crown Prosecutor and I think the range is fairly described, ignoring the earlier conviction, as falling between four and six years."

[40]

[35] When it came to imposing the sentence for the second offence his Honour specifically stated:

[41]

"So far as the sentence for the present offence is concerned, I have taken into account Mr Farr's submissions. I did so too, when considering his appropriate submission, that one alternative might be a concurrent sentence, but involving a head sentence of this offence of six years.

[42]

I don't think ultimately it makes a great deal of difference. I accept that the practical and perhaps psychological terms, a concurrent sentence may have some long term benefit but I think that submission carries less weight when the Court has, as here, to deal with two serious, separate offences, but of a similar kind."

[43]

[36] The sentence which was imposed by the sentencing judge was a sentence of four years which was effectively at the lower end of the range. It is also clear that over a period of some 10 months the applicant obtained in excess of $125,000 in funds. It was a systematic and complex transferral of funds on 20 different occasions, involving falsification of documents. When initially confronted, the applicant had in fact denied any wrongdoing. It is also clear that no reimbursement has been made. Although the applicant had the capacity to repay some $12,000 at the time of sentence, she ultimately agreed not to make an offer of restitution at the hearing. Whilst the company is a multinational company, a loss in the order of $125,000 is a loss which is a significant amount for the company to absorb as they had no insurance to cover theft. Even if an amount of $30,000 may have been able to have been offset there was still a substantial loss to the company of almost $100,000.

[44]

[37] Whilst it would seem that the applicant had a drug dependency, had made full admissions and cooperated with authorities, these factors were indeed all taken into account by the sentencing judge. The sentencing judge however indicated that:[15]

[45]

"The combination of the two offences and the amounts involved and the need for the court to reflect an importance of both general and specific deterrence for persons who might contemplate these kinds of offences mean that imprisonment is inevitable".

[46]

[38] Significantly, his Honour considered that there were two serious separate offences of a similar kind and that the appropriate head sentence for the second offence was a head sentence of four years, particularly given the applicant's previous conviction. As McPherson JA stated in R v Power "a similar and, in terms of amount, even more serious offence, obviously counts very heavily against her in the scales of sentencing justice".[16] In the present case the second offence was also a more serious offence in terms of amount.

[47]

[39] In all of the circumstances, the sentence of four years imposed was an appropriate sentence and was not manifestly excessive, particularly given the leniency previously shown to her which she did not take advantage of. It was also appropriate for the reasons given by his Honour that the sentence be served cumulatively.

[48]

[40] In coming to what was in effect an overall sentence of some six and a half years, this was clearly within range. A parole eligibility date at two years and one month, which is less than the usual one third, was also clearly appropriate

[49]

[41] In the circumstances, I therefore consider that there is no basis for a finding that the sentence imposed was excessive.

[50]

[42] The applicant's appeal has therefore no reasonable prospects of success and her application for an extension of time within which to appeal should therefore be refused.

[51]

[1] Sentencing transcript at pp 1-3, ll 28-30.

[52]

[2] Submissions of the applicant at p 1.

[53]

[3] Sentencing transcript at p 4, ll 28-30.

[54]

[4] [2004] QCA 169.

[55]

[5] [1998] QCA 32.

[56]

[6] [2008] QCA 222.