R v Viola [1996] QCA 214

Court of Appeal (Qld)|1996-06-05|Before: Pherson JA, Demack J, Williams J

The applicant was employed as a solicitor's secretary. During the period from 10 November 1994 to 5 December 1994 she took possession of cheques, practised the solicitor's signature and cashed cheques at various branches of the bank. The total amount that was obtained in this way was $65,204. Nearly $60,000 of that amount was taken from the solicitor's trust account.

At the end of November, the accountants were present for an audit and when that occurred the applicant took sick leave. She took with her some cheques and forged a cheque for $25,000 which she depositied to her bank account on 5 December. By this time the solicitor had discovered that there were irregularities and the bank had been alerted so that that cheque was dishonoured.

When she was brought on for sentence, an application was made for an adjournment so that she could discuss matters with the police. She then purported to indicate how the money had been given to her ex-boyfriend to discharge various obligations and, indeed, to buy him a racehorse. It seems from the list that was prepared on her side and tendered as Exhibit 3 that her generosity towards her boyfriend, if that list be true, was quite extreme. She paid his speeding fines, she bought him riding gear and provided him with a horse as well as paying off his debt on his Celica motor vehicle. She was aged 21 at the time and now aged 22. She would seem to have been hopelessly infatuated by her boyfriend and this seems to be the only explanation for this very serious criminal conduct.

The learned sentencing Judge was told of decisions of this Court and particularly reference was made to the case of Ma'afu, CA 269 of 1990. In that case the applicant for leave to appeal against sentence was aged 26 and held a position of responsibility in a friendly society. The total amount that she misappropriated over a period was $77,000. She had in her possession pre-signed cheques and she used these to obtain funds. 21 cheques were involved. There was no forgery. It was said that she was a very inadequate person because of sexual abuse while she was young and that she committed the offences to maintain her lifestyle and apparently to give her some self-esteem.

The Court of Appeal on that occasion accepted that the appropriate range was three to five years imprisonment and allowed an appeal from a sentence of five years to sentence her to four years imprisonment with a recommendation for parole after 18 months. It was said by Mrs Clare that this was the case closest to the present one that she could locate. It would appear that because the sentence is identical to the one the sentencing Judge imposed here that His Honour was guided by that decision.

There do appear, in my opinion, to be distinguishing facts between this case and that of Ma'afu. The applicant here is a younger woman. She occupied simply a secretarial position and, although that was a position of trust, there are gradations in the trust as expected of employees as they become more responsibly involved in an organisation. This seems to me to be a factor that needs to be weighed in the balancing of sentences. The amount involved here is a little less than the amount involved in Ma'afu, but essentially it seems to me the age difference is the significant fact. The purpose for which the money is stolen is not, it seems to me, as of great significance as the amount here. A young woman who was infatuated stole money apparently to win the favour of the person with whom she was infatuated.

In my view, the learned sentencing Judge has not given sufficient weight to the age of the applicant, although he has referred to this, and that in the circumstances imposing a sentence which is really at the top of the range for the offence and for the amount involved was not called for. In my view, a proper sentence would be three years imprisonment with a recommendation for parole after one year.

So in my opinion, the leave to appeal should be granted, the appeal allowed and a sentence of three years substituted for the sentence of four years that was imposed and a recommendation that she be eligible for parole after one year.

McPHERSON JA: The appeal is allowed. The sentence is varied by reducing the sentence from imprisonment for four years to imprisonment for three years, and by varying the recommendation for parole, so that such a recommendation is to take effect after the applicant has served 12 months of her sentence. This will involve a reduction in the parole recommendation of 18 months in respect of each of the sentences imposed. The other imprisonment sentences of two years may be allowed to stand as they are.

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