Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Charges of stealing and fraud as a clerk or servant - Sentence of 10 months' imprisonment with four months thereof suspended - Whether sentence manifestly excessive - Full restitution of $67,800 plus interest and costs before appellant charged.

Attorney-General v Saunders [TASSC] 22, referred to.

Judgment Number: [2014] TASCCA 2

1. On 14 April 2014 this Court dismissed an appeal by Danita Lee Williams against her sentence of 10 months' imprisonment, of which four months were suspended on condition that she commit no offence punishable by imprisonment for a period of two years. When we dismissed the appeal, we stated that our reasons for dismissing it would be published at a later date. I have read the reasons of Pearce J in draft form. My reasons for concluding that the appeal should be dismissed were precisely the same as his.

1. I have read the reasons of Pearce J. They fully accord with my reasons for joining in the order dismissing the appeal.

1. On 14 February 2014 the appellant, Danita Williams, pleaded guilty to one count of stealing and one count of fraud as a clerk or servant. Between 1 March 2009 and 25 November 2011 she stole $67,800 from her employer. On 25 February 2014 the appellant was sentenced by Porter J to imprisonment for ten months, four months of which was suspended for two years.
2. The appellant appealed the sentence. The sole ground of appeal was that the sentence was manifestly excessive. On 14 April 2014 this Court heard the appeal and dismissed it, stating that our reasons for dismissing it would be published at a later date. These are my reasons for concluding that the appeal should be dismissed.
3. The appellant did not contend that a sentence of imprisonment of the term imposed was, of itself, manifestly excessive. The issue central to the outcome of the appeal was whether the learned sentencing judge erred by failing to suspend the whole of the sentence.
4. The appellant was employed by the company which operated stores known as Cash Converters and Personal Finance Centres. The judge was told that from 1 February 2007 the appellant was the area manager for southern Tasmania with oversight of stores in Hobart, Moonah and Rosny. Her duties included the care of store tills and the completion of balance sheets, together with the banking. Beginning in March 2009 the appellant removed cash from the tills and safe at the Moonah Personal Finance Centre. She took the cash but altered the daily balance sheets so that it appeared the cash was an outgoing in some form, and the tills amounts balanced. At the end of each month the appellant prepared monthly balance sheets showing the cash she removed as opening cash on hand. In March 2011 an amount in excess of $80,000 was shown in the balance sheet as being held in cash at the Moonah branch. At that time her employer's operations manager noticed the amount shown as being held in cash and contacted the appellant to query it. She did not go to work the following day, a Friday, nor on the following Monday. On that Monday afternoon the appellant telephoned one of the company's directors and told him she had stolen about $67,000 and that she would pay it all back. The amount stolen was $67,800.01. Investigations conducted by her employer's accountants revealed that during the period 7 December 2010 and 22 March 2011, only part of the period of offending, the appellant stole money and dishonestly altered the balance sheet on 22 occasions. During that period $40,250 was stolen. The appellant admitted that between March 2009 and December 2010 she stole $27,550.01 although the number of dishonest acts during that period was not established.
5. The appellant is 40 years old. She has sole care of her two children aged 16 and 12. She has no relevant prior convictions. She said that the theft was motivated through financial pressure of a new relationship. She had most of the financial responsibility for not only her own children but her partner and his children. She purchased a new home in September 2009 which her family moved into. Her mortgage commitments almost doubled to nearly $1,400 per fortnight. She tried to maintain her previous lifestyle for the sake of the children. She admitted though, that there were some commitments that could have been foregone.
6. The relationship which prompted the purchase of a new home and the enlargement of her family, has now ended. She has a small support group which includes, primarily her mother who has assumed responsibility for the care of the appellant's children, as well as her own elderly mother.
7. The appellant repaid the stolen amount in full. She also paid interest of approximately $1,500, and an additional amount of approximately $5,500 being the company's costs of the investigation. The total amount she paid is $74,872.69. To raise the money she sold the home that she had purchased in September 2009. She did so promptly. The net sale proceeds were not sufficient and she borrowed a further $8,000 from her grandmother to make up the full amount.
8. The issues to which counsel for the appellant directed most of her submissions were the mitigatory value of:

(a) the complete restitution made by the appellant;

(b) the admissions made by the appellant, her remorse and her co-operation with the investigation of the theft; and

(c) the delay in the prosecution not attributable to the fault of the appellant.

1. Restitution is a relevant sentencing consideration. I would respectfully adopt the following statement of this Court in Attorney-General v Saunders [2000] TASSC 22 at [7] as representing a correct statement of principle:

"As was observed in Boian (1997) 96 A Crim R 582 at 586, the making of restitution does not affect the criminality involved in fraudulent conduct. Nevertheless, it is an important factor that all (or a substantial portion of) the money fraudulently taken has been recovered and it may bear upon the length of the sentence which should be imposed. The effect of crimes on a victim is an important consideration. It is in the public interest that offenders should be encouraged to lessen the impact of their crimes on the victim if it is within their power to do so. Mickelberg (1984) 13 A Crim R 365 at 370. Nevertheless, we agree that courts should be reluctant to reward [sic] discounts which are overly generous, to avoid offenders and particularly the wealthy and well-connected, buying their way out of deserved sentences. As was said by Stanley J in R v O'Keefe [1959] Qd R 395 at 400, 'it would be of the worst example if any sentence induced or tended to induce a belief that offenders would escape punishment if, when convicted, they made or offered to make restitution. Offenders cannot bargain with the court, and, in effect, buy themselves out of sentences.' However, we agree with the view of Higgins J in R v Whitnall [1993] FCA 271; (1993) 42 FCR 512 at 515, that there is no error in principle in the proposition that while an offender should not be allowed to purchase his or her immunity from proper punishment for the offence committed, it is nonetheless true that if the deficiency can be made good, particularly before the date of sentence, then the severity of punishment may be ameliorated. Restitution brought about by remorse may also attract greater consideration than restitution made merely for the purpose of ameliorating the severity of punishment."

1. The mitigating impact of repayment of the money taken is increased if it involves personal sacrifice. In Scott v R [1986] TASSC 81, Nettlefold J, as a member of the Court of Criminal Appeal, when considering a sentence imposed on a solicitor for stealing commented that "a significant aspect is the fact that he made full restitution from small resources". In Phelan v R (1993) 66 A Crim R 446 the Court of Appeal, New South Wales, considered an appeal against sentence by a bank manager who had defrauded his employer of a considerable sum of money. Before he was sentenced he had made full restitution by selling the home in which he had lived with his mother and in which his brother and sister also had an interest. Hunt CJ at CL gave the leading judgment and said at 448:

"In many of these cases, some emphasis has been placed upon the fact that the amount involved has voluntarily been repaid, but in my view it would be wrong to interpret those cases as supporting any proposition that an offender is able to purchase mitigation. Where there has been a substantial degree of sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation. Otherwise, in my view, it is more a matter of aggravation when there has been a loss which is effectively irretrievable than a matter of mitigation when the loss has simply been made good. In this case, there was considerable sacrifice - not only on the part of the applicant but also on the part of his family."

1. More recently the Court of Criminal Appeal in New South Wales accepted in Job v R [2011] NSWCCA 267 that reparation will sound in mitigation, but the extent to which it does so depends on the degree of sacrifice involved.
2. In this case it was proper to allow some mitigation as a result of the restitution made by the appellant. It mitigated the loss suffered by her employer and was also indicative of remorse. The money she stole was repaid promptly and, as it turned out, well before she became aware of any criminal proceedings against her. She paid not only the stolen amount but other losses as well. Her payment involved some personal sacrifice in that it involved the sale of the home she had purchased, although it is also to be borne in mind that the home was purchased after she started offending and some of the stolen money was used to meet mortgage payments that she would have been responsible for in any event.
3. Remorse is a mitigating factor: W v Tasmania [2007] TASSC 24, Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186, Ferguson v R [2001] TASSC 20 at [16]. The appellant's admissions and co-operation were mitigating factors. Although she had good reason to believe that discovery of her crimes was imminent she admitted her conduct to her employer almost immediately and before the police were involved. She immediately expressed remorse and her subsequent conduct was indicative of genuine remorse. The appellant engaged a solicitor who maintained regular contact with the company's solicitors. She fully co-operated with the investigations and admitted her conduct to the private investigator employed to conduct enquiries. But for her admissions it would have been difficult to prove that she stole $27,550 of the total sum taken. Her co-operation extended to assisting the investigators to devise means to improve the account keeping at the company to prevent such thefts.
4. There was delay in commencement and prosecution of proceedings against the appellant. The offending was discovered in March 2011. The theft was reported to police in October 2011. Proceedings were started in January 2012. However, because by then the appellant had changed address, the summons was not served until June 2013. In the meantime the appellant commenced a nursing degree. Prior to sentence she successfully completed the first year.
5. The law concerning the issue of delay was stated by this Court in Prehn v R [2003] TASSC 55 at [21] in which Crawford J (as he then was) wrote the lead judgment and referred to R v Todd [1982] 2 NSWLR 517 at 519 - 520 and R v Schwabegger [1998] 4 VR 649 at 660. Prehn was subsequently applied by this Court in W v Tasmania (above). Delay between commission of an offence and final disposition of a case is not per se mitigating. However if a prosecution is too slow it can be unfair on the offender, particularly if there is evidence of rehabilitation demonstrated by the accused in the meantime. Delay before the bringing of charges is generally of greater weight. In some cases delay can be a dominant sentencing factor and reduce the significance of a sentence of general deterrence; see R v Schwabegger at 659 - 660.
6. In this case that the appellant was entitled to some benefit as a result of the delay but not to the extent of it being a dominant sentencing factor. Her offending was discovered in March 2011. There was no explanation for why it took more than six months to report the matter to the police, or why it took 18 months to serve the summons. The appellant changed address but there was no suggestion that she could not have been easily located. Thus, despite her early co-operation the prospect of prosecution was hanging over her head for more than two years before she was served with the summons, and she had attempted to move on with her life during the interim period. After service of the summons there was no delay in the prosecution.
7. In sentencing the appellant, the learned sentencing judge referred to the mitigating factors to which the submissions of counsel for the appellant were primarily directed. He also referred to and took into account other sentencing considerations, including the appellant's plea of guilty, her lack of relevant prior convictions, the rehabilitative steps she had taken and the hardship imposed on her family by her imprisonment. In his Honour's sentencing remarks he commented:

"Ms Williams, I take into account, in particular, your relative previous good character, your pleas of guilty, and the fact that you have not only repaid the amount of money stolen, but fully compensated the company for the total of its losses. You appear to have done so before police involvement. Your level of co-operation was unusually high. But for your admission it is unlikely the theft of a significant part of the total would have been detected. I accept that you are genuinely remorseful and have taken some rehabilitative steps since the offending. However this was a sustained course of dishonesty and deception. As an employee what you did amounted to a serious breach of trust. You were in a prime position of responsibility. Attempting to deter others who might be tempted to do the same thing is very important. I accept that imprisonment will impose hardship on your family, but as a general principle that is of little weight, given that it is the criminal conduct which creates such a risk. However the additional hardship on you is of some relevance. Notwithstanding the mitigating circumstances, in my view an immediate term of imprisonment is appropriate, but I am persuaded that the execution of part of that term can be properly suspended.

1. It was not contended that the learned sentencing judge made an identifiable error in the sentencing process. What was contended is that the sentence was manifestly excessive. It was submitted that the judge did not give enough weight to delay, restitution, remorse and co-operation with the investigation. What weight the judge gave to the respective sentencing considerations was not explained but there was no need for explanation. It is obvious he took them all into account. To succeed in the appeal it must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v R [1992] TASSC 55; (1992) 1 Tas R 234 at [13]; Lusted v Kenway [2008] TASSC 47 at [38]; Visser v Smart [1998] TASSC 151. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. This Court must be persuaded of error of the second type referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505, that is that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v R [2010] HCA 45; (2010) 242 CLR 520 at 539.
2. The learned sentencing judge was correct to conclude that in crimes such as this general deterrence was a primary sentencing factor. Phelan v R at 448; Attorney-General v Saunders (above); R v O'Keefe (1992) 60 A Crim R 201. Employers who entrust employees with the control of money are entitled to expect honesty from them. The courts play an important role in ensuring that those who may be tempted to steal money in breach of trust should expect harsh punishment. Only then will sentences operate as an effective deterrent. The appellant's criminality was considerable. She was in a management position and had the trust of her employer to manage three branches. She took advantage of that trust to commit numerous acts of dishonesty over a period of about two years. She took positive steps to conceal her thefts. Her offending ceased only when it was about to be detected. A substantial amount of money was stolen. The appellant's criminal behaviour demanded a sentence that denounced her conduct.
3. Although no complaint was made about the length of the sentence, it is plainly not manifestly excessive. In my experience it is well within the range of sentences commonly imposed by the Supreme Court for crimes of this nature. It is consistent with the sentences for comparable thefts referred to by Professor Warner, Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, pars12.205 - 12.207 under the heading "Theft and fraud in the course of employment".
4. I also concluded that there was no error in deciding not to suspend the whole of the sentence. The purpose and utility of suspended sentences was comprehensively reviewed by this Court in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13; (2010) 20 Tas R 399. The principal judgment was written by Evans J. He said at [9]:

"When addressing considerations such as general deterrence, punishment or denunciation, it is important to keep in mind that there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences. The judiciary's view reflects that of Bray CJ in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, where his Honour addressed a comment made by a magistrate who had said 'I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all'. Bray CJ said of the comment that:

'It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment'."

1. His Honour went on to explain however that, while suspended sentences are a valuable sentencing option, "their utility is constrained in circumstances which require that the sentencer pays particular attention to considerations such as general deterrence, punishment or denunciation, as the degree to which a sentence addresses these considerations depends largely upon the community's attitude to it". All the circumstances of the case, not just the effect of the sentence on the rehabilitation of an offender, are relevant to the exercise of the discretion to conditionally suspend the whole or a part of the sentence: Langridge v R [2004] TASSC 97; (2004) 12 Tas R 470 at [26] - [34]. I concluded that the mitigatory considerations relied on by the appellant, even when taken together and in combination with the other mitigatory factors, were not so weighty as to lead to the conclusion that it was an error to fail to suspend the entire sentence. Taking into account the nature and extent of the appellant's dishonesty and the need for denunciation and general deterrence, the learned sentencing judge was entitled to conclude that the appellant should immediately serve a substantial part of the sentence he imposed.