The Queen v Hinterdorfer[1997] QCA 199

COURT OF APPEAL

FITZGERALD P

McPHERSON JA

de JERSEY J

CA No 118 of 1997

THE QUEEN

v.

PETER ANTHONY HINTERDORFER Applicant

BRISBANE

DATE 29/05/97

JUDGMENT

de JERSEY J:  The applicant pleaded guilty on an ex officio indictment to the misappropriation of $4.5 million, the property of Port of Brisbane Corporation at a time when he was employed by that corporation.  He was sentenced to the maximum penalty, 10 years imprisonment, with a recommendation for parole after four years and three months.  This application is based on the contention that the sentence is manifestly excessive.

This was the applicant's first offence.  He was then a 34 year old married man with one young son.  There was psychiatric evidence before the learned sentencing Judge that he was a pathological gambler.

The applicant was employed at the time as a clerk by the Port of Brisbane Corporation.  His duties included the investment of substantial funds on the short-term money market.  Having accumulated substantial gambling debts the applicant formulated a plan to misappropriate these monies. 

What ensued may conveniently be taken from the Judge's sentencing remarks, and I quote:

"On 20 August last year you drew up the appropriate voucher for the investment of four and a half million dollars with the ANZ Banking Group.  You had that voucher and a cheque for that sum signed by two general managers of the Corporation.  After the cheque was signed you inserted additional words on the cheque enabling it to be paid to the credit of a company which you had recently set up and which had an account at the ANZ Bank. 

After the money was paid into that company's bank account in Brisbane it was transferred to Melbourne the next day and some three and a half million dollars of the money was used to purchase shares.  The following day $120,000 was transferred to your personal account in Brisbane.  Several days later $500,000 was transferred to Hong Kong. 

On 11 September 1996 the shares were sold for $3.8 million and a little over a week later that money was also transferred to Hong Kong.  Of the monies misappropriated approximately $2 million is now held by banks in Hong Kong and can be recovered.  Of the rest large amounts were withdrawn in cash and cannot now be traced. 

You claim that they were lost on gambling.  Whatever happened to that money the Corporation has suffered a loss of two and a half million dollars.  The commission of this offence was discovered on 14 November last year when the original investment should have matured.  As that investment was found not to be in existence on that day the matter was brought to the attention of the authorities. 

When first spoken to by the police in relation to this matter you were less than co-operative, however, you have subsequently pleaded guilty by way of an ex officio indictment and you have signed authorities to enable the Corporation to recover the $2 million in Hong Kong."

In the written material submitted for the applicant counsel submitted first that the Judge may, in fact, have treated the applicant more harshly than the prosecutor had sought.  The prosecutor had sought a sentence of nine or 10 years.  If nine years, with no recommendation as to parole, if 10 then that he should serve at least four years.  It seems to me that what His Honour did was not inconsistent with that.

The essential contention made in this Court was that that Judge paid insufficient regard to the mitigating features. 

Mr Feeney, who appeared for the applicant before us submitted that the applicant should have been sentenced to eight years with a recommendation for parole after three. 

The mitigating features were the plea of guilty to an ex officio indictment, the applicant's previously unblemished record and his addiction to gambling as an explanation for his involvement in this offence.  To reflect those features the Judge in recommending eligibility for parole applied in effect a 15 per cent reduction in the time which would ordinarily have been spent in custody, recommending parole after four years and three months instead of after five years. 

There was challenge to us by Mr Feeney with respect to the imposition of the maximum penalty, as well as a challenge to the adequacy of the favouring allowed the applicant with relation to parole.   As submitted for the respondent, the maximum penalty is not reserved for the worst imaginable case, but for the worst category of offending.  The High Court said as much in Ibbs 1987, 163 Commonwealth Law Reports 447 at 451.  This apparently was the largest known misappropriation in Queensland.  It did involve complex pre-planning and commercial arrangement.  It involved serious abuse of the employer's trust and it was characterised as put by counsel for the respondent by very large scale dissipation.  Further 2.5 million dollars of funds with a public character were lost as well as investigative resources.  In my opinion those features did combine to justify the learned Judge's apparent view that the case fell into the worst category of this sort of offence.

Mr Feeney submitted that the learned Judge paid insufficient regard to the applicant's cooperation in the sentencing process.  There is some competing significance in His Honour's finding that the applicant was not initially cooperative, but in any event the Judge did, in my opinion, sufficiently reflect the plea of guilty to an ex officio indictment together with the other personal circumstances in the early parole recommendation he made.

A strong factor supporting that view in the end was, as counsel conceded, an overwhelmingly strong Crown case against the applicant, so that the applicant was, in that sense, yielding to the virtually inevitable in the plea he made.

Mr Feeney also submitted that where a lengthy head sentence is appropriate and it obviously was here, cooperation in the sentencing process should, as a matter of principle, lead to a reduced head sentence as well as favouring with relation to parole.  He was unable to refer us to authority for that, although he did seek to apply Malvaso 1981, 168 Commonwealth Law Reports 227 at 239, an informant case, by analogy. 

There are, in my view, reasons to distinguish the approach in that case from what must be followed here.  I say "must" recognising that whether the point succeeds depends on the existence of a general principle.  In my opinion there is none.  I am not to be taken as agreeing that there is such a principle even in the case of informants; that is, that there must in cases of cooperation by informants be reduced head sentences as well as favouring in parole.  The matter, in my opinion, is one of general discretion for sentencing Judges.

We were referred to a number of cases involving large scale misappropriation.  I mention Palmer, Court of Appeal 441 of 1993.  In that case nine years was imposed for misappropriation by a solicitor of approximately $3 million with no recommendation for early parole.  Palmer was a 36 year old with no prior convictions.  He also was addicted to gambling and pleaded guilty upon an ex officio indictment.  His criminal conduct proceeded over a longer period, some four months, and he was a solicitor.

We were referred to a number of other cases, as I have mentioned, including Cook.  There are points of distinction between those cases and this.  It may be in the end that the applicant was given a somewhat hard sentence, but in my opinion once one categorises this case as falling within the worst category for this sort of offence, as I do, the Judge was entitled and right to apply the 10 years which he did, being the maximum, leaving adjustments to the recommendation with relation to parole.  In that area the 15 per cent favouring he made was, in my view, appropriate.

In the end I consider that the 10 year head sentence coupled with the four year three month parole recommendation leads to a situation where, although the 10 year head sentence was heavy, one could not say, notwithstanding distinctions between this case and the others to which we were referred, there is demonstrated manifest excess such as would justify this Court in interfering.  I would, for those reasons refuse the application.

THE PRESIDENT:  Mr Justice McPherson will deliver the next judgment. 

McPHERSON JA:  I agree with what has been said by Mr Justice de Jersey and with the order he proposes.  My attention is now directed to the application that was made by counsel on behalf of the applicant for an order that the time the applicant has spent on remand should count as part of the sentence served.  To explain the nature of this application or the context in which it arises, I should refer to the following events.

The applicant was sentenced on 28 February 1997.  He has thus at the date at which we are now hearing the application spent about three months on remand.  He was transferred into remand or into the remand section of the prison at his request and he has been there ever since.  Section 671G of the Criminal Code provides that time during which an appellant has been held in custody shall not count as part of the term of imprisonment unless the Court otherwise orders.  I am stating the effect of the section generally and not with precision, but that is substantially its meaning and effect.

We are asked here to order otherwise.  That is to say to treat the remand period of some three months as going towards service of the sentence of imprisonment.  I must say that as a first observation I am doubtful if the provisions of section 671G apply to this case at all.  The section uses the word "appellant" and the word "appellant" is defined in section 668 subsection 1 of the code to include a person who has been convicted and desires to appeal under this chapter. 

The applicant here, Mr Hinterdorfer, is not an appellant in the sense that he is not appealing against his conviction.  He has simply applied for leave to appeal against sentence.  The form of the section under the use of the expression "appellant" in it suggests that it was probably intended primarily for the case of a person challenging a conviction and not one who was merely challenging sentence.  But whether that is so or not, it is of course plain that there must be some good reason for the Court to act in exercising its discretion to allow the remand period to be treated as part of the sentence.

Here it is perfectly obvious that since the applicant was not challenging his conviction and had sustained a very lengthy period of imprisonment, he could not have expected the sentence to be reduced to a level where the period he would spend on remand would have any significant impact on the overall period that he was likely to spend in gaol.  He nevertheless took the step of asking to be transferred to remand.

We were informed from the Bar table that the reason why he did so was that he had been imprisoned at the Woodford Correctional Centre where there was a riot and he wished not to be involved in the riot or perhaps in the events leading up to it or following it.  Whatever value that suggestion might have had, had it been established before us, there was put before us nothing more than the statement from the Bar table and I would personally not be prepared to act on a general statement of that kind without a great deal more detail as to dates, times, places and events which might have justified the request that was made by the applicant for removal to the remand section.

As it is, I am not at all sure that it is a proper use of section 671G for a prisoner to alter the circumstances and place of his detention by making the request that was made here and then coming before this Court and asking it to exercise a discretion in his favour.  I would therefore refuse that application.

de JERSEY J:  I agree with the additional observations of

Mr Justice McPherson.

THE PRESIDENT:  I agree with what Mr Justice de Jersey has said concerning the decisions of the High Court in Ibbs and Malvaso and with what Mr Justice McPherson has said concerning the time spent by the applicant on remand, even if subsection 671G applies to an applicant for leave to appeal against sentence.

On any view of the matter this applicant recognised throughout that he would remain in custody after the hearing of this proceeding.  His initial written outline of submissions sought to have a period of nine years imprisonment substituted for 10 and his oral submissions only advanced that to the point of seeking that a sentence of eight years imprisonment be substituted.

I also agree that there is no doubt that the applicant deserved a heavy sentence.  However, I am not persuaded that this was a case in which the maximum permissible penalty was warranted for the applicant's single offence.  Further, in my opinion, the combination of that period of imprisonment and the comparatively small period involved in the recommendation for eligibility for early parole make the sentence imposed upon the applicant out of step with such cases as Palmer, Chapple, Green and Cook and Heiser, all decisions of this Court in the last two years and manifestly excessive, having regard to the applicant's plea to an ex officio indictment and personal circumstances.

I would grant the application for leave to appeal and allow the appeal.  There is little purpose to be served by my elaboration of my views or by an indication of what sentence I consider should be imposed having regard to the opinion of the other members of the Court.  The order of the Court is application for leave to appeal against sentence refused.