The Queen v Power[1998] QCA 32

COURT OF APPEAL

FITZGERALD P

McPHERSON J

BYRNE J

CA No 440 of 1997

THE QUEEN

v.

DEBRAH DAWN POWER Applicant

BRISBANE

DATE 11/02/98

JUDGMENT

McPHERSON JA:  The appellant seeks leave to appeal against the sentence of imprisonment for six years with a recommendation for parole after two and a half years.

On 3 November 1997, the appellant pleaded not guilty to a charge of misappropriation, or fraud as I think it is now called by the Code, under section 408C of the Code, together with two circumstances of aggravation under section 408C(2), namely that she was an employee of the victim and the amount was over $5000.

On the second day of the trial she was rearraigned and pleaded guilty after the amount misappropriated was amended from $108,574.25 to $107,969. Given those circumstances of aggravation, the statutory maximum was imprisonment for 10 years.

The facts constituting the offence are that between 18 January 1995 and 20 March 1996 the applicant misappropriated 45 cheques or their proceeds.  It is a little bit difficult for me to understand why those acts of misappropriation were not charged as 45 different offences or counts in the indictment.  However the fact that they were not can in the end only have served to make her offence appear less serious than it really was.

The applicant was employed as an administration officer by a small family business, Matesea Pty Ltd trading as Zoran's Homes.  As such she was responsible for paying accounts, wages and looking after petty cash.  There were three signatories to the company's bank account.  They were Mr Zoran Stojkovic, the managing director, Mrs Maria Stojkovic, his wife and Dean Stojkovic, their son.  Occasionally it seems Mr Zoran Stojkovic would sign blank cheques which were delivered to the applicant for use in connection with the business.

During the period of some 15 months or more covered by the indictment, cheques were misappropriated in four different ways.  Six of the cheques, totalling $22,610.25 were made out in the name of the applicant D Power.  Three cheques totalling $11,200 were made out to L J Hooker, six cheques totalling $40,314 were made out to Esanda to a joint account maintained by the applicant and her de facto husband and $33,844.75 was misappropriated by increasing the amount on the cheque and placing a false entry on the butt for the purpose, as it was put forward, of petty cash or wages.  The appellant's employment was terminated in March 1996 when Mr Zoran Stojkovic discovered the discrepancies.

Before us the appellant has submitted that the sentence imposed was manifestly excessive for the following reasons; that is to say, her guilty plea, although it should be noticed that she did not change her plea to guilty until after the Stojkovics had given their evidence at the trial; also what was said to be genuine remorse, although that has to be viewed in the light of the observation I have just made; her age, that is to say she is 40 years old; and family considerations.

The appellant has four children under the age of 16 years, the youngest being only two years old.  In addition, she is pregnant and due to give birth in late February or early March 1998.  She may be separated from her baby if she gives birth in prison.  She is also concerned about the stress and trauma being suffered by her other children that would result from her imprisonment and her absence from them.

The appellant submitted below that she had received only $11,500 of the misappropriated money, which she used to pay rent, and that the remainder went to Dean Stojkovic.  This was denied by him in his evidence-in-chief at the trial and the learned trial Judge, having observed Mr Dean Stojkovic give evidence, was satisfied "that he was no way involved in the misappropriations."

His Honour categorically, as he said, rejected the submission that the appellant benefited personally only to the extent of $11,000.  It is in any event only a minor consideration whether she received the money herself in her hand and used it for her own particular purposes or applied it for domestic or quite other purposes.  The relevant circumstance is that she misappropriated it without any justification whatsoever.

There is no basis for concluding that the Judge's finding to which I have referred was mistaken, or for supposing that the applicant was genuinely remorseful about what she had done.

The offence carries a maximum penalty of 10 years, as I think I might have remarked, at least where, as here, circumstances of aggravation are involved.  The learned trial Judge described the appellant as "a very calculating criminal".  There was some basis for such a remark to be found in the fact that in 1993 she was convicted of wilfully setting fire to a building and attempted false pretences.  Those two offences appear to have arisen out of an act or acts of misappropriation of property which she had committed at that time and was endeavouring to conceal.

The sum involved on that occasion, that is to say the misappropriated sum, was $367,000 and there was a circumstance of aggravation charged and proved on that occasion which, again, was that she was a servant or employee.

She was sentenced by the Judge before whom the matter came in 1993 to imprisonment for two years with a recommendation for parole after six months.  The offence of setting fire to the building was, as I said, committed in an endeavour to conceal her primary offence of misappropriation.

There are references in the written outlines of submission put before us in this case to a decision in R v. Cheers (CA 214 of 1997, 26/08/97), where the misappropriation involved was, in terms of money, more than in this instance.  It was $173,000 and it met with a sentence of seven years.  It should be pointed out that Cheers appears to have no prior convictions for an offence of that kind - at least that is the impression one gains from reading the Court's reasons for judgment in that case.

In R v. Scott (CA 164 of 1997, 21/07/97) a term of imprisonment for four years was confirmed in the case of misappropriation; but in that instance the sum was only $48,000.  The head sentence in this case of six years falls fairly between those two limits, having regard at any rate to the amount involved, but the 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.

It is true that the appellant's family circumstances are difficult.  She has four children under 16 years, of whom, as I have said, one is only two and she is expecting another to be born.  That is a feature that naturally attracts sympathy for the children; but it is difficult to see why it should count for much in the appellant's favour, who knew better than anyone else could have known what the consequences for her family would be if she committed these offences.

The sentencing Judge took account of the family interest in making his recommendation for parole after two and a half years instead of leaving it where it would have been under the statute, which is to say at three years.

On the occasion in 1993 when the applicant was sentenced to two years with parole after six months, the sentencing Judge was also asked to take into account and specifically did take into account that the applicant then had three children and was expecting another.  She had on the occasion with which we are now concerned no reason to suppose that she could continue to commit similar offences in the expectation of a repetition of judicial sympathy for the plight of her children.  She 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.

Instead of learning a lesson, she went on, within less than 18 months of her release on parole, to begin misappropriating the money which she has now been convicted of taking.  At the time it appears she was still subject to her parole, at least for a further period of a month or more arising out of her earlier conviction.

The target of her deprivations on this occasion was a small business conducted by a family who trusted her, and who are, one may fairly assume, like almost everyone else in the community, not in a position readily to absorb losses of the order and magnitude we see here.  There is, it may be added, no prospect at all that the applicant will compensate those family members for the loss they have sustained.

When all these matters are considered, and particularly the fact that she is a reoffender 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.  I would therefore refuse the application for leave to appeal.

FITZGERALD P:  I agree.

BYRNE J:  I agree.

FITZGERALD P:  The application is refused.