Attorney-General v Mara[1999] QCA 308

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 170 of 1999

Brisbane

THE QUEEN

v

MARYANNE MARILYN MARA

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McMurdo P

McPherson JA

Thomas JA

Judgment delivered 6 August 1999.

Joint reasons for judgment of McMurdo P and Thomas JA, separate reasons of McPherson JA concurring as to the order made.

APPEAL AGAINST SENTENCE DISMISSED.

JOINT REASONS FOR JUDGMENT - McMURDO P AND THOMAS JA

Judgment delivered 6 August 1999

1. This is an appeal by the Attorney-General against sentences imposed on four counts of misappropriation.  In essence two offences were alleged to have occurred over the period July 1995 to March 1998, but four charges were laid because of amendments to the relevant legislation on 1 July 1997.  The essential misconduct alleged was misappropriation of money belonging to the Commonwealth Bank leading to a general deficiency of $34,476.79, and misappropriation of certain "power cards" issued by the FNQEB to the value of $1,000.00.

2. The respondent was sentenced to imprisonment for two years, wholly suspended for a period of three years.

3. The respondent is a member of the Injinoo Aboriginal community in far north Queensland.  She was employed to run an agency of the Commonwealth Bank in that community in 1995.  With minimal training she was made responsible for bookkeeping, money management and all other aspects of the agency.  The arrangement was that she should keep an operating balance of $10,000.00 and that any holdings in excess of that amount were to be forwarded to the bank's Cairns branch.  No auditing procedure was in place.

4. Defalcations occurred when the respondent used some of the money to pay bills and gave money to others in the community when they needed it.  She kept accurate records in her employment and those records facilitated the calculation of the missing amount when arrangements were eventually made for an audit on 20 March 1998.  The respondent did not come to work on the day proposed for the audit, so an alternative plan was arranged whereby the Community Council's financial manager, Ms Harvey, would undertake the audit.  When the respondent arrived at work on the following Monday she told Ms Harvey that there was a shortage of cash and an examination revealed a deficiency to the extent earlier mentioned.  The respondent was also unable to account for the pre-paid power cards to a value of $1,000.00.

5. The respondent admitted that she had used some of the money and cards herself, and had lent other money and cards to local people when asked.  The greatest single amount taken by her was $1,600.00 for a car payment. 

6. Four of the people to whom she had given money were also charged with receiving such money, the total sum in their cases coming to $2,949.00.  They all had little or no previous history and were given short terms of community service.  It seems to have been accepted that many more people in the community obviously received benefits than those particular persons.  It was also accepted that the respondent had not lived the life of a woman who had had the benefit of the greater part of $35,000.00 in the previous three years.

7. It was accepted by the prosecution that the respondent had been subjected to cultural pressure to distribute the money and cards when asked.  Indeed the learned Crown prosecutor below specifically conceded that an understanding of indigenous cultures revealed that the pressures placed on a person in the position of the respondent were "vast and very difficult to resist".  The money under the respondent's control seems to have been regarded by members of the community as the Council's money.  That may have had something to do with the Community Council's guarantee to the Commonwealth Bank,^[1] but however that may be, the strength of the pressures which other members of her community placed upon her for advances of money from time to time was fully acknowledged.

8. No complaint is raised in relation to the head sentence imposed by the learned sentencing judge.  The sole point at issue at the time of sentence, and now on appeal, is whether the sentence should require the respondent to serve actual time in gaol. 

9. The arrangements between the bank and the Community Council were that the Council virtually insured the bank against loss, and accordingly the Injinoo Community Council has fully reimbursed the Commonwealth Bank for the missing money.  It has also reimbursed FNQEB for the lost $1,000.00 in respect of the cards.  The Council held an insurance policy which reimbursed it to the extent of approximately two thirds of its loss.  Consequently, although full restitution has been made, the reality of the situation is that this has been made by the Injinoo community, partly by means of an insurance policy and partly from its own resources.  In the end it is fair to recognise that full restitution has been made to the bank by the Community Council but not by the respondent herself.  At the same time much of the money seems to have gone directly to members of that community in the first place as a result of the recognised cultural pressure.  There has therefore in a loose sense been some circularity in the movement of relevant resources.  Although the existence of insurance is in one sense irrelevant in that it is a matter of commercial contract between third parties, the payment of the insurance serves to demonstrate that somewhere in the general community someone loses as the result of the respondent's dishonesty.

10. Evidence was received during the sentence hearing from Mr Harvey who is a member of the Community Justice Group at Injinoo.  Such groups provide valuable liaison in the facilitating of policing and enforcement of court orders within indigenous communities.  Mr Harvey drew attention to certain circumstances that could easily be overlooked by those unfamiliar with the problems of persons working in those communities.  He informed the court that people are generally appointed to positions when they are not qualified; that people in such positions have little or no understanding of accounts or of business policy; that the people who run the Council itself, in very high positions, are not qualified.  To be a Council clerk in other areas a person might need an academic or business qualification, but not in the communities.  Mr Harvey confirmed the pressures that are placed upon persons in a position such as that of the respondent.  Under questioning from the court he conveyed information that from the point of view of the community and his Council, it would be devastating for the respondent to receive a gaol sentence, and that they would prefer to see her come back to the community or work within the community and make restitution in that way.

11. The learned sentencing judge accepted that the respondent was genuinely remorseful for what she had done and that she had not appreciated the seriousness of her actions at the time.  She was indeed shocked after being interviewed by police to find that she was facing serious charges.

12. The learned sentencing judge took into account that the respondent was not given any particular training to resist the pressures which might have been foreseen by her employer.  Her Honour also noted the absence of auditing or other accounting procedures which meant that the offending behaviour continued for nearly three years before it was halted.  At the same time, counsel for the Attorney-General rightly submitted that it is erroneous to blame the bank; and that it is economically impossible to audit such small branches with the same rigour as would occur in a city branch.  The consequence of uneconomic supervision would be to cause a decrease in such services to rural communities and to promote their isolation.  Isolation, he submitted, engenders a higher need for trust.  In our view to speak of a "breach of trust" in circumstances like the present does not describe the position as meaningfully as it might elsewhere, but the respondent's dishonesty must still be recognised.  She admitted that she knew that what she was doing was wrong.

13. The court was referred to a number of decisions involving misappropriation, and in particular R v Jacob,^[2]R v Riesenweber ex parte Attorney-General,^[3]R v Geertz,^[4]R v Cox,^[5]R v Dawson ex parte Attorney-General^[6] and R v Ferguson.^[7]When invited to suggest the lower end of the range for a sentence that would have been imposed upon a Caucasian female of similar age for doing something similar in the general community, counsel for the Attorney-General submitted that there would be a two or three year head term and that "some months real time" would be ordered to be served.  That would seem to be a realistic response, although it is recognised (as in Riesenweber) that it is by no means impossible for a non-custodial term to be ordered in such a case.

14. The question is whether there are special circumstances in the present case which justify the course taken by the learned sentencing judge.

15. Counsel for the Attorney-General submitted that the learned sentencing judge gave too much weight to the attitudes of the respondent's community, and that factors of general deterrence should have outweighed it.  The question as to what weight (if any) should be given to the attitude of the community in such a case is a complex one, particularly as the community itself may be thought to have benefited in an indirect way from the respondent's actions, (notwithstanding that the community itself has accepted responsibility for the restitution).  The difficulty of telling what is a community attitude as distinct from the attitude of some influential members, and the risk of favouritism towards a popular member, are only some of the problems associated with recourse to such materials.^[8] On the other hand, by ascertaining the actual consequences of an offender's actions with such a community, courts may well obtain insight otherwise denied to them.  In the end we consider that it was desirable that the court should know  of the repercussions of the respondent's actions and of the way in which the community had responded to them and proposed to work them out.  At the same time in a case like this a community desire that a person not be sent to gaol, let alone the statement of one person that such a general desire existed should not as such influence the determination of the question whether the respondent should serve time in gaol.

16. One of the main points urged in favour of the need for an actual custodial term to be served in this case is that it would "send the wrong message" to members of such communities if this type of activity were not visited with an actual gaol sentence.  The answer to the problem requires some understanding by courts of the apparent transition in such communities towards a greater handling of their own affairs according to their own customs, of the movement towards their own enforcement of their own standards and cultural values, and also of the extent to which the general Australian community is encouraging them to do this.  The position is complex and we do not profess to offer any general advice on the wisdom or means of such a transition.  It is clear however that where criminal offences are committed by a member of such a community which impinges upon the wider community, penalties may generally be expected to accord with the usual level.  Where they impinge predominantly upon their own group, and there is a local mechanism of control, or a substitute for more conventional means of punishment, our courts will often take advantage of that situation and frame a response in recognition of what will happen to the offender at the hands of his or her own people.

17. At the heart of the present offence is the fact that dishonesty is involved, and this is unacceptable both in the general community and in aboriginal communities.  The quality  of the respondent's acts however should be seen in the context of what can only be described as strong mitigating circumstances.  We would be surprised if those in charge of the Aboriginal Community Councils are not already aware that public money and bank money cannot be misused as it was here without serious consequences to those responsible.  If there is any perception that offences such as these are not serious and do not warrant gaol sentences, it is necessary that that perception must change.

18. Ordinarily the commission of such offences would warrant a term of actual imprisonment both as a personal deterrent and also as a general deterrent to others.  There are however special circumstances in the present case which justify the full suspension of the sentence that was imposed.  The more important of these special circumstances include the pressures that were placed upon the respondent, the fact that her main motivation was not personal greed, her lack of training and supervision, her plea of guilty, her genuine remorse, her lack of prior convictions, and her sole responsibility for three young children aged, 10, 7 and a newborn baby.  In addition she has endured the shame of losing her job.  Courts must also be conscious of the factor (which does exist in the present case) that "an aborigine from a community which is isolated from, and has little experience of, the general community, ... may be punished more severely than would otherwise be the case by incarceration away from his or her community in a prison environment ...".^[9]

19. For these reasons we are not persuaded that the sentence was outside a proper sentencing discretion or that it should be increased.

20. It is necessary to mention that such a result should not be regarded as a likely one in future cases.  A sentencing judge of course retains the discretion to sentence within an appropriate range, but cases where actual gaol time is not required to be served will be an exception.  It is desirable that these reasons be understood in the communities with which we are concerned.  To that end the Registrar is directed to distribute copies of these reasons to Aboriginal Community Councils and Community Justice Groups in the expectation that individuals and bodies concerned with Aboriginal and Torres Strait Islander groups will explain the implications of this judgment, and the likelihood of imprisonment for such offences of dishonesty.

21. In this instance the appeal of the Attorney-General will be dismissed.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 6 August 1999

1. I agree that this appeal should be dismissed and I agree generally with the joint reasons given by McMurdo P and Thomas JA for doing so.

2. I do, however, wish to make a brief comment on the course adopted by the learned judge in this instance of taking account of the wishes of the local community when deciding not to sentence the respondent to a period of imprisonment. My first reaction to it was that it was proper for her Honour to do so. On one view, it was analogous to the kind of character reference, perhaps embodying a plea for mercy, that is sometimes tendered on sentence.  Judges are ordinarily well able to assess the weight, whether little or much, to be given to a reference of that kind, including the circumstances in which it may have been solicited.  Occasionally, as in R v Beldan, ex p Attorney-General [1986] 2 Qd R 179, the reference may turn out to have been a fabrication; but that is a risk that, generally speaking, the sentencing system can probably afford to take in return for the convenience of having it established, without undue expense or formality, that there are some who think well of the offender despite the criminal conduct for which sentence is being imposed.

3. In acting on a community opinion about the merits of a particular offender the problem, as McMurdo P and Thomas JA point out, arises from the difficulty of knowing that it genuinely is a community attitude as distinct from the attitude only of some influential members of the community. The risk in sentencing of giving undue weight to a joint expression of opinion like that is somewhat increased because of the number of people from whom the opinion appears to come. There is, I think, also a real risk that, if in future a favourable recommendation is not presented on sentence, the assumption will be made that community opinion is not favourable to that particular offender.

4. Generally, I think that, for the reasons mentioned by McMurdo P and Thomas JA, it is undesirable that in sentencing matters the court should give undue attention to the views of groups as distinct perhaps from those of identified individuals who are prepared to offer written or sworn testimony at the hearing. It would be a serious mistake, and contrary to law, if the sentencing function came to depend too much on views of persons operating outside the courts who are possibly open to influences about which courts have no means of knowing anything. At the same time, I consider that it is not shown that undue weight was given to the community opinion or recommendation in the present case.

5. I agree with the joint reasons of McMurdo P and Thomas JA that there are some personal factors operating in favour of the respondent that tended to make the sentence imposed here not inappropriate or manifestly inadequate; but that it should not be regarded as setting a standard of sentencing for instances of misappropriation at this level in future matters of this kind.