R v Dawson[1999] QCA 43

DAVIES JA:  This is an Attorney's appeal against a sentence of six months' imprisonment together with three years' probation for an offence of fraud involving the misappropriation of approximately $116,000. 

Sentence was imposed in the District Court on 12 November 1998 on the respondent's plea of guilty.  The offence having occurred over a period of about eight months between 5 December 1997 and 18 August 1998.

The respondent, at the time of commission of these offences was approximately 42 years of age.  Until June 1998 he was deputy principal at Kawana Waters High School and from that date he was the principal of the Tully State High School.  As the learned sentencing Judge noted, he appears to have achieved those positions at a relatively young age.

The respondent had been treasurer of the Queensland State Secondary Schools Rugby League Association since late 1996.  This was the governing body for secondary school rugby league competitions.  Amongst its financial commitments were payment for trophies, accommodation and general expenses relating to that competition.

It was funded by the Minister for Education but also received sponsorships and donations.  It was in his capacity as treasurer of that Association that he committed the offence, the subject of this appeal.

There were three members of the executive of the Association, each of whom had authority to sign cheques, but the cheques had to be countersigned.  The appellant was one of the three.  Because the other two lived at some distance from the respondent, the practice was that blank cheques would be signed and left with the respondent for payment of expenditure by the Association.

By September 1998, the respondent was aware that an audit was to be conducted in November.  In fact, it appears some creditors had complained of not being paid and it had been decided to conduct such an audit in September.  Before that was formally announced, the respondent went to a solicitor, made full admissions and signed a statement to the police.

He also resigned his position as principal and informed the other executive members of the Association of his fraud.  The amount taken in total was $116,447.08, taken in a total of 37 cheques varying in amount between approximately 800 and $8,000.  The appellant had, however, paid a little over $8,000 worth of creditors' debts out of his own funds.

It was accepted by the appellant that the respondent cooperated fully with the police and was genuinely remorseful.  By the time of sentence, he was in a position to pay most of the money taken and made an offer of restitution which, we are told, has, to the best of his ability, been performed.  There is still approximately $16,000 deficit which he is prepared to undertake to pay.

As is so often the case in offences of this kind the respondent has no relevant criminal history and appears to have otherwise led a life of some benefit to the community.  However, his mature age and responsibility of his position are factors which, in my view, are as likely to increase the sentence imposed as to decrease it.  It need hardly be said that the position which he abused to take this money was one of substantial responsibility.

His problem was one of addiction to gambling, in particular, horseracing.  It appears that he gambled away all of his own money as well as that of the Association.  Unsurprisingly, his habit and now the commission of this offence has had a devastating effect on his wife and young child.

There were a number of factors which the learned sentencing Judge rightly took into account in the respondent's favour.  Personal references testified to his talent and dedication as a teacher and to his contribution to the community including as a coach and administrator of sport without financial reward.

His early plea of guilty and cooperation with police are also relevant matters in his favour and although his decision to confess may have been prompted by the prospect of an audit, which would have inevitably uncovered his fraud, the learned trial Judge accepted that he was genuinely remorseful.  His offer and payment of restitution must also be taken into account.

The parties before the Court below seem to be on common ground as to the appropriate starting point for the sentence in this case.  The respondent's counsel submitted there should be a term of imprisonment of three years.  The appellant's counsel contended for a term of four years.

I would not be satisfied that that was the top end of the appropriate range and, indeed, a sentence of five years would not have been outside the range for an offence of the kind I have just described.  Nevertheless, the range appears to have been accepted by the learned sentencing Judge as appropriate because it appears that from that range he reached the sentence which he ultimately imposed.  His Honour then went on, having in effect accepted this range, went on to consider the mitigating factors which he thought were relevant which were those which I have just mentioned including, His Honour thought, the prospect that the respondent would be unlikely to commit any further offence if he could overcome his gambling addiction.

At the hearing below, the respondent's counsel submitted that his client should receive a recommendation for parole after six months, that is, a sentence of three years with a recommendation after six months.  The appellant's counsel contended, as I have mentioned, a term of four years imprisonment but did not make any specific submission as to the appropriate recommendation for early parole although conceding that a recommendation was appropriate.

In this Court, the Attorney has submitted for a four year term with a recommendation after 12 months.  The learned sentencing Judge imposed the sentence which he did because he appears to have thought it had consequences as serious as a three-year sentence with a recommendation after six months.  What he did then was to impose a sentence of six months and then order that the respondent be subject to probation thereafter because he thought that might assist him better in curing or controlling his gambling addiction. 

A significant disadvantage of that somewhat unorthodox course is that it fails to impose a sentence which appropriately marks the community's disapproval of conduct of this kind and, it is hoped, deters other like-minded people from such conduct.  Although this offence may not have been difficult to detect by an audit, offences of this kind often are, which makes deterrence a more important factor than it may be in some other offences.  For those reasons, in my view, the learned sentencing Judge's discretion miscarried in this case.  His Honour should have imposed a primary sentence which reflected the seriousness of the offence and had some general deterrent effect.

Nevertheless, in sentencing on an Attorney's appeal it is appropriate to sentence conservatively having regard to the consequences which have been mentioned by the High Court and in previous decisions of this Court.  Notwithstanding that, however, I adhere to what I said earlier that the appropriate range, in my view, goes well beyond the four years which was conceded as appropriate by counsel for the respondent below and counsel for the Attorney before this Court.

I would therefore allow the appeal, set aside the sentence below and impose a sentence of three and a half years imprisonment with a recommendation for parole after 15 months of that term.  That sentence as a whole would, in my view, affect the mitigating factors to which I've referred.  I would also make an order that the respondent pay compensation of $16,103, that being the amount which we have been told is outstanding before 12 November 2001 to be paid to the Registrar, District Court, Cairns on behalf of the Queensland State Secondary School Rugby League Association and, in default, a further six months imprisonment.

PINCUS JA:  The exercise of this Court's jurisdiction during sentences involves balancing the consideration that the sentencing Judge must be allowed a reasonable quantum of discretion in respect of sympathetic cases against the equally important consideration that some consistency must be preserved.

It appears to be clear, beyond serious argument, that the Judge in the present case was too much influenced by sympathy for the respondent and too little influenced by a desire to impose a punishment befitting the rather serious offence which was committed.  I agree that the sentence has to be increased and I agree generally with the reasons given by the learned presiding Judge and with the orders which His Honour proposes.

SHEPHERDSON J:  Yes, I agree with the orders proposed by the learned presiding Judge and the reasons he has given.  I also agree with the comments of Mr Justice Pincus.

DAVIES JA:  The orders are as I have indicated.

MR GLYNN:  Your Honour, could I just raise one matter before you make the order?

DAVIES JA:  Yes.

MR GLYNN:  And that is the date for restitution.  As Your Honour would appreciate, that adds about 12 months to the time that he may serve before he is eligible for release on parole.

DAVIES JA:  What do you want as a date?

MR GLYNN:  Could Your Honour put that back by another 12 months?

DAVIES JA:  That is, 2002?

MR GLYNN:  Yes, please.

DAVIES JA:  What do you want to say about that?

MR BULLOCK:  I do not object to that, Your Honour.

DAVIES JA:  Yes, 2002, Mr Glynn.

MR GLYNN:  Thank you, Your Honour.

DAVIES JA:  And you want a warrant, Mr Bullock?

MR BULLOCK:  Yes, a warrant.

MR GLYNN:  Perhaps the warrant - could the warrant lie for a period, Your Honour?

DAVIES JA:  What period would you like?

MR GLYNN:  Perhaps the warrant could lie till Monday, Your Honour.  That gives him an opportunity to present himself.

DAVIES JA:  All right.  So ordered.