R v Ripper[2000] QCA 474

SUPREME COURT OF QUEENSLAND

1. THE COURT: In November last year, the applicant was convicted on his pleas of guilty of 17 offences of misappropriating property exceeding $5,000 in value. Nearly nine months later, he filed an application asking for an extension of time within which to seek leave to appeal against his concurrent sentences of 10 years imprisonment, which were all accompanied by a recommendation that he be eligible for parole after three years and nine months. The applicant wishes to contend that the sentences are manifestly excessive.

2. The considerable delay in challenging the sentences is sought to be explained by mental illness and an associated inability to appreciate “the options available”. The applicant, however, confronts the difficulty that, on the material before us, which does not include all the evidence adduced before the judge, the proposed application for leave to appeal appears to have no appreciable prospect of success.

3. The offences were committed by the applicant, an accountant, in respect of his clients’ moneys. More than $2.5 million was misappropriated from 17 persons who, over about five years, and in 57 separate transactions, were deceived by the applicant into paying money to him or to entities he controlled. The funds were then used for the applicant’s benefit: as examples, for subdivisional development of an expensive property near Toowoomba, restaurant bills, purchase of antiques, payment of income tax, and children’s school fees. His victims, many of whom were friends, were left in aggregate about $2,180,000 out of pocket. Not surprisingly given the scale of the fraud, several victims suffered considered financial hardship through what the judge, in careful sentencing remarks, aptly described as the planned, systematic misappropriation of the savings of many persons who had misplaced their trust in him.

4. The present circumstances may be compared with those in R v Chapple.^[1] There the Court refused leave to appeal against a sentence of 10 years imprisonment, accompanied by a parole recommendation after four years, imposed on a solicitor who had misappropriated more than $1,500,000 over about three years from several clients. There also the sentences followed pleas of guilty. The net loss suffered was almost $1,200,000. Quite a few of Chapple’s victims were his friends many of whom suffered financially disastrous consequences. There too the misappropriated funds were frittered away on private purposes, such as Chapple’s business schemes and a luxury boat. The solicitor had also defended civil litigation brought by one of his former clients in an obstructive manner, “endeavouring to disguise the true nature of the transactions” he had engineered.

5. In R v Heiser & Cook,^[2] the Court was concerned with sentences following convictions after a trial for offences of dishonesty. Cook was the Chairman of a friendly society. His accountant, Heiser, was the Secretary. Together they schemed to defraud the society. Like Chapple and the present applicant, neither Cook nor Heiser had a relevant criminal history. The amount involved was $3.3 million. Of that, $3 million found its way to Cook’s company. Heiser received the balance. Investors, many of them retirees, lost substantial savings. There was no restitution or remorse. Attorney-General’s appeals against the sentences succeeded, the Court imposing sentences of 12 years imprisonment on Cook, and 7 years on Heiser.

6. Although the applicant’s sentences are comfortably within a range indicated by Chapple and Heiser & Cook, the applicant contends that greater leniency was called for in his case because, as he says in effect, the extent of his culpability is less than theirs. Two matters were particularly relied on: claimed attempts over three years to help victims recover their money; and mental illness, especially during the period in which the offences were committed.

7. The applicant, it may for present purposes be accepted, made himself available to assist in attempts to recover funds. But the available material does not demonstrate the extent to which, if at all, the $380,000 returned was recovered through his efforts. The mental illness issue requires discussion.

8. The judge took the applicant’s mental health into account in relation to two issues bearing upon mitigation: impact on the moral culpability involved in the offending conduct; and as indicating that his imprisonment would be more than usually difficult.

9. The judge concluded, appropriately enough, that the applicant had suffered an “impairment of judgment” during the period of offending. There was evidence to support this view.

10. Reports by Dr McIntosh, a psychiatrist, and Mr Cummins, a psychologist, revealed that the applicant suffered from depression which was, as the judge found, “initially caused by pharmacological treatment and then exacerbated by a variety of personal matters”.

11. Dr McIntosh considered that the applicant had been experiencing a depressive order from 1992, which is when the misappropriations began. The condition was induced by prednisolene, a drug that had been prescribed years earlier for a physical ailment. In his depression-affected state of mind, the applicant, or so Dr McIntosh recorded, had felt himself to be “bullet-proof”: that is, his capacity to appreciate that he might be punished for criminal misconduct was significantly diminished.

12. Mr Cummins accepted that the onset of depression had been pharmacologically induced. In his view, stressors had combined to maintain it – principally, the pressure of the applicant’s work as an accountant, and his domestic difficulties. According to Mr Cummins, because of the applicant’s psychological state, he focused on “immediate gratification …” and committed the offences when his “psychological state was most probably significantly clinically compromised”. Mr Cummins, however, did not think that the applicant was “unable to distinguish right from wrong. Rather … that he was experiencing a clinically diminished perception and a clinically diminished sense of judgment …” attributable to factors that included long-term drug use, alcohol dependency, and chronic stress. Mr Cummins also spoke of the applicant’s “fragile” psychological condition when the sentences were imposed.

13. The judge balanced the psychological and psychiatric material bearing upon moral culpability with such things as the deliberation and deception apparent from the nature and extent of the offending conduct in remarks that reflect a sound assessment of the pertinent considerations and circumstances. No doubt the resource savings associated with the guilty pleas and the applicant’s mental state, at sentencing as well as during the years the offences were committed, account for the parole eligibility recommendation. A somewhat more generous recommendation could have been made. But it cannot fairly be said that the allowance for mitigating circumstances reflected in the judge’s recommendation is so inadequate as to justify interference.

14. The proposed appeal does not enjoy sufficient prospects of success to justify entertaining it. The application for an extension of time should therefore be refused.