R v Gregory[2004] QCA 87

SUPREME COURT OF QUEENSLAND

DAVIES JA:  I will ask Justice Philippides to give her reasons first.

PHILIPPIDES J:  The applicant was convicted on her plea of one charge of fraud, with a circumstance of aggravation and sentenced to six years imprisonment, with a recommendation for post-prison community based release after two years.  The applicant seeks leave to appeal against that sentence, on the ground that it is manifestly excessive.

The circumstances of the offence are that the applicant misappropriated $236,565 from her employer over a nine year period.  The applicant held the positions of debtor's clerk and group credit control manager.  In those capacities, she was required to collect her employer's debts from debtors and bank the moneys collected.  The applicant kept moneys she had recovered from debtors and by making false entries in the accounts of dormant creditors, was able to conceal her dishonesty.  The employer's suspicions were raised after certain discrepancies became apparent and an audit was conducted.  This revealed that cash payments that had been received had not been banked and had been charged to dormant creditors' accounts which resulted in the company's accounts balancing.  A full audit was conducted in relation to the nine year period.  When confronted with her dishonesty by her employer, the applicant denied any impropriety, declined to take part in a police interview and her employment was terminated.  Before the learned sentencing Judge, the Crown submitted that the appropriate head sentence was one of six years imprisonment.  On the applicant's behalf, it was conceded before the learned sentencing Judge that a sentence of up to six years was within range and it was submitted that a recommendation after a period of 18 months to two years would adequately reflect the matters in mitigation.

It is contended in this Court on behalf of the applicant that the appropriate sentencing range was one of four to six years imprisonment with an appropriate early release order and that the sentence which should have been imposed was one of five years imprisonment suspended after 15 months with an operational period of five years.

Counsel on behalf of the applicant emphasised a number of matters of mitigation.  The applicant is now 60 years of age and was 47 to 56 years of age when the offending conduct occurred, and 59 years of age when sentenced.  Counsel also referred to the applicant's timely plea and the fact that no dispute was raised as to factual matters such as to require proof.  Counsel also submitted that there was no suggestion that the moneys were taken for “high living” but rather reflected loneliness and that the offending, though over a period, was an aberration in the applicant's life.

All of these matters of mitigation were raised before the learned sentencing Judge and I am not persuaded that the learned sentencing Judge failed to properly take these matters into account.  It should be noted that the offending conduct, although described as an aberration by the applicant's counsel, took place over a lengthy period and was categorised by the learned sentencing Judge as being of a systematic nature.

Counsel for the applicant placed emphasis on the decision in R v Griffiths CA No 146 of 1994.  That case concerned a 60 year old offender who was described as “preying upon persons seeking places in a retirement village”.  A sentence of seven years imprisonment with parole after two years was imposed after trial in respect of the offending conduct which involved the offender receiving some $1.29 million, which was placed into his account.  It was submitted that the applicant's offending in this case was less serious and had the additional mitigating factor of an early plea.

Counsel also referred to R v Jensen [1998] QCA 275, which involved the misappropriation of $224,000 by the offender there who was sentenced after trial to four years imprisonment with parole after 12 months.  The offender had been in a position of trust in that he had powers of attorney over two senile women.  However, it should be noted that in that case, the offender's wife made restitution of all but $35,000.  In addition, counsel for the applicant referred to R v Pearce CA No 54 of 1999, which concerned the misappropriation of $400,000 by a person with an extensive criminal history, who was on a suspended sentence for stealing and on bail for other offences.  A plea was entered in that case and it should also be noted that the shortfall there was some $60,000.  An effective sentence of three and a half years without parole was not disturbed on appeal.

The Crown referred to the case of R v Gourley [2003] QCA 307, where a sentence of six years imprisonment with a recommendation after two years and three months was imposed on a person who had defrauded her employer of sums over $213,000. The offender there was between 42 and 46 years of age at the time of the offending conduct which took place over a four and a half year period and had used the funds for gambling.  The offender had cooperated by voluntarily desisting from her conduct reporting her conduct to the police and making full admissions and an early plea of guilty.  She had no previous convictions and her gambling habit had been triggered by a series of family deaths.  The Court of Appeal refused an application for an extension of time in which to appeal against sentence, stating that a head sentence of six years fell within the pattern for the sum involved and that the provision for early release after two years and three months was not outside a proper exercise of discretion in the circumstances of the antecedents of the offender in that case.  The Crown also referred to R v Felton CA No 16 of 1989 a case involving the misappropriation of $210,000 over a six year period by a person in a position of trust within a company.  The offender there had a good work history, no prior convictions, had entered a plea and cooperated fully with police giving them information which they would otherwise have been unlikely to find out.  A sentence of six years imprisonment was imposed but no recommendation in relation to parole was made.  On appeal, the head sentence was not disturbed, however, it was held that the learned sentencing Judge had fettered his discretion and the sentence was varied only to the extent of adding a recommendation for release on parole after two years.

Whilst the authorities indicate that a more lenient sentence may have been within the sentencing discretion, they also indicate that a more severe sentence would also have been within the sentencing discretion.  Therefore, although a slightly heavier or slightly more lenient penalty would also have been justified by the cases to which we have been referred, those cases do not demonstrate that the sentence here was manifestly excessive.  I consider that the sentence imposed was one within the appropriate sentencing range. 

Accordingly, I would dismiss the application.

DAVIES JA:  I agree.

JERRARD JA:  I agree.  I think it worth adding that in the matter of Jensen, to which this Court was referred, the victims of the fraud, who are relatives of the applicant's wife, did not want him in prison.  That matter clearly affected the sentencing Judge in that matter.

The applicant's wife had effected restitution of all but $35,000 of the amount taken by that applicant.

In the matter of Pearce, the actual loss was $61,000, that being the result of the fact that a number of vehicles and goods, the subject of the fraud in that case, had been recovered.

I think that those are matters that do distinguish those two decisions from the ones involved in Felton and Gourley.  I agree with the orders proposed by Justice Philippides.

DAVIES JA:  The application is dismissed.