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R v Jenkins[2006] QCA 22

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

R v Jenkins [2006] QCA 22

PARTIES:

R
v
JENKINS, Mike
(appellant/applicant)

FILE NO/S:

CA No 228 of 2005

DC No 2528 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2006

JUDGES:

McPherson and Keane JJA and Muir J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed and application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – STEALING AS A SERVANT – PROOF AND EVIDENCE – whether learned trial judge was correct in ruling that the property was capable of being owned by the company – whether verdict unsafe on the evidence – whether sentence imposed excessive

Criminal Code 1899 (Qld), s 408C

COUNSEL:

No appearance for the appellant

M J Copley for the respondent

SOLICITORS:

No appearance for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. McPHERSON JA: After a trial in the District Court lasting some three days the appellant Mike Jenkins was found guilty of (1) stealing as a servant of Geneva Inventions Pty Ltd a sum of $170.00 belonging to that company; (2) of stealing a further sum of $1,995.00 belonging to that company; and (3) of dishonestly applying to his own use a quantity of liquor, also the property of Geneva Inventions. He was sentenced on each count to imprisonment for 9 months to be suspended after serving three months.  He appeals against his conviction of these offences and seeks leave to appeal against the sentences imposed.
  1. Geneva Inventions is a company of which, at the time of the offences in 2003, the sole director was a Mr Paul Barker, who gave evidence for the prosecution. At premises at 16 Park Street, Coorparoo, the company conducted two businesses. One was Geneva Lodge, which was a boarding house or hostel catering for some 30 or more residents. The other, known as Coorparoo Convention Centre, let out rooms for hire for business or tourist purposes. The two establishments were managed separately, in the case of Geneva Lodge by a Mr Tony Fitzgerald, while, from about November 2002 until late March 2003, the Convention Centre was managed by the appellant under the terms of a written contract, which is ex 1. Under that contract, the appellant was entitled to a salary and to meals free of charge, as well as the right to occupy a two-bed roomed apartment, which he shared with Dean Brierley, who was described as his partner.
  1. Count 1 related to a party held at the Centre in January 2003 to farewell a departing employee of the Lodge. It was arranged by Fitzgerald in conjunction with the appellant as manager of the Centre, whose function room was used for that purpose. Those attending were residents of the Lodge and, because many of them were in financially straitened circumstances, the drinks for the occasion were, with Barker’s knowledge, purchased on the credit of the Centre on its account with the supplier Vintage Cellars at Coorparoo, under an arrangement that the cost would be reimbursed by contributions from those attending the party. The total account came to a little more than $200, but, making allowance for a private purchase, the sum involved in count 1 came to $170.00.
  1. Fitzgerald said he collected the money and paid it in cash, which he handed to the appellant soon afterwards. The appellant did not give evidence at the trial, and Fitzgerald’s statement to that effect was not challenged. Barker said that the money was never given to him by the appellant. The company’s bank deposit books contained no entry recording the money. The appellant’s defence at trial apparently was that he had in fact paid the money to Barker, which was inconsistent with his earlier statement in the police interview that receipt of the money had been recorded “in the books” On the evidence before them, the jury were entitled to convict the appellant of stealing the sum of $170.00.
  1. In the course of the trial the learned judge ruled that the money received by the appellant from Fitzgerald was capable of being the property of Geneva Inventions Pty Ltd. Ground 1 challenges this ruling. The ground of appeal is plainly not sustainable under the definition of stealing under the Criminal Code. At common law the taking of the money by a servant intercepting it before it reached the employer would ordinarily have constituted not larceny but the statutory offence of embezzlement; but the law was never as simple as this, as can be seen from Kenny’s Outlines of Criminal Law (ed J W C Turner) §321. The Code abolished those distinctions and in s 391(1) made it an offence of stealing if the thing taken was converted to the use of the person taking it. Section 395 expressly provides that when someone receives money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received.  See also s 393, and Re A Solicitor [1902] St R Qd 9, at 9-10, per Griffith CJ. In this case the appellant received the money on behalf of Geneva Inventions.
  1. Ground 1 therefore cannot succeed. Ground 2 is that the verdict on count 2 was unsafe on the evidence and that the conviction should be set aside as unsafe and unsatisfactory.
  1. The charge in count 2 arose out of the following circumstances. Ms Marion Boman was one of those who used to hire rooms for functions at the Centre. She did so for a conference or “workshop” on the weekend of Saturday and Sunday 1 and 2 March 2003. She arranged with the appellant that the cost of the function, which amounted in total to some $3,469, would be paid to Geneva Inventions partly by cheque with the balance in cash. She paid the whole of the amount due and was given a “paid” receipt generated by the office computer. The cheque, which was for $1474, was duly deposited at the company’s bank on Monday 3 March, but the sum in cash was not. Both cash and cheque had been delivered to Josh Hamilton, another company employee, who furnished Ms Boman with the receipt. He testified at the trial to having placed the cheque and the cash in an envelope in a drawer in the appellant’s office desk. The bank deposit slip for the amount of the cheque was signed by the appellant, but contained no reference to the cash, and in fact a line had been drawn through the space provided for recording a cash deposit.
  1. In the police interview, the appellant admitted that Ms Boman had paid the amount due from her. When a search was later made of the computer for a copy of the receipt she was given, it could not be found. Barker said in evidence that it had been deleted from the computer. It was the only such entry that was missing in the chronological sequence of receipts recorded in the computer (ex 7). The jury were left to draw the inference that the appellant had deleted it. The defence suggested that perhaps one of the residents of the Lodge had taken the cash and deleted the receipt; but it was unlikely that they possessed the degree of sophistication required to do so. Only the appellant, Barker and the bookkeeper Ms Rodriquez knew the computer password at that time.
  1. In addition, Brierley gave evidence that the appellant had told him that the Boman conference at the Centre was being paid for in a large sum in cash, and that the appellant was worried that the office did not have a safe in which to hold it. On the day after the conference he gave Brierley $1,500 in cash to place in Brierley’s credit card account to keep it secure. The appellant told Brierley it was a bonus from Barker, but later said it had come from the Boman conference money. However, when crossexamined, Brierley admitted that his bank records did not show any such deposit to his account. He could only suggest that he might have been mistaken about the account in which he had deposited the amount of $1,500, but remained adamant that the appellant had given him that sum. In the police interview the appellant gave various explanations of what might have happened to the money, but essentially that Barker had done the banking on that occasion on Monday 3 March 2003, although he admitted that he had signed the bank deposit slip involving the cheque.
  1. In the end, the jury did not entertain a reasonable doubt about the appellant’s guilt in count 2. I consider it was open to them to reach that conclusion. The appellant did not contest that Ms Boman had paid the indebtedness by a combination of a cheque and cash, or that his signature appeared on the bank deposit slip, which recorded only the deposit of the cheque. The defence was inclined to blame Barker for taking or misplacing the money, which Barker denied, as he also denied doing the banking on the occasion in question. These were matters for the jury, which their verdict shows they decided against the appellant.
  1. Count 3 charged fraud under s 408C of the Code. There was evidence on which the jury could properly find that the appellant placed an order over the telephone to Vintage Cellars for the purchase of liquor and arranged to collect it. It was intended for a party to be held at the Centre in order to celebrate the appellant’s “engagement” to Brierley. On the day following the telephone call, which was 14 March 2003, he and Brierley travelled in Brierley’s car to Vintage Cellars and took delivery of the order. The cost of $696.62 plus GST was charged to the account of Geneva Inventions Pty Ltd with Vintage Cellars, and the invoice (ex 3) was signed not in the appellant’s name, but in the name of Fitzgerald, who denied being there on the occasion. The Vintage Cellars employee who served the appellant was Ben Reid, who gave his evidence by telephone from France. He said that it was the appellant who had placed the telephone order and who came to collect the bottles and party ice, but that it was the appellant’s companion who signed the invoice. Reid helped them to pack the goods into the car before they drove off with it. Reid said he knew the appellant from the previous occasion on which he had delivered liquor to the Centre.
  1. The liquor was consumed at the celebratory party held at the Centre by the appellant and Brierley. Mr Barker had given the appellant no authority to make the purchase on the credit of the Geneva Inventions’ account with Vintage Cellars. The only ground now raised in connection with the conviction on count 3 is that the learned trial judge was wrong in ruling as she did that the liquor was capable of being the property of Geneva Inventions Pty Ltd.
  1. In my view, this challenge cannot be sustained. Section 408C(1) of the Code provides that a person commits the crime of fraud when he dishonestly –

“(a) applies to his … own use, or to the use of any other person –

(i)  property belonging to another …”.

On appeal it was submitted by the Crown that, as a servant or employee, the appellant owed a fiduciary duty to Geneva Inventions, with the result that, on well settled principles, he was precluded in equity from making a profit or advantage for himself without his principal’s informed consent. In this way, it was suggested, Geneva Inventions acquired an equitable interest in the liquor that was sufficient to satisfy the terms of s 408C(3)(d), which includes property belonging to another in which that person has an equitable interest in or claim to that property.

  1. In my opinion, however, it is not necessary to invoke principles of equity in order to determine this point. The order for the liquor was placed over the telephone by the appellant acting in the name of Coorparoo Conference Centre, which was the name under which Geneva Inventions Pty Ltd traded and which was known to the supplier Vintage Cellars. The invoice charging the resulting indebtedness to the purchaser was made out to the Centre. It is true that on the evidence the appellant had no actual authority to pledge the credit of Geneva Inventions for the purpose of the party, and Mr Barker has since refused to pay this item in the account from Vintage Cellars. If he is correct, it may be that in law no civil liability on Geneva’s part to pay for the goods has arisen or will arise unless Vintage Cellars succeeds in establishing that the appellant had ostensible authority to enter into the contract of sale with Vintage Cellars.
  1. It was, however, not necessary for the learned judge in her summing up to trouble the jury with an investigation of civil liability for the debt. It was always intended by Vintage Cellars represented by its servant and agent Mr Ben Reid that ownership in the liquor should pass at the time when the liquor was delivered to those who came to collect it. He knew that the appellant claimed to be purchasing on behalf of Coorparoo Conference Centre; he made out the invoice (ex 3) in that name; and the appellant, or someone else who was with him, signed it. Mr Reid helped load the car. There cannot be the slightest doubt that Vintage Cellars intended ownership to pass to the Centre on delivery of the goods to the appellant as the employee or agent (as Reid believed) of the Centre. It was never the intention of Vintage Cellars as the seller that property in the goods should vest in the appellant personally. If it had been the intention, the invoice would not have been charged to the Centre and the goods would not have been handed over to the appellant, who, unlike the Centre, did not have an account with Vintage Cellars.
  1. What happened after that was that the appellant applied the liquor to his own use by supplying it for consumption at the “engagement” party which he organised. No doubt in legal terms he incurred a personal civil liability to make restitution to either Geneva Inventions or Vintage Cellars, but the jury were not confronted with that question. In my view, it was sufficient to direct the jury, as her Honour did on the facts, without concerning them with the question whether ownership of the liquor passed from Vintage Cellars to Geneva Inventions trading as Coorparoo Conference Centre or to someone else. On any view of the evidence the liquor had not in law become the property of the appellant when he applied it to his own use. Her Honour’s ruling was correct and ground 3 therefore also fails.
  1. At the time of the offences the appellant was a man in his late thirties with few if any prior convictions of consequence. He stole or misappropriated a total of about $3,000 more or less over a period of a couple of months. He used his authority and knowledge of his employer’s affairs to enable the offences to be committed. He stole or misappropriated as a servant.
  1. Stealing as a servant has always tended to attract heavier sentences because of the opportunities for concealment it provides and the betrayal of trust it involves. Concurrent sentences for each of these offences committed by the appellant are well within the range of penalties commonly imposed in such cases: cf R v Bird [2004] QCA 196. Especially when coupled with suspension after 3 months, it cannot be said that the sentence here was excessive.
  1. I would dismiss the appeal against conviction and refuse the application to appeal against sentence.
  1. KEANE JA: I agree with the reasons of McPherson JA and with the order proposed by his Honour.
  1. MUIR J: I agree with the reasons of McPherson JA and with the order he proposes.
Close

Editorial Notes

  • Published Case Name:

    R v Jenkins

  • Shortened Case Name:

    R v Jenkins

  • MNC:

    [2006] QCA 22

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Keane JA, Muir J

  • Date:

    10 Feb 2006

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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