R v Parker[2007] QCA 22

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  Justice Keane will deliver his reasons first.

KEANE JA:  On 11 October 2006 the applicant was convicted, on her own plea of guilty, of six counts of fraud, two counts of stealing as a servant, one count of dishonest application of a computer and one count of using a computer with intent to commit an indictable offence.  She was sentenced to five years imprisonment to be suspended after 21 months for an operational period of five years.

The applicant seeks leave to appeal against her sentence on the grounds that the sentences were "manifestly excessive"; and that the learned sentencing judge "erred in law when, in passing sentence, he sentenced the applicant to a single sentence of imprisonment for all of the counts". 

As to the circumstances of the offending, the applicant was employed in an administrative capacity by an automobile dealership.  In the course of her employment, she had access to her employer's computer systems and hard copies of the records of the business.  The applicant's fraud took a variety of forms which included the use of her employer's electronic funds transfer facility and its BPAY facility to transfer money into her own accounts.  She also diverted deposits received from customers into her own accounts and she made alterations both to the computerised and hard copy records of her employer to conceal her frauds.  Her offending took place between July 2001 and December 2002.  In all, the applicant took a total of $229,566.10 by approximately 96 separate fraudulent transactions.  She has made no restitution.

As to the applicant's personal circumstances, she was born on 15 June 1964.  She was thus between 36 and 38 years of age at the time of the offences, and 42 years of age when she was sentenced. 

The applicant's only previous criminal history was for an offence for the unlicensed possession of, and failure to properly store, a weapon in October 2002. 

The money she took from her employer was used to fund a gambling habit.  Since her apprehension, she has refrained from further offending and has apparently overcome her gambling problem. 

The learned sentencing judge treated the applicant's plea of guilty and her rehabilitation as circumstances of mitigation.  His Honour accepted that the applicant was unlikely to reoffend, but nevertheless held that the need for a deterrent sentence was important in such a serious case of abuse of a position of trust.

His Honour was pressed with the submission on the applicant's behalf that the applicant's gambling was an addiction resulting from depression, and his Honour rejected that submission on the basis that it was not supported by evidence.  To the extent that this submission was again advanced in this Court, it should be said that the learned sentencing judge was plainly correct to reject the submission.  There is simply no evidence to support the conclusion that the applicant's gambling was an aspect of a depressive illness.  If anything the evidence suggests the contrary. 

His Honour concluded: "Obviously, a prison sentence must be imposed and obviously you must serve some time in prison.  I consider than an appropriate sentence is a sentence of five years, suspended after 21 months." 

The applicant contends before this Court that the learned sentencing Judge erred in imposing one sentence in respect of all the offences in question.  The applicant relies in this regard upon the decision of this Court in R v Crofts (1998) 100 A Crim R 503 at 504, which confirms that such a sentence may not be imposed under the Penalties and Sentences Act 1992 (Qld). While it may be argued that his Honour intended to impose the sentence to which he referred in respect of each of the offences of which the applicant was guilty, those sentences to be served concurrently, a sentence of five years suspended after 21 months was, in my respectful opinion, not an appropriate sentence for each of the offences of which the applicant was guilty.  Thus, for example, while count 3 concerned a misappropriation of $121,486.16, counts 1, 4, 5 and 10 concerned much lesser amounts, between $10,294.31 and $13,933.89. It, therefore, appears that it is necessary to accept the applicant's first contention.  It is then necessary for this Court to consider what sentence it should impose.

The applicant seeks to rely upon the decisions of this Court in R v Spalding [2002] QCA 538 and R v Gourley [2003] QCA 307 in support of an argument that a sentence of four to four and a half years suspended after 12 to 18 months, should now be imposed by this Court. The applicant's point is that R v Spalding and R v Gourley were cases where a head sentence of six years was imposed where the period of offending was considerably longer than in the present case. The applicant's argument fails to take into account, however, that, in each of these cases, the offending was shown to have been precipitated by psychiatric or emotional infirmities outside the offender's control.  The applicant in this case failed to show any basis for such a conclusion.  Furthermore, the applicant fails to recognise the significance of the very large number of separate criminal actions perpetrated by her in this case.

The applicant also relies upon the decision of this Court in R v Adams; ex parte Attorney-General (Qld) [2006] QCA 312.  In that case, the offender took $239,617.29 from her employer over a 12 month period.  On appeal by the Attorney-General, where an especially moderate approach is ordinarily taken to the level of sentence imposed where the appeal succeeds, this Court imposed a sentence of four years imprisonment, suspended after 15 months.  In that case, however, it was accepted that the moneys misappropriated by the offender were spent on her family including the purchase of a boat for her husband.  It was accepted that the offender acted under acute stress because of abuse by her husband.  There was evidence from a psychiatrist that the offender had suffered from episodes of major depressive disorder and that, because of a borderline personality disorder, imprisonment would be an extreme punishment "which she did not deserve because she could not help being what she was" (see R v Adams; ex parte Attorney-General (Qld) [2006] QCA 312 at [9]).  Furthermore, in that case, the offender made restitution of $12,750. 

In the present case, the criminality of the applicant's misconduct was in no way ameliorated by adverse personal circumstances.  The only explanation offered by the applicant for which there is any evidence was recorded by her counsellor, Dr Lumley, in a letter tendered in evidence on the applicant's behalf.  In Dr Lumley's letter he says, "It would seem that she was caught up in an environment of wrongdoing including gambling and as Tracey said it was just what everyone was doing." 

That explanation merely serves to emphasise that the present case is one where the need for general deterrence looms large in the fixing of a just sentence.  While there may be debate as to the deterrent effect of condign punishment upon some classes of criminal conduct, such as crimes of passion, there can be little doubt that the prospect of condign punishment can reasonably be regarded as likely to deter crimes of deliberate and persistent self-indulgence such as those committed by the applicant in this case.

Because the learned primary judge erred in imposing only one sentence for all the offences, the sentence which was imposed must be set aside. The application for leave to appeal must be granted, the appeal against sentence allowed and the sentence imposed below set aside. 

In place of the sentence imposed below I will order that in relation to count 3, the applicant be sentenced to five years imprisonment, to be suspended after 21 months for an operational period of five years; in relation to each of Counts 1, 2, 4, 5, 6, 7, 9 and 10, the applicant is to be sentenced to three years imprisonment to be suspended after 21 months for an operational period of five years; and in relation to Count 8, the applicant be sentenced to 18 months imprisonment.

THE PRESIDENT:  Yes, I agree.

MULLINS J:  I agree.

THE PRESIDENT:  The orders of the Court are as set out by Justice Keane.