R v Sheehan[2007] QCA 409

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  I will ask Justice Holmes to deliver her reasons first. 

HOLMES JA:  The applicant for leave to appeal was convicted on pleas of guilty of one count of stealing as a servant, four counts of fraud (two with a circumstance of aggravation, that the property exceeded $5,000), and one count of stealing simpliciter.  He was sentenced to two and a-half year's imprisonment suspended after four months for an operational period of two and a-half years. 

The applicant had worked since 1993 for FAI Insurance and in January 2000 took up a position as branch manager of one of the company's offices in a country town.  The stealing as a servant occurred in the turmoil surrounding the collapse of FAI's parent company and another insurer's taking over of FAI's business at the beginning of 2001. 

Over a four-week period between mid-January 2001 and mid-February 2001 the applicant failed to bank insurance premium payments received in cash.  He told investigators that he had expected to receive some funds from which the amount taken could be repaid.  He also gambled some of the money in the hope of replacing what he had taken.  The amount misappropriated in that way was some $25,000. 

The two counts of fraud simpliciter involve the applicant receiving funds direct from a customer to insure a vehicle and tools.  He twice took cash amounts from the complainant in January 2002 and again in January 2003, purportedly by way of insurance premiums, but did not arrange the cover. 

The two counts of fraud with a circumstance of aggravation involved the applicant opening cheque accounts with two banks, depositing valueless cheques into them and drawing on the accounts.  In one instance he obtained some $8,000 in that way and in the other, $6,800 odd.  Those offences occurred in November and December 2002. 

In February 2003, the applicant seized work for a subsequent employer and failed to return client files, stationery and computer records.  That gave rise to the charge of stealing simpliciter. 

By the time of sentence, restitution had been made of all the misappropriated funds, which totalled $41,317, except for the amount owed to one of the two banks, and that was held in Trust ready for payment.

At sentence, the applicant's counsel made numerous points in his favour.  His offences had been committed under financial stress: he had a large unsecured loan given to him by FAI which he had to service, and the takeover of that entities business had meant the loss of an expected bonus and salary increase while adversely affecting his employment prospects.  The applicant had also recently been through the breakdown of a longstanding relationship.  He had no previous criminal history; restitution was being made in full; he had pleaded guilty.  There had been a very substantial delay, not of his making, between the offences coming to light in 2002 and 2003 and their being dealt with in September 2007.  In the interim he had formed a relationship with a woman with three children and they now had two small children of their own.  He and his partner had bought and were operating a newsagency.

Counsel at sentence and again on appeal, made particular reference to two cases.  The first was R v Law; Ex Parte Attorney-General [1996] 2 Qd R 63, the second, Bell v R (1981) 5 A Crim. R 347.  Law identified delay where it causes some unfairness to the offender as a mitigating factor. Examples of attendant unfairness were where the offender was left in a state of uncertainty and with his reputation under a cloud, or where his rehabilitation between offence and sentence was evident in Bell, a case involving a solicitor’s having stolen some $30,000 from his trust account, the Court identified an error in the sentencing Judge's exercise of discretion: he had regarded the fact that no precedent could be found for a non-custodial sentence in such circumstances as mandating a sentence of imprisonment.  That was an undue fettering of his sentencing discretion.  The Court, in re-sentencing, noted a number of mitigating features, including the applicant's psychiatric state, his full restitution, his co-operation and his rehabilitation over the delay of some years in dealing with the offence, in concluding that it was an exceptional case in which a non-custodial sentence could properly be substituted. 

The learned Sentencing Judge in the present case noted that the dishonesty was episodic rather than continuing, although it did involve different types of dishonesty and, in relation to the stealing as a servant charge, a significant abuse of trust.  He accepted that the applicant had an exemplary background and that the offences were out of character, as was demonstrated by references tendered on his behalf.  They had occurred during what his Honour described as, "tumultuous events” in the applicant's life.  He took into account the delay in dealing with the matters and the fact that the applicant had demonstrated rehabilitation in settling down with his new partner and children.  His making of restitution and co-operation were important, but it was not to be thought that the payment of money could buy an individual's way out of a gaol sentence. 

In this Court there was no complaint of the head sentence.  Indeed, it was conceded that the available range was between two and a-half years wholly suspended and two and a-half years suspended after three months.  But the applicant argued that the learned Sentencing Judge failed to give sufficient weight to the delay in the proceedings and the making of restitution, and that deterrence did not require any actual period in custody; nor did community expectations.  The appellant having now spent some two months in custody, his counsel contended for a sentence suspended forthwith. 

Stealing as a servant is an offence regarded very seriously by the Courts because of the breach of trust involved.  The imposition of a head sentence of two and a-half years was unremarkable.  It then fell to the learned Sentencing Judge to reflect the many mitigating factors in reducing the time actually to be served under the sentence.  In this case, unlike Bell, no specific error in his Honour's exercise of discretion was demonstrated.  He did not regard himself as bound to imprison the applicant and he did not overlook the significance of the restitution made and the applicant's rehabilitation in the lengthy period between charging and sentence. 

Restitution and rehabilitation were, as the learned Judge recognised, important mitigating factors.  But to regard them as mandating a non-custodial sentence would be to fetter the sentencing discretion in just the way disapproved in Bell.  Of a 30-month sentence, the learned Judge required the applicant to serve only four months.  He might have taken a different course, but it cannot be said that the course he did take was outside a proper exercise of sentencing discretion. 

I would dismiss the application for leave to appeal against sentence. 

WILLIAMS JA:  I agree. 

McMURDO J:  I agree. 

WILLIAMS JA:  The order of the Court is the application is dismissed.