SUPREME COURT OF QUEENSLAND

1. KEANE JA: I agree with the reasons of Fraser JA and with the order proposed by his Honour.

2. FRASER JA: On 7 September 2007 the applicant was convicted on her plea of guilty of an offence under s 408C(1)(d) of the Criminal Code Act 1899 (Qld).  She was sentenced to seven years imprisonment, with a parole eligibility date fixed at 7 January 2010 (effectively 28 months).  The applicant contends that the sentence was manifestly excessive. 

The Circumstances of the Offence

3. The applicant committed the offence whilst working as a bookkeeper for a private company engaged in underground boring work. This was a family business run by a married couple. They had met and hired the applicant in July 2000. She had previously worked for their accountants and the accountants recommended her to them. They became friends. The victim impact statement reveals that the friendship extended to the couple buying Christmas presents for the applicant and making morning tea for her when she was doing the books.

4. The applicant’s duties comprehended all of the bookkeeping and accounting for the business. She advised the couple, and they accepted the advice, to register the business for an automated banking service through which wages and other payments could be transferred between accounts. The applicant was given her own password access and dedicated computer at the premises of the business.

5. She then embarked upon a series of fraudulent transactions, 132 in all, which occurred over some four and a half years between March 2002 and September 2006. By this means she misappropriated $426,804.87.

6. Unsurprisingly, this caused financial difficulties for the couple who operated this small business. When in 2006 they became concerned that although there was plenty of work there was less cash flow available, the applicant produced profit and loss figures and said that the charges were not high enough and the overheads were too high. Because of the couple’s friendship with the applicant, they accepted this explanation.

7. The fraud was discovered by the couple later in the same year. When contacted by the police, the applicant declined to be interviewed. No restitution was made and none is offered. It is unclear where all of the money went but, according to the applicant’s version of events recited in a psychologist's report, it was used for the applicant’s general expenditure on things such as groceries, household bills and car maintenance, together with some minor luxuries such as electronic equipment and clothing.

The Applicant's Circumstances

8. The applicant was aged between 36 and 41 years when she committed the offence. She was 42 years of age at the time of her sentence. She had no criminal history.

9. Although the applicant did not make any admissions to police, the learned trial judge properly took into account, in her favour, that she pleaded guilty and cooperated in the administration of justice.

10. The psychological report tendered at the sentence hearing revealed that the applicant suffered from symptoms consistent with clinical disorders of depression, obsessive compulsivity and dependant personality traits. The psychologist expressed the opinion that under those conditions the applicant was likely to experience impairments in reasoning and judgment although her offending behaviours did reflect sophistication and knowledge of financial systems. He added that her actions were intentional and manipulative given the reported friendship with the complainant.

11. Earlier in the psychological report, the psychologist noted that there had been some financial strain upon the applicant, that her actions lacked social judgement and reasoning, and that her capacity to understand the nature of her actions and monitor her behaviour and emotional responses at the time of the offences was "unlikely" to be impaired. The learned trial judge said in sentencing that he took the word "unlikely" to be intended to mean "likely". It is appropriate to approach the application on that basis.

12. The applicant had a relatively unstable home life. According to the psychologist, her motivation, or part of her motivation, was to support a lifestyle that would appease her partner, with whom her relationship was somewhat dysfunctional. The psychologist also noted that her offences were not "solely" motivated by personal greed.

Discussion

13. This was a sophisticated offence involving the misappropriation of a very large sum of money.

14. It is correct, as was submitted on behalf of the applicant, that there is no precise sliding scale of head sentences according to the sum involved in the offence: R v Gourley [2003] QCA 307, per Mackenzie J at 3.  That is not to say, however, that the amount taken is not a very relevant circumstance. As Mackenzie J observed in that case, cases where large sums of money are involved generally attract a higher penalty than where the sum is relatively small; but of course the individual circumstances of the case may affect both the level of head sentence and any provision for early release.

15. In this case, the business was not a large one: predictably, it could ill afford the applicant’s serious depredations. The effect of the applicant's offending to improve her own position was to cause considerable hardship to the couple who operated the business. Their victim impact statement reveals both financial hardship and emotional distress resulting from the applicant's offending.

16. It is also correct, as was submitted on behalf of the respondent, that the yield to the applicant from her offending was far in excess of what could be attributable to reasonable living expenses and her financial commitments.

17. The psychologist's report perhaps explains the offence to a limited extent, but it does not in any sense excuse it.

18. It is significant also that the offence was committed over a long period and that it was particularly callous, involving as it did both a self interested breach of trust by an employee and a serious and persistent abuse of the applicant’s friendship with the couple who operated the business.

19. General deterrence is a particularly important consideration in sentences for offences of this character.

Comparable Cases

20. On behalf of the applicant it was submitted that a head sentence in the range of five to six years imprisonment with a suspension (in the case of five years) or a fixed parole eligibility period of 18 months is appropriate.

21. In R v Wheeler & Sorrensen [2002] QCA 223, this Court refused leave to appeal from sentences of six years imprisonment with a recommendation for release on parole after two years imposed upon offenders who participated in a scheme to misappropriate $632,435.44.  That was a case in which the directors of a licensed auctioneer and motor dealer misappropriated trust funds.  Although the amount taken was very much larger than by this applicant, in favour of the offenders there was that they had committed their crimes out of loyalty to their 12 staff, in a misguided decision to keep the business running.  Also of particular importance was the fact that those offenders had revealed their misconduct by calling in an administrator.  Those significant features are, of course, absent from the current case, which also involves the abuse of friendship I have mentioned.

22. In R v Spalding [2002] QCA 538 a sentence of six years imprisonment with a recommendation for post-prison community based release after two years was held to be within a sound exercise of the sentencing discretion. The amount misappropriated there was $302,873, less than that involved in the present case.  As Keane JA pointed out in R v Parker [2007] QCA 22, R v Spalding (like R v Gourley [2003] QCA 307) was a case in which the offending was shown to have been precipitated by psychiatric or emotional infirmities outside the offender's control.  The offender was married with a nine year old child. According to the psychologist's report he had an increasing sense of being trapped in a workplace where he was subjected to verbal and emotional abuse, unable to find alternative work and needing to work because of his wife, child and a mortgage.  The result of that was an adjustment disorder which allowed the applicant there to feel justified in maintaining his dishonest activities. The present case involves the more aggravating circumstances that I have mentioned. 

23. In R v Gourley [2003] QCA 307, the offender was sentenced to six years imprisonment with a recommendation that she be considered eligible for parole after serving two years and three months. The offender took a total of $213,000 over a four and a half year period. She gambled away most of the money. Ultimately she went to the police of her own volition, made full admissions, and pleaded guilty. After an examination of the authorities, this Court concluded that the head sentence fell within the pattern of sentences for the sum involved and that the provision for early release was not outside a proper exercise of discretion. That offence was not as callous as that of this applicant, and less money was taken.

24. In R v Adams; ex parte A-G (Qld) [2006] QCA 312, the sentence imposed was four years imprisonment, suspended after nine months with an operational period of five years.  On an Attorney-General's appeal, this Court varied the sentence by ordering its suspension after 15 months.  In that case, however, the amount misappropriated was significantly less: it was $236,617.29, and it was taken over a 12 month period.  The offender admitted his offence when confronted, whereas the applicant here attempted to divert suspicion.  The offender had made some restitution in that case.  She also had the care of two young children and suffered from a depressive disorder.  She spent the money on her family.

25. In R v Hancox [2006] QCA 333 this Court held that a sentence of imprisonment for five and a half years with a parole eligibility recommendation after 21 months was well within the appropriate range.  The amount misappropriated ($435,000) was similar to the amount taken here, although of that total amount Hancox received $265,716, the balance being paid to the Australian Tax Office and ultimately refunded to the company.  The court took into account in that offender’s favour that he had commendably nursed his wife and supported his son through his wife's lengthy, debilitating and ultimately terminal illness.  Also not present in that case was the feature of personal friendship which in this case emphasises the callousness of the offence. 

26. In R v Parker [2007] QCA 22, the Court imposed a sentence of five years imprisonment to be suspended after 21 months for an operational period of five years. The offender, an administrative assistant in an automobile dealership, had used her access to her employer's computer systems and hardcopy records to misappropriate money. She took $229,566.10 by about 96 separate fraudulent transactions over some 18 months; she was driven by a gambling habit which she had apparently overcome after her apprehension; and the case lacked the feature of the abuse of a personal friendship which is present here.

27. In each of those matters, the offender – like this applicant – had no prior, relevant convictions. In my view, those authorities support the conclusion that, having regard to the particular seriousness of this offence, the sentence was within the sentencing judge’s discretion.

28. That is so even though in the only cases cited to the Court in which head sentences of seven years were imposed in broadly comparable circumstances the offender had a relevant criminal history: R v Cheers [1997] QCA 329 (where some $173, 000 was taken over two years) and R v Sheppard [2001] 1 Qd R 504 ; [2000] QCA 57, (where some $435,000 was taken over a few months). The force of that distinction – that the applicant here had no prior convictions whereas those offenders had relevant criminal records – is somewhat diminished by the much longer period of some four and a half years during which this applicant committed the numerous misappropriations involved here.

29. The applicant did not contend that the there was any error in the sentencing process. Having regard to the comparable authorities mentioned above and the particular circumstances of this case, the sentence imposed by the learned sentencing judge could not be characterised as being manifestly excessive.

Order

30. The application should be dismissed.

31. ATKINSON J: I agree that the application should be dismissed for the reasons given by Fraser JA.