R v Franks[2008] QCA 288

COURT OF APPEAL

MACKENZIE AJA

JONES J

DAUBNEY J

CA No 176 of 2008

DC No 12 of 2008

THE QUEEN

v

FRANKS, Elyse MargaretApplicant

BRISBANE 

DATE 25/09/08

JUDGMENT

MACKENZIE AJA:  The applicant for leave to appeal against sentence was convicted after pleading guilty on an ex officio indictment to a count of fraud with the circumstances of aggravation that she was employed by the complainant and that the value of the property was more than $5,000.

The misappropriated amount was $97,522.45.  The misappropriations, which comprised 48 separate incidents, occurred over a period of about 20 months from May 2005 to January 2007.  At the time the applicant was office manager in the Roma office of an accountancy company.

She was sentenced to four years' imprisonment suspended after one year for an operational period of five years.  I note in passing that the Notice of Appeal says that there was a parole release date 12 months from the date of sentence, but that is not strictly correct.

It is not submitted that the head sentence of four years should be reduced, but it is submitted that the custodial period before suspension of the sentence should be reduced from 12 months to nine months.

The grounds upon which the applicant relies are firstly that the learned sentencing Judge gave too much weight to the previous conviction for stealing as a servant, for which she was convicted about six years prior to the commencement of the offending, with which the present application is concerned.

Secondly, it is submitted that insufficient weight was given to payment of full restitution and an additional sum to cover expenses of the investigation incurred by the complainant.

The applicant was 37 to 39 years of age at the time of the offences.  The prior conviction for stealing as a servant occurred when she was a senior administration officer with the Department of Primary Industries at Roma.  She was responsible for ordering items for the Department there.

After a property audit, a search warrant was executed at her home and Departmental property consisting of a computer, a TV stand and a statue were located.

According to the information placed before the sentencing Judge below, she had taken the items home and never returned them.  She had used the computer in connection with a University course she was doing at the time and had taken the other items to use initially as decoration for a party.  She was fined for this offence in June 1999, about 14 months before she began to work for the present complainant.

It is not a mainstream kind of offence of stealing as a servant, nor of the same type as the present case, but the plea of guilty was an admission of an intent to permanently deprive her employer of the items.

The sentencing Judge regarded it as relevant as he was entitled to do, but there is nothing in his reasons to suggest that he overestimated its weight.  That was essentially accepted by counsel for the appellant here.

In her capacity as office manager for the accountants, the applicant was responsible for financial matters relating to the complainant's Roma office.  She was signatory for company cheques and responsible for all internet banking transactions at the office.

At about the end of 2006, a director of her employer conducted inquiries in relation to the cheque account and identified six suspicious cheques.  Five had been paid to the applicant's Mastercard account and the other to American Express.  Three of the payments were recorded on cheque butts as having been paid to the Australian Taxation Office.

When the director confronted the applicant about them, she readily admitted that she had been writing out company cheques and depositing them into her accounts.  When interviewed the same day by the police she made admissions but said that she was unable to say how many cheques she had deposited.  She said she believed it was about $20,000 worth of cheques.

The six cheques identified by the director amount to a little under $18,000.  She was charged with six offences of fraud initially in relation to them.  The money involved was subsequently repaid.

The police continued investigations and detected the remaining 42 payments made by the applicant using company funds.  The investigations revealed that inter alia the Mastercard was used to pay for separate holidays to Egypt and to America and for cosmetic surgery.  Most of the other items purchased with the card were luxury items and almost all payments were made with the complainant's funds.  The American Express card had been used during the holidays.  Most of the payments to that card were also made with the complainant's funds.

Payments were also made for advertising and services provided in connection with the separate business she was running and for installation of air conditioning at her home.  There were also internet transfer into accounts belonging to the applicant.  She disguised these payments by often transferring amounts similar to a standard sum regularly charged as an audit fee by another company in relation to the complainant's clients.

The applicant refused to be further interviewed about the additional transactions discovered after she had spoken to the police about the initial ones.  By the time of sentence the restitution and recompense for investigation expenses had all been paid to the complainant.

It was submitted that the repayment of the misappropriated money and the investigation expenses was an exceptional mitigating factor.  It was submitted that the payments could not be regarded as a wealthy person attempting to buy her way out of prison. 

In this regard, counsel for the applicant relied on Withnall (1993) 68 A Crim R 119 at 128, R v Allen [2005] QCA 73 and R v Lovel [2007] QCA 281.  Those authorities make the point that making full restitution is a relevant factor.  It may indicate remorse and may in any event entitle an offender to a significant reduction in the period to be spent in custody simply on the utilitarian basis referred to by President McMurdo and Justice Jerrard in Allen.

The only issue is whether in conjunction with the other mitigating factors a reduction in the time spent in custody of 50 per cent is manifestly inadequate.  The other mitigating factors are said to include that the matter proceeded by way of a plea of guilty to an ex officio indictment, that the applicant was said to have a history of depression and that because the offences had been committed in the country town, there would be a large degree of shaming.

In addition it was submitted that when the applicant was first spoken to by the police, she confessed to the six fraudulent transactions that had by that time been discovered.  The benefit of that as evidence of cooperation with the justice system, or contrition, is somewhat diminished by the fact that she failed to reveal a large number of other offences amounting to over 80 per cent of the monies taken that were discovered upon further investigation.  In relation to them she declined to speak to the police, although she ultimately did plead guilty.

The sentencing Judge noted the cooperation in the investigation in respect of the offences first discovered, but not with regard to the others.  I would make the self evident observation that had she cooperated with the investigation by making full disclosure of the extent of her offending when the opportunity first presented itself, the case for further reduction might have been more persuasive.

The sentencing Judge took into account the relevant matters of mitigation in his sentencing remarks.  The process of fixing sentences and intuitive synthesis of a whole range of factors which go both to the level at which the head sentence should be fixed and what constitutes proper allowance for mitigating factors.

I am not persuaded that the applicant has established that the allowance made for the matters in her favour and especially for the repayment of the money and to some of the expenses was manifestly inadequate.

A reduction of the time to be actually served, the 50 per cent of the statutory period, is a significant benefit.

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

JONES J:  I agree with the reasons expressed by the presiding Judge and with the order proposed.

DAUBNEY J:  I concur.

MACKENZIE AJA:  The order of the Court will be that the application for leave to appeal against sentence is refused.