SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I agree with the reasons of Lyons J and the order she proposes.

[2]  WHITE J:  I agree with Lyons J that this application for leave to appeal against sentence should be refused for the reasons which she gives.

[3]  LYONS J:  On 16 November 2007 the applicant pleaded guilty to three counts of fraud as an employee with a circumstance of aggravation.  She was sentenced in the District Court to imprisonment for three and a half years, suspended after 12 months with an operational period of three and a half years.  The applicant appeals against this sentence on the basis that it was manifestly excessive.

Circumstances of the offence

[4] The three counts of fraud involved an amount of $50,974.05 being misappropriated by the applicant as an employee of two different companies over a 20 month period.  The companies were both owned by the complainant employer who ran a busy chiropractic business on the Gold Coast.  The business was initially known as Full Potential Family Chiropractic Pty Ltd and between 8 September 2003 and 17 November 2004 an amount of $25,098.50 was misappropriated from this company.  When the business subsequently became known as In8 Innovations Pty Ltd a further amount of $25,875.55 was misappropriated by the applicant between 9 March 2005 and 17 May 2005. 

[5] The applicant was employed as the front desk chiropractic assistant in the complainant’s businesses for almost five years and her duties included customer service, organisation of chiropractic plans, managing payments from customers, administration duties, payroll duties, and managing the banking for the business.  The applicant developed a close personal relationship with the owner of the business over those five years, had become a close confidante, and was in a position of significant trust. 

[6] Over a 20 month period the applicant took the money in a number of different ways.  The first mode of operation was that she would take cheques from clients, which were intended to pay the employer for services, and bank them instead to either her personal or business account.  The second mode of operation was that the applicant would take credit card payments from the employer’s customers and use the information to process the amounts through an EFTPOS facility for her own business.  It was a very systematic and planned fraud over an extended period of time.  Significantly, an amount of $25,000 was taken between March and May 2005 when the applicant was setting up her own business.

[7] Because of the way the applicant had stolen the money from her employer, the Suncorp Metway Bank (“Suncorp”) was liable for having processed the credit card payments.  Suncorp therefore, refunded their customers and then sought restitution from the applicant who had then entered into a payment plan with Suncorp.  At the time of sentencing the applicant had made payments to Suncorp in the order of some $10,000 but had provided actual restitution to the employer herself of $100 only.  Even though some customers had been reimbursed by the bank not all of them had then paid the employer the amounts they owed her. 

[8] In the Victim Impact Statement by the employer, tendered at the sentencing hearing, the employer stated that when customers queried their credit card payments to the chiropractic business with the applicant she had impugned her integrity as a chiropractor by suggesting that she, the employer, was hiding money in these entities to avoid paying her ex husband.  The employer also indicated that the money taken from her was substantial and that she had spent 120 hours of staff overtime as well as her own time in uncovering the extent of the offending by the applicant.  She also indicated that she no longer has the capacity to own a house and she downgraded her vehicle and lives more frugally due to the financial constraints.  She had sold her chiropractic practice and said she felt she;

“…had let a lot of people down when their money was taken and was highly embarrassed to be conned by this woman.  I honored [sic] each and every one of the agreements we held with people who had paid.  Some of the credit card victims repaid me, others not.  My confidence was depleted and I never had the energy or confidence to bring it back to where it should have been.”

[9] The employer now only sees a few clients from her home and is eating into her savings as she has no desire to relaunch a busy practice again due to the incident.

The sentence imposed

[10]  In imposing the sentence, the learned sentencing Judge took into account the fact that the applicant made full admissions when confronted with the allegations and made full admissions when interviewed by police.  The severe stress the applicant suffered when her marriage broke down was also taken into account which was referred to in the report from the psychologist Craig Holt.  This report indicated that when the applicant’s husband left the marriage he had left her with no means of support, had stripped the joint account, stolen her car from the driveway, and left the house bare.  The applicant was left in a very dire financial situation and she had difficulty trying to support herself and her two children.

[11]  The sentencing Judge took into account the impact that the offending had on the employer.  The employer had become a close friend and the material before the sentencing Judge indicated that when the applicant’s marriage had broken down, she had taken the applicant and her family into her home and supported her in a number of ways.  This support had included, loaning a car to her for a period of a year, setting her up with furniture and other items, as well as increasing her pay.  As the sentencing Judge indicated, the applicant did not repay this kindness and she abused both the employment relationship and the friendship by taking money from the business.  Given that the employer’s marriage had also broken down the employer herself was also in a vulnerable and stressful situation during this period.

[12]  The sentencing Judge considered that it was significant that the money was also taken to establish the applicant’s own business which engaged four staff in March 2005.  This factor was also specifically taken into account in assessing the overall criminality, as was the fact that the offending only ceased after a complaint by a customer triggered a full audit which disclosed the extent of the loss.

[13]  The Crown Prosecutor had submitted that a period of three and a half years was the appropriate sentence and that it should be suspended after 18 months.  Counsel for the defendant indicated that it should be three years with a suspension after six to nine months. 

[14]  In coming to the appropriate sentence, the sentencing Judge took into account all of the aggravating features but also took into account the applicant’s personal circumstances, particularly the fact that the applicant had two children including a 13 year old son who had no real contact with his father and who needed the support and guidance of his mother.  In fixing a period of imprisonment of three and a half years to reflect the seriousness of the offending, the sentencing Judge then suspended the term of imprisonment after a period of 12 months and fixed an operational period for the sentence of three and a half years.  The sentencing Judge also made restitution orders in the sum of $24,998.50 to Full Potential Family Chiropractic Pty Ltd and also a further order of $17,610.55 to In8 Innovations Pty Ltd, and a further amount of $1,953.53 to Suncorp.

[15]  The applicant contends that the sentence imposed was excessive and that the head sentence should be reduced from three and a half years imprisonment to three years imprisonment, and reduce the period to be served before suspension from 12 months to eight months.  The principal argument is that the applicant had made significant progress in repaying the sums she dishonestly obtained and this had not been reflected in the sentence.  

[16]  At the sentencing hearing the sentencing Judge had been referred to the decisions of R v La Rosa; ex parte A-G (Qld) [2006] QCA 19 and R v Adams; ex parte A-G (Qld) [2006] QCA 312 which contained a detailed analysis of a number of relevant authorities. 

[17] La Rosa involved a similar amount of money ($51,214) being taken over an 18 month period and also involved a fairly sophisticated fraud.  The original sentence of three years fully suspended for an operational period of three years was considered to be manifestly inadequate and the offender was re-sentenced and received a sentence of three years with a recommendation for post prison community based release after she had served nine months in custody.  In that decision this Court held that where an offender has abused a position of trust in order to steal a substantial amount of money over a lengthy period of time a non-custodial sentence can only be justified in the most exceptional cases.  It must be noted that that case involved an ex officio indictment and a young offender who suffered from bulimia where the psychologist’s report indicated that the prison environment would make it difficult for her condition to be treated. 

[18]  In R v Adams, the offender was sentenced to four years imprisonment suspended after nine months, with an operational period of five years.  In that case the offender was employed as a bookkeeper and had misappropriated $239,617.29 over a 12 month period which was mainly spent on holidays taken by the offender, her family, and a neighbour’s family.  The question in that case was whether too much weight had been given to the offender’s psychiatric condition of an adjustment disorder and depression.  In imposing the sentence the sentencing Judge had taken into account the disastrous effect the fraud had had on the company which had employed the offender.  In that case the Attorney-General had appealed the sentence on the basis it was manifestly inadequate and that insufficient weight had been given to the special position of trust the respondent had been in, as well as the sophisticated and sustained level of offending, and the disastrous consequences for the company.  In that case the head sentence was not altered but the sentence was varied by ordering that it be suspended after 15 months imprisonment.

Other relevant authorities

[19]  In R v Rhoden [2002] QCA 415 a sentence of three years was imposed where an amount of $30,000 was taken from an employer by a 35 year old woman with three children who was in financial need having been deserted by her husband.  There had been restitution of $1,200. 

[20]  In R v Allen [2005] QCA 73, the importance of restitution in cases such as this was noted.  In that case the applicant had, over approximately four years, misappropriated some $66,146 from his employer.  His position was the company’s general manager and there was no compelling financial need in his case.  He was originally sentenced to four years imprisonment suspended after 15 months.  He had pleaded guilty to an ex officio indictment and full restitution had been made by the sale of the family home which had influenced the Court of Appeal to alter the period required to be served before suspension to nine months. 

[21]  The decision R v Robinson; ex parte A-G (Qld) [2004] QCA 169 was a case where no restitution had been made at sentence.  Chesterman J observed:

“In my opinion there is much force in the submissions … that in cases of this kind if compensation or restitution is to be taken into account as a significant factor in mitigation the restitution should be paid or made before the sentencing process is carried out.”

[22]  In R v Vinson [2002] QCA 379, a sentence of two years imprisonment suspended after six months was not disturbed where a sum of $24,667.65 had been stolen from an employer over a 10 month period.  Jerrard JA observed:

“The asserted capacity to make periodic restitution from future wages described to the learned sentencing judge, and the asserted capacity to make some lump sum restitution, carry considerably less weight than would have been accorded to evidence of steps already taken to make restitution.”

[23]  There is no doubt that restitution is one of the many factors which needs to be taken into account in the sentencing process.  The essential question therefore is whether, having regard to the circumstances of the offending and the applicant’s circumstances, including the pre-sentence steps in relation to restitution, the sentence imposed was manifestly excessive.

[24]  The applicant is a 41 year old mother of two children, and she has no previous convictions.  There was significant co-operation with police and whilst it was a timely plea it did not proceed by way of an ex officio indictment.  As the sentencing Judge noted however, the applicant did not stop her offending due to remorse but because of customer complaints.

[25]  Having considered the appropriate authorities set out above I consider that on the basis of Robinson a period of imprisonment was clearly called for.  The factors that then have to be considered were set out by Williams JA in R v Alexander [2004] QCA 11 where he said that:

“A review of the decisions to which the court was referred indicates that there are a number of factors which have been regarded as relevant in determining the appropriate sentence where dishonesty is involved.  On some occasions the critical factor has been the amount of money lost by victims of the fraud, on other occasions the decisive factor has been the persistent and systematic offending.  One cannot say that either one of those factors is generally more significant than the other.  Each case has to be considered in the light of its own peculiar facts; all one can say is that the amount of money lost and the regularity of offending will always be relevant considerations.”

[26]  Whilst the applicant was suffering from stress due to the break-up of her marriage her marriage had broken up in 2000 and the offending had not commenced until 2003 and had then continued for a lengthy period of time.  The applicant did not have a diagnosis of any psychiatric condition and had not sought treatment or counselling at any stage.  The psychologist indicated that it was “likely” that she was “…experiencing anxious and depressed mood for some five years following the break up with her husband.”  The psychologist report indicated that the applicant had made good progress in the two years since the offences were detected and stated that “…[s]he is currently operating her own business with four staff.”

[27]  Whilst restitution of some $10,000 had been made to Suncorp the employer had only been compensated to the extent of $100.  It is also apparent that although many of the customers had been reimbursed by the bank the employer’s customers had not in fact “accounted” to her for the sums that had been refunded to them by the bank.  The employer’s livelihood and reputation have been severely affected.

[28]  The issue of restitution was just one of the many factors which were to be taken into account.  In the present case it is clear that all of these factors were weighed up carefully by the sentencing Judge.  Given the significant breach of trust involved, the devastating impact on the complainant employer including the ongoing financial consequences, the length of the offending, and the sophisticated nature of the offending I do not consider that the sentence imposed in the circumstances was manifestly excessive.  A particular factor was that a significant sum of money was expended to establish the applicant’s own business.

[29]  As Williams JA indicated, each case has to be considered in light of its own peculiar facts and given the particular facts in this case, a sentence of three and a half years was not manifestly excessive.  Furthermore, a suspension after 12 months, which will see the applicant released before serving one third of the term, is certainly within range.

[30]  I would dismiss the application for leave to appeal.