SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I have read the reasons for judgment prepared by Muir JA.  I agree with those reasons and with the order proposed by his Honour.

[2]  MUIR JA:  The applicant seeks leave to appeal against sentences imposed on her in the District Court on 2 February 2009, after pleas of guilty, for an offence of stealing as a servant and an offence of fraud in an amount in excess of $5,000.  She was sentenced to four months imprisonment and two years probation for the stealing offence and to two years imprisonment suspended after four months with an operational period of two years and four months for the fraud offence.  It is submitted on the applicant's behalf that the sentences were manifestly excessive in that wholly suspended sentences should have been imposed.

[3] The applicant was 21 at the time of the offences and had no relevant criminal history.  The applicant performed well at school, both scholastically and in sport.  After finishing her schooling at Year 12, she obtained a Justice Diploma from a TAFE college, which she used to obtain enrolment in 2005 in a degree course at Queensland University of Technology.  The applicant had two operations for ovarian cancer in 2008 and a medical report before the sentencing judge revealed that she was in need of further surgery.  She was the sole carer of her three year old child and was also the child's sole supporter. 

[4] The applicant commenced employment with the complainant company in September 2006 and was promoted to Assistant Store Manager in early 2007.  The complainant, trading as Optus World Hyperdome, sold mobile telephones and provided a service of procuring the entering into of telephone contracts on behalf of Optus Mobile Pty Ltd.  As Assistant Store Manager, the applicant sold mobile telephones and other merchandise, procured the entering into of contracts and had responsibility for the cash register and customer service.  In the absence of the Store Manager, she supervised eight to nine staff members and looked after the banking of the store's takings. 

[5] Over a two month period the applicant stole 14 mobile phones from the Hyperdome store and produced six mobile telephone contracts in false names in respect of the phones taken by her.  Three of the contracts were each for two phones.  Another two such contracts were each for three phones.  The phones were used to make telephone calls and send SMS text messages, which resulted in total charges of $13,404.25.  The total value of the phones was $12,707. 

[6] The applicant declined to participate in an interview with police officers.  None of the phones were recovered and no payments were ever made on the contracts.  There is no evidence that the applicant obtained any personal benefit from the distribution or use of the phones, apart from the evidence that the applicant had used one of the stolen phones to telephone other employees at the Hyperdome store. 

[7] In support of the submission that a wholly suspended sentence should have been imposed, the applicant's counsel referred to:  her good work history; her tertiary studies and education; lack of relevant prior criminal history; absence of personal financial benefit; the early pleas of guilty and her relative youth.

[8] Counsel for the respondent submitted to the following effect.  The two year sentence for count 2 was a global sentence reflecting the applicant's overall criminality.  The authorities show that where there is an abuse of a position of trust, together with a substantial financial loss resulting from conduct over a lengthy period, the imposition of a non-custodial sentence can be justified only in the most exceptional cases (see R v La Rosa; ex parte A-G (Qld) [2006] QCA 19 at 5, para [24]).  Whilst the applicant's fraudulent conduct was unsophisticated, there was an element of persistence in it and the use of false contracts.  General deterrence is a relevant consideration (R v Robinson; ex parte A-G (Qld) [2004] QCA 169 at 12).  The applicant's lack of financial gain is tempered by the actual loss occasioned by her and there was no compensation or co-operation with the Authorities. 

[9] The applicant's role as sole supporter and carer of her child, although relevant, cannot be allowed to displace factors such as deterrence and community denunciation.[1]  Generally similar considerations applied in respect of the applicant's medical condition (R v Irlam; ex parte A-G [2002] QCA 235 at 16, para [76]).  The suspension of the sentence earlier than the one-third mark sufficiently recognised the matters relied on by the applicant's counsel.  To suspend the sentence completely would have placed undue weight on the factors in mitigation and would have offended principles of deterrence and community denunciation.

[10]  In La Rosa the respondent, who was 20 and 21 years of age during the period of offending, was sentenced to three years imprisonment wholly suspended with an operational period of three years and ordered to make partial restitution by payments of $300 per month for a period of three years.  She suffered from bulimia and had no prior criminal history.  When employed, initially as a sales assistant, and then as a supervisor, she stole $51,214 from the business' cash register over an 18 month period. 

[11]  On appeal by the Attorney-General, a sentence of three years with a recommendation for post-prison community based release after nine months was substituted for the sentence imposed at first instance.  It was intimated that were it not for the fact that the appeal was by the Attorney-General and that the respondent had been meeting her obligations in relation to restitution, a period of actual imprisonment of 12 months would have been ordered.  In the course of his reasons, Keane JA, with whom the other members of the Court agreed, said:[2]

"It is clear 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 case [footnote omitted].  Recently, in R v Robinson; ex parte A-G (Qld), McMurdo P reviewed a number of recent decisions of this Court and concluded, in words that are apposite to the present case, that:  "The concerning aspect of offences of this kind is the breach of trust.  These offences involved a considerable sum of money obtained over a 14 month period.  The offending was planned … Compensation has not been made.  Generally in these circumstances an offender will be required to serve a period of actual detention."

[12]  His Honour noted that in R v Robinson, an employee suffering from a gambling addiction who stole $33,239 from his employer over a 14 month period, had a sentence of six months imprisonment wholly suspended with an order for restitution increased on appeal to two and a half years suspended after six months. 

[13]  In R v Singh,[3] Jerrard JA, with whose reasons the other members of the Court agreed, referred to the analysis of previous comparable decisions conducted by McMurdo P in R v Robinson; ex parte A-G (Qld).[4]  He noted in that regard, after referring to a concession by the applicant's counsel, that the head sentence imposed was supported by the authorities:[5]

"That sensible concession was well justified by the decisions analysed in the President’s judgment in R v Robinson; ex parte A-G (Qld) [2004] QCA 169.  Those decisions spanned the nine year period from the judgment in R v Bourke [1993] QCA 579 to the decision in R v Vinson [2002] QCA 379.  The eight earlier judgments of this Court which were considered in Robinson were cases of misappropriation of sums of money ranging from $11,000 to $51,000, often from employers, and all of those applicants (or respondents) had no prior convictions, and all appear to have pleaded guilty.  The President’s judgment included the statement that:

'Breaches of trust of this magnitude by an employee ordinarily demand an actual period of imprisonment to be served to show the community’s grave disapproval of such conduct and to deter those who might be inclined to act in a similar way.'

The sentences imposed in those eight cases were all head sentences of two or three years, and in the great majority of those the offender was required to serve a period in actual custody, ranging from four months to nine months.  As a general observation, those who had made restitution seemed to do better; the President also stated that:

'The cases to which the respondent has referred where a noncustodial sentence was imposed [all] had special mitigating features...'

I respectfully observe that last observation was fully justified by reference to those decisions.  For example, in R v Blackhall-Cain [2000] QCA 380, this Court did not overturn an entirely suspended sentence where that first time offender had pleaded guilty, had made full restitution, was suicidal and on antidepressant medication, and had continued to get psychiatric help after committing the offence; and had always anticipated repaying his employer from commissions owing to that offender which in the result were the source of the funds for repayment.  Further, the offence was committed over a relatively short six week period.  In Robinson itself, the Attorney’s appeal against an entirely suspended sentence imposed on a first offender who dishonestly took $30,000 from his employer was upheld, and a term of two and a half years imprisonment, suspended after six months, was imposed."

[14]  It was submitted that it was open to the sentencing judge in the proper exercise of his discretion to impose a wholly suspended sentence.  In my view, that proposition is correct and it was not disputed by counsel for the respondent.  The applicant was a young first time offender with a good work history, intent on advancing herself in life and with good prospects of not re-offending.  Her offending conduct appeared quite aberrant in nature and was not shown to be engaged in for the purposes of personal gain.  Her continuing illness, the need for further medical treatment and her maternal role were also factors which supported a wholly suspended sentence.

[15]  The question for this Court, however, is whether the sentencing discretion miscarried, not whether a more lenient sentence could have been imposed. 

[16]  The applicant abused a position of trust in order to facilitate the commission of the offences.  Her offending conduct, admittedly perpetrated over a relatively short period, was made more culpable by her production of bogus contracts with a view of cloaking her thefts and facilitating the wrongful use of the mobile phones.  Having regard to the principles and authorities discussed earlier and to the comparable sentences referred to in the authorities, I am unable to conclude that the exercise of the sentencing discretion miscarried.  I accept the submission by the respondent's counsel that the two year sentence on count 2 is to be regarded as a head sentence which reflects the overall criminality of the applicant's conduct. 

[17]  For the above reasons, I would dismiss the application.

[18]  DAUBNEY J:  I also agree with the reasons for judgment and the order proposed by Muir JA.