R v Clemments[2010] QCA 38

SUPREME COURT OF QUEENSLAND

FRASER JA: The applicant seeks leave to appeal against sentence on the ground that the sentence is manifestly excessive. 

On 29 October 2009 the applicant was convicted on her plea of guilty of one count of fraud committed on various dates between 3 January 2008 and 28 January 2008. The sentencing judge recorded a conviction, sentenced the applicant to imprisonment for a period of nine months, and ordered that the whole term of imprisonment be suspended.  The judge fixed the operational period of 18 months, during which the applicant must not commit another offence punishable by imprisonment if she were to avoid being dealt with for a breach of the suspended term of imprisonment.

The applicant was 49 years old at the time of the offence and 51 when sentenced.  She had no previous convictions, save for a conviction in 1983 for stealing, which was regarded as not significant. 

The applicant had known the complainant, Ms Doreen Eatts, for some three years.  When the complainant was hospitalised the applicant ran errands for her.  For that purpose the complainant handed over her cheque book to enable the applicant to pay some of the complainant’s bills. On 4 January 2008 the applicant fraudulently withdrew $200 from the complainant’s bank account by using the complainant’s ATM card.  The complainant later noticed that her cheque account had been depleted.  Inquiries revealed that three cheques in the total amount of $4,000 had been presented in January 2008 without the complainant’s knowledge or consent.

The complainant confronted the applicant who claimed that the complainant had herself signed the cheques.  The applicant maintained that version when first interviewed by the police, but she subsequently admitted that she had taken the money to pay for school fees, a credit card debt and to buy some jewellery.  The applicant repaid the total amount which she had taken by instalments between March and June 2008. 

In this Court the applicant’s counsel emphasised the mitigating features in the applicant’s favour.  She was a mature offender without any relevant previous conviction.  She had made admissions to police.  She had made full restitution starting even before she was charged and she had apologised to the complainant.  There had been a full hand-up committal and the applicant had entered a plea of guilty at the earliest opportunity. The sentencing judge took all of those matters into account, as well as the disadvantage the applicant had suffered as a result of her difficult family history and the stressors acting upon the applicant about the time she committed her offence, including the fact that allegations of sexual abuse had been made against her husband. His Honour also accepted that the applicant had a history of community and welfare work; a good history of employment; the care of her 14 year old grand-daughter; that the risk of reoffending was minimal if not zero, and that it seemed that the offence was out of character. 

The applicant’s counsel submitted that error was suggested by the sentencing judge’s failure to refer specifically to the principle in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) that a sentence of imprisonment should only be imposed as a last resort, but there is no basis for thinking that the sentencing judge overlooked that principle. It was argued that probation rather than imprisonment was an appropriate sentence because it would enable the applicant to receive counselling which would assist her.  However, the sentencing judge was entitled to conclude in the facts of this case that whilst probation would be appropriate for a person who needed supervision to address the possibility of future offending, that was not a consideration here and that a term of imprisonment was the appropriate sentence, particularly having regard to the importance of deterrence.

It was in the applicant’s favour that she had made admissions, pleaded guilty and repaid the money,  but the sentencing judge was right to take into account the serious aspects of the applicant’s offending.  As the judge remarked the applicant abused the trust reposed in her by an elderly and vulnerable woman who looked to the applicant for assistance in her day to day care, including in the payment of some accounts. Although the offending was unsophisticated and committed over a short period of time, this was not a spur of the moment offence;  the applicant misused four separate cheques and the ATM card.  The applicant also initially sought to take further advantage of the complainant’s vulnerability by falsely alleging that the complainant had consented to the payments.  In these circumstances the sentencing judge was justified in remarking that the sentence “must send a message to the community at large, and to you personally, that conduct of this nature when one is in the position of trust in the broad sense, caring for people, that relationship cannot be abused to the detriment of the beneficiary of your care without appropriate punishment being visited upon the offender”. Contrary to the argument for the applicant, the sentencing judge clearly did balance the objective circumstances of the offending against the matters in mitigation. 

The applicant’s counsel also argued that this Court’s decision in R v Miles [2006] QCA 556, mentioned by the sentencing judge, was not truly comparable because that offender was convicted after trial of 18 transactions withdrawing a total amount of some $19,000.00 over a period of three months, she lacked remorse and she was unrepentant. The sentencing judge noted however, that Miles was a more serious case.  The sentence in the more serious circumstances of that case of two year’s imprisonment with a parole eligibility date after 11 months for a mature first offender in the position of a carer, provides no support for the contention that the much shorter and wholly suspended term imposed here was outside the discretion vested in the sentencing judge. The judge might have imposed a more lenient sentence, but the decisions cited for the respondent demonstrate the difficulty of accepting that this sentence was manifestly excessive:  see in particular R v Shultz [1997] QCA 169 and R v Bulmer [2000] QCA 248. 

In my opinion there was no error in the sentencing judge’s exercise of the sentencing discretion such as to justify this Court in reviewing the sentence.

I would refuse the application.

DAUBNEY J:  I concur.

P LYONS J:  I concur.

FRASER JA: The application is refused.