SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  I agree with North J’s reasons for refusing this application for leave to appeal against sentence. 

[2]  CHESTERMAN JA:  I agree with North J that the application for leave to appeal against sentence should be refused for the reasons given by his Honour.

[3]  NORTH J:  On 14 February 2011 after a four day trial the applicant was convicted of stealing from her employer.  She was sentenced to two and a half years imprisonment suspended after 15 months with an operational period of three years. 

[4] She sought leave to appeal against both her conviction and sentence but at the hearing she abandoned the challenge to her conviction.[1]  The only challenge to the sentence advanced in argument was the order that she serve 15 months before the suspension of the sentence of two and a half years. 

[5] The applicant was employed as the manager of a certain retail enterprise her employer conducted at Central and Roma Street railway stations.  Among her duties she was responsible for reconciling and banking cash receipts.  The prosecution case was that there was a deficiency between the cash receipts and the cash banked of $41,423.15 and that the stealing was done over a period from mid to late 2009 and May 2010.  Evidence was given by the Chief Executive Officer of her employer that when he confronted the applicant she confessed to stealing and offered as an explanation that she had a gambling problem.  At her trial an email was tendered into evidence[2] from the applicant to the CEO in which she said that she “wanted to re-confirm [her] willing (sic) to return the loss I created one way or another”.  Notwithstanding this and the evidence of a reconciliation of the books and records of the employer of the cash deficiency, the applicant pleaded not guilty. 

[6] The applicant did not make any payment of re-compensation and ultimately her employer withheld and set off entitlements of about $13,000 she would otherwise have received on termination. 

[7] At the time of sentencing the applicant was 45 years of age and had no prior criminal history.  She was unmarried with no dependents.  Evidence was led at the trial that the applicant gambled and she was sentenced on the basis that she had a “gambling problem”. 

[8] In imposing the sentence the trial judge had before her and made reference to decisions of this court in R v La Rosa: ex parte A-G (Qld)[3] and R v Jeffree[4].  In R v La Rosa the respondent was convicted upon her own plea of guilty of stealing money in the sum of in excess of $51,000 and the Attorney-General appealed against a sentence of three years imprisonment which was wholly suspended.  In giving the judgment of the court allowing the appeal Keane JA[5] said: 

“When one takes into account the respondent's plea of guilty and her personal circumstances, particularly her youth and her bulimia, that sentence must be moderated to some further extent. But on no view is this case so exceptional that a substantial period of actual custody can be said to be unnecessary or inappropriate having regard to the strong claims of general deterrence in relation to this kind of offence. In my view, a period of actual imprisonment of 12 months would be appropriate were it not for the circumstance that the respondent has been meeting her obligations in relation to restitution and that this is an appeal by the Attorney-General where a period of actual imprisonment of nine months was sought from the learned sentencing judge by the Crown Prosecutor at first instance. In the light of these circumstances, a period of actual imprisonment of nine months is appropriate.”

[9] In R v Jeffree the court dismissed an appeal by a 45 year man with no criminal history who pleaded guilty to stealing from his employer in excess of $43,000 where a sentence was imposed of three years imprisonment suspended after nine months with an operational period of three years. 

[10]  In R v Jeffree the court reviewed many judgments of this court in comparable circumstances which confirm, that while the head sentence imposed by her Honour was within the range suggested by decisions of this court, it could quite properly have been higher. 

[11]  At the hearing of this appeal the applicant referred to three decisions of this court in support of her contention that the period of effective imprisonment of 15 months was manifestly excessive.[6]  Each of those cases might be said to be broadly comparable in terms of the offending and the overall circumstances and in each matter the period of time to be served before the sentence was suspended was shorter.  But in each matter the sentence followed a plea of guilty. 

[12]  The circumstance that the applicant stole a significant amount of money from her employer, that she was in a significant position of trust and responsibility and that she was a mature person justified the approach adopted by the trial judge.  That, notwithstanding she had confessed to stealing and offered to make restitution, she pleaded not guilty and put the community and the employees of her former employer to the trouble and inconvenience of a trial that lasted four days suggests a lack of insight and remorse.  In all these circumstances a significant period of actual imprisonment was called for and it cannot be said that the sentence imposed was manifestly excessive. 

[13]  I would refuse the application for leave to appeal.