R v Roberts-O'Keefe[2012] QCA 260

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA: I agree with the reasons of McMeekin J and with the order his Honour proposes.

[2] GOTTERSON JA: I agree with the order proposed by McMeekin J and with the reasons given by his Honour. 

[3] McMEEKIN J: On 17th January 2012 the applicant was sentenced to three years imprisonment in respect of a count of stealing as a servant and one month imprisonment to be served concurrently for a count of fraud.  A parole release date was fixed at 16th January 2013 – the one-third mark of the term of imprisonment.

[4] The applicant seeks leave to appeal against the sentence imposed on the basis that it was manifestly excessive. 

Stealing as a Servant

[5] The applicant was employed as the office manager for a Harvey World Travel franchise.  She had the responsibility of the daily banking of monies.  There were 52 dishonest transactions in total undertaken over a four month period.  On 22 occasions she “refunded” money from the company’s trust account into three accounts of her own.  On another 30 occasions she stole money.  On most of those 30 occasions she failed to bank cash payments from customers.  Some attempt was made to hide her defalcations by recording sales in another customer’s account, entering the transaction as a credit card or electronic transfer, or issuing a receipt under the name of a former employee.

[6] The learned sentencing judge was told that the total sum stolen was $42,006.39, although a schedule tendered in fact demonstrated a total of $45,528.78.[1]  There is no prospect of repayment.

[7] Following a financial reconciliation of its trust account the employer discovered the 22 transactions mentioned and dismissed the applicant from their employment.  When interviewed by the police on 5th June 2004 the applicant was confronted with a document evidencing monies being credited into her accounts.  She admitted to the offending so far discovered stating that she was “gambling a lot, was drinking and had had problems for 12 months”.  The applicant did not reveal the full extent of her dishonesty to the police.

[8] Subsequently, following an audit, the 30 further transactions were discovered.  On 2nd August 2004 the applicant declined to be interviewed in relation to those matters.

[9] A full hand up committal occurred on 21st January 2005.  The matter was listed for trial and eventually set for trial in the Brisbane District Court on 19th August 2005.  The applicant absconded interstate.  A warrant for her arrest issued on 9th August 2005.  She next came before the District Court on 8th December 2009 and was granted bail.  A trial was again listed, this time for 16th August 2010, and only de-listed 10 days prior to the hearing.  The matter was adjourned at the defence request on several occasions.  The applicant was arraigned and pleaded guilty on 16th August 2011.  The sentence eventually proceeded on 17th January 2012.

[10] The plea was plainly a late plea and the delays not the fault of the prosecution but largely caused by the applicant absconding and then because her legal advisors sought evidence regarding a claimed memory loss.

Fraud

[11] The applicant checked out of a hotel in October 2006 without paying her account.  The amount the hotel was defrauded was $818.15.

[12] The applicant declined to be interviewed in relation to the matter.  At the time of the offence she was on bail for the stealing offences.

[13] There was a full hand up committal on 7th September 2010 and a plea entered at that stage.  The applicant was sentenced on 17th January 2012.

Personal Details

[14] The applicant was aged 57 years at the time of the stealing as a servant and 59 at the time of the fraud.  She is now 64 years old.

[15] The applicant has a long history of dishonesty in three States dating back over 40 years.  She has been convicted of stealing as a clerk or servant in 1973, 1992 (eight counts) and 1995 (four counts).  In total she has been convicted of 132 offences involving dishonesty over that 40 year period in 12 appearances before the Courts.  She has stolen from employers, businesses, financial institutions and the Commonwealth.  Sentences of imprisonment have been imposed in May 1989, February 1990, June 1990, July 1990, August 1990 and April 1999, with two periods of actual incarceration, the sentence being of three years imprisonment on that last occasion with release after 12 months on a recognisance to be of good behaviour for three years.  The applicant’s most recent offence involved shoplifting and resulted in a fine imposed on 1st December 2010, the offence having occurred in January 2009.

[16] In 2002 the applicant’s mother died.  As a consequence the Court was told that she suffered from depression which in turn led to drinking and gambling.

[17] On 7 September 2007 the applicant suffered a fall or assault in which she sustained a head injury.  No medical reports were tendered although the detail of counsel’s submission suggests that he had some access to hospital records and apparently a report from a Dr Green confirming an area of injury to the temporal lobes.  Counsel’s instructions were that there had been some injury to the brain with the result that the applicant’s memory of events prior to 2007 was poor.  The advice from Dr Green apparently confirmed a consistency between the area of injury and the memory loss claimed.  There was a complaint of headaches.  The learned sentencing judge accepted a submission, without evidence, that her time in gaol would be more difficult as a result of her head injury.

Submissions on Sentence

[18] The prosecutor’s submission at sentence was that imprisonment for a period of four to six years was warranted, with parole eligibility at “something, more than one third to a half of that head sentence”.

[19] The applicant’s counsel submitted to the sentencing judge that three to four years imprisonment was appropriate in the circumstances, conceding that the previous criminal history was “quite a significant factor in the sentence.  Because of that I can’t rely on the decisions which really tend to indicate a three year sentence would be in range”[2].  The applicant’s counsel sought suspension or parole after the applicant had served a third of the sentence.

[20] Counsel was somewhat constrained in his submissions because of the memory loss issue – the applicant was unable to provide any instruction as to motivation or explanation for her conduct as she claimed to have no memory of it.  He referred to the death of the applicant’s mother and her subsequent depression, drinking and gambling mentioned to the police in the interview of 4th June 2004, adding that there were records indicating presentations to hospitals for depression at that time.  The additional significant matters mentioned in mitigation were that the applicant had explained her methods to the police in the initial interview, apologised then, pleaded guilty, that while the plea to the major charge was not a timely one it had its utilitarian value which deserved to be acknowledged, that the head injury and consequent deficits together with the applicant’s age meant that the applicant was unlikely to again obtain employment and so was a much lesser risk of re-offending, so that personal deterrence did not loom large in the fixing of the appropriate period of imprisonment, and that the applicant had now stopped drinking.

The Sentencing Judge’s Approach

[21] The learned sentencing judge expressly referred to the head injury and its effects and to the problems of depression and gambling.  His Honour acknowledged the early plea in relation to the fraud and the “importance” of the plea to the major charge despite it not being an early plea.  His Honour set the non parole period at the one-third mark usually taken as appropriate for an early plea.  It was lenient in the context of a late plea.

Arguments on Appeal

[22] The applicant submitted that the following features merited a more lenient sentence:

(a) the prosecution submission below that the plea was not an early one was “misguided” given that the applicant was seeking evidence concerning her memory complaints and the consequent delays not her fault;

(b) the applicant had previously admitted to “both charges”, previous presumably to the entering of the plea;

(c) the applicant’s participation in a full hand up committal was not the action of a person intending to take a matter to trial;

(d) the applicant’s “cooperation with authorities saved both the community and her previous employer the considerable time and expense associated with a lengthy trial”;

(e) that “high level of assistance provided to the authorities” merited greater weight as a mitigating factor;

(f) the offending was unsophisticated and easily detected, with no attempt to hide the misappropriations from the trust account, that aspect not having been accorded due weight;

(g) the motivation for the offending was not greed but problems with two addictions – a reference to the problems with gambling and alcohol following the death of the applicant’s mother;

(h) insufficient weight was given to the applicant’s brain injury as it served to “decrease the relevance and applicability of specific deterrence”.

[23] The submission was made in the context of an analysis of several decisions of this Court.

[24] The prosecution submitted that the sentence was “a very lenient one” particularly given these factors:

(a) the seriousness of the offence involving as it did 52 separate dishonest transactions over a period of five months with a large sum of money involved;

(b) the gross breach of trust given the position held with the complainant;

(c) the need for personal and general deterrence;

(d) the failure to repay any of the monies stolen with no future prospect of any money being repaid;

(e) the significant criminal history.

[25] The prosecution submitted that given the criminal history the nature of the offending required a sentence of four years to be imposed, three years being more appropriate for a first offender.  The release on parole after one-third was generous as well given that the plea was not an early one and the matter had been set for trial.

Discussion

[26] The sentence imposed was at the lower end of the range urged by defence counsel.  It is now submitted that a sentence of two years imprisonment ought to be imposed with a parole eligibility date set at the present time – a period of actual incarceration of about nine months.

[27] As Keane JA observed in R v Hutchinson,[3] in circumstances where the sentence imposed largely reflects the defence submission below it is “very difficult to accept the contention that the sentence which was imposed is ‘manifestly excessive’.”[4]

[28] The applicant’s submissions ignore or misstate several matters.

[29] First, the plea was in no sense an early one.  The applicant was apprehended in 2004, charged in 2005, required that the matter be entered for trial and then absconded with a warrant then being issued for her arrest.  When the applicant was finally brought before the courts in 2009 again a trial was listed and only de-listed 10 days prior to that trial coming on, presumably upon an indication of a likely plea at that time.  It is not the delay in seeking medical evidence over 17 months that then ensued that is at issue, it is the applicant’s conduct prior to that which included twice having a trial listed.

[30] Secondly, there is no indication whatever in the learned sentencing judge’s approach that he formed any adverse view of the applicant because of the delay in gathering evidence that might help on her sentence.

[31] Thirdly, the applicant had not previously admitted to both charges, unless the communication that led to the trial being de-listed is such an admission, nor was there a high level of co-operation.  A hand up committal is not an admission.  For all the prosecution knows the offender merely wishes to keep their powder dry for the trial.  The applicant did not reveal the undiscovered offences when first interviewed, refused to be interviewed in relation to the 30 transactions later discovered, refused to be interviewed in relation to the fraud charge, and entered no plea at the committal of the major charge.  She then absconded.  The applicant was entitled to exercise her right not to be interviewed or to plead in this way but a sentencing judge would have been entitled to view this conduct as the very antithesis of co-operation and a demonstration of remorse.  Again, there is no indication that the sentencing judge weighed this conduct in the scales against the applicant at all.

[32] Fourthly, there was no evidence that the applicant’s gambling and drinking were addictions in the sense of compulsive and uncontrollable behaviours.  Nonetheless these factors were expressly mentioned by the sentencing judge and the strong inference from his reasons is that he was very sympathetic to the applicant because these potential explanations – they are in no way excuses – were available to her.

[33] Fifthly, there was an attempt to hide 30 of the transactions.  That counts against the applicant, as she plainly was not so unsophisticated in her operations nor so gone in drink not to appreciate what she was doing.

[34] Sixthly, there was express mention by the trial judge of the brain injury and its effects in relation to making the period of imprisonment more difficult for the applicant.  What difficulty was not identified.  This was to the advantage of the applicant.  The cases suggest that mitigation of punishment is appropriate where “there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health”.[5]  The evidence before the sentencing judge did not reach those heights.

[35] Seventhly, references to cases involving mitigation of sentence because of reduced moral culpability due to mental illness are irrelevant here – the brain injury was acquired long after the offences were committed.  The applicant’s moral culpability is in no way diminished by this consideration.

[36] As was conceded below, reference to decided cases demonstrates that the sentence was at least consistent with, if not below, the range usually invoked for such conduct by a person with a substantial history of similar offences.[6]  That point is exemplified by two of the cases mentioned by the applicant, R v Goodger[7] and R v Scott[8].  They each suggest that, if anything, the applicant has been dealt with leniently.

[37] There are some similarities to the facts in Goodger.  The offender there was of similar age, in her mid fifties, in a position of trust, had a relevant criminal history, and had previously been imprisoned for her dishonesty.  Her offending was worse in that a greater sum was stolen, nearly twice as much as here, the theft occurred over a longer period, and the business affected failed as a result with 17 employees losing their positions.  But these more serious aspects of the offending conduct are fully reflected in the differing sentences imposed.  This Court declined to interfere with a sentence of four years imprisonment with eligibility for parole after serving 18 months.  As well Goodger admitted her defalcations when questioned and had entered an early plea of guilty, two factors that are present to only a limited degree here and so do not count so heavily in favour of the applicant.

[38] In R v Scott[9] the amount involved was $48,000, not so different to the sum here.  Scott was a mature man, 48 years old, and with a criminal history including convictions for dishonesty.  Scott received a sentence of four years imprisonment, albeit after a trial.  But it appeared too that while he had intended to defraud the companies involved Scott was in fact owed more by them than the amount that he stole, and so there was no actual loss to the companies.

[39] There are cases[10] in which a sentence of less than three years imprisonment has been imposed in respect of offenders who abuse positions of trust to steal significant sums.  Fraser JA’s analysis of such cases in R v Matauaina[11] demonstrates that there is usually a coincidence of an absence of a relevant criminal history, a plea of guilty, cooperation with the administration of justice and compelling personal circumstances.  The applicant’s long criminal history alone is sufficient to distinguish such cases, a point defence counsel recognised below.  Fraser JA explained the significance of such a history to the sentencing process in R v Matauaina[12]:

“An offender’s criminal history cannot justify a sentence which is out of proportion to the gravity of the offence, but the criminal history may be taken into account both in assessing any claim for leniency and in deciding whether considerations such as retribution, deterrence, and protection of society indicate that a more severe penalty should be imposed.”[13]

[40] Each of those factors was relevant here.

[41] The difficulty facing the applicant in demonstrating manifest error in the face of her own counsel’s submission to the sentencing judge and urging a two year head sentence as appropriate is apparent when one considers the view of Fraser JA (with the agreement of the President and Margaret Wilson AJA) expressed in Matauaina[14], that the range extended “at least as high as four years” in very similar circumstances to those here.  His Honour’s remark, with respect, reflects the effect of the decided cases.  There was a trial in Matauaina but a plea to an offence which was certain to be discovered and proved does not result in a 50 per cent discount to the appropriate head sentence.

[42] In my view no error is shown in the approach taken by the learned sentencing judge.  He would have been justified in imposing a longer period of incarceration given that he was dealing with a persistent re-offender who used a position of trust with an employer to steal a large sum of money that will not be repaid.  His approach gave full weight to the entering of a guilty plea and to the personal circumstances of the applicant.  The setting of parole at the one-third mark underlines the emphasis that his Honour evidently gave to these matters given the absence of the usual factors justifying such an approach - the offender is a mature woman, the plea is a late one, the lack of co-operation extended to both absconding and twice setting the matter for trial and there was continued offending whilst on bail.  Plainly his Honour was very much alive to the importance of the plea because of the factors mentioned in cases such as Siganto v The Queen[15] and Cameron v The Queen[16] factors such as demonstration of remorse, the pragmatic ground of the saving of expense, acceptance of responsibility and a willingness to facilitate the course of justice.

[43] The prosecution submission is plainly right – the sentence was as lenient as it possibly could be in the circumstances.  There is not the slightest merit in the application and in my view it should be refused.