R v Williams[2014] QCA 154

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Philippides J and the order proposed by her Honour.

[2] MORRISON JA:  I have read the reasons of Philippides J and agree with those reasons and that the application should be refused.

[3] PHILIPPIDES J:  The applicant seeks leave to appeal against the sentences imposed on her on 13 February 2014 on the ground that they were manifestly excessive.  The applicant was sentenced on her pleas to seven and a half years imprisonment on one count of fraud as an employee to the value of $5,000 or more (Count 1) and one count of fraud as an employee to the value of $30,000 or more (Count 2).  She was sentenced to two years imprisonment for one count of fraud as an employee (Count 3).  The sentences were concurrent with a parole eligibility date of 13 February 2016 (after serving two years).

[4] For the period of the offending the subject of Count 1 (30 June 2004 to 30 November 2008), s 408C(2) of the Criminal Code provided that the maximum penalty applicable was 10 years imprisonment in the following circumstances of aggravation:

“…

(b)… the offender is an employee of another person, and the victim is the other person;

…

(d)… the property … is of a value of $5000 or more.”

[5] Section 408C(2) was amended taking effect from 1 December 2008, to provide relevantly for the period of offending the subject of Count 2 (1 December 2008 to 30 June 2011) for a maximum penalty of 12 years imprisonment where:

“…

(b)… the offender is an employee of another person, and the victim is the other person;

…

(d)… the property … is of a value of $30000 or more.”

[6] The maximum penalty applicable for Count 3 was five years imprisonment: s 408C(2).

The circumstances of the offences

[7] The applicant was employed for some nine years from 2002 as a bookkeeper with the complainant company, with the responsibility for paying wages to the staff and paying subcontractors.  Over a period of nearly seven years from 30 June 2004 to 8 June 2011, the applicant misappropriated a total of $497,968.  On 435 occasions she deposited moneys into her Suncorp bank account using the name S Swift.  The applicant covered up the fraud by putting the name S Swift as a subcontractor in the company’s books of account.  The fraud took place on an almost weekly basis as payments were made to the subcontractor, S Swift (Counts 1 and 2).  The applicant also used the company credit card to make unauthorised purchases to a total of $2,921.88 during the period from 1 January 2011 and 30 June 2011 (Count 3).  The total quantum involved in the offending was $500,889.

[8] The offending was detected after one of the directors noticed some unauthorised purchases on the company credit card in 2011.  Further discrepancies were detected.  Subsequently, on 14 June 2011, the applicant was spoken to and admitted misappropriating about $30,000 to assist the children of her drug-affected sister.  An audit was undertaken which revealed the full extent of the applicant’s dishonesty.  The applicant declined to take part in an electronically recorded interview with police.

[9] The applicant was aged between 42 and 49 years of age over the offending period and was 51 years of age at the time of sentence.  She has a prior relevant criminal history, having been sentenced on 18 June 2001 for two fraud offences involving misappropriation of a total of $74,897.  The first offence concerned misappropriation of property with a circumstance of aggravation and over $5,000 between 30 June 1996 and 24 March 1998 for which she received a sentence of 12 months imprisonment.  The second concerned fraud as an employee to the value of $5,000 or more between 24 May 1998 and 5 February 2001 for which she was sentenced to three years imprisonment.  A parole eligibility recommendation after nine months imprisonment was made.

Sentencing remarks

[10] In imposing sentence, the learned sentencing judge commented that the offending involved serious fraud of over $500,000, and noted the applicant’s prior relevant criminal history. Having regard to the comparatives provided, his Honour considered that a head sentence of seven and a half years was appropriate.  His Honour noted the disturbing feature that the conduct had occurred over a seven year period and involved over 400 transactions.  His Honour had regard to the victim impact statement and noted that it was implicit from it that the applicant’s conduct had resulted in considerable loss and had had a profound impact on the directors of the complainant company.  His Honour additionally noted there was no prospect of compensation.

[11] His Honour also had regard to matters in mitigation, including the applicant’s cooperation by entering pleas and her remorse, as revealed in her letter tendered to the court, which his Honour accepted was very sincere and involved insight into the harm that she had caused.  His Honour referred to the psychiatric report of Dr Mann, who detailed the applicant’s difficult personal circumstances and, in particular, that the applicant had had a major depressive disorder and an associated pathological gambling condition, and had been dependent on alcohol.  The applicant had suffered two miscarriages and the attitude taken by the applicant’s former husband to one of the pregnancies resulted in a termination of that relationship.  Whilst having regard to and having sympathy for the applicant’s personal circumstances, his Honour observed that they ought not overwhelm the sentencing of the applicant.  Having regard to the submissions made by the applicant’s counsel, particularly the matters set out in the report of Dr Mann, his Honour fashioned the sentences so as to allow for parole eligibility after two years (the sentence imposed for Count 3) at a point earlier than the usual one third in respect of the sentences for Counts 1 and 2.

Submissions

Approach to the Victim Impact Statement

[12] Although the sole ground raised in the application for leave to appeal against the sentences imposed is that they were manifestly excessive, in the applicant’s written submissions, it was also argued that the sentencing discretion miscarried on other grounds.  It was argued by the applicant that the sentencing judge erred in giving significant weight to the victim impact statement tendered by the prosecution and in making findings as to the impact on the directors as outlined therein, in particular that “there has been considerable loss and the impact on [the directors] has been quite profound”.  The applicant referred to R v Singh [2006] QCA 71 and R v Margaritis [2013] QCA 401, in submitting that a sentencing judge should exercise caution when acting upon assertions made in a victim impact statement as the purpose of those statements is primarily therapeutic.  The applicant also submitted that the victim impact statement contained numerous errors which could have been proven if subject to cross-examination.

[13] I do not detect that the sentencing judge failed to approach the victim impact statement with appropriate caution.  The victim impact statement clearly outlined that the offending had had a profound effect both financially and emotionally on the directors of the company involved.  There was no challenge to that statement in the victim impact statement, which was perhaps understandable since, given the magnitude of the fraud and betrayal of trust, the consequences outlined in the victim impact statement and referred to by the judge were self evident.  In the circumstances, there is no substance in the applicant’s complaint in respect of the sentencing judge’s approach to the victim impact statements.  Not only was it proper, but the court was required by the Penalties and Sentences Act 1992, to take into account any damage, injury or loss caused (s 9(2)(d)) and the physical, mental or emotional harm done to a victim (s 9(2)(b)).

Other complaints of the applicant

[14] The applicant also complained about the judge’s observation in sentencing the applicant, that there was no prospect of the moneys being repaid, which, it was argued, was based only on the Crown’s opinion and the victim impact statement.  What the prosecutor stated in submissions to the sentencing judge was that there had been no compensation made.  When asked whether there was any prospect of compensation, the prosecutor responded that there was none that the Crown was aware of.  That position was not challenged at sentence by the applicant’s counsel, nor was it submitted on behalf of the applicant that there was any capacity to pay compensation.  On the hearing of the appeal, the applicant made some unsubstantiated reference to superannuation funds, but that was not mentioned before the sentencing judge.  Indeed, Dr Mann detailed in his report that the applicant had no assets and that most of the money had been spent on gambling.  In the circumstances, there was no error by the sentencing judge in proceeding on the basis that it was implicit in what had emerged before him that there was no prospect of compensation.

[15] The applicant also complained that the sentencing judge made reference to the applicant obtaining employment with the complainant company at the time of death of the son of one of the directors.  The applicant submitted that this was factually incorrect, as she had been employed by the company for nearly two years prior, since 2002, whereas it was in 2003 that the director’s son died.  However, the sentencing judge was clearly cognisant of the fact that the applicant’s offending did not extend to the whole period of her employment, as he commented on that during sentencing submissions.  The sentencing judge’s reference to the applicant obtaining employment at the time of the death of the director’s son may be seen as a reference to the increased reliance on the applicant at the time of the death of the son as set out in the victim impact statement and in respect of which no issue was taken at sentence.  But in any event, no material factual error is demonstrated.  The sentencing judge was clear in proceeding on the basis that the offending occurred over a seven year period and not the entirety of the applicant’s employment.

[16] The applicant contended in written submissions that the prosecutor erroneously submitted to the sentencing judge that Count 3 concerned “the same period of offending and same type of offence”.  That statement was arguably referable to Counts 1 and 2 and the judge’s inquiry as to whether the sentences for those counts should be the same.  But in any event, the prosecutor referred the judge to the schedule in respect of Count 3, and there is no basis to suppose that the judge was mistaken as to the duration of that offence.  Moreover, the prosecutor clearly submitted that no circumstance of aggravation was alleged as to Count 3.  The lesser criminality involved in Count 3 was reflected in the lesser concurrent term of imprisonment imposed for that offence.

Sentence manifestly excessive?

[17] The applicant submitted that a sentence of five to six years suspended or with parole eligibility after serving between 15 and 18 months should have been imposed.  The applicant referred to comments by the sentencing judge in the applicant’s favour stating that he would be “influenced” by the 10 year maximum penalty that applied for the majority of the period of offending (four and a half years).  The applicant further submitted that the sentencing judge gave insufficient weight to the following factors:

●that there was a full hand-up committal and the applicant entered the earliest plea of guilty;

●the medical conditions that contributed to the offending conduct and decision‑making abilities as per the Forensic Psychiatric Report by Dr Mann;

●steps taken by the applicant towards rehabilitation over the past two to three years; and

●the Addendum Report recommending that the applicant’s continuing treatment is less likely to occur in prison than in the community.

[18] In making her submissions, the applicant referred to a number of District Court decisions: R v Tyrrel, unreported, Durward DCJ, DC No 1268 of 2013, 3 December 2013; R v Wolski, unreported, Searles DCJ, DC No 38 of 2013, 23 September 2013; R v Wynyard, unreported, Devereaux DCJ, DC No 229 of 2012, 14 June 2012, and R v Hogan, unreported, Clare DCJ, DC No 217 of 2014, 22 April 2014.  The applicant pointed to those decisions as comparables that ought to have been put before the sentencing judge by her lawyers.  But an analysis of those authorities demonstrates that they provide no support for the applicant’s position that the sentences imposed were manifestly excessive.  Nor does the decision of R v Griffiths [1994] QCA 455 assist, as it is not a case involving fraud as an employee and therefore not an apposite comparable.

[19] Tyrrel concerned fraud of a considerably lesser amount ($137,295.15) and can in no way be seen as a useful comparative.

[20] In Wolski, pleas were entered to three serious offences of fraud as an employee over a period of three years and four months involving $577,699.31.  The most serious offence attracted a head sentence of five years imprisonment suspended after 20 months imprisonment.  The offender’s lack of prior conviction, the fact that the offending ceased well prior to detection and that she had made endeavours to repay the debt are factors that distinguish that case from the present case.

[21] In Wynyard, a sentence of six years with eligibility for parole after 24 months was imposed for one count of fraud involving $512,846.79 over nearly seven years.  The offender, a mother with the care of three young children, had entered an early plea and was remorseful.  She suffered from psychological difficulties and had taken steps towards her rehabilitation.  Significantly, although the fraud concerned a greater amount than in the present case, the offender there had no relevant prior convictions.

[22] In Hogan, a head sentence of six years imprisonment with eligibility for parole after 15 months was imposed for the most serious of five counts of fraud involving about $375,000 over more than two years.  The applicant there, who had a prior criminal history and offended in the context of chronic and severe psychological dysfunction, entered an early plea and was remorseful.  The sentence took into account that a period of imprisonment was served in New South Wales for other fraud offending.  The applicant had rejected four months of parole so as to continue with psychological treatment in custody.  That fact and that the offending there concerned both a much shorter period and a considerably lesser amount distinguishes it from the present case.

[23] The sentencing judge was referred to four Court of Appeal decisions, being R v Tindale [2008] QCA 24, R v Twidale [2009] QCA 200, R v Goodenough [2010] QCA 238 and R v Wilson [2013] QCA 260, which provide more authoritative assistance.  When regard is had to those authorities, it is readily apparent that the sentences imposed were not manifestly excessive.

[24] All except Wilson involved sentences imposed on pleas.  In all four cases, head sentences of seven years imprisonment were not interfered with on appeal.  Nor were the recommendations for parole eligibility after one third of the sentence (28 months imprisonment) imposed in the three involving pleas disturbed on appeal.

[25] In Tindale, the applicant pleaded to fraud involving the misappropriation of $426,804.87, which she obtained by using her position as a bookkeeper for a family business.  She suffered from depression and had other psychological problems and her offending was motivated by a desire to appease a partner in a dysfunctional relationship.  The offending involved fewer occasions of fraud and a shorter period than the present case (132 occasions over four and a half years as opposed to 435 occasions over seven years in the present case) and a somewhat lesser amount.  The applicant, who had not previously offended, was required to serve a longer period of imprisonment prior to parole eligibility (28 months rather than the 24 months required in the present case).  In addition, it is to be noted that the maximum penalty applicable in the present case was higher for two and a half years of the offending.  Tindale clearly supports the sentence imposed as being within the proper exercise of the sentencing discretion.

[26] In Twidale, the applicant engaged in calculated and systematic fraud involving a gross breach of trust over a period of about six years against her employer, a bank.  She defrauded it of $646,450 by creating an unauthorised line of credit for herself, by loans made in fictitious names and by withdrawing money from a customer’s account.  The offending occurred “in the context of a highly disturbed ongoing marital relationship”.  There was no restitution but the applicant had made some genuine offer to do so which had been rejected.  The maximum sentence at the time of sentence was 10 years imprisonment.  The applicant failed in her application for leave to extend time in which to appeal against her sentence, the court finding that it was not likely to succeed.  Although the sentence of seven years imposed on Twidale concerned offending involving a larger amount, the fraud was committed over a shorter period by an offender with no prior conviction, who under the sentence imposed was required to serve four months longer prior to parole eligibility than the present applicant.

[27] Goodenough concerned one count of fraud by the applicant who was employed by a motor vehicle dealer as a finance manager.  He developed a “sophisticated and premeditated” scheme whereby he created false loan applications in the names of 25 customers of his employer without their knowledge and appropriating the loan moneys advanced to his own use.  He thereby dishonestly obtained $610,664.98 over a period of 20 months.  The finance company was alerted to the wrongdoing as a result of the applicant’s own actions in sending an email to some of the customers indicating he had done something wrong.  In addition to his plea, the applicant’s own role in his detection was taken into account, although as the sentencing judge observed, it was only a question of time before it came to light.  The applicant had made some restitution ($133,000).  The offending took place over a shorter period and although the amount involved was larger, the offender had no previous history and had been able to make some restitution.  Further, because the misappropriation was against the finance company, the applicant did not face the additional aggravating circumstance of offending against his employer.  Additionally, as in Tindale and Twidale, the offender was required to serve four months longer than the present applicant before parole eligibility.  Goodenough also provides support for the exercise of the sentencing discretion in the present case.

[28] Wilson concerned three counts of fraud committed by an employee against her employer, a family run business.  The offender, who was the personal assistant to the managing director, was involved in preparing wages, paying invoices and banking.  On 24 occasions over a period just under a year the applicant falsified and forged cheques directing payment to her credit card accounts to a total of $225,327.05.  She misdirected a cheque for $11,200 into her credit card account and for a period of over two years made some 120 unauthorised withdrawals into her account by over payment of her wages.  The offender had breached the trust reposed in her by her employer in circumstances where she had received assistance including with personal expenses.  There was no prospect of restitution.  It is to be noted that the amount involved of about $314,000 was substantially less than that in the present case, and while the offender did not have the benefit of a plea, she also had no prior convictions.

[29] These authorities indicate that the sentences imposed were within the sentencing discretion.  The applicant, who had previously been imprisoned for like offending, committed systematic and protracted fraud on her employer over a seven year period of over $500,000, which only ceased when she was detected.  The applicant abused the position of trust that she held within the company with significant consequences for the complainant company.  The head sentence of seven and a half years, which accorded with properly made concessions by the applicant’s counsel below, appropriately reflected the criminality of the offending.  Matters of mitigation were adequately accommodated by the sentencing judge in moderating the sentence so that the applicant received an eligibility for parole date at a point earlier than the one third mark of the sentence.  In so mitigating the sentence, his Honour clearly had regard to the applicant’s medical conditions and treatment needs addressed in Dr Mann’s report to which he specially referred in his sentencing remarks.

[30] In the circumstances, the sentences were not manifestly excessive.  The application should be refused.