R v Russell[2016] QCA 106

SUPREME COURT OF QUEENSLAND

MORRISON JA:  Sit down, Mrs Russell.  I’ll ask Justice Mullins to give her reasons first.

MULLINS J:  Mrs Russell pleaded guilty in the District Court, on 13 August 2015, to one count of fraud as an employee to the value of $30,000 or more.  The amount which Mrs Russell stole was in the order of $43,000 through 76 fraudulent transactions where she was to transfer money to suppliers or staff over a period of more than a year but, instead, transferred the money into her own bank accounts.  Mrs Russell was the office manager of a car repair business and responsible for all financial aspects of the business.  Mrs Russell was sentenced to imprisonment for three years, to be suspended after serving 12 months, with an operational period of three and one-half years.

The application for an extension of time within which to appeal was filed on 3 September 2016, which is almost five months out of time.  Mrs Russell endeavours to explain, in the grounds for her application for the extension, why she had not filed her application for leave to appeal against the sentence at an earlier time.  She states that, although she was told she could appeal after she was sentenced, presumably by the lawyers who appeared for her, she was not given any information on how to go about it.  When she decided, in prison, that she would appeal, she found it difficult to obtain the information on the procedure and that was complicated by her being sent to a work camp. After she contacted Legal Aid Queensland, on 15 January 2016, she eventually managed to speak to a lawyer and obtain the relevant Court forms.  She appears for herself on this application to obtain the extension.  The principles that apply to an extension of time to appeal in a criminal matter are those set out in R v Tait [1999] 2 Qd R 667 at [5], where it is stated:

“…that the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.”

For that purpose, it is relevant to assess the viability of the appeal even though Mrs Russell has not offered a satisfactory explanation for the delay in bringing the application.

The sentencing judge described Mrs Russell as having reached middle age with no relevant history, but noted she had suffered childhood abuse and from a long-term violent relationship and its unpleasant aftermath.  Mrs Russell was left to raise her children on her own.  She was not in a position to make repayment to the complainant.  Mrs Russell had past medical issues, including being treated for anxiety and depression in 2008 and after arrest.

The sentencing judge referred to the maximum penalty of 12 years’ imprisonment and described the offending as “a calculated and protracted episode representing a gross breach of trust” and that “the need for deterrence is strong”, noting that such offending jeopardised the viability of the business and the jobs of people relying on the business.  The sentencing judge considered the hardship for Mrs Russell’s 21 year old son, in having to take care of his 13 year old and 15 year old siblings, did not preclude actual custody.

The applicant’s proposed ground of appeal is that the sentence was manifestly excessive.  Mrs Russell, in her written submissions, relies on the roles she has undertaken whilst in prison to show her remorse, even though good conduct in prison after sentence is not a matter relevant to whether the sentence that was imposed was manifestly excessive.  Mrs Russell also relies on single judge decisions imposing sentences on two other offenders, rather than decisions of the Court of Appeal in relation to similar offending.

In her oral submissions, Mrs Russell expressed concern about some aspects of the submissions made by her counsel at the sentencing, but none of those matters, such as the quantum of Family Tax Benefits she was receiving, would have made any difference to the sentence that was imposed.

In addition, in her oral submissions, Mrs Russell disputes the amount by which she defrauded her employer and says that there were sums that were included in the calculation of the amount that were reimbursement to her for legitimate businesses expenses that she paid on behalf of her employer and that wages to her were also included.  Mrs Russell was describing relatively small amounts for these expenses during her submissions and, having regard to the total quantum of $43,000, which was the figure before the judge on the sentencing, none of the items about which Mrs Russell speaks in her oral submissions, without the benefit of any evidence, would have made a difference to the ultimate sentencing.

I note that exhibit 2 before the sentencing judge, which dealt with the schedule of facts on which the sentence was proceeded, was tendered by the prosecution without demur from the counsel for Mrs Russell.

The applicant, in her written submissions, argues for a lesser sentence, but does not endeavour to show, by reference to the matters that were before the sentencing judge and the truly comparable authorities that the sentence that was imposed was not an appropriate sentence.

Before the sentencing judge, counsel for Mrs Russell submitted for a sentence of imprisonment of two to two and one-half years and for the sentence to be wholly suspended and for an immediate release on parole to be ordered.

On this application, the respondent relies on a number of authorities from the Court of Appeal to support the submission that the proposed appeal does not have any prospect of success.  These include the following.

In R v La Rosa; ex parte Attorney-General (Qld) [2006] QCA 19, the offender pleaded guilty on an ex officio indictment to stealing $51,214 belonging to her employer over a period of 18 months.  The maximum penalty for stealing as a servant was 10 years’ imprisonment.  The offender was complying with the order that had been made for her to pay partial restitution at the rate of $300 per month for a period of three years.  The offender was aged between 20 and 21 years at the time of her offending with no prior criminal history and suffered from bulimia.  The Attorney-General’s appeal against a wholly suspended sentence of three years’ imprisonment was allowed.  The sentence imposed on the appeal was three years’ imprisonment with a recommendation for a release on parole after serving nine months in custody.  Justice Keane, with whom the other members of the Court agreed, observed, at [24]:

“…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.”

Justice Keane, at [32], also noted that:

“…a period of actual imprisonment of 12 months would be appropriate were it not for the circumstance that the respondent had 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.”

The offender in R v Lawrie [2008] QCA 97 pleaded guilty to three counts of fraud as an employee with a circumstance of aggravation, where a total amount of almost $51,000 was misappropriated by the offender as an employee of two different companies over a 20 month period.  The offender had made restitution of about $10,000.  The sentence of imprisonment for three and one-half years, suspended after 12 months, for an operational period of three and one-half years, was held not to be manifestly excessive.

The offender was also unsuccessful in appealing against a sentence of three years’ imprisonment, suspended after nine months, with an operational period of three years, in R v Jeffree [2010] QCA 47.  The offender pleaded guilty to one count of having committed fraud as an employee to the value of $5000 or more.  The offence was committed over a period of six months and the amount involved was $43,686.  The offender had no criminal history and had made no restitution.

In the light of these authorities, Mrs Russell has no prospect of showing that the sentence of three years, which required her to serve one-third in custody, for this type of offending was manifestly excessive.  It is, therefore, not in the interests of justice to grant the extension of time to apply for leave to appeal.

The order which I propose is the application for extension of time to apply for leave to appeal is refused.

MORRISON JA:  I agree.

DOUGLAS J:  I agree.

MORRISON JA:  The order of the Court is the application for extension of time to apply for leave to appeal is refused.  Thank you, you can terminate the link.  Thank you, Ms Russell.

APPELLANT:  Thank you.

MORRISON JA:  Adjourn the Court.