R v Sumner[2022] QCA 8

[2022] QCA 8

COURT OF APPEAL

MORRISON JA

MULLINS JA

BOND JA

CA No 213 of 2021

DC No 193 of 2021

THE QUEEN

v

SUMNER, Jo-AnneApplicant

BRISBANE

THURSDAY, 10 FEBRUARY 2022

JUDGMENT

BOND JA: The applicant was an accounts clerk, employed by a private company carrying on business as a hospitality supplier which provided fit outs and other products to hospitality businesses.

Payment to the company's suppliers was effected using an online banking system where disbursement of funds out of the company’s account to its suppliers was made electronically to the suppliers.  Transfers out of the company’s account could not occur without the prior authorisation of one of the company’s directors.  The applicant was the employee responsible for setting up payment runs by reviewing invoices and inputting into the system the supplier’s account name, BSB, account number and payment amount.

During the period 16 October 2017 to 2 November 2019 the applicant fraudulently obtained 19 transfers from the company bank account to her bank account, totalling $172,924.89.

The applicant’s fraud was effected by the simple expedient of inputting her own personal bank account details in connection with particular proposed payments to known suppliers.  She gained the requisite approvals from the company’s director by providing him with reference names for the suppliers and the amounts to be transferred, but without identifying to him the accounts to which the money was to be transferred.  He trusted that the account details given to him by the applicant were correct and didn’t check the supplier’s account details before authorising payment.

The applicant’s fraud was discovered once the directors sought to have the office manager undertake an investigation of the accounts to identify why it was that the company was paying too much tax.  The office manager identified that one of the suppliers, who would usually be paid only once a month, had been provided with two payments within a week of each other: one for $9,920 and another for $9,812.  The office manager sent an email to that supplier in an attempt to rectify what she thought to be a mistaken double payment, and the email was copied to the applicant.

That evening - that is the evening the email was copied to her - the applicant arranged to have a meeting the next morning with the office manager and her husband, who was one of the company’s directors.  At that meeting the applicant confessed that she’d been stealing from the company by paying herself when she created payment runs.  She stated she needed to set herself up and estimated that she’d taken somewhere between $50,000 and $100,000 from the company.  She told them that the payment to the supplier which had been the subject of the email had not been a double payment; rather, one of those two payments had been into her own bank account.

That same day the office manager conducted a review of the accounts, searching for transactions in which payments were made to the applicant’s BSB and account number.  And she identified the 19 transfers, which together added up to the sum of $172,924.89.  The office manager requested and obtained the applicant’s resignation.

On 19 August 2021 the applicant pleaded guilty before the District Court to one count of fraud as an employee to the value of $100,000 or more.  The sentencing proceeded by reference to an agreed statement of facts. 

The sentencing judge identified as aggravating features:

1. (a)
   the offending was a serious offence because of the amount involved, the period over which the money was taken, and the terrible breach of trust involved;

2. (b)
   the money taken would not be recovered because the applicant had no capacity to repay the amount taken; and

3. (c)
   the applicant was a mature offender, aged 46 at the start of the period of offending and 50 at the time of sentencing.

His Honour also identified as mitigating features which he had taken into account:

1. (a)
   that the applicant had made an early plea of guilty, saving the cost and time associated with a trial and the stress and anxiety which would be imposed on the complainants, and demonstrating the applicant’s cooperation with the administration of justice;

2. (b)
   the applicant had made admissions to her employer and did not seek to cover up the conduct once it was exposed;

3. (c)
   although she was a mature offender, she presented with no criminal history; and

4. (d)
   the applicant had demonstrated her remorse and shown insight into her offending by a letter of apology to the court, her apology to her employers, her guilty plea, and the steps she’d taken to address an underlying mental health issue with stress, anxiety and depression.

The sentencing judge also accepted the truth of the explanation which the applicant had offered for her offending.  He did not regard it to be a defence, but took it into account.  The explanation had these elements:

1. (a)
   the applicant had a dysfunctional childhood and was not close to her birth parents;

2. (b)
   she left home at 17 and found herself in a five-year relationship in which she was the subject of domestic violence;

3. (c)
   at the time of her offending she had separated from her then current partner and that had left her feeling as if she had no home, no support and no finances;

4. (d)
   she felt unable to start again and believed that taking the money would make her feel secure and allow her to support her loved ones which at the time included her son, aged 15; and

5. (e)
   the money which she stole was not used in relation to feeding an addiction for drugs or gambling, rather it was used for paying bills and getting money to her mother and money to her son.

The Crown submitted before the sentencing judge that a head sentence in the order of five to six years would be within an appropriate exercise of the sentencing discretion, and submitted that the court could set a parole eligibility date at about the one-third mark.  Counsel for the applicant submitted to the sentencing judge “that something in the order of four and a-half to five years would be appropriate and obviously parole eligibility at the third mark.”

The sentencing judge sentenced the applicant to five years imprisonment with a parole eligibility date set at 19 April 2023 (which was the date which would reflect her having served one-third of the head sentence).  The applicant now seeks leave to apply against that sentence, contending that the sentence was manifestly excessive.

She does not identify any relevant specific error by the sentencing judge and confines her case to a contention that error should be inferred because the sentence imposed was out of the range of sentences that could have been imposed, and the difference was such that there must have been an error even though it was impossible to identify.

In my view, there is no merit in the submission that error of principle should be inferred in this case.

First, the sentence imposed was in accordance with the submissions which were made on the applicant’s behalf to the sentencing judge.  As I’ve mentioned, the applicant’s counsel had contended that a sentence in the order of four and a-half years to five years would be appropriate and that the parole eligibility date should be set at the one-third mark.  Counsel for the respondent submits, and I agree, that the court should follow observations made by Keane JA in R v Flew [2008] QCA 290 at [28] that a submission that a sentence was manifestly excessive could only be upheld “in circumstances which are sufficiently exceptional to warrant relieving the applicant from responsibility for the conduct of his case at first instance.”  No such circumstances were identified by the applicant in this case.

Second, the applicant did not identify sentences imposed in other cases which would justify the conclusion that the disparity between the sentences imposed in those cases and the sentence imposed in this case were such as to warrant the inference that there must have been some error of principle.  Indeed, the applicant did not cavil with the head sentence of five years imprisonment.  Rather, her efforts towards justifying the requisite inference of error were limited to advancing two particular complaints.  In my view, neither complaint would justify the requisite inference, nor would they justify any suggestion that the sentence imposed was unreasonable or plainly unjust.

The first complaint concerned the setting of a parole eligibility date, rather than imposing a suspension of the sentence after serving an appropriate period of imprisonment, which was suggested to be slightly less than one-third in this case.  As to this, I observe:

1. (a)
   Parole is often chosen over suspension when it is thought the supervision involved in parole would tend to increase the offender’s chances of success in not re-offending: see for example, the discussion in R v Heang [2016] QCA 195 at [39].

2. (b)
   In this case the applicant was a mature woman (aged 50 at the time of sentencing) with no relevant criminal history who had made real efforts at rehabilitation in terms of steps taken in addressing her mental health issues.  It was certainly arguable that there was a reduced need for supervision and that suspension was more appropriate than parole.  Yet, no such submission was advanced to the sentencing judge.

3. (c)
   On the other hand, as the respondent points out, it was also arguable that some degree of supervision of the applicant would be desirable because at the time of sentence she had not completely resolved the mental health symptoms which had provided some explanation for her offending in the first place.   And given that she would necessarily serve a significant period of actual imprisonment, it was certainly arguable that a degree of supervision was appropriate to monitor the applicant upon her release.

4. (d)
   It’s not appropriate to express a view as to which argument is to be preferred.  It suffices to say that it was open to the sentencing judge, particularly when no submission had been made that suspension was to be preferred to parole eligibility, to form the view that setting a parole eligibility date was an appropriate sentencing choice.

The second complaint was that setting parole eligibility at the one-third mark did not sufficiently reflect the mitigating features particular to the applicant’s circumstances.  As to this, I observe:

1. (a)
   The applicant’s argument seemed to be, first, that the early guilty plea justified parole eligibility date set at one-third, and, second, given that starting point, other mitigating features should then have operated to reduce the minimum period of imprisonment still further.

2. (b)
   This suggestion, to my mind, reflects the wrong approach to the significance to the sentencing discretion of the conventional approach in Queensland that a timely plea of guilty is often reflected by setting parole at the one-third point.  The discretion to fix a parole eligibility date is unfettered and there can be no mathematical approach to fixing that date, including on the basis of the convention to which I have referred: see the discussion in R v Randall [2019] QCA 25 at [43] and R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80 at [55].

3. (c)
   The sentencing remarks made plain that the sentencing judge had regard to all the considerations referenced by the applicant in her argument before this court.

4. (d)
   It was open to the sentencing judge to form the view that setting a parole eligibility date at one-third of the head sentence was a proper reflection of the early guilty plea and all the other mitigating features, particularly when the applicant’s counsel had submitted that parole eligibility date should be set at one-third of the head sentence.

There was some suggestion in the applicant’s written submissions that the sentencing judge should have had regard to “current delays in granting parole”.  That submission may be disregarded as there was neither evidence as to what the current delays were, nor any reason to conclude that present delays might still be operative whenever any application for parole by the applicant came to be considered.  The argument was not pressed before this court orally.

For the foregoing reasons, in my view, the application should be dismissed.

MORRISON JA: I agree.

MULLINS JA: I agree.

MORRISON JA: The order of the court is that the application for leave to appeal is refused.