R v Searle[2024] QCA 211

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  The applicant was charged with fraud to the value of $30,000 or more.  Her defence was that what she did was not dishonest.  She was convicted on 18 September 2024 after trial in the District Court before a jury of the fraud without the circumstance of aggravation.  The maximum penalty for that offence is five years’ imprisonment.  The applicant was sentenced to imprisonment for 18 months to be suspended after serving nine months for an operational period of 18 months.  The applicant applies for leave to appeal on the ground that the custodial component of the sentence of nine months was, in all the circumstances, manifestly excessive.  There is no challenge to the head sentence.

Circumstances of the offending

2. [2]
   The victim of the fraud was the estate of the applicant’s stepfather from the marriage to the applicant’s mother which had dissolved over 40 years earlier.  The applicant had reconnected with the stepfather in 2014.  The stepfather died on 5 July 2021 at the residential care facility where he resided.  He had given an enduring power of attorney (the power of attorney) to the applicant on 21 June 2021 that authorised the applicant to make all medical and health decisions for him and also to make decisions about his financial matters.  The residential care facility informed the applicant of the stepfather’s death on the day he died.  The stepfather’s last will dated 26 July 2010 appointed his friend Donald Bex to be the executor and trustee and left the whole of his estate to his friend Luba Bex.
3. [3]
   The following transactions were undertaken by the applicant were particularised by the prosecution as the conduct the subject of the charge:

   1. On 5 July 2021 the applicant deposited $5,000 into her own bank account from the bank account of the stepfather.
   2. On 9 July 2021, the applicant transferred $8,500 from the stepfather’s Heritage Bank account to her own bank account.
   3. On 11 July 2021, the applicant transferred $20,000 from the stepfather’s Heritage Bank account to her own bank account.
   4. On 15 July 2021, the applicant used the stepfather’s debit card to withdraw $600 from his ANZ bank account from an ATM.
   5. On 16 July 2021, the applicant transferred $1,500 from the stepfather’s Heritage Bank account to her own bank account.
   6. On 21 July 2021, the applicant sold the stepfather’s 2006 Mitsubishi Lancer for $1,858.30 and received those funds.
4. [4]
   The prosecution particularised the applicant’s application of the stepfather’s property for her own use as dishonest as she knew she was not entitled to deal with the stepfather’s property after his death and/or she knew it formed part of the stepfather’s estate which was subject to distribution in accordance with his will.
5. [5]
   It was an admitted fact that on 5 July 2021 the applicant deposited a cheque in her favour drawn on the stepfather’s ANZ bank account for $5,000 into her own Westpac bank account.
6. [6]
   It was admitted that the applicant made the transfers particularised at paragraphs (b), (c) and (e) to her UBank account.  It was also admitted that on 13 July 2021 the applicant transferred $25,000 from her UBank account to a different UBank account under her name and then on 14 July 2021 deposited $20,000 from her UBank account into a six month term deposit account in her name.  The transaction at paragraph (d) was also admitted.  As found by the sentencing judge on the sentence, it was the amount of $25,000 that was transferred out of one of her accounts that was likely to be the amount on which the jury’s verdict was based.
7. [7]
   The branch manager of Heritage Bank at Elanora gave evidence at the trial of the applicant attending at the branch mid-morning on 6 July 2021 to activate use of the power of attorney in respect of accessing the stepfather’s account with the bank.  The applicant signed the bank’s “Power of Attorney/Administrator” form which included a declaration that she had not received notice of the death of the stepfather.  The applicant was authorised for internet banking on the stepfather’s account.
8. [8]
   The car dealer who was a friend of the applicant and her husband gave evidence of purchasing the 2006 Mitsubishi Lancer from the stepfather at their request on 21 July 2021 for $1,858.30 which included $358.30 on account of the registration which had been paid from the stepfather’s ANZ bank account on 9 July 2021.  It was an admitted fact that the applicant received those funds from the sale of the vehicle.
9. [9]
   Mr Bex was informed of the stepfather’s death by the applicant’s husband in November 2021.  The person who was the investigator at Heritage Bank in 2021 investigated a complaint by Mr Bex on 17 November 2021 and identified the transactions of 9, 11 and 16 July 2021 as unusual.  The investigator was able to obtain the return of the sum of $20,000 to the stepfather’s account at Heritage Bank from the applicant’s bank.

Applicant’s circumstances

10. [10]
    The applicant was 63 years old at the time of the offending.  She had no prior criminal history.  At the date of the sentencing, her husband was aged 75 years.  He had been diagnosed with prostate cancer the preceding year and the applicant anticipated being his carer.  Her husband was on a pension and the applicant was working as a private mediator in family law matters.  She was able to offer $5,000 with respect to restitution, if she kept working.
11. [11]
    Prior to the trial, the applicant had not offered to plead guilty to the charge of fraud without the circumstance of aggravation.

Sentencing remarks

12. [12]
    The sentencing remarks included the following.  The fraud was committed over a period of two weeks.  Although it was a modest amount in relative terms, it represented “a gross betrayal of trust” in defrauding the estate of the stepfather.  He was vulnerable and trusted the applicant and she had his bank card, a PIN number and cheque book.  The authority the applicant had under the power of attorney ended on the stepfather’s death.  The jury had shown mercy or given the applicant the benefit of the doubt in relation to some of the moneys she transferred to her own bank account.  The sentencing judge noted:

“Perhaps the most likely explanation is a distinction between the portion of money deposited and left in your original account, and the larger portion you moved from your first account to a term deposit and your other bank account. The further transfers and mixing of monies so soon after the death negated any intention to keep that money available to settle [the stepfather’s] affairs. Consistent with that reasoning is the size of your compensation offer, which would result in a total reimbursement to the estate of $25,000.”

13. [13]
    The sentencing remarks also included the following.  In moving the money around her accounts, the applicant showed an intention to keep the money for herself.  The applicant had shown no remorse other than cooperating to the extent of making admissions in the trial.  The sum of $20,000 had been returned to the estate and the applicant had offered to secure the other $5,000, if she could keep working.  While full compensation was desirable, it must be balanced against an otherwise proportionate sentence.  The sentencing judge then stated:

“Deterrence is important here. People should know that defrauding an estate will be met with real punishment. It can be particularly hard to detect for the modest estates of vulnerable people. The risk of getting caught needs to outweigh the potential financial gain. I am sorry to hear of the health concerns for your husband, but neither that nor the promise of further payment is sufficient to overwhelm the need for sufficient general deterrence and punishment. A sentence of imprisonment is the only appropriate sentence for the level of criminality.”

14. [14]
    The sentencing judge noted the following.  The delay in the matter being resolved by trial was not so marked as to affect the sentence in terms of the principles in R v L; Ex parte Attorney-General [1996] 2 Qd R 63.  Specific deterrence and the need for rehabilitation were not really issues.  The applicant had been charged with the offence in July 2022.  It is the stress caused by an unreasonable delay after charging that may have relevance and the conviction came two years and three months after that had occurred.

Did the custodial component make the sentence manifestly excessive?

15. [15]
    It was appropriate for the applicant not to challenge the head sentence of 18 months’ imprisonment for the offence on being convicted after trial.  It is supported by the comparable authorities of R v Miles [2006] QCA 556 and R v Hawkins [2011] QCA 322.
16. [16]
    The applicant concedes that she breached a position of trust but submits that that feature should be balanced against the features that the period of offending was only two weeks and there was a lack of sophistication because there were no steps to remove the money from her own bank accounts or any other real effort to conceal the offending.  In addition, there were no significant consequences for the stepfather’s estate as the $20,000 from Heritage Bank was recovered.
17. [17]
    The applicant submits that the following factors should have resulted in the sentence being immediately suspended:

    1. her age of 67 years at the date of sentence;
    2. she had no criminal history before or after the offending;
    3. the impact of her imprisonment on her 75 year old husband who was managing a cancer diagnosis;
    4. a sentence that allowed her to stay in the community was preferable, in accordance with s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld); and
    5. the delay of two months between police interview and being charged and at least two years and three months between the charging of the applicant and the verdict of guilty.
18. [18]
    The matters on which the applicant relies to assert that the requirement for her to serve half the period of imprisonment imposed on her before being released from custody makes the sentence “plainly unjust or unreasonable” were before the sentencing judge on the sentence hearing.
19. [19]
    What the submissions on behalf of the applicant overlook is the importance of general deterrence for an offence of this nature which is committed by a family member or carer who holds an enduring power of attorney from the vulnerable person and is objectively serious.  The fraud is easily committed where the attorney lies to the financial institution that the donor has not died.  It was also relevant that the sentencing judge found that the applicant had shown no remorse other than that reflected by the cooperation of making admissions that shortened the trial and not challenging the prosecution evidence based on banking records and the power of attorney.
20. [20]
    Even though the sentencing judge was cognisant of the personal features of the applicant that are relied on to seek the suspension of the sentence, it was a matter for the sentencing judge to weigh up all the factors relevant to the imposition of a sentence appropriate to the offending and the applicant’s circumstances.  After being found guilty of fraud at a trial for which a sentence of imprisonment was the appropriate penalty, it cannot be said to be “plainly unjust or unreasonable” for the applicant to serve half of that sentence in custody.

Order

21. [21]
    The order which should be made is: Application for leave to appeal against sentence refused.
22. [22]
    BODDICE JA:  I agree.
23. [23]
    BRADLEY J:  I agree.
24. [24]
    MULLINS P:  The order of the court is application for leave to appeal against sentence refused.