Welten v Queensland Police Service
[2009] QDC 204
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Welten v Queensland Police Service[2009] QDC 204
- Add to List
Welten v Queensland Police Service[2009] QDC 204
Welten v Queensland Police Service[2009] QDC 204
DISTRICT COURT OF QUEENSLAND
CITATION: | Welten v Queensland Police Service [2009] QDC 204 |
PARTIES: | WELTEN, Angela Marie |
FILE NO/S: | 105 of 2009 |
DIVISION: | Appellate Jurisdiction |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 10 July 2009 |
DELIVERED AT: | Cairns |
HEARING DATE: | 7 July 2009 |
JUDGE: | Bradley DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to an offence of fraud as an employee in excess of $5,000 – where the appellant was sentenced to two years imprisonment to be suspended after she had served five months for an operational period of two years – where the appellant was ordered to pay restitution in the sum of $21,548.93 being the total amount of the fraud – whether the sentencing Acting Magistrate failed to give adequate weight to mitigating factors including cooperation with the justice system, voluntary steps toward alcohol rehabilitation, voluntarily cessation of fraudulent conduct, payment by way of restitution, fraudulent conduct over short duration which was unsophisticated and no steps to conceal activity R v Haugland [2009] QCA 46 R v La Rosa; ex parte A-G (Qld) [2006] QCA 19 R v Robinson; ex parte A-G (Qld) [2004] QCA 169 R v Sheehan [2007] QCA 409 R v Vinson [2002] QCA 379 |
COUNSEL: | B Murray of Counsel for the appellant J Crawfoot of Counsel for the respondent |
SOLICITORS: | Wettenhall Silva Solicitors for the appellant Office of the Director of Public Prosecutions for the respondent |
Background
- [1]On 6 May 2009 the appellant pleaded guilty to one charge of fraud as an employee involving a yield to the appellant exceeding $5,000. An Acting Magistrate sentenced the appellant to two years imprisonment to be suspended after she had served five months for an operational period of two years. The appellant was also ordered to pay restitution in the sum of $21,548.93 (the total amount of the fraud). The appellant argues that the sentence was manifestly excessive in all the circumstances.
- [2]The complainant company operated a canteen at the Tropical North Queensland College of TAFE and the appellant was employed as a site manager from February 2003 until her termination in January 2009. Her duties included managing the canteen, ordering and preparing food, and daily banking. In January 2009 the complainant discovered that 10 days of banking covering the period 24 November to 7 December 2008 had not been deposited in the company’s bank account. This represented a sum of $21,548.93. The appellant was contacted by her supervisor and stated that she had “made a mistake”. The appellant admitted having taken the money and using it for her own purposes. Her employment was then terminated.
- [3]In a recorded interview with police the appellant admitted that she had initially taken money and replaced it but that things had “snowballed” and she had not replaced the money the subject of the charge. The appellant told police that she could not say what she had spent the money on as she had nothing to show for it. She denied gambling and stated that she had “just used the money for things”. She stated that she was a heavy drinker. She said that she would do anything to repay the money including selling her car.
- [4]The Acting Magistrate was told that the appellant was 50 years of age and had no previous criminal convictions. She had had a problem with drinking alcohol all of her life and at the time of the commission of the offence she had “been intoxicated every day as she would consume up to around four bottles of wine a day and if she didn’t consume alcohol at all she would be severely ill”[1]. She has three adult children aged in their 20s and has the sole care of a son aged 13.
- [5]She had been in a domestically violent relationship with a man which ultimately broke down and she was divorced in 2007. The divorce was very acrimonious involving a dispute over property which resulted in her ending up with “virtually nothing”[2]. Since the divorce the appellant has been a single mother. Her drinking escalated during the separation and divorce in 2007 and in 2008 she started to drink on a daily basis during the day. The appellant described herself in 2008 as being in “an alcoholic haze”. She would get up early in the morning and drink immediately and would conceal her drinking by drinking from coffee cups and using lots of mouth wash. She believed that she managed to conceal the extent of her drinking from her friends, co-workers and even her son.
- [6]At the time of the commission of the offence the appellant was earning about $600 a week net, $200 of which was paid in rent. She had no significant debts other than a $7,000 credit card debt. She wasn’t a gambler. With the money fraudulently obtained the appellant paid outstanding utilities, some credit card debts and significant medical expenses incurred on behalf of her son. She was spending about $60 a day on alcohol and cigarettes.
- [7]The sentencing Magistrate was told that the appellant was “very humiliated and ashamed by her conduct”[3] and believed that the consumption of alcohol affected her ability to think rationally and ethically. Two letters were handed up to the Acting Magistrate from the Alcohol, Tobacco and Other Drugs Service which confirmed that the appellant had sought help for her alcohol dependency at the end of January 2009 and had successfully participated in a five day intensive home detoxification programme and continued with weekly appointments “to strengthen her resolve to remain abstinent”. The letters confirmed that the appellant had been keeping herself busy by participating in voluntary work with ‘meals on wheels’ and that she was “genuinely resolved” to repay the money. When assessed by a psychologist with ATODS in March 2009 the appellant appeared to experience “both state and trait anxiety” and depression. The psychologist concluded that the appellant “was likely experiencing significant impairment with respect to daily functioning and decision making. Depression, anxiety and stress have likely facilitated Ms Welten’s decreased capacity to engage in functional behaviour”.
- [8]Finally, the Acting Magistrate was advised that the appellant had raised $5,000 which was deposited into her solicitor’s trust account the day prior to sentence and that she had good prospects of obtaining paid employment and repaying the balance of monies outstanding.
Acting Magistrate’s decision
- [9]In his sentencing remarks the Acting Magistrate referred to the amount involved, taken over a 10 day period, and the fact that the appellant was the site manager which was a position of trust, as aggravating features.
- [10]The Magistrate was referred by the Police Prosecutor to the authorities of R v La Rosa Ex parte A-G (Qld) [2006] QCA 19; R v Robinson Ex parte A-G (Qld) [2004] QCA 169 and R v Vinson [2002] QCA 379. The Prosecutor also referred to a sentenced imposed by another Magistrate in the Cairns Magistrates Court which involved, the prosecutor asserted, “$17,000 over a protracted period. She was sentenced to 15 months to serve 4”. The Prosecutor asserted that the appellant’s case was more serious because the appellant was in a “very serious position of trust”.
- [11]In his sentencing remarks the Acting Magistrate referred to that sentence handed down by one of his colleagues as follows:-
“Now, it appears there was another matter that went through court in the Cairns Magistrates Court before another Magistrate where there was $17,000 odd involved. I am not aware of what the facts were, but it appears that $17,000 was stolen from an employer, and the penalty was I believe 15 months, to serve four months. Right. So that’s how serious it is. Now, at first glance, and I don’t know what the facts were before the court in that one, or what the mitigating or aggravating factors may have been, but certainly the amount of money was less than what we have here today.”
- [12]The Acting Magistrate went on to refer to the matter of Vinson and Robinson and to the fact that the appellant had paid $5,000 into her solicitor’s trust account which would be applied in restitution. The Acting Magistrate was told by the Prosecutor with respect to the matter decided by his colleague, that $3,000 had been repaid.
- [13]After referring to the appellant’s early plea, full admissions, her previous problem with alcohol for which she was receiving treatment, the inevitability of her fraud being discovered and the fact that she was supporting a 13 year old son, the Acting Magistrate concluded that the head sentence should be two years imprisonment.
- [14]When considering the amount of actual imprisonment that the appellant should serve, the Acting Magistrate said that he had “regard to previous matters which I’ve referred to, the District Court matters, and another matter in the Magistrates Court here, before another Magistrate”. He ordered the imprisonment be suspended after five months for an operational period of two years.
Appellant’s arguments
- [15]It is argued on behalf of the appellant that the Acting Magistrate failed to give adequate weight to mitigating factors, in particular the following –
- The appellant fully cooperated with the justice system; she made immediate admissions to her employer; participated in a full record of interview; elected summary jurisdiction and indicated an early plea of guilty.
- The appellant had undertaken significant voluntary steps towards rehabilitation as evidenced by the letters from ATODS leading to her having been alcohol free for four months.
- She plainly ceased her fraudulent conduct voluntarily prior to it being detected by her employer.
- Despite her loss of employment as a result of the offending, she had raised $5,000 to be paid by way of restitution over the four month period up to sentence.
- The offending occurred over a short duration and was unsophisticated and the appellant did not take steps to conceal her activity.
- [16]The sentence imposed by his fellow Magistrate to which the Acting Magistrate was referred is in fact the subject of an appeal to this Court. This was not communicated to the Acting Magistrate and clearly he could not properly have had regard to that sentence in those circumstances.
- [17]The appellant argues that the Acting Magistrate, in imposing both actual imprisonment and a substantial compensation order, failed to properly have regard to the total effect of the sentence and that he regarded himself as being bound to impose a sentence of immediate imprisonment by the authorities to which he was referred. It is argued that the Acting Magistrate thereby fettered his discretion by not appreciating the distinguishing factors in the appellant’s case when compared with the authorities.
- [18]The appellant argues that although the head sentence of two years imprisonment was appropriate, a total suspension or order for immediate parole was plainly within range and as the appellant has already served just over two months of the term of imprisonment, the sentence should be suspended forthwith.
Respondent’s arguments
- [19]The respondent argues that the Acting Magistrate did explicitly recognise and give sufficient weight to all relevant mitigating factors and that he did not give any weight to the decision of his fellow Magistrate. It is however clear from the Acting Magistrate’s sentencing remarks that he did, at least to some extent, rely upon what he was told of his fellow Magistrate’s sentence. Clearly, in the circumstances this was inappropriate and on that basis the Acting Magistrate’s sentencing discretion did miscarry.
- [20]With regard to the totality of the penalty imposed, the respondent points out that the compensation was referred to the State Penalties Enforcement Registry for enforcement rather than having a default period of imprisonment, so that the appellant was not placed in jeopardy of serving a greater period of imprisonment than the case warranted.
- [21]In any event, the respondent argues that given the amount of money involved, the fact that it involved a number of transactions over a two week period which, in the respondent’s submission, amounts to a “regularity of offending”, the fact that the dissipation of monies towards credit cards debts and cigarette and alcohol consumption represented a personal gain to the appellant, and the position of trust occupied by the appellant, were all factors leading to a conclusion that the sentence imposed was within range.
Authorities
- [22]In Vinson the defendant entered into 27 separate transactions over a 10 ½ month period which yielded $24,667.65. He was 25 years of age with no previous convictions and was employed at a hotel as an accounts administrator. The money was spent on his fiancée and towards their expected wedding. The fraud involved the falsification of cheques and the creation of fictitious leave entitlements. No restitution had been made at the time of sentencing, although an indication of preparedness to make full restitution was given. Vinson was sentenced to two years imprisonment, suspended for two years after serving six months. After a review of authorities the Court of Appeal concluded that the sentence was not manifestly excessive “particularly so because no restitution was ordered and none had been made”[4].
- [23]In Robinson (which was an appeal by the Attorney-General) the defendant dishonestly obtained $33,239 from the Queensland Police Credit Union Ltd where he was employed as an insurance consultant which involved 101 transactions over a 14 month period. After appeal the sentence was one of two and half years imprisonment, suspended after six months with an operation period of three years. An order to pay compensation of $28,928.74 in default of payment imprisonment for six months was set aside on appeal. Robinson was 49 years of age with no criminal history. He had used the money to support his gambling habit and buy personal everyday items.
- [24]In La Rosa which was appealed by the Attorney-General, the defendant had pleaded guilty to stealing $51,214.10 from her employer between 1 January 2003 and 19 July 2004. She was a supervisor at a plant nursery and admitted to stealing money on almost daily basis. She made full admissions to the police and pleaded guilty to an ex officio indictment. She was aged between 20 and 21 at the time of her offending and had no prior criminal history. She had a history of bulimia, her recovery from which was likely to be jeopardised if sentenced to actual imprisonment. On appeal the sentence was increased to three years imprisonment with a recommendation for post-prison community based release after nine months.
- [25]Counsel for the appellant referred the Court to R v Sheehan [2007] QCA 409. In that case the defendant was sentenced to two and a half years imprisonment, suspended after four months for an operational period of two and a half years for a number of offences of dishonesty arising out of his employment as a branch manager of FAI Insurance which resulted in the misappropriation of a total of $41,317. At sentence essentially full restitution had been made. The defendant had no criminal history and had pleaded guilty. Despite a lengthy delay in the matter being finalised, due to no fault of the defendant, and the payment of restitution in full, the Court of Appeal found that the sentence was not manifestly excessive although a wholly suspended sentence would have been within range.
- [26]Counsel for the respondent relied particularly on the case of R v Haugland [2009] QCA 46. In that case the 21 year old defendant, who had no relevant criminal history, was employed as an assistant store manager selling mobile phones. Over a two month period the defendant fraudulently obtained 14 mobile phones to the value of $12,707 and incurred charges on the phones to the value of $13,404.25. The phones were not recovered and no payments made on the phone contracts. The Court of Appeal declined to interfere with a sentence of four months imprisonment and two years probation for the stealing offence and two years imprisonment suspended after four months for an operational period of two years and four months for the fraud offence. In that case Muir JA at paragraph [8] noted:-
“The authorities show that where there is an abuse of a position of trust together with a substantial financial loss resulting from conduct over a lengthy period, the imposition of a non-custodial sentence can be justified only in the most exceptional cases.”
However his Honour did agree with the proposition that it was open to the sentencing judge in that case to impose a wholly suspended sentence as the defendant was –
“a young first time offender with a good work history, intent on advancing herself in life and with good prospects of not re-offending. Her offending conduct appeared quite abhorrent in nature and was not shown to be engaged in for the purposes of personal gain. Her continuing illness, the need for further medical treatment and her maternal role were also factors which supported a wholly suspended sentence.”
- [27]It is clear from the authorities that although the head sentence imposed in this case was clearly within range, it is also open to make an order which would enable the appellant to remain in the community. I have already found that the sentencing discretion of the Acting Magistrate did miscarry and the appellant should be sentenced afresh.
- [28]There are factors in this case which make it an exceptional one justifying a suspension of the term of imprisonment forthwith. These include:–
- the short period of the offending
- the lack of sophistication of the offending
- the significant and effective attempts the appellant has made to rehabilitate herself
- her full cooperation with the authorities
- her expression of genuine remorse
- the effective payment of partial compensation and the ability to pay full compensation.
In these circumstances a wholly suspended term of imprisonment is within range.
- [29]The appellant has served just over two months in prison. The appeal is allowed and instead of the sentence imposed at first instance, a sentence of two years imprisonment, is substituted, to be suspended forthwith for an operational period of two years and the restitution order made by the Acting Magistrate is to remain.