Pyne v The Commissioner of Police
[2009] QDC 437
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
- Pyne v The Commissioner of Police[2009] QDC 437
- Add to List
Pyne v The Commissioner of Police[2009] QDC 437
Pyne v The Commissioner of Police[2009] QDC 437
DISTRICT COURT OF QUEENSLAND
CITATION: | Pyne v The Commissioner of Police [2009] QDC 437 |
PARTIES: | BELINDA JANE PYNE |
FILE NO/S: | Cairns 86 of 2009 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 8 December 2009 |
DELIVERED AT: | Cairns |
HEARING DATE: | 30 October 2009 |
JUDGE: | K J O'Brien DCJA |
ORDER: | The appeal is allowed and the sentence imposed at first instance is set aside. In lieu thereof I impose a sentence of 15 months imprisonment to be suspended forthwith for an operational period of two years. It is further ordered that the appellant pay to the complainant company the amount of $14,703 by way of restitution on or before the 22nd day of April 2010, or within such further extended period as may be allowed by the Magistrates Court on application by the appellant. In the event that that sum is not paid then she is sentenced to a term of three months imprisonment. |
CATCHWORDS: | APPEAL – Justices Act 1886 – whether penalty excessive – fraud as a servant – suspended sentence. Justices Act 1886 (Qld) s 222 R v Bourke CA 428 of 1993 R v Haugland [2009] QCA 46 R v Robinson ex parte the Attorney-General [2004] QCA 169 Pavlovic v The Commissioner of Police [2006] QCA 134 R v Sheehan [2007] QCA 409 R v Vinson [2002] QCA 379 |
COUNSEL: | Mr B Murray for the appellant Ms S L Jerome for the respondent |
SOLICITORS: | Ryan and Bosscher Solicitors for the appellant Director of Public Prosecutions for the respondent |
- [1]This is an appeal pursuant to the provisions of s 222 of the Justices Act 1886 from a sentence imposed in the Magistrates Court at Cairns on 22 April 2009.
- [2]On that date the appellant pleaded guilty to a charge of having dishonestly applied to her own use money belonging to her employer. She was sentenced to a term of 15 months imprisonment to be suspended after a period of four months for an operational period of two years. Her sole ground of appeal is that in the circumstances the sentence imposed was manifestly excessive.
- [3]The appellant was employed as a sales assistant by the complainant company. Her offending involved no great complexity or sophistication. She had developed a scheme whereby she would delete sales invoices from computer records and keep for herself the sale amount. Her offending came to light on 14 January 2009 when a customer attended the complainant’s shop wishing to return a shirt that he had previously purchased. When a search of the computer records failed to locate any record of the sale, the complainant’s manager confronted the appellant who admitted having kept the money from the sale. The appellant subsequently accepted that her offending had occurred over a period of about 2½ years and that it involved almost 240 invoices with a total agreed value of $17,703.
- [4]The appellant was 27 years of age and had no prior convictions. On the sentencing occasion a number of favourable references were tendered on her behalf. The court was informed that, at the time of sentence, the appellant was working in two jobs in an effort to repay the money she had taken. As at the date of sentence she had managed to repay $3,000. The money had been taken by her to support her gambling habit, specifically her addictive use of poker machines. She had since undertaken courses and counselling in an endeavour to address this problem, a fact confirmed by a letter from a Lifeline organisation known as Gambling Help which was tendered on her behalf. A forensic psychologist, Mr Ian Ritchie, provided a report which included the following assessment:-
“Ms Pyne presented as genuinely ashamed and remorseful regarding her offending behaviour. She appreciated ‘the ripple effect’ of her offending on her family, her former employer and herself. She was currently working two jobs in an effort to pay back the money she stole.
Further, Ms Pyne had sought counselling specially related to her gambling problems and was attending a gambling help course at Lifeline. This indicated her strong desire to rehabilitate herself. It was possible that her disordered upbringing had in some way contributed towards her habit. This issue would no doubt be addressed in counselling.”
Mr Ritchie considered the appellant to be at low risk of re-offending given her level of remorse and her efforts at rehabilitation. Beyond these matters there was evidence also of the appellant’s extensive co-operation. A letter from the investigating police officer confirmed that a forensic analysis of the complainant’s computer hard drive would have resulted in “a significant delay” in the proceedings and could have cost as much as $7,000. The officer wrote that the acceptance by the appellant of a restitution figure based on average sale amounts “has prevented costs and delays” in the proceedings.
- [5]In his sentencing remarks, the Magistrate referred to the appellant’s co-operation and her efforts at restitution and the fact that she was “a relatively young offender” aged about 24 at the time. He made reference to her previous good character and referred to the report of Mr Ritchie. By way of features of aggravation, he referred to the appellant’s position of trust, the amount involved and the fact that her offending occurred “in a systematic way over a prolonged period of time”.
- [6]In his sentencing remarks the Magistrate rejected the argument that probation was an appropriate sentence in the circumstances. He made reference to the decisions of the Court of Appeal in R v Vinson [2002] QCA 379, R v Robinson ex parte the Attorney-General [2004] QCA 169 and R v Bourke CA 428 of 1993. He took the view that these cases “demonstrate that offending of this type (warrants) the imposition of a period of imprisonment”. After making reference to certain passages from the judgment of McMurdo P in Robinson (supra), he continued:-
“Those sentiments, albeit expressed in different terms, are echoed in virtually all of the matters which were considered on appeal by the Court of Appeal in respect of various sums ranging from in the order of $12,000 upwards.
Quite surprisingly, and, in my view, without any proper basis in law, there was a submission made that as the amount involved did not exceed $20,000 a term of imprisonment ought not be imposed.
That is not demonstrated on the decisions of the Court of Appeal. The submission, I gather, was as quickly abandoned as it was made. The fact of the matter is that whilst the sum the subject of the misappropriation was relevant in terms of undertaking the sentencing exercise that I am required to consider, also in relation to the offence relevant are the period of time over which the offence occurred, the nature of it and, in this case, as already indicated, is over a prolonged period and was systematic.
The amount paid by part restitution to date is $3,000. There is an amount outstanding of just over $14,000. No submissions were put in relation to how that balance of sum of money sought by way of restitution is to be repaid.
It would appear that there are no fixed proposals in relation to repayment of it, that if restitution were ordered it would be a slow process if it were repaid at all, and I am of the view that I can consider the issue with the outstanding sum of money make no order for restitution and factor it in to the punishment that I am of the view would be appropriate in respect of the matter.”
- [7]During the course of submissions in the Magistrates Court, the legal representative for the appellant attempted to highlight the willingness of his client to make restitution. The transcript reveals the following exchange:
“BENCH: | So what happens to the balance? Do you have any instructions about the restitution for the balance of that? |
MR THWAITES: | Certainly, Your Honour. My client is employed. She is earning in her hand ---- |
BENCH: | I don’t need – I just need to --- |
MR THWAITES: | She – she --- |
BENCH: | Do you have a proposal that you put to the prosecutor before today or you’ve got some instructions to put now in relation to how I deal with the issue of the outstanding money? |
MR THWAITES: | Well, my – my client is actively – she saved that $3,000, that was paid recently, and she will be actively saving to continue to repay. Now, the $3,000 took my client approximately three months to - to save. There may be – that, of course, would be contingent on further work my client may find, or certainly any promotion she may receive. As you can see from the – the reference of my client’s current employer --- |
BENCH: | Alright, alright. |
MR THWAITES: | she’s doing very well. But certainly is in a position to continue making repayments. |
BENCH: | Yes, yes, yes, but – but what I have to receive from you, by way of some submissions, is some concrete submission about what’s to occur. |
MR THWAITES: | Well, Your Honour --- |
BENCH: | I’ll make an order for restitution. |
MR THWAITES: | Yes. |
BENCH: | And you submit I should refer it for enforcement to the State Penalties Enforcement Register or the levy and distress, or a period of default imprisonment if she doesn’t pay? |
MR THWAITES: | Well, Your Honour, one of the, I guess, most efficacious means would be to refer it to the State Penalties Enforcement Register. But my client has indicated, again, she would effectively be able to pay half of the outstanding monies within – about six months, so, perhaps even a six months order to pay restitution.” |
- [8]It is clear from his sentencing remarks that in declining to make an order for restitution and deciding instead to “factor that in” to the punishment he imposed, the Magistrate has effectively disregarded these submissions. It is contended for the appellant that the sentencing Magistrate erred in his failure to give sufficient weight to the appellant’s preparedness to make restitution and to her efforts at rehabilitation.
- [9]In the case of Vinson (supra), to which the Magistrate referred, the court declined to interfere with a sentence of two years imprisonment suspended after a period of six months. The offending in Vinson involved, in 2002, an amount of $24,667. That is an amount significantly – almost 40 per cent – greater than the amount involved in the present case. An important feature in Vinson was the complete absence of any restitution. Although Vinson had volunteered a willingness and a capacity to do so, he had not as Jerrard JA observed made any restitution at all “as at the date of sentence”. His Honour went on to say:-
“The asserted capacity to make periodic restitution from future wages described to the learned sentencing judge, and the asserted capacity to make periodic restitution from future wages described to the learned sentencing judge, and the asserted capacity to make some lump sum restitution, carry considerably less weight than would have been accorded to evidence of steps already taken to make restitution.” (My emphasis)
- [10]In the present case, unlike Vinson, there was evidence at the time of sentence of a real commitment to making restitution. The appellant had co-operated extensively with the investigating police in determining the amount of restitution that was in fact owing. She had undertaken two jobs and within a period of three months she had managed to repay $3,000. This was not a case in which the offer of restitution can be said to have been patently illusory or improbable. It was against this background that the proposal made by the appellant through her legal representative for the payment of the outstanding restitution was to be assessed. In my view the sentencing discretion has miscarried in this case through a failure to give proper regard to these matters.
- [11]The importance of restitution as a factor in sentencing for offences of this nature is reflected in a number of the authorities. R v Bourke (supra) involved an amount of $30,000 in 1993 and resulted in a sentence of three years imprisonment with a recommendation for release on parole after serving four months. Full restitution had there been made. Although the sentence was upheld on appeal the court recognized that it would have been open to the sentencing judge to suspend the sentence entirely.
- [12]In R v Robinson (supra) a sentence of 2½ years imprisonment, suspended after six months was imposed. That case involved the fraudulent transfer of some $33,240 to the offender’s own bank account. There was at sentence the “possibility” that the appellant could make some arrangements for making restitution but no such arrangements had been made despite “ample opportunity” to do so. In Robinson, the fraud was much more complex than that involved here and the amount involved significantly greater. Moreover, unlike the present case there was no demonstrated effort to make restitution.
- [13]In R v Sheehan [2007] QCA 409, a sentence of 2½ years imprisonment suspended after four months was imposed. The offender was a branch manager for FAI Insurance and the amount involved exceed $41,300. Full restitution had been made. The court upheld the sentence though recognizing that a wholly suspended sentence would have been within range in the circumstances of that case.
- [14]In R v Haugland [2009] QCA 46 the court declined to interfere with sentences of four months imprisonment with two years probation and two years imprisonment suspended after a period of four months. The total amount involved in the offending, of which nothing had been repaid, would seem to have been in the order of $26,000. Although unable to conclude that the sentencing discretion had miscarried in that case, Muir JA, with whom Keane JA and Daubney J agreed, said:-
“It was submitted that it was open to the sentencing judge in the proper exercise of his discretion to impose a wholly suspended sentence. In my view, that proposition is correct and it was not disputed by counsel for the respondent. The applicant was a young first time offender with a good work history, intent on advancing herself in life with good prospects of not reoffending. Her offending conduct appeared quite aberrant 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 all factors which supported a wholly suspended sentence.”
- [15]Although the head sentence imposed on the present appellant was within range, the circumstances of this case did not necessarily require that she should serve a period of actual imprisonment. As indicated above, I am satisfied that the sentencing discretion did miscarry in this case and the appellant should be sentenced afresh.
- [16]The appellant has sought to adduce further evidence pursuant to s 223(2) of the Justices Act. The effect of that evidence would be that she has now repaid the outstanding amount of restitution – that being $14,703. It is submitted that this evidence fulfils the relevant requirements identified in Pavlovic v The Commissioner of Police [2006] QCA 134. It is submitted that the sentencing Magistrate had given the appellant little or no opportunity to advance any proposal for repayment and that this evidence is relevant to her capacity and willingness to make restitution as it existed at the date of the sentence. Having already found however that the sentencing discretion has miscarried in this case it is not necessary to consider this issue any further.
- [17]The appeal is allowed and the sentence imposed at first instance is set aside. In lieu thereof I impose a sentence of 15 months imprisonment to be suspended forthwith for an operational period of two years. It is further ordered that the appellant pay to the complainant company the amount of $14,703 by way of restitution on or before the 22nd day of April 2010, or within such further extended period as may be allowed by the Magistrates Court on application by the appellant. In the event that that sum is not paid then she is sentenced to a term of three months imprisonment.