Frey v Queensland Police Service
[2011] QDC 320
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
- Frey v Queensland Police Service[2011] QDC 320
- Add to List
Frey v Queensland Police Service[2011] QDC 320
Frey v Queensland Police Service[2011] QDC 320
[2011] QDC 320
DISTRICT COURT
CIVIL JURISDICTION
JUDGE NEWTON
No 497 of 2011
AKESIU ELLEN FREY | Appellant | |
and | ||
QUEENSLAND POLICE SERVICE | Defendant |
SOUTHPORT
DATE 14/12/2011
ORDER
HIS HONOUR: The appellant entered pleas of guilty to one count of stealing and one count of fraud. Those pleas were entered on 1 November 2011. The antecedents of the appellant showed that she was born on 29 September 1969. She was aged 41 at the time of her offending and at the time that she was sentenced. The appellant had no criminal history at the time she was sentenced.
The appellant was employed as an assistant nurse at a Southport nursing home. One of the patients of the home, for whom the appellant was caring, was an 83-year-old woman who was suffering from Parkinson's disease and dementia. I understand that the complainant was unable to communicate due to her illness, and indeed, was required to be fed by a tube in her throat, due to her inability to swallow.
The appellant took the complainant's ATM card at various times over some six weeks. The card was used by the appellant to withdraw cash and to make purchases for herself. The total amount of money unlawfully obtained by the appellant was $7,038.70. The card was unlawfully used for these purposes on 13 separate occasions within the offending period.
It is noteworthy that two balance inquiries were made by using the card during the period of offending. The offending period extended between 1 December 2010 and 18 February 2011. That is, in terms of the taking of the card. The fraud offences are said to have occurred between 15 January 2011 and 18 February 2011.
The director of the nursing home, having reviewed the bank statements of the complainant, made a complaint to the police on 18 March 2011. As Mr Mitchell for the respondent observes, this would seem to indicate that the appellant did not voluntarily desist from her offending conduct and had the director of the nursing home not viewed the bank statements, it may well have been the case that the appellant continued to have used the card unlawfully.
In any event, the defendant was detained by the police on 27 April 2010. She made full admissions to having taken the card on approximately 10 separate occasions. She told the police that she spent the money unlawfully obtained, by her use of the complainant's card, on living expenses for herself and her children.
Mr Mitchell states in his written submissions that the actions of the appellant resulted in the complainant being left in a difficult financial position due to her increasing medical expenses. At the time the thefts were discovered by the director of the nursing home there remained a sum of only $2,679 in the complainant's bank account.
I should indicate that because of the short time which has elapsed between the proceedings in the lower Court and the hearing of this appeal, it has not been possible to obtain a transcript of the lower Court proceedings. The Magistrate sentenced the appellant on each of the two charges to two-years' imprisonment, and set a parole release date at 1 August 2012. Thus the effect of the order imposed in the lower Court is that the appellant is required to spend nine months and one day in custody.
She therefore did not even receive the customary reduction in sentence requiring her to serve one-third of the head sentence, to reflect her pleas of guilty and other mitigating factors.
The appellant has, as at today's date, served 44 days in custody. She appeals against the sentences imposed in the lower Court on the ground that they were manifestly excessive in all the circumstances.
Specifically, it is contended by the appellant that a sentence imposing a period of actual custody may well be manifestly excessive in the circumstances, although Mr Wilson, who appears on behalf of the appellant today, has, as I understand his submissions, conceded that it was open to the Magistrate to impose a sentence that required the appellant to serve an actual period of imprisonment.
A number of comparable cases have been referred to by both sides. In particular, the appellant refers to the case of The Queen v. Clemments, 2010 QCA 38. The defendant in that case was a 49-year-old woman with no previous convictions, other than an old offence of stealing.
The defendant ran errands for someone she had known for a period of time whilst that person was in hospital. The defendant obtained some $4,000 through presentation of cheques on four separate occasions, and also accessed an ATM card belonging to the complainant.
That fraud was committed over a lengthy period of time; some three-and-a-half years, I think, was mentioned. Is that correct, Mr Mitchell? Paragraph 28 unfortunately does not tell me if the three and a half refers to days, weeks, months or years.
MR MITCHELL: It appears that the defendant in that case had known the complainant for a considerable period. She had known her for-----
HIS HONOUR: The last sentence of your paragraph 28 says, "The fraud was committed over a three-and-a-half period." There is a word missing.
MR MITCHELL: Yes.
HIS HONOUR: I just wonder if you could remember what the word was? In any event, it seems to be accepted by both sides that the period of offending in Clemments occurred during a considerably longer period than is the case in the present situation. In Clemments the defendant pleaded guilty, made full admissions, and also made full restitution. She was sentenced to nine-months' imprisonment, which was wholly suspended for an operational period of 18 months.
It is clear that the very significant breach of trust that is present in the instant case was not such a compelling factor in the matter of Clemments.
Other cases referred to include The Queen v. Bulmer, 2000 QCA 248. In that case some $7,000 was obtained by the defendant from a 19-year-old complainant. The defendant was in her late 40s at the time of the commission of the offence, and it was accepted by the Court of Appeal that her conduct involved a breach of trust.
In that case the sentence was one of 18-months' imprisonment, suspended after three months, following a trial. There was no attempt at repayment of the amount stolen.
The Court of Appeal, it is said, commented that the sentence was on the high side, given the defendant's medical difficulties, but nevertheless declined to interfere with the orders imposed at first instance.
In the case of The Queen v. Shultz, 1997 QCA 169, the defendant was employed as a contract cleaner. He stole a computer server from a workplace at which he was employed to perform cleaning services. He was also charged with wilful damage when he subsequently tampered with the server.The server was valued at $14,000. The defendant pleaded guilty. He was sentenced to two-years' imprisonment, suspended after having served six months, for an operational period of four years.
The defendant was 50 years of age and had no criminal history. The Court of Appeal declined to interfere with the original order.
In Miles - the citation of which is 2006 QCA 556 - the defendant was aged 35 years and had no previous criminal history. That defendant withdrew in excess of $19,000 from the complainant's account, over an offending period of three months, on 18 separate occasions.
The defendant transferred various amounts via telephone banking to her own account. The matter went to trial. The complainant was convalescing at the defendant's home following a car accident.
Although no breach of trust was identified by the Court of Appeal in that case, the defendant's conduct was described as predatory. The sentence was not interfered with on appeal.
In The Queen v. Docherty, 2009 QCA 379, the defendant pleaded guilty to one count of stealing and one count of fraud. The defendant was employed in a nursing home and stole a ring belonging to one of the resident's husband's. The theft was accepted as having been a spur-of-the-moment offence, but the offence was seen as having been aggravated by the fact that the defendant sold the ring a month after it was stolen for the sum of $33,000 which was said to be considerably below the true value of the item.
In that case the defendant was aged 59 years, had no previous criminal history, and was suffering from significant health problems.
On appeal her sentence was reduced from three-years' imprisonment, to be released on parole after having served 12 months, to a head sentence of two-years' imprisonment, with a parole release date after having served six months in custody.
In my view, the sentence imposed in the lower Court in this case was manifestly excessive. A head sentence of two years, with parole not being fixed until after nine months, cannot be supported, having regard to the facts of this case. However, the Magistrate was entirely correct in imposing a sentence of imprisonment and a sentence that required the defendant to serve an actual term of custody.
However, in my view neither the head sentence of two years, nor the non-parole period of nine months, is appropriate. Such a sentence fails to reflect the co-operation of the appellant, both in respect of her admissions to the investigating police officers, and also her co-operation with the Court system. Neither does it reflect the fact that she had no prior convictions.Nor does it seem to reflect the amount of money involved in this particular matter.
I accept that the amount of money taken in cases of this nature is not to be regarded as the determinative aspect of the case.
It seems to me that in re-sentencing the appellant due regard must be had to the very strong mitigating factors I have referred to. On the other hand, the matter is serious because it involves the unlawful use of the complainant's ATM card on 13 separate occasions, over a six-week period.
The very vulnerable position of the complainant is manifest. The complainant suffered, as I have already observed, from Parkinson's disease and dementia. She was unable to speak and communicate with other people. Were it not for the timely intervention of the director of the nursing home, there is nothing in the material to suggest that the appellant's conduct would have ceased at the time it did.
I make the following orders: the orders made in the lower Court are to be set aside. On each charge a conviction is to be recorded. The appellant is to be sentenced to 18-months' imprisonment. The sentences are to be served concurrently. I fix the parole release date at 1 March 2012.
I further order that the appellant is to pay compensation in the amount of $7,038.70 to the complainant. Payment is to be made in the first instance to the Registrar of the District Court at Southport. I will allow six months in which the compensation is to be paid. If it has not been paid in full within that period, the matter is to be referred to the State Penalties Enforcement Registry.