Sim v Commissioner of Police[2018] QDC 227

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was convicted after entering a plea of guilty in the Magistrates Court at Toowoomba on the 15^th of March 2018 of an offence of fraud by an employee.  That offence occurred on the 10^th of April 2013.  He was sentenced to two years imprisonment, which was ordered to be suspended after he had served six months with an operational period of two years.  I note that he was granted bail, pending this appeal, after he had served two weeks of that sentence.  He has no prior criminal history.

2. [2]
   So far as the circumstances of the offence are concerned, the appellant worked for a Simon Gillespie who owned a business called Impact Concrete Australia, which was based at Dysart at the relevant time. Work was done for a Mr Gallagher in April of 2013, such work being managed by the appellant. At the conclusion of that work, the appellant gave Mr Gallagher a piece of paper with the appellant’s own account details on it and told Mr Gallagher that he should deposit the fee for the work, which was a sum of $27,000, into that account. And Mr Gallagher subsequently did so. Mr Gillespie learned of the deposit of this money into that account in May of 2013, and a complaint was made to police in December of that year.

3. [3]
   Of that $27,000, the appellant used $16,600 of it to purchase a vehicle for himself. It was submitted on his behalf in the court below, without dispute, I might add, that the appellant and Mr Gillespie had started that particular business together and that a verbal agreement existed between them as to the remuneration for the defendant in the terms of the defendant receiving 10 per cent of company profits plus wages, but later that was changed to an agreement that Mr Gillespie would buy the appellant a car. It was submitted on his behalf that no such payment was ever made to the appellant, nor was any such motor vehicle provided. The court was also informed that the appellant had brought his own car into the business, which, over the course of three years, had simply worn out due to the number of kilometres that it had travelled.

4. [4]
   The appellant appeals against this sentence on the basis of it being excessive. He, also, submits that there was a factual error made by the magistrate when sentencing, which informs, at least in part, the excessive nature of the penalty imposed. Section 222(1) of the Justices Act of 1886 provides for the appellant’s right of appeal to the District Court. Subsection (2)(c) provides that if the defendant pleads guilty, then there may only be an appeal on the ground that the punishment or penalty is excessive or inadequate. Section 223 provides that such an appeal, relevant to this matter, is by way of rehearing on the original evidence on the record. And section 225 empowers a judge to confirm, set aside or vary an appealed order or make any other order considered just.

5. [5]
   In Stevenson v Yasso [2006] QCA 40 at paragraph 36, President McMurdo observed that the District Court judge in his appellate jurisdiction “was required to make his own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.”

6. [6]
   In Mbuzi v Torcetti [2008] QCA 231 at paragraph 17, Justice of Appeal Fraser relevantly observed that: “the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and draw his or her own conclusions.”

7. [7]
   In McDonald v Queensland Police Service [2017] QCA 255 at paragraph 47, Justice Bowskill, with whom Justices of Appeal Fraser and Philippides agreed, said:

“It is well established, that on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts and issues from the evidence, giving due deference in attaching a good deal of weight to the Magistrate’s view.  Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”

8. [8]
   And, more recently, in Bode v Commissioner of Police [2018] QCA 186 at paragraph 42, Justice of Appeal McMurdo restated the task of a court conducting an appeal by way of rehearing to be as is described by the High Court in Robinson Helicopter Company Inc v McDermott as follows:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgement to determine whether the judge has erred in fact or law.  If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”

9. [9]
   As I have already stated, the appellant has submitted that the magistrate in the court below acted on a factual error. The court below was told that the appellant had brought his own car to the business, which was effectively worn out performing work for the complainant. The magistrate appeared to misunderstand that as meaning that the complainant had bought the appellant a car, notwithstanding that that misunderstanding was corrected during the course of submissions. During sentencing remarks, the magistrate commented to such a way that demonstrated that he continued to have that misunderstanding.

10. [10]
    The appellant submits that the importance of this error is evidence in the appellant’s claim that he was entitled to be purchased a car as a replacement for his own vehicle which had been rendered virtually worthless by performing work for the complainant and that it was the subject of some agreement between them. The appellant submits that this factual error would enliven the court’s discretion to sentence the appellant afresh as effectively the magistrate did not understand the true nature of the offending conduct, nor fully appreciate what was suggested to be the motivation for the appellant’s dishonesty.

11. [11]
    On that issue of motivation, the error arising from the magistrate’s misstatement of the situation surrounding the car used by the appellant in the course of his employment, could only be argued to amount to a failure to take into account the appellant’s motivation at the time of the dishonest conduct. A consideration of the sentencing remarks in their proper context and in their entirety, do not show that the magistrate was so mistaken. That is, so mistaken as to the appellant’s motivation. The magistrate accepted that at the time of the offending the appellant had some belief of entitlement to some money as a result of never receiving any bonuses or money outside his wage. That statement, of course, is quite – well, is directly distinguishable from the comment that he made earlier about the appellant having received a car.

12. [12]
    But over and above that, the magistrate’s comment in that regard demonstrates that he accepted that the appellant’s motivation for the offending conduct stemmed from a supposed debt owed to him by the complainant, or, at least, that he held that honest – or that he held such an understanding. The misstatement of the situation surrounding the car, in my opinion, is not an error which renders the sentence manifestly excessive given that the magistrate, nevertheless, recognised the appellant’s perceived entitlement to money as an explanation or, in some way, offering a degree of mitigation for the offending conduct.

13. [13]
    The appellant has submitted that the learned magistrate took into account the following matters: the amount of the fraud, the use of some of those funds to purchase another car, the fact that no restitution had been made, his antecedents, including his age, absence of criminal history and references which were tendered on his behalf, which tended to show that, in other respects, he was someone with commendable personal attributes. The fact that the offending conduct involved a significant breach of trust. That, in the magistrate’s opinion, there were no special mitigating features. That the consideration of general deterrence was a particularly important consideration whilst accepting that specific or personal deterrence was of little relevance in this matter, and that the courts would not tolerate this type of offending. The appellant submits that an additional consideration of relevance to this matter is the fact that this was an offence which occurred on just the one day and it is not a case of persistent or sustained or repeated dishonesty over a period of time.

14. [14]
    The appellant, also, refers to the material before the court that refers to his personal circumstances at the relevant time including the fact that he was without a car, and that, in September of the previous year, he had lost a child in a car accident. The appellant also refers to the fact that there had been an almost five year delay between offence and sentence, during which, he had not further offended, which demonstrated clear rehabilitation on his part. The appellant refers the court to section 9(2)(a) and (b) of the Penalties and Sentences Act as a relevant matter that must be borne in mind, submitting that this is an offence which is one where the court must take the view that a sentence that allows the offender to remain in the community is preferable, if it is appropriate in all the circumstances.

15. [15]
    In support of his submissions, the appellant has referred to four cases. As I indicated to counsel during the course of submissions, I found them, by and large, unhelpful. The matter was – the first matter was R v Sigley [2002] QCA 11.  The fraud in that matter was described as simplistic, involving 12 fraudulent transfers over a six-month period.  The quantum of damages was $11,000; $2000 was repaid prior to sentence.  The maximum penalty in that matter was 10 years imprisonment, as opposed to 12 years in this.

16. [16]
    Sigley was 49 years of age, she had no criminal history, and was the sole provider for her two children. She had suffered a life of significant hardship and trauma. In that matter, the Court of Appeal held that the original sentence of two years imprisonment, suspended after six months, was not manifestly excessive, but due to an error by the sentencing judge in finding that the timing of the plea indicated a lack of remorse, the Court of Appeal exercised the sentencing discretion afresh, upholding the two-year term of imprisonment, but suspending it forthwith, taking into account the three months already served.

17. [17]
    In R v Harch [2004] QCA 113, while working as a security guard for a pharmacy, the offender stole $5049 from the store’s safe;  $2330 of it was recovered by police.   He pleaded guilty to entering premises with intent and stealing as a servant, and was sentenced to six months imprisonment and ordered to be the subject of a probation order for a period of three years.  He was only 20 years old at the time of the offending.  I note, in this matter, the appellant was 54 years of age.  On appeal, it was argued that a wholly suspended term of imprisonment would have been appropriate, given his age, his plea and his lack of criminal history.  That submission was rejected by the Court of Appeal, who held that, but for his youth, the offending could have warranted considerably more than the period of custody that the sentence entails.

18. [18]
    In R v Bird [2004] QCA 196, a plea of guilty was entered to the single charge of stealing as a servant, involving the amount of only $1000, which was paid back in its entirety, prior to sentence.  Bird was 51 years old, although he had a prior conviction, six years before, for stealing $100 in similar circumstances.  He was sentenced to nine months imprisonment, suspended after 10 weeks.  His appeal on the ground that the sentence was excessive was dismissed.

19. [19]
    And finally, the appellant relies on R v Blackhall-Cain [2000] QCA 380.  That involved an amount of $51,000 approximately, in total.  There were 23 offences of dishonesty, although eight of them were fraud.  The others were related to fraud, being imposition or forgery.  He was sentenced to two years imprisonment, which was wholly suspended.  I note that this was an Attorney-General’s appeal.  The offender was 36 years of age.  The offences occurred over a six week period, and he had no prior convictions.  The dishonesty was described by the court as not elaborate and did not involve a great deal of planning.  No one was out of pocket as a consequence of the offending conduct, full restitution was made, and it was accepted that the defendant always anticipated making full restitution and had the capacity to do so.

20. [20]
    Of course, it involved a significant breach of trust, and in that matter, it was of particular relevance that the offender had been receiving psychiatric treatment for some time prior to the offending conduct. He was depressed, suicidal, heavily drinking, on antidepressants, had spent weeks in a psychiatric hospital after the offending conduct, he had clinically significant psychiatric problems and anxiety, all of which, it was accepted, were likely to have affected his judgment. In fact it was said by the Court:

“There was unchallenged material before the primary Judge showing that the psychiatric condition from which the respondent was suffering had a connection with the offences.”

21. [21]
    That feature renders that matter of little utility to this. Furthermore, that being, of course, an Attorney-General’s appeal, means that the sentence – the conclusion that the sentence was not manifestly inadequate means nothing more than that. In fact, Justice of Appeal Pincus said:

“…it appears to me that, although some Judges might have imposed a term of imprisonment, a non-custodial sentence was one which was within the range of a proper exercise of judicial discretion–”.

22. [22]
    As I say, this distinguishing features render it of little utility by way of comparison to the present matter.

23. [23]
    The respondent relies upon R v Robinson; ex parte Attorney-General [2004] QCA 169.  Again, this was an Attorney-General’s appeal.  In that matter, Robinson was sentenced at first instance to six months imprisonment, wholly suspended, with an order to pay full compensation within three months.  His offending was more protracted, involving 101 transactions over 14 months, totalling $33,239 in loss.  It was found by the Court of Appeal to be a sentence which was manifestly inadequate. 

24. [24]
    I note that the Court of Appeal placed no weight on the potential of him repaying that money within three months, noting that he had had ample opportunity to do that prior to appearing for sentence. He was resentenced to two and a-half years imprisonment, suspended after six months, with a three year operational period. He was 47 years of age, had no prior convictions, was the sole carer for his elderly mother who had some health problems. A psychologist report spoke of his depression, gambling addiction, and a suicide attempt following an emotionally abusive seven-year relationship.

25. [25]
    The feature of particular significance between that case and this is the repeated nature of the offending conduct over a very lengthy period of time, as compared to the one-off opportunistic offence in this matter. Whilst the amounts involved are similar between the two cases, in my view, Robinson demonstrates that the sentence imposed in this matter, at least insofar as the requirement that the appellant serve six months of actual imprisonment, is excessive.  Robinson’s criminality was demonstrably greater than the appellant in this matter, given the repeated and prolonged nature of the offending conduct.

26. [26]
    I do not accept, though, that the head sentence of two years imprisonment imposed in this matter is excessive, when regard is had to all relevant considerations. I accept that the quantum of the fraud is not wholly determinative of sentence. It forms one, albeit very important, consideration that should be taken into account with all relevant matters. Nevertheless, in my view, a sentence which results – after a one-off opportunistic offence, as I have described it, of this nature – in an actual term of imprisonment, the same as that which was imposed in Robinson, demonstrates some misapplication of principle, or, that the sentence was unreasonable or plainly unjust, to use the words of the High Court in Hili v The Queen [2010] CLR 520 at paragraphs 58 and 59.

27. [27]
    Taking all relevant matters into account, however, I equally do not accept that, given the quantum and the breach of trust involved in this matter – that a sentence that requires no imprisonment is appropriate. As was said in Robinson:

“Breaches of trust of this magnitude by an employee ordinarily demand an actual period of imprisonment be served to show the community’s grave disapproval of such conduct and to deter those who might be inclined to act in a similar way.”

28. [28]
    Having taken all these matters into account, therefore, the order of the court is as follows:

1. The appeal is allowed to the extent that the period of imprisonment to be served by the appellant before the sentence is suspended is varied from six months to three months.  I note, for the record, that he has already served 14 days under that sentence, but that is not a matter that requires a declaration, because it is not pre-sentence custody.
2. I order that a warrant issue for the arrest of Rodney Thomas Sim, but that it lie in the registry for a period of seven days to allow him the opportunity to present himself during that period of time.