Meiers v Commissioner of Police Queensland
[2018] QDC 30
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- Unreported Judgment
- Meiers v Commissioner of Police Queensland[2018] QDC 30
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Meiers v Commissioner of Police Queensland[2018] QDC 30
Meiers v Commissioner of Police Queensland[2018] QDC 30
DISTRICT COURT OF QUEENSLAND
CITATION: | Meiers v Commissioner of Police Queensland [2018] QDC 30 |
PARTIES: | Jason David Meiers (Appellant) v Commissioner of Police Queensland (Respondent) |
FILE NO/S: | 21/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Harvey Bay Registry |
DELIVERED ON: | 15 March 2018 |
DELIVERED AT: | Hervey Bay |
HEARING DATE: | 9 March 2018 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | Appeal – stealing as a servant – whether error by magistrate – need to impose separate sentences for each offence – whether probation appropriate sentence – full restitution – significant rehabilitation – theft of controlled drugs during employment as pharmacist R v Dolan [2008] QCA 41 – referred to R v HAP [2008] QCA 137 – referred to R v SBJ [2009] QCA 100 – referred to R v Crofts [1999] 1 QDR 386 - followed House v King [1936] 55 CLR 499 – referred to Hinge v Commissioner of Police [2018] QDC 8 – referred to Pullen v O'Brien [2014] QDC 092 - followed R v La Rosa; ex parte Attorney-General (Qld) [2006] QCA 19 – considered R v Mara [1999] QCA 308 – considered R v Rees [2002] QCA 469 – referred to R v Viola [1996] QCA 214 – referred to Irwin v Commissioner of Police [2015] QDC 136 - considered R v Symes [1999] QCA 200 - considered R v Robinson; ex parte A-G (Qld) [2004] QCA 169 - referred to |
COUNSEL: | R Clutterback for the appellant N Lima for the respondent |
SOLICITORS: | Milburns Law for the appellant Office of Director of Public Prosecutions for the respondent |
Introduction
- [1]On 2 November 2017 the appellant was convicted before the Magistrates Court at Hervey Bay for one offence as stealing as a servant and one of fraudulently falsifying or destroying a record. He was sentenced to eighteen months imprisonment, wholly suspended, with an operational period of three years. The appeal is on the basis that the sentence was manifestly excessive.
“Crofts” issue
- [2]Although the appellant pleaded guilty to the two offences, the learned Magistrate, in his sentence remarks, said:
“In relation to the matters you will be convicted and sentences to eighteen months imprisonment. I will suspend that period of imprisonment and set an operational period of three years.”
- [3]It is clear from the remarks, and from the discussion between the learned Magistrate and the police prosecutor and solicitor for the appellant, that the Magistrate did not appreciate the need, in circumstances where he had determined to impose a penalty which involved imprisonment, to impose separate periods of imprisonment in respect of each of the two offences.
- [4]In R v Crofts [1999] 1 Qd R 386 the court said:
“There are specific provisions for a single fine to be imposed for a number of different offences founded on the same facts or which are part of a series of events that are the same or similar pursuant to the Penalties and Sentences Act (1992), s. 49. Similarly a single probation and/or community service order may be made in respect of two or more offences under ss. 97 and 107 of the Penalties and Sentences Act. There is, however, no such provision in respect of imprisonment and the expression “term of imprisonment” used in Part 9 of the Penalties and Sentences Act is defined in s. 4 as meaning “the duration of imprisonment imposed for a single offence”.
- [5]The Court later continued:
“It is necessary to impose separate terms of imprisonment for each offence. The Judge below imposed “one sentence (of imprisonment) for all offences”. In the circumstances the sentencing discretion miscarried, and the court should now sentence the appellant.”
- [6]That approach has been followed in a number of subsequent decisions of the Court of Appeal – see, for example, R v Dolan [2008] QCA 41; R v HAP [2008] QCA 137 and R v SBJ [2009] QCA 100.
- [7]The error by the learned Magistrate in imposing the once sentence for the two offences constitutes a clear error justifying my having to resentence the appellant for the two offences.
- [8]There has recently been discussion whether, in the case of an appeal under s. 222 of the Justices Act against a sentence imposed on a plea of guilty, an error of the sort which here occurred results in a need to resentence. The issues arises because s. 222(2) (c) of the Act provides, in relation to an appeal against sentence imposed after a plea, that the only ground of appeal can be that sentence imposed was manifestly excessive or manifestly inadequate. The issue was examined by his Honour Judge Long SC in Pullen v O'Brien [2014] QDC 092. In that decision his Honour considered that the words of the section did not provide any further limitation upon the established principles that apply to appeals against an exercise of the sentencing discretion as set out in House v King [1936] 55 CLR 499 at 505. I have followed his Honour’s judgment in a number of subsequent appeals as have other Judges of this court (in relation to the see my remarks in Hinge v Commissioner of Police [2018] QDC 8).
- [9]Before me both parties accepted the approach of the learned Magistrate was such that I should now re-exercise the sentencing discretion.
Facts
- [10]The appellant, who was born on 11 October 1973, was employed as a pharmacist at the Maryborough Hervey Bay Friendly Society Chemist. He had been so employed for seven years and was in control of controlled drugs at the pharmacy. The offences occurred over the period from January 2015 to May 2017.
- [11]In May 2017 the company noticed that controlled drugs had been ordered from wholesalers and not recorded in the controlled drug book. As a result a full audit was conducted which revealed that a number of controlled drugs and the controlled drug book were missing. Another controlled drug book was damaged. Subsequent investigations showed that over the period of his offending the appellant took 29,124 tablets and 85 patches of various drugs including oxycodone and dexamphetamine. The wholesale price of those drugs was some $20,747. On 30 July 2017 police executed a search warrant on the appellant’s residence. He there told them that he stole the drugs for his personal use and that there were none left. He said he had altered the control drug book to conceal his offending.
- [12]The appellant had no prior criminal history whatsoever. Subsequent to his offending being detected the appellant consulted Trudy McCabe, a psychologist, and commenced treatment on 1 June 2017. A report of hers dated 31 October 2017 was tendered below. It is clear that he’d developed a significant addiction to the un-prescribed medication he stole. Ms McCabe says that over the seven year period that he had lived in Hervey Bay, after moving with his wife and young family from Brisbane, he developed anxiety and depressive symptoms in related to a number of stressors in his life, including marital distress. She says he described loss of motivation, poor sleep, low mood, social withdrawal and said he struggled to perform his daily tasks. She concluded, and it was not disputed, that based on his described symptoms that he had an unspecified depressive disorder.
- [13]The appellant made a decision to self-medicate and began taking and using controlled drugs. Initially the medication was drugs that had been returned to the pharmacy. He soon found himself dependant on the drugs and soon after was addicted, requiring increase dosages to have the same effect. Over time he began using new drugs that had been ordered by him for the pharmacy. Ms McCabe says that the appellant reported experiencing a sense of relief when his actions were uncovered. She says he has engaged in an opioid replacement treatment program, takes anti-depressant medication and in addition to psychological therapy has been attending AODS.
- [14]Ms McCabe says the appellant’s prognosis for a full recovery from his addiction is “high/good” and that the likelihood of his engaging in further criminal behaviour is very low. I accept that to be so.
- [15]As well as the treatment outlined by Ms McCabe he receives ongoing support from his wife and family. His father, a former bank manager and Vietnam veteran provided a reference in which he disclosed the effect of post-traumatic stress disorder which he was diagnosed with as a result of his Vietnam experience. He says he himself relied heavily on alcohol and was quick tempered and impatient. He says these matters impacted significantly on his family. Inferentially he is saying that this may have had a significant effect on the appellant’s psychosocial development, a matter well recognised in literature involving family of Vietnam veterans.
- [16]I accept that to be so, but it must also be seen that the appellant was a highly educated and intelligent professional man of mature age. His father’s PTSD may well explain the appellant’s developing depression, and having a need for medication to treat it. It does not, in my view, explain and certainly does not excuse his decision to steal from his employer.
- [17]An important feature of the case is that the appellant has repaid the whole of the sum of $20,747 to his former employer.
- [18]Additionally the plaintiff has suffered personally by foregoing his registration as a pharmacist. He proposes this year to begin studying a course at University of Queensland by distance education in order to become a counsellor in relation to drug and alcohol addictions.
- [19]I should add that counsel submitted the appellant’s misconduct in this case should be viewed as arising from his addiction. He relied on observations of the Court of Appeal in R v Hammond [1996] 92 A Crim R 450 were, at 455, the Court said:
“The drug addiction is not an excuse; but it is a factor that may tell the Court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential.”
- [20]Here it was submitted that the appellant’s real weakness of character must be seen as that of a drug addict rather than as a robber. That must be seen however against the circumstance that it was the appellant’s theft of drugs from the pharmacy – initially drugs returned to it, and then from drugs purchased by the pharmacy – which he used to self-medicate his depressive symptoms which led to his addiction.
- [21]In my view that can be contrasted with a person who is already an addict when he begins his or her dishonest offending in order to meet the needs of that addiction. As a pharmacist the appellant must have known he should and could have seen a doctor so his usage of drugs could be monitored, in order to avoid the possibility of addiction. When he commenced taking and using them, dishonestly, he was not then addicted. Rather he was a person with ready access to drugs who determined to use them to self-medicate for a significant depressive condition. Only later did he become addicted.
Legal considerations
- [22]It was accepted by the appellant’s counsel that generally sentences of imprisonment are imposed for offences such as this. Indeed he told me that despite his searching he was unable to find a single decision in which the Court of Appeal has imposed a probation order in respect of an offence of stealing as a servant. I was, like the learned Magistrate, referred to one decision of the Magistrate Court involving such an outcome. It did not assist me.
- [23]Nevertheless he submitted, consistent with the submission of the appellant’s solicitor below, that probation with no conviction being recorded was appropriate.
Legal Consideration
- [24]In R v La Rosa; ex parte Attorney-General (Qld) [2006] QCA 19 the respondent was convicted of stealing $51,214 from her employer between January 2003 and July 2004. She was a supervisor at a nursery and stole money on an almost daily basis. She pleaded guilty to an ex officio indictment and made full admissions to police. She was 20-21 at the time, had no prior criminal history and had a difficult childhood. She suffered from bulimia.
- [25]She had been sentenced to three years wholly suspended with an operational period of three years. The appeal by the Attorney-General was allowed and the respondent was sentenced to three years imprisonment with a recommendation for post-prison community based release after serving nine months in custody.
- [26]At [24] of his Honours judgment Keane JA (as his Honour then was) said:
“It is clear that where an offender has abused a position of trust in order to steal a substantial amount of money over a lengthy period of time, a non-custodial sentence can only be justified in the most exceptional case. Recently, in R v Robinson; ex parte A-G (Qld) [2004] QCA 169, McMurdo P reviewed a number of recent decisions of this Court and concluded, in words that are apposite to the present case, that:
‘The concerning aspect of offences of this kind is the breach of trust. These offences involved a considerable sum of money obtained over a 14 month period. The offending was planned … Compensation has not been made. Generally in these circumstances an offender will be required to serve a period of actual detention.’”
- [27]Other members of the court agreed with his Honours judgment. In support of his Honours statement that a noncustodial sentence, in the circumstances he described, could only be justified in “the most exceptional circumstances” his Honour footnoted a number of cases namely R v Mara [1999] QCA 308 at [20]: R v Rees [2002] QCA 469: R v Viola [1996] QCA 214. None involved consideration of probation, but whether actual custody was to be served. It is appropriate also to observe that the sum of money in La Rosa was significantly greater than the value of the drugs involved here. Additionally, that offending occurred a decade earlier than the appellants conduct here and the effect of inflation over that period would further exacerbate that difference in value.
- [28]In Irwin v Commissioner of Police [2015] QDC 136, Martin SC DCJ determined an appeal by a woman who had pleaded guilty to fraudulently misappropriating $16,315 from a not-for-profit sporting organisation in Cairns. His Honour allowed the appeal from a sentence of 18 months suspended after four months and substituted a head sentence of 18 months suspended forthwith.
- [29]His Honour, at paragraph 35 of his judgment, set out the first sentence of paragraph 24 of La Rosa (set out above) and then said:
“[36] The above statement of principle in La Rosa pertains to a case involving “a substantial amount of money”. Keane JA, in support of that statement, there footnoted three decisions: R v Mara [1999] QCA 308; R v Rees [2002] QCA 469; R v Viola [1996] QCA 214. As to what was there meant by “a substantial amount of money” is evident from the cases: in La Rosa, $51,000; in Mara, $35,000; in Rees, $51,000; in Viola, $65,000.
[37] As can be seen, the statement of principle relied upon pertains to cases involving the misuse of money at least double that misused by the appellant.
[38] The second statement of principle relied upon was as follows:
‘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.’
[39] Again, the “magnitude” of the breach of trust in that case involved the misuse of $33,239 by an employee. On the other hand, the President elsewhere in the judgment stated the circumstances in which an offender will generally be required to serve a period of actual incarceration:
‘The concerning aspect of offences of this kind is the breach of trust. These offences involved a considerable sum of money obtained over a 14 month period. The offending was planned and systemic. Compensation has not been made. Generally in these circumstances an offender will be required to serve a period of actual detention.” (emphasis added)
[40] As can be seen, “these circumstances” included the misuse of funds in the order of $33,000 by planned and systemic offending and with no compensation having been paid.”
- [30]In sentencing the appellant in Irwin his Honour noted the appellant’s inability to pay any compensation, but said this was partly due to the effect of the inappropriate sentence of actual imprisonment imposed below, which meant she lost her employment.
- [31]Of the decisions footnoted by Keane JA that I earlier referred to, that involving the lowest sum of money was R v Mara [1999] QCA 308. The circumstances of the case also demanded some compassion.
- [32]The respondent in that case offended over a period from July 1995 to March 1998. She stole $34,000 from her employer. The inflationary effect over almost twenty years up to the time of the appellant’s offending here, must be kept in mind. She had been sentenced to two years imprisonment wholly suspended. The Attorney-General’s appeal was dismissed.
- [33]She was a member of an Aboriginal community in far north Queensland and on her own ran an agency of the Commonwealth Bank. She had minimal training, no particular qualifications for the job and there was no auditing procedure. The money taken was both used by herself and also provided to others in the community for their benefit. It is clear she had been placed under significant pressure to do so. Indeed, it seems many in the community believe the funds were in what was seen as a “community bank” and so belonged to the community. The understanding of Indigenous culture was a significant one in the appeal.
- [34]Despite her lack of training or supervision the respondent kept accurate records which facilitated the calculation of the missing amounts.
- [35]At paragraph 13 of the joint judgment of McMurdo P and Thomas JA their Honours said:
[13] “The court was referred to a number of decisions involving this appropriation, and in particular R v Jacob, R v Riesenweber ex parte Attorney-General, R v Geertz, R v Cox, R v Dawson ex parte Attorney-General and R v Fergusson (citations omitted) when invited to suggest the lower end of the range for his sentence that would have been imposed upon a Caucasian female of similar age for doing something similar in the general community, counsel for the Attorney-General submitted that there would be a two or three year head term and that “some months real time” would be ordered to be served. That would seem to be a realistic response, although it is recognised (as in Riesenweber) that is by no means impossible for a non-custodial term to be imposed in such a case.
[14] The question is whether there are special circumstances in the present case which justify the course taken by the learned sentencing judge.”
- [36]At paragraph 18 their Honours then said:
[18] “Ordinarily the commission of such offences would warrant a term of actual imprisonment both as a personal deterrent and also as a general deterrent to others. There are however special circumstances in the present case which justify the full suspension of the sentence that was imposed. The more important of these special circumstances include the pressures that were placed upon the respondent, the fact that her main motivation was not personal greed, her lack of training and supervision, her plea of guilty, her genuine remorse, her lack of prior convictions, and her sole responsibility for three young children aged, 10, 7 and a newborn baby. In addition she has endured the shame of losing her job. Courts must also be conscious of the factor (which does exist in the present case) that "an aborigine from a community which is isolated from, and has little experience of, the general community, ... may be punished more severely than would otherwise be the case by incarceration away from his or her community in a prison environment ..."
- [37]I have considered also R v Robinson; ex parte A-G (Qld) 2004 QCA 169 and the cases referred to in it. Those cases generally involve significantly greater thefts than in this. In R v Symes [1999] QCA 200 however a forty-one year old man, separated from his wife and who was the sole carer of their fourteen year old son, stole $19,930 worth of steel. He sold it to a scrap metal dealer for only $7,168. He had no prior convictions.
- [38]It was said he was in a desperate domestic situation and used the money for basic household needs. He was sentenced to two years imprisonment with recommendation for parole after nine months and ordered to pay restitution of $19,930. On appeal the two year sentence was suspended after serving four months.
- [39]Apart from the fact that the appellant in this case has repaid the whole of the value of the stolen drugs, it does not seem to me that the appellant’s personal circumstances are more demanding of compassion then in that case.
Conclusion
- [40]The cases which most assist in this case, in my view, are R v Symes (supra), R v Mara (supra) and R v Irwin (supra). Whilst in those cases there was not restitution of the loss, as here occurred, it is notable that in those cases sentences that were suspended, (wholly in Mara, after four months in Symes, and from the time of the appeal in Irwin) were ultimately imposed. Consideration of the circumstances of those cases do not suggest to me that the offending in this case would justify me in imposing a sentence of probation.
- [41]Ultimately I concluded it is appropriate to sentence the defendant to 12 months imprisonment, wholly suspended, with an operational period of 12 months for the offence of stealing as a servant. In imposing that sentence I’ve had regard to the overall circumstances of his fraudulently falsifying or damaging a record in order to hide his dishonesty. I have also reduced the sentence from that in the 3 cases I found of most assistance to take account of his restitution. It is important to understand however this restitution does not, effectively, buy an offender out of a ‘jail sentence’. In relation to that offence I sentence him to a concurrent two months sentence, wholly suspended, with an operational period of 12 months.
- [42]The inevitable result of those sentences is that convictions are recorded.