Lavergne Gaye Height v R No. SCCRM 94/181 Judgment No. 4634 Number of Pages 3 Criminal Law and Procedure

[1994] SASC 4634

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Criminal law and procedure - sentence - fraudulent conversion - cost accountant using authority to draw employer's cheques - 14 cheques over period of 18 months involving total of $642,000 - restitution of $362,000 - woman aged 30 with 18 month old child and no prior convictions - plea of guilty - abuse of trust - proceeds spent on extravagant living and acquisition of assets - sentence 6 years' imprisonment with 3 1/2 year non-parole period upheld on appeal.

HRNG ADELAIDE, 22 June 1994 #DATE 22:6:1994

Counsel for appellant:     Mr D F Stokes

Solicitors for appellant:    David Stokes and Associates

Counsel for respondent:     Mr S A Millsteed

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the District Court for 14 crimes of fraudulent conversion of money. The sentence imposed was imprisonment for 6 years with a non-parole period of 3 years and 6 months.

2. The appellant was employed as a cost accountant by Orlando Wines. She had authority to draw cheques on behalf of her employer. But, over a period of approximately 18 months between December 1991 and 17 June 1993, she drew 14 cheques to a total of $642,000, or thereabouts. Those cheques were drawn in favour of the State Bank. They were used to procure bank cheques drawn by the State Bank. Those bank cheques were drawn in favour of the appellant's husband and were deposited in the account operated jointly by her and her husband. The proceeds were used to live a luxurious lifestyle. The learned judge described the use of the cheques as "unbelievable excursions of extravagance".

3. The appellant acquired real estate, a yacht, antiquities, an expensive motor vehicle and engaged in overseas travel.

4. Since the offences have been detected, the appellant has co-operated with the authorities and she pleaded guilty to these charges. She has done everything in her power to make restitution and, in fact, restitution to the extent of $362,144 has been made. There is some expectation that a further $15,000 to $25,000 might be restored to her former employer.

5. The appellant is 30 years of age. She is married with an 18 month old child. She had previously borne a good character.

6. These matters have been urged upon us by Mr Stokes, who appeared for the appellant before us both in written submissions, which he made to this court and in his oral submissions before us today.

7. He has submitted that the sentence imposed was manifestly excessive. He cited in particular the case of R v Ashdown (CCA, 20 April 1994, unreported, available on SCALE). It is rarely useful to compare one case with another unless the cases form part of a pattern of offending. Each case has its own individual characteristics which necessarily distinguish that case from other cases.

8. It is sufficient to say, as to Ashdown, that the amount of the defalcation in the present case is over three times the amount of the defalcation in Ashdown's case. Moreover, Ashdown was an appeal by the prosecution and the court was faced with an offender who had been dealt with in a certain way by the sentencing court which involved community service and had, in fact, performed the community service which had been imposed. That necessarily must have had an influence on the way in which the appellate court approached the matter.

9. There are very serious aspects of the present case. The appellant was in a position of trust and she betrayed that trust. It was a course of conduct engaged in over a considerable period of time. It was no mere impulsive act. It was, on the contrary, a calculated course of fraudulent conduct designed to deprive her employer of money that she used to enhance her own lifestyle. There was no element of need involved. There is a suggestion in a psychological report that a motivation, at least in part, might have been anger with her employer over certain matters occurring in her employment. But, to my mind, that would not operate as a mitigating aspect of the matter.

10. There is an over-riding necessity in cases of this kind for the court to impose and uphold punishments which will operate as a deterrent to others in a position of trust who might be tempted to abuse that trust.

11. A very sad aspect of the present case is that the sentence imposed will separate the appellant from her child during an important period of the child's life. It is impossible for any court to be unmoved by the knowledge that a mother will be separated from her young child for a substantial period of time. It is clear, however, that the courts cannot permit a consideration of that kind to override the necessity to impose penalties which will deter people in a position of trust, whether male or female, from abusing that trust in the way in which the trust was abused in the present case.

12. In my opinion, the sentence imposed in all the circumstances was a reasonable and proper sentence and no ground has been shown for interfering with it. In my opinion, therefore, the appeal must be dismissed.

JUDGE2 PRIOR J I agree.

JUDGE3 PERRY J I agree.