Mazzer v Queensland Police Service

[2022] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

Mazzer v Queensland Police Service [2022] QDC 301

PARTIES:

TANIA LOUISE MAZZER

(appellant)
v
QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

APPEAL NO: DC 81/22

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON

EX TEMPORE:

9 December 2022.

DELIVERED AT:

Cairns

HEARING DATE:

8 December 2022

JUDGE:

Morzone QC DCJ

ORDERS:

1.   Appeal allowed. 

2.   The sentence and orders of the Magistrates Court made in Cairns on 28 June 2022 be varied as follows:

(a)     Substitute “16 days” in lieu of “4 months” as the time in actual custody to be served in respect of each separate term of imprisonment and suspended sentence for charges 1 to 32.

(b)     Insert a further order that the appellant make restitution in the sum of $8,388.16 to be paid within 2 years to the Registrar of the District Court at Cairns by transmission by the Registrar to the complainant of an address to be provided by the Office of Director Public Prosecutions.

3.   Declaration that 16 days spent in custody from 28 June 2022 - 13 July 2022 inclusive in relation to this offending is to be imprisonment already served under the sentence.

4.   Direction that the Registrar to inform the Commission of this Declaration.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – whether specific errors in exercise of discretion - whether consideration of imprisonment as a last resort and a sentence that allows the offender to stay in the community as preferable – whether consideration of arrangements for restitution as relevant consideration of remorse and restitution order – whether consideration of relevant mental state and reduced moral culpability – whether sentence excessive as to time to be serviced – whether specific error enlivens power to re-exercise discretion at large – re-sentence.

LEGISLATION:

Justices Act 1886 (Qld) s 222, s 223(1) & 227

CASES:

AB v R (1999) 198 CLR 111
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Irwin v Commissioner of Police [2015] QDC 136
Kentwell v R (2014) 252 CLR 60
Lowe v The Queen (1984) 154 CLR 606
McDonald v Queensland Police Service [2017] QCA 255
Muldrock v The Queen [2011] HCA 39
Nguyen v The Queen (2016) 256 CLR 656, 677
Norbis v Norbis (1986) 161 CLR 513
R v Cooney [2019] QCA 166
R v Haughland [2009] QCA 46
R v Jeffree [2010] QCA 47
R v La Rosa; ex parte A-G [2006] QCA 19
R v Lomass (1981) 5 A Crim R 230
R v McIntosh [1923] St R Qd 278
R v Morse (1979) 23 SASR 98
R v Nagy [2004] 1 Qd R 63
R v Sigley [2002] QCA 11
R v Verdins (2007) 16 VR 269
R v Williams [2014] QCA 154
R v Yarwood [2011] QCA 367
Teelow v Commissioner of Police [2009] QCA 84
Veen v The Queen (No. 2) (1988) 164 CLR 465
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police [2014] QCA 121

COUNSEL:

Feeney T for the Appellant
Richardson T for the Respondent

SOLICITORS:

Hartley Whitla for the Appellant.

The Office of Director of Public Prosecutions for the respondent.

Summary

1. On 28 June 2022, the appellant was convicted in the Magistrates Court on her pleas of guilty to 14 charges of fraud - dishonestly obtains property from another by employee, one charge of false entry in the record and 17 charges of fraud – dishonest application of property of another by an employee.  The offending involved defrauding $14,188.16 in her employment by 31 transactions over 15 weeks.  She was sentenced with concurrent terms of imprisonment amounting to an effective 18-month period of imprisonment.  Each term of imprisonment was partially suspended after serving 4 months with an operational period of 2 years.

2. The appellant now appeals her sentence on the grounds that it is excessive because the learned sentencing Magistrate erred by not properly considering:

   (a)that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable;

   (b)that the victim business was pursuing the appellant civilly and the sentence ought to have been moderated to take that factor into account; and

   (c)the expert opinion of the appellant’s relevant mental state and its capacity to mitigate the sentence by demonstrating reduced moral culpability.

3. The appeal is opposed.  The respondent argues that the sentence was within the permissible range imposed by concurrent sentences for the whole offending.

4. I have found that the sentence is excessive because of a miscarriage in the exercise of the sentencing discretion by not properly considering the statutory requirement that imprisonment is a last resort sentence and that a sentence that allows the offender to stay in the community is preferable, and by affording insufficient weight to the appellant’s impaired mental state and her capacity to make restitution.  On my review, I opine that the terms of imprisonment ought to have been wholly suspended, coupled with an order for restitution.  But the appellant has now served 16 days in custody pending this appeal, which can be reflected in partially suspended sentences.

5. The appellant also contends that upon a finding of a specific error the court must re-exercise the sentence discretion afresh regardless of any resultant excess in the sentence. In my view this is contrary to the scope of review by this court which, by operation of s 222(2)(c) confines the appellant to the only and sole ground that the sentence was excessive. To succeed, the appellant must establish a legal, factual or discretionary error in that jurisdictional paradigm. But in the result, it is unnecessary to finally decide the point.

6. On 9 December 2022, I allowed the appeal and made orders accordingly, with a view to publishing these detailed reasons. 

   Appeal

7. The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).

8. Pursuant to s 223 the appeal is by way of a rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave. 

9. The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[1]  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.[2]  In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[3]

   [1]Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255 at [47].

   [2]White v Commissioner of Police [2014] QCA 121 at [5]-[8].

   [3]White v Commissioner of Police [2014] QCA 121 at [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255 at [47].

10. By operation of s 222(2)(c), the appellant can "only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.[4]  To succeed, the appellant  must establish  some  legal,  factual  or  discretionary  error.[5]  Such an error may be specifically identifiable, but if not so discernible it may be inferred from the imposition of an excessive or inadequate sentence.

    [4]R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.

    [5]Allesch v Maunz (2000) 203 CLR 172 at [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84 at [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255 at [47]; contrast Forrest v Commissioner of Police [2017] QCA 132 at 5.

11. In the case of specific error, the appellate court’s power to intervene is enlivened and its dutybound to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.[6]  By contrast, absent identifiable specific error but one found by inference, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[7]

    [6]Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority).

    [7]House v The King (1936) 55 CLR 499, 504 and 505, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519, and Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority). See also Dinsdale v The Queen (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J, also applied by Chesterman J in R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 at [54].

12. Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried, resulting in an excessive sentence.[8]  In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[9]

    Did the learned magistrate apply the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable?

    [8]Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.

    [9]House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519

13. Sub-sections 9(2)(a)(i) and (ii) of the Penalties and Sentences Act 1992 applied to this case.  That is, “a sentence of imprisonment should only be imposed as a last resort” and “a sentence that allows the offender to stay in the community is preferable”. 

14. There is no doubt that the offending warranted the imposition of a sentence of imprisonment as the last resort. But the critical issue is whether consideration was given to the second statutory limb in s 9(2)(a)(ii) to prefer a sentence that allows the appellant to stay in the community.

15. The parties made no reference to the statutory test in the sentence hearing below, but instead premised their submissions on comparative cases of R v Williams [2014] QCA 154, R v Jeffree, [2010] QCA 47, R v Haughland [2009] QCA 46, R v Sigley [2002] QCA 11, Irwin v Commissioner of Police [2015] QDC 136 and R v La Rosa; ex parte A-G [2006] QCA 19.

16. The prosecutor contended for an effective sentence ranging from 18 months to 2 years of imprisonment and for each sentence to be partially suspended after 6 months for an operational period of 2 years.  The prosecutor placed significant emphasis the appellant’s criminal history, and relied upon comparative cases to submit that:

    “But again, the principles in R v Robinsonex parte A-G (Qld) [2004] QCA 169 were stated again, that a breach of trust of this magnitude ordinarily demands actual imprisonment to 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”.

17. The appellant’s solicitor contended for an effective sentence in the lower end of the range at 18 months but urged the court to wholly suspend each term of imprisonment, coupled with an order for restitution.  He drew attention to the remarks of Martin SC DCJ in Irwin v The Commissioner of Police, including reference to Keane JA’s in R v La Rosa; ex parte A-G [2006] QCA 19 at [24] where his Honour 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.”

18. In contra-distinction to the comparative cases, the appellant’s solicitor sought to distinguish the appellant’s offending of defrauding $14,188.16 by 31 unsophisticated small transactions over 15 weeks to apply to household and family debts; against a background of oppressive personal, family and financial circumstances, housing and financial instability, care responsibilities of her incapacitated husband, prospects of rehabilitation despite a minor and dated criminal history, relevant mental impairment and vulnerability, ongoing voluntary repayment arrangements and capacity to make a lump sum restitution, a guilty plea and written apology.

19. The learned sentencing magistrate had particular regard to the more comparative quantum cases of Haughland and Irwin as follows:

    “The most helpful cases are perhaps Irwin v The Commissioner of Police.  That was a defendant who was 51 years of age, a similar age to you.  The fraud totalled $16,315.63, so a similar amount, entered an early plea of guilty and that offender also committed the offences in the context of personal and financial problems that she was experiencing at that time.  Now, the distinguishing features here, are that she had no criminal history and she had already repaid approximately half of the money that was owing to the complainant.  She received a term of imprisonment as her head sentence and it was suspended forthwith.

    The other case that has been particularly helpful is that of R v Haugland in that again the amount was similar.  The case involved a young offender, at, only 21 years of age with no relevant history.  She had defrauded her employer.  She was in a position of trust.  It was a different offence; stealing as a servant and a fraud charge.  The total fraud was $13,404.25.  The mobile phones that were taken were to a value of $12,707. She too had not made any repayment to the complainant and she was quite a vulnerable person in that she was the sole carer of a three year old.  She had had two operations for ovarian cancer in 2008 and still required further surgery.” On the fraud, she was sentenced to two years imprisonment suspended after serving four months and it was suspended for an operational period of two years.  And the maximum penalty for that offence is less than the maximum penalty for this offending.  So they have provided examples of where there is similar type of offending in situations where there is a person of a similar age, a person of a younger age, obviously a younger offender, does not have the benefit of maturity to make sensible decisions.  You do not have that in our favour today.  And obviously even when the previous offending of a like nature occurred, you were still quite a mature woman at that time.

20. Her Honour concluded that:

    “So after considering all of those matters, I am satisfied it is appropriate and no more severe in all the circumstances that you should be sentenced to terms of imprisonment in relation to this offending.” 

21. Ultimately, Her Honour sentenced the appellant to period of 4 months in actual custody by the following concurrent sentences:

    (a)For each separate charge 1 to 14 of fraud - dishonestly obtains property from another by employee - 18 months imprisonment to be suspended after serving four months of imprisonment for an operational period of two years.

    (b)For charge 15 of false entry in the record - 9 months imprisonment to be suspended after serving 4 months for an operational period of 2 years. 

    (c)For each separate charge 16 to 32 of fraud – dishonest application of property of another by an employee - 9 months imprisonment to be suspended after serving 4 months for an operational period of 2 years. 

22. It seems to me that the advocates and the learned magistrate were so distracted by undertaking a comparative case analysis, that it usurped a proper consideration of the the statutory mandate in s 9(2)(a)(ii) to prefer a sentence that allows the appellant to stay in the community. Neither advocate referred to the statutory preference in s 9(2)(a) of the Act that the appellant be allowed to stay in the community. And I am unable to discern, either from exchanges during submissions or in the sentencing remarks, any consideration of that statutory requirement.

23. In my respectful opinion, the failure by the learned magistrate to explicitly consider s 9(2)(a)(ii) in passing sentence bespeaks an error in the exercise of the sentencing discretion.

    Did the learned magistrate sufficiently consider that the victims business was pursuing the appellant civilly and the sentence ought to have been moderated to take that factor into account?

24. The appellant contends that the learned magistrate failed to have sufficient regard to the appellant’s civil liability and promise to repay the defrauded sum as a “relevant circumstance” in assessing the impact of a sentence on an individual pursuant s 9(2)(r) of the Act.

25. It was common ground that the appellant was liable for and had agreed to repay the total amount of $14,188.16 in response to a letter of demand but had only repaid $50 by the time of her sentence.  The appellant’s solicitor acknowledged the continuing liability and proffered a payment of “about” $7000 by July 2022 comprising “about” $5000 and making up the balance herself.  He explained that the delay was because the appellant “finally got to the point where she’s been able to explain the situation to her parents”.

26. It seems that learned sentencing magistrate effectively rejected the unchallenged and uncontested appellant’s submission by saying:

    “Now, I am told as at today you may have repaid $50 of that amount.  I am told that you are able to pay a large amount of that perhaps by July, around $7000 by the end of July, by borrowing some money from your parents.  Now, again it is something I can only put limited weight to because I do note that the exhibit that was tendered, which was the letter under the hand from Preston Law, dates back to May last year where they made that letter of demand and in that time, you have only paid $50.  And the capacity to pay appears to be relying on borrowing money from parents but also, I am told you are working.  You are working as a sole trader, and you believe that will also assist you in continuing to repay restitution.  But, as I said, given the time that has elapsed since this offending occurred and the very small amount that has been paid, it does suggest that your capacity to repay is limited.  So I can only apply certain weight to your ability to repay that amount.”

27. Further evidence was allowed on the appeal to make good the unchallenged submission and uncontradicted evidence of capacity to pay partial restitution of $6750 comprising a cheque for $5600 dated 22 October 2022 and further payment of $150 made on 6 December 2022.  The difference in those amounts and the amount proffered at the hearing below is explicable by the appellants imprisonment, loss of work and disrupted income, and her continuing need to meet legal costs.

28. In my respectful opinion, I think the learned magistrate gave insufficient weight to the unchallenged submission of the appellant’s prospects to make restitution with the support of her family, as a relevant circumstance in the exercise of the sentencing discretion. Her continuing commitment should be re-enforced by an order for the balance summing to make full restitution.

    Did the learned magistrate sufficiently consider the expert opinion of the appellant’s relevant mental state and its capacity to mitigate the sentence by demonstrating reduced moral culpability?

1. At the sentencing hearing, the appellant relied upon the unchallenged and uncontradicted forensic psychology report of Bernadette Rogerson dated 20 June 2022.

2. The report identifies indicators at the time of preparing that report of moderate levels of anxiety and depression and a likely diagnosis of post-traumatic stress disorder.  It refers to exposure to trauma including sexual assault when nine years of age and more recently a robbery involving being chased with an axe.  As a child she witnessed and was subjected to domestic violence, as well as emotional and physical abuse. 

3. Whilst acknowledging the uncontested psychological evidence, the learned magistrate seems to have afforded little weight to the report in the absence of an actual diagnoses, saying:

   “At the time of the offending there is suggestions in that report that [her] mental health had been declining as a consequence of the robbery and also suffering grief and you were not receiving any treatment for those mental health issues.  But I have to put weight on that in light of the fact there was no actual diagnosis but there are factors that she has identified that are indicators that it is likely you could have been suffering post-traumatic stress disorder.” 

4. It seems to me that the unchallenged and uncontested expert medical evidence bears out that this is an appropriate case[10] where the appellant’s condition warrants a reduction in the appellant’s moral culpability in the offending when in the throes of downward spiralling untreated mental illness.  The psychologist relevantly observed:

   [10]R v Yarwood [2011] QCA 367 affirming R v Verdins (2007) 16 VR 269 at [32] & also Muldrock v The Queen [2011] HCA 39, 50 – 58.

“93 … Ms Mazzer has endured several traumatic events over her lifetime… Given her results from assessment, she would meet diagnosis for complex trauma/ PTSD and has ongoing symptoms that impact her such as negative self-belief, ruminations, hyper-vigilance, and insomnia…

94. Ms Mazzer can recognise that at the time of the offending she was terrified of becoming homeless again and this clouded her judgment.  Her mental functioning and diagnoses of anxiety and depression as well as PTSD impact on her ability to problem solve and coping style assume that indicates that she is likely to engage in denial and self-distraction…

95. The combination of poor problem solving and coping skills, negative sense of self and her mental health conditions would have greatly impacted on Ms Mazzer’s judgment over the course of her offending.”

1. Having found that the likelihood of the appellant suffering untreated post-traumatic stress disorder at the time of her offending, the learned magistrate ought to have given greater weighty to the appellant’s compromised mental state and consequential misjudgement in the offending.

2. General deterrence and personal deterrence ought be significantly moderated because, although knowing it was wrong, the nature and severity of his impaired functioning and symptoms her judgment was significantly affected by her impaired mental state.  A sentence of actual imprisonment would obviously weigh more heavily on the appellant than it would a person of normal health.  I also acknowledge that her struggle, vulnerability and risks of aggravation in the prison environment have materialised in her time in custody pending this appeal.

3. In these circumstances, the terms of imprisonment ought to have been wholly suspended, coupled with an order for restitution.

   What are the consequences of finding of specific error in the sentencing discretion?

4. In my respectful view, the trial magistrate erred in exercising the sentencing discretion by:

   1.Acting upon a wrong principle by failing to explicitly consider s 9(2)(a)(ii) in passing sentence bespeaks an error in the exercise of the sentencing discretion for this appellant in this offence.

   2.Mistaking the facts of the appellant’s prospects of making restitution with the support of her family, as a relevant circumstance in the exercise of the sentencing discretion.

   3.Failing to take into account the material consideration in the exercise of the discretion that the appellant was mentally compromised in the offending.

5. On my review, I opine that the terms of imprisonment ought to have been wholly suspended, coupled with an order for restitution, therefore the sentences imposed requiring actual custody of 4 months are excessive. 

6. The appellant contends that upon a finding of specific error this court must re-exercise the sentence discretion afresh regardless of any resultant excess in the sentence. 

7. I disagree but since I have found the sentences excessive, it is unnecessary to finally decide the point. Suffice it to say that in my view the appellant’s contention is inconsistent with the limited scope of review by this court, which is anchored by s 222(2)(c). By operation of that provision, an appellant is confined to the “only” and “sole” ground that the sentence was excessive or inadequate. Therefore, to succeed, the appellant must establish a legal, factual, or discretionary error in that jurisdictional paradigm.

   Re-Sentence

8. Having found specific error, it is incumbent on this court to re-exercise the sentencing discretion and re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.[11] 

   [11]Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority).

9. The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community. The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act 1992 (Qld).

10. It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender.  The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so.  The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.  For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.

11. The 52 year old defendant worked as the accounts administrator for the complainant mining construction company SFA Workforce Pty Ltd trading as Siteforce since 23 October 2020.  She was responsible for invoicing clients and managing payment processing for the business using the MYOB bookkeeping system.  She had access to the company bank accounts and had a business credit card.  In about March 2021, irregular and unauthorised bank transfers, credit card payments and wage payments were attributed to the defendant. 

12. For charges 1 to 14 of fraud by dishonestly obtaining property from another employee, between 30 December 2020 and 14 April 2021, the defendant referenced payments as employee wages however had then manually changed the bank details of the employee to bank account details of herself or her husband, thereby redirecting funds to her own benefit.  There were 14 transactions totalling $13,455.66 comprising charges 1 to 14 of fraud - dishonestly obtains property from another by employee as follows:

    (i)Charge 1 of $1467.00 on 27/1/21

    (ii)Charge 2 of $1234.24 on 24/2/21

    (iii)Charge 3 of $639.50 on 10/2/21

    (iv)Charge 4 of $440.40 on 18/2/21

    (v)Charge 5 of $1325.00 on 5/2/21

    (vi)Charge 6 of $406.25 on 5/2/21

    (vii)Charge 7 of $1100.65 on 3/3/21

    (viii)Charge 8 of $1179.50 on 10/3/21

    (ix)Charge 9 of $1141.82 on 31/3/21

    (x)Charge 10 of $495.00 on 12/3/21

    (xi)Charge 11 of $522.11 on 1/4/21

    (xii)Charge 12 of $1122.35 on 14/4/21

    (xiii)Charge 13 of $1394.04 on 14/4/21

    (xiv)Charge 14 of $987.80 on 30/12/20

13. Charge 15 of false entry in record denoted the defendant’s method in the above offending.

14. Between 25 December 2020 and 10 March 2021, she used the company credit card make 17 unauthorised transactions for her own benefit totalling $732.55 comprising charges 16 to 32 as follows:

    (i)Charge 16 of $31.66 on 30/12/20

    (ii)Charge 17 of $69.22 at 17/1/21

    (iii)Charge 18 of $13.65 on 25/1/21

    (iv)Charge 19 of $27.90 on 27/1/21

    (v)Charge 20 of $25.00 on 3/2/21

    (vi)Charge 21 of $117.72 on 12/2/21

    (vii)Charge 22 of $31.15 on 23/2/21

    (viii)Charge 23 of $39.09 on 24/2/21

    (ix)Charge 24 of $36.95 on 10/3/21

    (x)Charge 25 of $33.00 on 25/12/20

    (xi)Charge 26 of $32.25 on 27/12/20

    (xii)Charge 27 of $25.44 on 14/1/21

    (xiii)Charge 28 of $41.00 on 22/1/21

    (xiv)Charge 29 of $58.34 on 27/1/21

    (xv)Charge 30 of $58.90 on 24/1/21

    (xvi)Charge 31 of $37.33 on 20/2/21

    (xvii)Charge 32 of $53.90 on 20/2/21

15. The defendant’s employment was terminated on 23 April 2021.  She made partial admissions to transferring money to pay her rent, but after taking legal advice she declined a recorded interview with police.

16. The appellant has a relevant but dated criminal history, including the following convictions:

    (i)Fraud on 27 April 2020.

    (ii)Fraud (over $5,000) on 29 November 2000.

    (iii)Stealing by clerks and servants on 27 June 2002.

17. It is trite law that this criminal history is a relevant matter for the proper exercise of the sentencing discretion under the statutory guidelines in s 9(10) and (11) of the Act, which reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2) [12]. 

    [12]Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14]

18. Each previous conviction is an aggravating factor to be considered while bearing in mind their age and different circumstances, and the need for proportionate punishment for the current offending.  The appellant’s offending conduct shows a continuing attitude of disobedience of the law despite past sentences.  For the first historical fraud offence, the appellant was fined $250.  She was later sentenced to three years’ probation with a compensation order of $6,500 for the next fraud entry on her criminal history.  But she breached this probation order when she committed the stealing offence, for which she was sentenced to 4 months imprisonment, wholly suspended, for an operation period of 18 months.  She was also ordered to pay $1,950 in compensation.

19. In those circumstances, the need for retribution, deterrence and protection of the community may all indicate that a more severe penalty is warranted, balanced against the evidence of relevant mental state and criminogenic needs.

20. The uncontested psychologist’s report dated 20 June 2022 refers to the appellant’s childhood trauma including sexual assault, and exposure to domestic violence, and being a victim of violent robbery and grief in her adulthood.  It indicates moderate levels of anxiety and depression and a likely diagnosis of post-traumatic stress disorder.  The appellant was undiagnosed and untreated at the time surrounding the offending. 

21. Leading up to the offending the appellant was suffering financial stress and homelessness.  In about August 2020 she was living with her husband out of a car and “couch surfing”.  They were rendered homeless because they had to leave a motel they were managing after the defendant was chased by hooded armed men.  She only secured accommodation in a hotel room shortly before commencing employment with the complainant in October 2020.  Before the offending period she was mourning the death of two family members, as well as her former partner and daughter’s father.  By December 2020, and from the outset of the offending period, the appellant was inundated with bills, mounting debt, and facing eviction.  She was the only breadwinner in circumstances where she supported and cared for her husband who was unable to work due to medical reasons.  In February 2021, she found a rental property but continued to pay money owed to the hotel. 

22. The defendant perceived little other option but to support herself and her family through the offending, and applied the stolen funds to pay debts, a storage container, rent, groceries, fuel and moving costs, and her daughter’s groceries, agistment and horse feed. 

23. The defendant accepted responsibility and showed remorse, with her early pleas of guilty, letter of apology and admissions, although falling short of a recorded interview upon advice.

24. I accept the appellant’s capacity and commitment to continue paying until full restitution is made.  The respondent properly concedes the appellant’s readiness to pay $6750 comprising a cheque for $5600 dated 22 October 2022 and further payment of $150 made on 6 December 2022.  The appellant continues under the payment arrangements and has now repaid all but $8,388.16 of the defrauded sum.  Her continuing commitment should be re-enforced by an order for restitution.

25. In sentencing concurrently, it is permissible to allow for the overall criminality by imposing a sentence for the most serious offence which is more severe than it would be if the offence were falling for sentence in isolation.[13]  However, such a sentence must remain within a just range of punishment for the offence, lest it offend the over- arching principle that a sentence must not be so severe as to be disproportionate to the gravity of the offence to which it attaches.[14]  I accept the parties joint position that a head sentence of 18 months imprisonment is proportionate to the gravity of offending including some uplift to accommodate the overall criminality in the context of imposing concurrent sentences.[15] 

    [13]   Nguyen v The Queen (2016) 256 CLR 656, 677 [64]; R v Nagy [2004] 1 Qd R 63 at 72

    [14]   Veen v The Queen [No 2] (1988) 164 CLR 465 at 477.

    [15]   R v Cooney [2019] QCA 166.

26. The effective sentence of 18 months imprisonment could be carried concurrently by each of the charges 1 to 14 of fraud - dishonestly obtains property from another by employee, albeit within the high end of the range for that offending.  For the charge 15 of false entry in the record, I will not disturb the concurrent sentence of 9 months imprisonment.  Similarly, for each separate charge 16 to 32 of fraud – dishonest application of property of another by an employee, I will not disturb the current sentences of 9 months imprisonment.  Having reviewed and considered the aggregate of the appropriate sentences, I think it is just and appropriate and too crushing or disproportionate that the sentences of imprisonment be served concurrently

27. In reaching those sentences, I have had regard to the conduct and mental state of the appellant in the offending, as discussed above, and how the offences otherwise overlap arising from the same conduct, as well as the degree of her cooperation.  The appellant is committed to appropriate her mental health treatment for her ongoing mental state.  She maintains employment and a working capacity to make full restitution.  I accept that there is no need for further actual custody or parole supervision on parole.  It seems to me that the terms of imprisonment could have been wholly suspended for an operational period of 2 years, coupled with an order for restitution. 

28. Since the appellant has now served 16 days in custody pending this appeal, will order that each term of imprisonment will be partially suspended after serving 16 days in custody pending this appeal.  That period from 28 June 2022 to 13 July 2022 inclusive will be declared as time already served under this re-sentence. in relation to the offending is imprisonment already served under the sentences.  I otherwise affirm the order that the operational period under each suspended sentence will be 2 years.

    Order

29. For these reasons, I allowed the appeal, and made orders on 9 December 2022 as follows:

    (a)Appeal allowed. 

    (b)The sentence and orders of the Magistrates Court made in Cairns on 28 June 2022 be varied as follows:

    (i)Substitute “16 days” in lieu of “4 months” as the time in actual custody to be served in respect of each separate term of imprisonment and suspended sentence for charges 1 to 32.

    (ii)Insert a further order that the appellant make restitution in the sum of $8,388.16 to be paid within 2 years to the Registrar of the District Court at Cairns by transmission by the Registrar to the complainant of an address to be provided by the Office of Director Public Prosecutions.

    (c)Declaration that 16 days spent in custody from 28 June 2022 - 13 July 2022 inclusive in relation to this offending is to be imprisonment already served under the sentence.

    (d)Direction that the Registrar to inform the Commission of this Declaration.

Judge DP Morzone KC

[9]House v The King (1936) 55 CLR 499 at 504 and 505.