Pain v Forbes - [2000] WASCA 260

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PAIN -v- FORBES [2000] WASCA 260

CORAM: MILLER J

HEARD: 4 SEPTEMBER 2000

DELIVERED : 15 SEPTEMBER 2000

FILE NO/S: SJA 1117 of 2000

BETWEEN: JUDITH JOSEPHINE PAIN
Appellant
AND
GRANT JAMES FORBES
Respondent

Catchwords:

Criminal law - Sentence - Stealing as a servant - Full restitution of substantial sum - No prior convictions - Antecedents including long history of marital problems - Remorse and contrition - Whether sentence of 3 years' imprisonment excessive - Turns on own facts

Legislation:

Justices Act 1902, s 196(1)(b)

Result:

Appeal allowed
Sentence of 3 years' imprisonment reduced to 2 years

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Ms M J Garnett

Solicitors:

Appellant: Henry Sklarz
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Carreras v R (1992) 60 A Crim R 402
H v R (1995) 81 A Crim R 88
House v R (1936) 55 CLR 499
R v Barrick (1985) 81 Cr App R 78
R v Ottobrino [1999] WASCA 207
Ratten v The Queen (1974) 131 CLR 510
The Queen v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997

Case(s) also cited:

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Greer v R, unreported; CCA SCt of WA; Library No 960173; 1 April 1996
Hill v The Queen (1988) 166 CLR 59
Lewis-Harrison v R, unreported; CCA SCt of WA; Library No 930291; 27 May 1993
Mill v The Queen (1988) 166 CLR 59
R v Licastro, unreported; CCA SCt of VIC; VSCA 104; 16 June 1999
R v Nagas (1995) 5 NTLR 45 (CCA)
R v Piercey [1971] VR 647
R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996
R v Wilkinson (1996) 85 A Crim R 353
Visser v Smart, unreported; SCt of TAS; 151 of 1998; 10 December 1998

MILLER J: The appellant was charged on 8 December 1999 in the Court of Petty Sessions, Bunbury that between 1 November 1996 and 1 October 1999 at Capel she committed 36 offences of stealing as a servant. The charges were that on various dates within that period she being the servant of Capel Excavations Pty Ltd stole a sum of money (ranging in amount from $1000 to a maximum of $23,000) the property of Capel Excavations Pty Ltd. After a number of remands in the Court of Petty Sessions at Bunbury the appellant came before a Magistrate on 19 June 2000 when she pleaded guilty to all charges. On that day she was sentenced on charges 1 to 21 inclusive to a period of 12 months' imprisonment, to be served concurrently one with the other, and on charges 22 to 36 inclusive to a sentence of 2 years' imprisonment, to be served concurrently one with the other but cumulative on the sentences imposed in relation to the first 21 counts. The total sentence was thus 3 years' imprisonment with eligibility for parole.
On 25 July 2000, Wheeler J granted the appellant leave to appeal the sentences imposed on the grounds that the learned Magistrate had erred in law and in fact:
"… by not properly applying the principles of sentencing by:-
(a)imposing a total 3 year sentence that, in all the circumstances of the case, is manifestly excessive, and,
(b)imposing a cumulative sentence of 2 years instead of ordering that it be served concurrently with the first sentence of 1 year, and,
(c)giving insufficient weight and consideration to the background, antecedents, restitution and personal factors of the Applicant."
Wheeler J gave the appellant leave to include within the appeal books a copy of a deed of restitution dated 21 January 2000; the appellant's summary of expenditure of the stolen funds and various character references. At the hearing of the appeal I allowed counsel for the appellant to refer to these materials. Although they were materials which could reasonably have been made available to the learned Magistrate at the time of sentencing, and although the appellate process is not an opportunity to make a second plea in mitigation, it seems to me that the justice of the case requires that the materials be considered in the determination of the appeal. The provisions of s 196(1)(b) of the Justices Act 1902 allow the Court to determine the appeal on such further evidence as the Court thinks fit to receive, and for reasons which will be elaborated upon, I considered it fit to receive the evidence in question in this case. Counsel for the respondent opposed the use of fresh evidence and relied upon Ratten v The Queen (1974) 131 CLR 510, but that decision was concerned with the admissibility of fresh evidence in relation to the question of guilt after a jury verdict.
When the appellant appeared before the learned Magistrate on 19 June 2000 she was represented by counsel who made a full plea in mitigation of penalty. Counsel had the benefit of a pre‑sentence and psychological report in relation to which various submissions were made. A request was made that the learned Magistrate consider a suspended sentence and extensive reference was made to the relevant authorities and the criteria relevant to the imposition of such a sentence.
When the learned Magistrate pronounced sentence he made reference to the various principles applicable to the appropriate penalty for the offence of stealing as a servant. His Worship pointed out that the maximum penalty which could be imposed in petty sessions was a fine of $8000 or imprisonment for 2 years on each charge. His Worship rightly pointed out that although it was dangerous to generalise, in general terms the offence of stealing as a servant is a particularly serious one and is recognised as a serious offence by reason of the gross breach of trust which is attended by the conduct. Reference was made to R v Barrick (1985) 81 Cr App R 78 and to the guidelines for sentencing therein set out. These were quoted at length by the learned Magistrate and appreciated by him to be not necessarily exhaustive but rather indicative of the considerations which confronted the court. His Worship then went on to say this in relation to the appellant:
"The circumstances here would indicate you were employed as the bookkeeper for Capel Excavations between November of 1996 and October of 1999. In the course of that employment you engaged in the theft from your employer by altering or adding a first digit to your pay cheques after presenting those cheques to your employer for signature. This occurred on 36 occasions over a period of some 2 years and 8 months between the 30th of January 1977 … (on tape) … and the 29th of September 1999 involving in total some $120,564 on the prosecution's assertion, while on the concession as is indicated by your counsel, a sum more likely about $129,000.
The period between the 30th of January 1977 … (on tape) … to the 6th of May 1998, the alteration involved a round sum of $1000; that is, the pay cheques were altered up to reflect an additional sum of $1000. In the period between the 17th of June 1998 and the 29th of September 1999 the alterations varied in amounts between $3000 and $23,000.
No explanation is given or offered as to the escalation of your dishonesty except to acknowledge that your conduct had become more brazen."
The learned Magistrate made reference to the unfortunate childhood, abusive marriage and increasing problems suffered by the appellant in the period prior to her plea and pointed out that whilst much of the money stolen had been used to repay borrowings, a large component of it was used to "facilitate an established lifestyle". Reference was made to the pre‑sentence and psychological reports and to the difficulties the appellant had suffered in her lifetime. The learned Magistrate appreciated that the appellant's conduct was "borne out of extreme despair and desperation in a woman whose emotional state remains fragile throughout rather than an impulsive opportunism", and pointed out that the appellant was currently being treated for depression and was recommended for continuing support of counselling outside the prison environment. His Worship accepted that the appellant had pleaded guilty at the first reasonable opportunity and had no prior record. It was further accepted that the appellant had "an absolute sense of shame, contrition and remorse" for her conduct and had made arrangements for restitution through the sale of a residence and commercial premises. This was calculated to return some $61,000, added to which there had been further restitution from the appellant's own resources of $5000. His Worship did, however, then say:
"There is, of course, a substantive sum remaining outstanding with no indications as to how, when or in what form compensation or restitution is possible."
After indicating that suspension of the sentence was not possible the learned Magistrate concluded that the various mitigating factors did call for a "much reduced sentence than otherwise if they were not present" and imposed the sentences to which I have referred. In sentencing the appellant to 2 years' imprisonment in relation to charges 22 to 36, his Worship described those offences as "heightened dishonesty".
Material now before the Court which was not before his Worship includes an extensive bundle of character references in which various people speak highly of the appellant's prior good character, honesty, integrity and exemplary moral standards. As pointed out by counsel for the respondent on the hearing of the appeal, a person's previous good record in these circumstances is not decisive. In Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998, Franklyn J (at 8) made these comments about prior good character of a woman charged with like offences:
"In my opinion, no exceptional circumstances had been demonstrated so as to take this case out of the general rule. Those offered - the applicant's age and prior good record - are not of that nature. Although only 25 to 26 years of age at the time of offending the applicant cannot be said to have been commercially inexperienced in that, as well as working in a pharmacy, she ran her own business for a period and indeed stole at least some of the money to make up her own business losses. As to her previous good record, it is well recognised that it is very often the good record and reputation of the offender that gives rise to the trust and the consequent opportunity to commit the offence, the offender in fact taking advantage of that trust and opportunity to do so."
More important materials received by way of fresh evidence were the schedule of expenditure of the stolen funds and the deed of restitution. The schedule revealed that $119,000 had gone in in the following way:
The deed of restitution which was dated 21 January 2000, and could therefore have been put before the learned Magistrate, reveals that the appellant has agreed to repay to Capel Excavations Pty Ltd the sum of $129,212.59 stolen by her, together with interest at 6 per cent per annum from 1 October 1999 to the date of payment. Payment is guaranteed by the appellant's husband, Barry Kevin Pain, in the event of any default by the appellant in repayment of the principal sum and interest. Further, both the appellant and her husband have undertaken in the deed to jointly and severally charge in favour of Capel Excavations Pty Ltd their entire estate and interest in two properties. As it happened, the proceeds of sale of these two properties had been paid to Capel Excavations Pty Ltd at the time the learned Magistrate dealt with the matter. This left something in excess of $60,000 still to be paid. As to this, both the appellant and her husband undertook to pay minimum monthly payments of $1000, commencing 1 November 1999 and on the first day of each succeeding month, with the result that the balance of moneys outstanding should be paid within a period of approximately five years of execution of the deed. As the appellant's husband is a practising accountant, the guarantee given by him is of no small moment. The position therefore is that on the hearing of this appeal the question raised by the learned Magistrate as to how restitution of the balance of moneys outstanding to Capel Excavations Pty Ltd might be made was answered.
Counsel for the appellant placed extensive emphasis upon the contents of the pre‑sentence and psychological report. The summary of the pre‑sentence report was in these terms:
"SUMMARY
Pain presented as nervous and apprehensive. She was hesitant to speak of her childhood, however, she cooperated to the best of her ability in between long tearful periods.
Pain expressed deep remorse for her offending behaviour. She stated that she is somewhat relieved to have been caught, even though the whole experience has been overwhelming.
Given Pain's past good record and the fact the secrets of her life are now out in the open she is considered unlikely to reoffend.
Should the Court consider an alternative to a custodial sentence it is noted that Pain is motivated to participate in extensive counselling and it is respectfully suggested that the Court make this a condition of any Community Based Order.
If the Court considers imposing a custodial sentence Pain is deemed an appropriate candidate for parole."
The summary and conclusions of the psychological report of Mr Nigel Cameron, a clinical and forensic psychologist with the Ministry of Justice, were as follows:
"Summary and Conclusions
Ms Pain described a pattern of recurrent alteration of her employer's cheques that aimed to prop up her husband's over expenditure and family business difficulties. She described an escalating debt that she felt powerless to contain, offending to 'buy time' to resolve financial matters. She failed to do so and became increasingly trapped in the pattern of theft. This pattern mirrors her own life whereby, despite an awareness of the level of physical and emotional abuse endured by her and her children at her husband's hands, she passively returned, hoping for matters to somehow resolve or improve. This response set needs to be viewed in the broader context of her emotionally deprived developmental background. Persons with such backgrounds often struggle to develop an empowered sense of self and self worth.
The discovery of the offending has brought Ms Pain's marriage to separate and hopefully this will mark an opportunity for her to make sense of her past traits and enact positive change. However, she continues to struggle to relinquish the sense of responsibility as 'caretaker' for her husband. Given the end of the relationship and the resolution of the bulk of the family's financial responsibilities there appears little in Ms Pain's makeup that suggests she is likely to reoffend.
Finally, if Ms Pain is to receive a custodial sentence, her lack of contact with offending cultures, her personal vulnerability and depressed state indicates that her adjustment to prison needs to be monitored closely. Sadly, the support and therapy she requires to adequately resolve these issues will most likely be unavailable in prison. Indeed, from a psychological perspective, non justice community based agencies would be best placed to help Ms Pain make sense of her situation."
Counsel for the appellant also submitted that the learned Magistrate had insufficient explanation before him of the use made of the stolen funds, referring to use of the moneys largely for the purpose of facilitating an established lifestyle. The schedule shows that the "lifestyle usage" was not in fact as great as his Worship may have thought. Counsel also pointed out that the deed of restitution was not before the Court and had it been, his Worship would have appreciated the strict covenants and conditions pertaining to restitution, all of which would seem to ensure that Capel Excavations Pty Ltd is fully reimbursed the moneys stolen.
Counsel for the respondent submitted that the sentence imposed by the learned Magistrate could not be said to be manifestly excessive in any way. It was pointed out that the well‑recognised matters to be taken into account were in fact taken into account by the learned Magistrate. Reliance was placed upon the observations of Malcolm CJ in Bessell v The Queen (supra) where (at 3 ‑ 4), his Honour said:
"In Barrick (1985) 81 Cr App R 78; Phelan (1993) 66 A Crim R 446; and Martin (1994) 74 A Crim R 252 and a number of other cases, it has been held that, in general, in cases where an employee in a position of trust steals money, a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. This is because general deterrence to prevent breaches of trust is a major consideration in such cases. In Barrick, which has been frequently referred to in this context, Lane LCJ, giving the judgment of the Court of Appeal, said at 81-82:
'It is, we appreciate, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentencers generally, and may lead to a little more uniformity, we make the following suggestions.
In general, a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide.'
His Lordship went on to give an indication of the terms of imprisonment which might be appropriate having regard to the amounts of money involved. His Lordship went on to say at 82:
'The terms suggested are appropriate where the case is contested. In any case where a plea of guilty is entered, however, the court should give the appropriate discount. It will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence. As already indicated, the circumstances of cases will vary almost infinitely. The following are some of the matters to which the court will no doubt wish to pay regard in determining what the proper level of sentence should be:
(i)the quality and degree of trust reposed in the offender including his rank;
(ii)the period over which the fraud or the thefts have been perpetrated;
(iii)the use to which the money or property dishonestly taken was put;
(iv)the effect upon the victim;
(v)the impact of the offences on the public and public confidence;
(vi)the effect on fellow-employees or partners;
(vii)the effect on the offender himself;
(viii)his own history;
(ix)those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.' "
In the course of his sentencing comments the learned Magistrate made reference to the list of criteria contained within the decision in Barrick.
Counsel for the respondent supplied the Court with a helpful table of cases involving the offence of stealing as a servant which revealed a range of sentences from 2 to 10 years' imprisonment. The Court has recognised that a range of 3 to 10 years' imprisonment will be standard for offences of the type committed by the appellant here. In R v Ottobrino [1999] WASCA 207, Ipp J (at [10]) said:
"I accept the submission made by counsel for the appellant that sentences of between 3 years and 10 years of imprisonment are standard for offences of the kind committed by the respondents: see Mann v R, unreported; CCA SCt of WA; Library No 950338; 14 June 1995, R v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997, Greer v R, unreported; CCA SCt of WA; Library No 960173; 1 April 1996, R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996, R v Wilkinson (1996) 85 A Crim R 353, Stockbridge v R, unreported; CCA SCt of WA; Library No 6798; 23 July 1987, Lewis-Harrison v R, unreported; CCA SCt of WA; Library No 930291; 27 May 1993. In my view, having regard to all the circumstances I have mentioned, a term of imprisonment in the region of five to six years imprisonment would have been warranted at first instance. In my opinion, the sentences in fact imposed by the learned sentencing Judge were seriously inadequate."

Much the same was said by Malcolm CJ in The Queen v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997 where his Honour (at 8) observed:
"The range of sentences commonly imposed in such cases as this is one within which the sentence of imprisonment for 3 years falls. Some might say that it is toward the lower end of the range. That is a matter about which there is room for legitimate differences of opinion."
Counsel for the respondent also pointed out that when looking at the question of restitution, a sentence will be mitigated if money is recovered and the matter comes before the Court in circumstances where the offender has not gained by the commission of the offence: Carreras v R (1992) 60 A Crim R 402. Here, although restitution had not been made in full, there was nevertheless the prospect of full restitution in due course.
As to the hardship to be suffered by the appellant, a 55 year old woman with no prior convictions and with the welfare of her children and grandchildren as her primary interest in life, counsel for the respondent pointed to the decision in H v R (1995) 81 A Crim R 88 and to the passage of Murray J (at 111) where his Honour said:
"The court should not lose sight of the fact that the hardship occasioned by the sentencing process is, in truth, caused by the offender who commits the offences and visits upon himself or herself the punishment of the court. Even so, the court should, as it was put by Wells J in Wirth, be prepared to draw back in mercy where it would, in effect, be inhuman to refuse to do so."
In the end, it can be said that the learned Magistrate in sentencing the appellant took into account all relevant factors but was handicapped to the extent that he did not have the schedule of expenditure of stolen funds and (perhaps more significantly) did not have the deed of restitution before him. Had the latter document been before the learned Magistrate he would not have made the observation that there were no indications as to how or in what form compensation or restitution was possible. His Worship would indeed have been satisfied that proper legal arrangements had been made for full restitution, albeit over a period of some 5 years.
Given the materials which the learned Magistrate had before him, and the full and complete plea of mitigation which he heard, it is difficult to say that the ultimate disposition of the matter was outside the range of sentences that could have been imposed upon the appellant. However, there are a number of things that concern me. The first is that the learned Magistrate did not have a full appreciation of where the stolen moneys had gone. The second is that his Worship did not anticipate full restitution, and indeed thought that Capel Excavations Pty Ltd might be left more than approximately $64,000 short. The third matter is that the learned Magistrate imposed the maximum sentence of 2 years' imprisonment on each of charges 22 to 36. True it is that the sentences were each made concurrent with each other, but the fact is that the maximum was imposed in circumstances where there were truly mitigating factors which, it seems to me, called for less than the maximum. Although the learned Magistrate was correct to say that the offences constituted by charges 22 to 36 involved heightened dishonesty (in the sense that the amounts of money became greater) the maximum penalty was reserved for the worst case. Given the mitigating circumstances it is hard to say that each of the charges 22 to 36 justified the maximum penalty that could be imposed. I am, of course, conscious that the maximum was only the maximum that could have been imposed in petty sessions. The maximum which could have been imposed on indictment was 10 years' imprisonment. Nevertheless, there is substance in the submission of counsel for the appellant that something less than the maximum that could have been imposed by the learned Magistrate would have been appropriate in relation to charges 22 to 36.
It is, of course, the end result that is to be considered. The question is whether the overall sentence of 3 years' imprisonment was inappropriate to the criminality of the appellant's conduct. Although the matter is marginal, it is my view that because the learned Magistrate was not given the full circumstances in relation to restitution and did not have the deed of restitution before him, he may have imposed a more substantial sentence than might otherwise have been the case. I am of the view that given the fresh evidence before me and all the circumstances of the case, it would have been appropriate to have sentenced the appellant to imprisonment for 1 year on each of charges 22 to 36 with those sentences being ordered to be served concurrently with each other, although cumulative upon the sentences imposed in relation to the other charges. The end result should, in my view, have been a sentence of 2 years' imprisonment rather than 3 years. The difference is sufficient to demonstrate error (House v R (1936) 55 CLR 499 at 504 ‑ 505) and for this reason I would allow the appeal, set aside the sentence of 3 years' imprisonment imposed by the learned Magistrate and substitute for it a sentence of 2 years' imprisonment. The order for eligibility for parole will remain.