R v Allen

[2005] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v Allen [2005] QCA 73

PARTIES:

R
v
ALLEN, Glen Keith
(applicant/appellant)

FILE NO/S:

CA No 21 of 2005
DC No 4 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

17 March 2005

DELIVERED AT:

Cairns

HEARING DATE:

17 March 2005

JUDGES:

McMurdo P, Jerrard JA, Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application granted
2.    Appeal allowed
3.    Sentence is varied by suspension after nine months       instead of after 15 months imprisonment

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – REPARATION AND RESTITUTION BY OFFENDER – applicant convicted of dishonestly applying employer’s funds to his own use – applicant made full restitution to his employer through the sale of his family residence – sentenced imposed of four years imprisonment suspended after 15 months – whether sentence adequately reflected the matter of restitution

R v Fisher [2002] QCA 259; CA No 148 of 2002, 24 July 2002, considered
R v Hearnden [2002] QCA 258; CA No 149 of 2002, 24 July 2002, considered
R v Ma’afu [1991] CCA 020; CA No 269 of 1990, 28 February 1991, considered
R v Powell, unreported, Macrossan CJ, Davies JA and Mackenzie J, CA No 293 of 1995, 4 October 1995, considered
R v Rees [2002] QCA 469; CA No 205 of 2002, 4 November 2002, considered

COUNSEL:

A J Glynn SC for the applicant
C W Heaton for the respondent

SOLICITORS:

Mellick Smith & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  Justice Jerrard will deliver his reasons first.

JERRARD JA:  Glen Allen pleaded guilty in the Cairns District Court on 24 June 2004 to the offence of dishonestly applying to his own use, between 16 August 2000 and 17 June 2004, a quantity of cheques, two credit cards and a quantity of concrete all belonging to Pioneer North Queensland Pty Ltd with that dishonesty yielding Glen Allen a value greater than $5,000.

The value of the goods and services for which he dishonestly obtained payment over that four year period was $66,146.70.  He had done that by misapplying to his personal use and benefit funds of his employer, Pioneer North Queensland Pty Ltd, and by misuse of two credit cards provided to him by the company.  He also obtained the delivery of 65 cubic metres of concrete to his home address.  At all relevant times he was the company's general manager.

He was sentenced to imprisonment for four years to be suspended after he had served 15 months, with an operational period of five years.

He has applied for leave to appeal against that sentence arguing that it is manifestly excessive.

On its face the sentence appears quite appropriate.  The applicant had abused a position of trust over a four year period, beginning almost immediately he was appointed general manager in August 2000, and a deterrent was necessary and made the four year head sentence appropriate.  The applicant did not suggest that there had been any compelling financial need which might explain his abuse of his position.  On the other hand, he had no prior convictions, was described by the learned sentencing judge as having been a hard working and productive member of the community and who was personally highly regarded by those who knew him, as were his family.  He was said to be a competent and well regarded professional in his engineering field.

The learned judge accepted that the applicant was of otherwise good character, apart from the serious dishonesty involved in his offending behaviour, and that Mr Allen had cooperated with the law enforcement authorities to a substantial degree by notifying his intention to plead guilty at an early stage, and by doing so.  He pleaded guilty to an ex officio indictment.

Further, the judge was satisfied that it was unlikely Mr Allen would offend again.  The judge was also told that Mr Allen's father had committed suicide after Mr Allen was charged, and that Mr Allen felt very guilty about that and about the effect of his father's suicide on his mother.

I respectfully consider that, in combination, those mitigating matters and Mr Allen's personal circumstances are sufficient to explain and to justify the order that the learned judge made suspending Mr Allen's sentence after 15 months imprisonment, some nine months before Mr Allen would reach a date when he would be eligible for release on parole.

I also respectfully consider that what the sentence does not adequately reflect is one further relevant matter, namely that prior to appearing for sentence Mr Allen had made full restitution to his employer.  He had done that by the sale of the residence in which he and his wife lived. 

A scrutiny of the cases to which the respondent has referred this Court suggests that the sentence imposed was in line with other sentences upheld by this Court where a similar amount of money was taken but where no restitution was paid.  If not in line, then the period Mr Allen would be obliged to serve before release is only marginally shorter than the period suggested in other like cases where there has been no restitution.

Further, the sentence was more severe than two cases where comparable restitution was made.  In a matter of Ma'afu (CA No 269 of 1990) that applicant succeeded in an appeal against a five year sentence which had been imposed for the offence of misappropriating $77,544.35 of her employer's property to her own use.  That applicant, at the relevant time, was the administration manager of a friendly society which was her employer.  She had taken the money to repay approximately $26,000 she had misappropriated from another employer on an earlier occasion and also to purchase a motor vehicle and to maintain her lifestyle.  She had no previous convictions.  She also pleaded guilty and like Mr Allen, she indicated her intention to do so at an early stage.  She had made no restitution and could not make any.  That applicant had suffered experiences as a child which, in the opinion of a psychologist, had left her with feelings of worthlessness and of being unattractive and the psychologist considered that the offences she committed were an attempt to compensate for those feelings and to escape from a depressed state of mind.  That opinion, while it explained her psychological need to spend money and which motivated her, could not result in much mitigation of her wrongdoing.

The judgment of the Court of Criminal Appeal in her case does not describe the period over which she offended but her offending conduct certainly involved the misappropriation of 21 different cheques.  The late Mr Justice Richard Cooper when serving on this Court wrote the principle judgment in that matter.  He expressed the view that the comparative sentences to which the Court was referred indicated that the range of custodial sentences appropriate "to this type of offence where there is a serious breach of trust over a considerable period of time and where no restitution is made and where the offender has no previous convictions" was from three to five years imprisonment.  His Honour added that within that range an appropriate sentence felt to be imposed would depend upon the particular circumstances of the case, the need for deterrence and any personal mitigating matters relevant to that particular offender.

His Honour proposed that the five year sentence be set aside and that Ms Ma'afu be sentenced instead to four years' imprisonment with a recommendation that she be considered for release on parole after serving 18 months, and de Jersey and Thomas JJ, as their Honours then were, agreed.  That sentence is only three months longer in respect of the period which must be served than the sentence which was actually imposed upon Mr Allen.

In a matter of R v Colin Powell (CA No 293 of 1995) this Court did not disturb a sentence of four years imprisonment where parole had been recommended after 18 months, and where that 32 year old offender pleaded guilty to the offence of misappropriation between November 1994 and December 1994 of $42,775.  Mr Powell also pleaded guilty to six other offences of false pretences which involved his passing valueless cheques to purchase groceries and other consumable goods.  The total amount of money involved in all of his offences was about $52,500 with no possibility of any restitution.

He had been convicted on a number of different false pretence charges on 21 September 1994 for which he was fined $1,000 and ordered to pay compensation.  He had accordingly reoffended very soon after those sentences were imposed and he showed what this Court described in its judgment as "a contemptuous disregard for the sentences so recently given".  (I add that the six false pretence offences which he committed occurred in January of 1995, so his offending behaviour extended over a three month period which began within two months of his being earlier sentenced for other false pretences.)

The sentence imposed on him is also comparable to that imposed on Mr Allen, who had no prior convictions and who made full restitution.  Mr Allen's sentence is noticeably higher than that imposed by this Court in the matter of R v Hearnden [2002] QCA 258 to which both parties referred us on the hearing of this appeal, and where that offender had pleaded guilty to an offence of fraud with a circumstance of aggravation committed between 1 January 2001 and 3 August 2001. In that period, Mr Hearnden fraudulently took some $70,000 from his employer and the learned sentencing judge ordered that he be imprisoned for three years with that term suspended after nine months for an operational period of five years. The sentencing Judge also ordered that Mr Hearnden pay restitution of $61,478.66 within 30 days.

Mr Hearnden had actually stolen $70,944.24 by some 507 separate transactions when working in a particular part of a Myers store.  His motivation for committing the offences was that he did not like working in that particular section to which he was then assigned and accordingly he would falsely make entries in "return" forms, filling in personal particulars which he choose at random from a telephone book.  He would then take from the till the amount shown on the "return" form and keep it.

He was aged 28 when those offences occurred and had no prior convictions.  He was described as having an impressive background. 

The learned sentencing judge in his matter had accepted that Mr Hearnden was genuinely remorseful and that his behaviour was generally out of character.  He had admitted his offences and had pleaded guilty to the ex officio indictment, as did Mr Allen.  When sentenced Mr Hearnden had in hand the $61,478 ready to pay by way of restitution and undertook to pay the balance of $8,034 within 12 months, if able to return to the workforce. 

This Court held that the sentence imposed, while in a broad sense generally within range, did not sufficiently reflect the matters in mitigation, and varied the sentence by suspending the three year term after six months, for an operational period of three years.  That sentence is significantly more lenient than Mr Allen's. 

The Court delivering judgment in Hearnden remarked that it was giving judgment that same day in a matter of Fisher and that it was difficult in Hearnden to justify a sentence greater than that imposed in Fisher.  In R v Fisher [2002] QCA 259 that applicant had pleaded guilty to stealing cigarettes of a total value of $83,387 from his employer in the 12 month period between 7th of June 2000 and 21 June 2001. He had had a compulsive gambling addiction, but was able to make restitution of $53,820 within one month of the date of the sentence. He was ordered to make that restitution, and on appeal this Court did not disturb a sentence of three years imprisonment suspended after six months. It did remark that the sentence was towards the lower end of that range for an offence of that type. Mr Fisher had no prior convictions.

In R v Rees [2002] QCA 469 that applicant had embezzled an amount of $51,063.87 over a period of three and
a-half years.  She was a property manager in a real estate agency and her work required that she deal with the Residential Tenancies Authority collecting bond money from it and paying those sums to outgoing tenants or landlords according to their respective entitlements.  She actually embezzled sums totalling the $51,063.87 referred to sometimes replacing the money and sometimes not.  When sentenced she was ordered to pay restitution of $23,852.09 by way of restitution by 12.30 p.m. on that day and she did so.  That was the balance amount outstanding of the total she misappropriated. 

She had made admissions concerning some matters when interviewed, had had her matter listed for trial on several occasions but she ultimately pleaded guilty.  She was 40 and unmarried and she had a child who suffered from a congenital heart condition.  Her husband had been admitted to hospital suffering from cancer on the day she was sentenced.  This Court considered that the sentence of three and a half years imprisonment suspended after 15 months imposed on her was manifestly excessive judged by the pattern and level of sentences imposed in similar cases stretching over a considerable period and this Court made particular reference to the decisions in Hearnden and Fisher.  It varied the sentence by reducing the head sentence to three years suspended after nine months, with an operational period of three years.

The offending behaviour in Rees occurred over a similar period of time to Mr Allen's offending behaviour, although he occupied a far more senior position in which much more trust was imposed.  The original loss from her dishonesty was less than from his.  His dishonesty was over a much longer period than that of Mr Fisher's or Mr Hearnden's who took comparable amounts of money, but each of whom occupied positions of much less trust than his.  Nevertheless, the sentences imposed in those three cases do demonstrate a consistent recognition by this Court of the significant benefit that restitution in full actually gives to victims of dishonest behaviour and to the community. 

Restitution in full is a means of demonstrating that crime need not pay and sometimes does not pay and restitution can also be evidence of remorse quite independently from the benefit that it gives to the victim.  That benefit is appropriately extended to the person being sentenced usually by significant reduction in any actual term of imprisonment imposed. 

In this matter I consider that Mr Allen's significant position of trust does make the head sentence of four years appropriate but the fact that restitution in full was made and made by the sale of his family's home, means that the period of actual imprisonment to be served is manifestly excessive when compared to the other decisions of this Court and relatively recent ones too, to which I have referred. 

I would accordingly vary the sentence which was imposed by ordering that it be suspended after Mr Allen has served nine months of that sentence. 

THE PRESIDENT:  I agree with the order proposed by Justice Jerrard.  Despite the serious breach of trust involved in misappropriating over $65,000 worth of goods and services, the suspension of the four year sentence after 15 months does not adequately recognise the unique combination of mitigating circumstances here. 

Mr Allen was cooperative with the administration of justice and pleaded guilty by ex officio indictment at an early stage.  He paid full restitution by selling the family home.  Whilst Courts would never allow wealthy offenders with the capacity to pay compensation to buy their way out of an appropriate custodial sentence, restitution is, as the respondent concedes, a relevant mitigating factor in that it compensates the victim and benefits society and is often, as here, a tangible demonstration of genuine remorse. 

In addition the discovery of Mr Allen's offending has caused him great shame and personal distress.  He has lost not only his family home but his career and he must forever live with his feelings of guilt over his father's suicide and its dreadful effect on his mother. 

In all these circumstances a review of the comparable matters referred to by Justice Jerrard in his reasons demonstrates that the sentence of four years imprisonment suspended after 15 months is manifestly excessive.  The sentence of four years imprisonment should instead be suspended after nine months.

JONES J:  Yes.  I agree with the reasons expressed by The Learned President and Justice Jerrard and I agree with the orders proposed.

THE PRESIDENT:  The order is that the application is granted.  The appeal is allowed and the sentence is varied by suspension after nine months instead of after 15 months imprisonment.   

-----