R v Cox

[1995] QCA 563

IN THE COURT OF APPEAL	[1995] QCA 563
SUPREME COURT OF QUEENSLAND

C.A. No. 367 of 1995.

Brisbane

Before	Pincus J.A. Dowsett J. Lee J.
[R v. Cox]

T H E Q U E E N

v.

GREGORY JAMES COX

(Applicant)

Pincus J.A. Dowsett J. Lee J.

Judgment delivered 15/12/1995

Separate concurring judgments of each member of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS:CRIMINAL LAW - SENTENCE - whether custodial sentence warranted for serious dishonesty offence - no previous convictions - willingness to pay restitution.

Counsel:	Mr. A. Glynn for the applicant. Mrs. L. Clare for the respondent.
Solicitors:	Price and Roobottom for the applicant. Director of Prosecutions for the respondent.

Hearing Date:27 October 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 15/12/1995

I have read the reasons of Lee J. It seems to me convenient to annex the two schedules, one prepared by Mrs Clare and the other by Mr Glynn, which are mentioned in his Honour’s reasons. The more significant for present purposes is Mrs Clare’s, since it is confined to cases of misappropriation of about $10,000 or less. It deals only with instances in which there was no, or only a minor, criminal history as well as a plea of guilty; all the cases were heard between 1 January 1993 and 30 June 1995.

If one confines attention, in dealing with Mrs Clare’s schedule, to instances where the amount involved was $5,000 or more, only one of the offenders was sent to prison; others received suspended sentences, orders to perform community service, probation orders or orders to pay compensation - and, of course, various combinations of these orders. This schedule tends to support the argument that the treatment of this applicant was unusually harsh, in the sense that recent sentences in comparable cases imposed in the District Court, appear to have been nearly always non-custodial. But there are decisions of the Court of Criminal Appeal which can be relied on to uphold the sentence imposed here; a particularly pertinent example is the case of Seeney (Court of Criminal Appeal, C.A. No. 170 of 1988, 11 August 1988, unreported), where a man of the same age as this applicant and having no criminal record was initially given a non-custodial sentence but on an Attorney’s appeal was sent to prison. The amount involved was about $8,000 and there was a plea of guilty.

It may be that the schedule to which I have referred, prepared by Mrs Clare, shows that in recent times there has been a softening of approach to sentences of this kind, in the District Court. One can understand a reluctance to send to prison, for a commercial offence of this magnitude, a person with no criminal record, even one of mature years; that reluctance may be particularly strong where there is an order for restitution with a provision for imprisonment in default of payment.

But I would not be prepared to hold that a sentence involving some actual custody cannot properly be imposed upon a mature person, even one with no criminal record, who steals, by persistent dishonesty, a sum of the order involved in the present case. It goes in the applicant’s favour that he pleaded guilty, but the circumstances of the case, as explained in detail in the reasons of Lee J, were not otherwise such as particularly to call for leniency. I am not persuaded that the sentence imposed was manifestly excessive; I think it was a proper one and I agree that the application should be dismissed.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 15/12/1995

I agree with the order proposed by Lee J and his Honour's reasons.

REASONS FOR JUDGMENT - LEE J.

Judgment delivered 15/12/1995

This is an application for leave to appeal against sentence. The applicant was convicted following his plea of guilty to an ex officio indictment on 24 August 1995 in the District Court at Southport of one count of misappropriation with two circumstances of aggravation viz. that he was an employee and that the value of the property misappropriated was of a value of $5,000.00 and upwards. This misappropriation occurred between August 1993 and November 1994. He was sentenced to two years' imprisonment with a recommendation that he be considered for parole after six months and was ordered to pay restitution of $7,000.00, with 18 months to pay. The ground relied upon is that the sentence is manifestly excessive. The maximum penalty for this offence is 10 years' imprisonment.

In 1991, the applicant, aged 38 years, was employed as manager to set up from scratch a new rustproofing division of Super Cool Pty Ltd trading as Super Cool Protection Centre. That organisation provided window tinting, rustproofing, fabric protection and allied services for various customers including retail organisations and motor dealerships. He alleged that his duties included obtaining business, running it, entertaining clients and marketing. He was paid a salary plus 25% of the profits from the rustproofing division, thus giving him an incentive to increase the business.

His duties included responsibility for all bookwork, daily cash-register receipts, issuing of receipts to customers and invoicing of sales of the business. The company policy included quotations to customers and a request as to the method of payment, either by cash, cheque or bankcard. When the money was received the sales or services were invoiced as a cash sale and credited onto the company's computer system. In this way the receipts were recorded in the company's accounting system. The invoice as so prepared acted as a receipt for the customer, with the warranty printed on the bottom.

The prosecution alleged at the hearing before the District Court Judge, that after the applicant received payment, he failed to invoice the amount which, if issued, would act as a customer's official receipt. Instead, he printed out a separate slip of paper and issued it to the customer who believed that this was the official receipt. As the payments were never officially invoiced, the amounts involved were never entered into the company's computer and were lost to the business. They were retained by the applicant.

Inquiries from other staff also revealed that with respect to motor vehicles which received rustproofing or other services in the company's workshop, an employee, on completion of the work, returned the vehicle to the customer with instructions by the applicant to tell the customer that following payment an official invoice/receipt would issue by mail. The customer frequently paid the employee in cash. This was handed over to the applicant but an official invoice/receipt was never issued so that the funds were retained by the applicant and not recorded as received by the business which had done the work involved. Some customers eventually complained about not receiving a receipt.

Apparently, even where some payments were received and an invoice issued, the applicant changed payment particulars from cash received to cheque or bankcard so that the cash received would not be banked but retained by the applicant. He also had possession of a carbonised receipt book and on occasions instructed staff to issue receipts from that book rather than by way of the official invoicing/receipt system. The money was not banked. Other staff also witnessed the applicant receiving money and putting it in his pocket.

The Crown Prosecutor, after outlining the above facts to the sentencing judge, then said that the applicant was interviewed on 20 February 1995 and readily admitted the foregoing facts. The applicant also said during the interview that due to financial problems and gambling, he was taking money from the business to support himself. The owner estimated that the sum of $10,500.00 was taken but the Crown proceeded only on the basis of the applicant's admissions that he had taken $7,000.00 from the business. The matter was always to be a plea of guilty. Remorse was shown and an offer was made to make restitution.

The version of events at the hearing before the sentencing judge by counsel for the applicant was very different to the foregoing. However, he did not deny or make reference to the outline of facts by the prosecutor including the statement that the applicant had admitted those facts in a record of interview. The only qualification is that contained at 7-8 of the record dealing with the reference to gambling as follows:-

"He is a man who has had no prior convictions, who at the time of these offences was struggling financially, but not as my friend has said or may have inferred that the prisoner has a massive gambling habit and he used to take these monies to feed this habit. The only reference to gambling in the interview with police was on p. 9 of the record of interview when the officer said, 'But when you say you chase money are you referring to gambling?' He said, 'Yeah, but I say not in a big way. I say that didn't help' because part of that conversation is in relation to him being short of funds. It may have come across via my friend that the monies were taken to feed some massive gambling habit which is not the case in this instance."

This statement at least indicates that he did engage in some gambling and that he took the money because he was struggling financially, for whatever reason. This is no excuse.

It was contended at the hearing below that the applicant took the money on a regular basis from petty cash to the extent of $50.00-$60.00 per week for entertaining customers as a result of which he built up the business from scratch to a yearly turnover of $400,000.00 including seven additional employees. He contended that it was part of his method to build it up in this way even though he knew that the owner of the business did not agree with this and that he did it without authority. His remuneration package did not include an entertainment allowance so he took it upon himself to spend up to $100.00 per week on entertainment of customers in order to attract business.

It was said that he was not stopped from doing this, but again it was submitted that when this came to the attention of the owner of the business, the applicant resigned, forfeiting seven weeks' pay and commission. This shows that the owner did not know of his so called habit of taking money from petty cash if that was in fact the correct way in which he took those monies.

It was also said that the money he incorrectly used was put back into the business indirectly by way of increased sales so that his 25% share of the profits increased and also that the business gained much from it. However viewed, his motive was one of self- interest. The money he took reduced the profits of the business by the full extent of the defalcations, even if it produced some additional business so that the business lost 75% of what was taken and he in turn lost commission of 25%.

The record of interview above referred to was not placed in evidence before the learned sentencing judge. Counsel for the applicant was asked whether it should be tendered before this Court. After perusal of it, he declined to tender it but withdrew any submissions based upon the version advanced at the hearing on behalf of the applicant and conceded that the sentence should proceed solely on the basis of the facts as outlined by the Crown at the hearing below. This removes the necessity of consideration of whether there was a conflict in the evidence presented at the hearing.

Whilst not expressly referring to the version of facts he accepted, the learned sentencing judge was perfectly entitled to reject the version advanced on behalf of the applicant in any event, particularly in view of the fact that there was no denial of the Crown prosecutor's statement that the applicant had admitted to the police in the record of interview all of the various facts which the Crown prosecutor had outlined to the Court as well as the qualification as to his gambling habits referred to above. This leaves the question of whether the sentence was otherwise manifestly excessive as contended for the applicant.

Counsel for the applicant attempted to distinguish the various cases relied upon by the Crown at the hearing viz. Seeney (C.A. No. 170 of 1988); Rogers (C.A. Nos. 145 and 169 of 1986); and Badenoch (C.A. No. 268 of 1985). Seeney, a man 38 years of age, pleaded guilty to 13 counts of stealing as a servant and four counts of false pretences. He had been employed by a Queensland meat export company and while employed as sales manager sold meat to customers and received cash for the sales, without paying the money to his employer. He was convicted of offences involving two separate employers. The total amount of money involved was $7,972.00. He was admitted to probation for three years. On appeal by the Attorney-General, a term of imprisonment of three years was imposed. He was previously of good character, came from a decent background and had been in regular employment. Explanation for those offences was said to rest in his uncontrollable gambling habits.

Rogers was a 47 year old man with a wife and family. He had no previous criminal convictions. He was sentenced in the Magistrates Court on 13 charges of stealing sums totalling $6,000.00. These offences proceeded summarily pursuant to s. 443 of the Criminal Code although he stole as a servant. He was sentenced to 12 months' imprisonment on each charge to be served concurrently and ordered to make restitution within 12 months. In addition he was disqualified from holding a driver's licence for a period of 18 months. The Court of Criminal Appeal reduced the 12 months' sentence on each charge to a sentence of six months for each charge, to be served concurrently.

Badenoch was convicted of stealing $2,500.00 from a prospective purchaser of a
home to be bought from Nu-steel, of which he was a salesman. He was sentenced to 12
months' imprisonment. The Court of Criminal Appeal declined to overturn that sentence.

It was submitted before this Court by the applicant's counsel that from his experience in the criminal jurisdiction, Judges of District Courts have in recent times frequently imposed non-custodial sentences on persons charged in these sorts of circumstances, namely persons with a good prior record who stole sums from their employer in amounts below $10,000.00 as is the situation with the applicant. It was said that an expectation had developed that a non-custodial sentence would be imposed in such circumstances. Counsel referred to single judge decisions in the District Court.

In the result, both counsel were invited to submit to the Court within seven days, a schedule of sentences at first instance for misappropriation or stealing as a servant in circumstances broadly similar to these, namely where persons had no prior criminal history or minimal criminal history, had pleaded guilty, and where the amounts involved were about $10,000.00 or less. Both schedules have subsequently been furnished.

The schedule submitted by counsel for the respondent contained some 36 sentences imposed from 1993 to 1995, not correlated to any appeal outcome. All offenders pleaded guilty. It involved offenders, male and female, ranging in ages from 18 years to 50 years. It showed only two cases, Sanderson and Mackenzie where a term of imprisonment, not wholly suspended, was given for offences of misappropriation with a circumstance of aggravation. The former sentence was imposed in the District Court on 23 October 1993. A sentence of two years imprisonment was imposed with a recommendation for consideration for parole after nine months. Sanderson had operated a sub-agency of the TAB and had taken approximately $10,000.00 from the till. He did not falsify records and made full admissions. He pleaded guilty. He was 40 years of age and unlike the applicant, had a minor criminal history including two counts of false pretences and two stealing convictions.

Mackenzie pleaded guilty in the District Court on 12 February 1993 of stealing some $3,248.00 from his employer, a lighting company. He generated false invoices which enabled him to take property and cash. He was 25 years of age and had no criminal history. He was sentenced to a term of imprisonment of six months. In all of the other 34 cases listed, the sentences imposed were either a wholly suspended term of imprisonment, a fine, a recognisance, probation or community service or a combination of both, and in most cases an order for compensation was included.

The schedule submitted by counsel for the applicant was prepared from a print-out kept by the Legal Aid Office. It covers a wider period from 1988 to 1994 and included 22 sentences of offenders, male and female, with ages ranging from 27 to 59 years. The sums involved ranged from $1,048.00 to $30,000.00. All offenders listed pleaded guilty and had no previous convictions. Ten sentences between 1988 and 1994 involved various periods in custody. Only four of those involved sums of money of less than $10,000.00.

Aller was dealt with in October 1994. He was a bank teller aged 27 years and was sentenced to 18 months imprisonment on each of thirteen counts of misappropriation, totalling some $5,527.00, to be served concurrently. The sentence was ordered to be suspended after six months. He had received rental cheques from customers. Instead of banking them to the correct accounts, he endorsed the cheques to be paid into his mother's account in respect of which he had an authority to withdraw funds. He suffered emotional problems due to a marriage breakdown.

Nolan was dealt with in September 1990. In addition to one charge of misappropriation of property, 24 further charges were taken into account. He was aged 33 years and was employed as a postman. He took credit cards from the mail. He used the cards for about half a dozen transactions on each occasion before disposing of them. He used a total of 12 cards over a three year period. He was the sole financial support for his wife and their three children. No restitution was made but $2,000.00 was offered. The sum involved was $8,300.00. He was imprisoned for six months with a strong recommendation for release to a half-way house at the earliest possible date to resume employment.

Owen was dealt with in September 1991. He misappropriated money whilst employed by a bank to pay for outings to mitigate the unhappiness that his wife was experiencing at the time. He cooperated with the police fully and made full restitution. He lost the bank's contribution to his superannuation fund ($88,000.00). He was not charged until eleven months after his resignation from the bank. He was 33 years of age. The amount involved was $8,460.00. He was sentenced to 15 months imprisonment with a recommendation for parole after three months.

Springer was dealt with in September 1990. She was employed as a bookkeeper for the company. She was 28 years of age. Over a period of one month she wrote her name as payee on 10 cheques presigned by her employer. She was experiencing severe emotional and financial pressures at the time. She was the sole supporter of two children aged 2½ years and four months. There were no prospects of making restitution. The amount involved was $9,526.00. She was sentenced to six months imprisonment.

The remaining 12 sentences dealt with between 1989 and 1994 involved sentences of a non-custodial nature. The amounts involved ranged from $1,048.00 to $13,500.00. The sentences imposed consisted either of probation, community service or a combination of both, a discharge without conviction pursuant to s.657A, a bond, and were usually accompanied by an order for compensation.

The schedule submitted by the respondent in particular gives some support to the submissions for the applicant. Whilst not all of the relevant facts readily appear from the concise schedule, it shows a trend at least since 1993 for non-custodial sentences to be imposed on persons of various ages, male and female, with various explanations for their conduct. In some cases where the amounts involved were fairly small, i.e. $2,000.00 or less, no convictions were recorded.

This having been said however, the circumstances of each offence, the period over which each offence occurred, and the personal circumstances of each offender vary widely. In the present case, the applicant was the manager of a division of a business which he set up from scratch. His duties embraced all aspects of that business including his responsibility for all bookwork, issuing of receipts and other invoices, collection and banking of monies. He devised various methods whereby he was able to siphon off funds which belonged to his employer. The offence occurred over a prolonged period between August 1993 and November 1994 covering most of the 18 months period of his employment. He had a gambling habit.

The circumstances of this offence appear to be worse than those referred to in the respondent's schedule of sentences in respect of which non-custodial sentences were imposed, and the sentence imposed is not out of line with the custodial sentences imposed in the matters of Aller, Nolan, Owen and Springer.

The learned sentencing judge took a serious view of the offence which in his view was becoming more prevalent. He noted that the offences occurred over a period of 15 months, involving stealing from an employer whilst the applicant was in a position of trust. His Honour had regard to sentences imposed in similar types of cases and also paid due regard to the plea of guilty, his remorse and the fact that he had no previous convictions. In imposing the sentence he did, it might be thought that the applicant was treated leniently.

Persons who commit offences of this kind, particularly those in a position of trust and responsibility cannot expect that if apprehended, the sentence impose will always be of a non-custodial nature. The circumstances of each offence and of the offender must be taken into account.

In my view, the application should be dismissed.