R v Ferguson

[1995] QCA 554

IN THE COURT OF APPEAL	[1995] QCA 554
SUPREME COURT OF QUEENSLAND

C.A. No. 381 of 1995.

Brisbane

[R v. Ferguson]

T H E Q U E E N

v.

SCOTT ALEXANDER FERGUSON

(Applicant)

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Pincus J.A.
McPherson J.A.

Thomas J.

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Judgment delivered 12/12/1995

Judgment of the Court
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF REDUCING THE SENTENCE OF 3 YEARS TO 2 YEARS. A WARRANT IS TO BE ISSUED FOR THE APPLICANT’S ARREST. _____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - SENTENCE - misappropriation of property with circumstances of aggravation - amount misappropriated approx. $14,000 - applicant took from employer - money taken partly for personal use and partly to assist parent in repaying a debt - restitution offered; no previous convictions; guilty plea; youth; significance of conviction in pursuit of career; damage to reputation - whether custodial sentence necessary - whether sentence of 3 years is beyond the appropriate range.

S. 408C Criminal Code.

Counsel:	Mr D Kent for the applicant. Mrs L Clare for the respondent.
Solicitors:	Michell Sillar Nicholsons, t/a for Harris Sushames for the applicant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	04/12/1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/12/1995

This is an application for leave to appeal against sentence. The applicant who is aged 24 was convicted on a plea of guilty in the District Court of the offence of misappropriation of property under s. 408C of the Code. There were two circumstances of aggravation charged under paras. (b) and (d) of s. 408C(2): that the applicant was an employee and the property in question belonged to his employer; and that the property was of the value of $5,000 or upwards. The maximum penalty for the offence, with the circumstances of aggravation, is 10 years.

The sentence imposed was 3 years suspended after 3 months, the operational period fixed being 4 years. There was also an order that the applicant pay compensation of $12,800 within 2 years and 9 months, in default 6 months imprisonment. The applicant contended, by his counsel, that there should have been a wholly non-custodial sentence and that the head sentence is too high.

The amount which the applicant misappropriated is not precisely known; he took the money while working as a console operator at a service station, his technique being to use the cash register in such a way that sales were not recorded or were deleted from the register, producing a discrepancy between the sales recorded and the amount received. The offence came to light as a result of a complaint by a customer of the service station; when the matter was put to the applicant he admitted his dishonesty and was sacked. The applicant told the police he had been stealing for about eight months before he was dismissed and said that the amount taken was, on the average, $80 per night. The court was told that the applicant generally worked from Saturday to Wednesday each week. On the basis that the period of eight months before he was caught equals about 35 weeks, at $400 per week the amount taken would have been $14,000. It is not of much consequence, but it was said below that the total, at $80 per night for the eight month period, worked out to $12,800, which seems to be a miscalculation. A more important point is that there appears to be no means of confirming the applicant’s estimate of $80 per night.

The judge was told by the applicant’s counsel that the money was taken partly for the applicant’s own purposes and partly to assist his mother in repaying a debt incurred by his late father. His Honour was also informed that the applicant was working at a wage of about $320 nett per week and that he offered restitution at the rate of $100 per week. We were informed that the applicant, on being released on bail pending this application, began to deposit $150 per week from his earnings and the applicant believes he can pay that sum until the total of $12,800 is paid. From the figures we were given, it seems clear that payment of $150 per week would be a substantial burden for the applicant.

The applicant has no previous convictions; as has been mentioned, he pleaded guilty and the primary judge took those circumstances into account, as well as references with respect to the applicant’s character. The judge expressed anxiety as to whether or not any sentence of imprisonment should be suspended wholly or only partly. His Honour said that he could, doing his duty, suspend the sentence only partly and described the sentence imposed as the most lenient view he considered he could take.

The argument for the applicant is to the effect that if one examines the pattern of District Court sentencing in similar circumstances the primary judge was in error in thinking a custodial sentence to be necessary. It was suggested that there may be a divergence in this area between appellate decisions and those at first instance. The Court below was referred to a number of appellate decisions in a schedule which was tendered, the most important perhaps being Seeney, (Court of Criminal Appeal, C.A. No. 170 of 1988, 11 August 1988) where a 38 year old man was convicted on a plea of guilty of stealing as a servant and false pretences, the amount involved being about $8,000. He had no previous convictions and probation was ordered, but on an Attorney’s appeal that was changed to a 3 year prison sentence with a recommendation for parole after 9 months. The judge was also referred to Kindness (C.A. No. 290 of 1980), where a 23 year old man with no previous convictions was sentenced to imprisonment for 3 years, having stolen about $7,000 as a servant; he pleaded guilty. His appeal was dismissed. On the face of it the case seems fairly comparable with the present; one must keep in mind the decline in the value of money since 1980.

In this Court we were presented with a schedule of recent District Court sentences prepared for another case by counsel for the respondent, Mrs Clare; this deals mainly with amounts stolen of less than about $10,000. It seems clear from the schedule that for offences of dishonesty in that range it has become quite unusual for persons with no criminal history to be given a custodial sentence in the District Court, after having pleaded guilty. Out of 17 cases collected by Mrs Clare, heard after 1 January 1993, in which the amount involved was $5,000 or more, only one offender was sent to prison. The highest amount mentioned in the schedule was $11,500 - Doolan, (District Court, 27 January 1994) that offender, 33 years of age, was given a suspended sentence. We have also had access to a schedule of District Court sentences involving misappropriations of amounts from about $4,000 to $30,000, supplied by Mr Glynn of counsel. It indicates, as one would expect, that where the amount involved is in excess of, say, $15,000, there is a greater tendency to impose a custodial sentence than there is in the range dealt with by Mrs Clare’s schedule. But still there is a surprising number of non-custodial sentences in Mr Glynn’s schedule which is, like Mrs Clare’s, confined to instances in which there was a plea of guilty, and no previous convictions.

It is not possible for courts dealing with misappropriation cases to treat the amount involved as determinative of the sentence, because other circumstances are likely to require consideration, prominent among them being the offender’s criminal record; the Court would also have to consider other matters such as the age of the offender, whether there is a plea of guilty and whether the offender was motivated by sheer greed or by some less reprehensible factor, such as was put forward in partial explanation of this applicant’s offence.

One disadvantage of interfering with the sentence imposed here is that this could be taken as authority for the view that a young person with no or no significant criminal history who pleads guilty to stealing a sum in the vicinity of $10,000 or more should not ordinarily receive a custodial sentence; it might produce the result that young people are thought to be free to commit such an offence without serious hazard to themselves. But we do not overlook that a person’s conviction of an offence of dishonesty involving a substantial, or indeed any sum of money may prove to be a significant handicap in pursuing some careers as well as damaging the offender’s general reputation; this is itself a punishment.

The most recent appellate decision to which we were referred which is in any way comparable with the present case is Bourke (C.A. No. 428 of 1993, unreported, 8 December 1993). There the applicant had been sentenced to 3 years imprisonment for misappropriation of property and that was not altered. He was 26 years of age and had no criminal record, but the amount involved was about $30,000. The applicant had made full restitution, a feature not present here; the reasons given in this Court imply some reservations about propriety of the sentence. Despite the fact that full restitution had been made in Bourke, the circumstances were worse than those in the present case in that the amount involved was substantially higher.

It should be noted that the retail price index moved from 844 to 1952 between the year 1980 when Kindness was decided and 1993 when Bourke was decided: see Australian Bureau of Statistics 1995 Year Book Australia p. 585; the decline in the value of money, measured in that way, was well over 50%.

The present is perhaps a marginal case, but we have been unable to persuade ourselves that this Court would be justified in interfering with the judge’s decision to suspend the sentence only partially, rather than wholly. The course his Honour took is not inconsistent with decisions of this Court and its predecessor the Court of Criminal Appeal and it is certainly consistent with this Court’s practice in respect of offences of dishonesty relating to social security payments.

It appears to us, however, that the sentence imposed is, keeping in mind the applicant’s youth and the partly extenuating circumstances we have referred to, simply too high; when one takes into account also that failure to meet the obligation to make restitution may produce a sentence of 6 months imprisonment, it seems to us that counsel for the applicant is correct in submitting that 3 years is beyond the proper range.

We therefore grant the application and allow the appeal, but to the extent only of reducing the sentence of 3 years fixed by the primary judge to 2 years. It will be necessary to issue a warrant for the apprehension of the applicant.