R v Gotts

[2001] QCA 554

[2001] QCA 554

COURT OF APPEAL

DAVIES JA
ATKINSON J
MULLINS J

CA No 303 of 2001

THE QUEEN

v.

LEONIE ANN-MARIE GOTTS  (Applicant)

BRISBANE

..DATE 30/11/2001

JUDGMENT

MULLINS J:  This is an application for leave to appeal against sentence.

The applicant pleaded guilty to one count of stealing as a servant and was sentenced on 2 November 2001 to 18 months' imprisonment suspended after six months with an operational period of two years.

The applicant was employed by the complainant company between 4 February 1998 and 16 June 1999 in its upholstery business as a receptionist and clerk.  From as early as 6 March 1998, the applicant commenced stealing by making out a receipt for $159 but then altering it to cancel it and keeping the money for herself.

The last defalcation was on 11 June 1999.  Apart from altering receipts, the other methods used by the applicant were writing the receipt for a lesser amount than was received and writing a cheque payable to cash and then cashing the cheque and keeping the proceeds.

The Crown proved that $2371.71 was stolen in total.  The principals of the complainant company had become suspicious of the applicant.  They installed video surveillance equipment and on video the applicant was shown receiving money over the counter and not putting it in the till.
The police were called on 15 June 1999.  The applicant was arrested and made admissions of taking $2330.

The applicant was born on 2 December 1966 and is almost 35 years old.  The offence occurred when she was aged between 32 and 33 years.  Although the applicant always intended to plead guilty, there was a delay in the matter proceeding to sentence as the Crown was endeavouring to prove that the amount stolen was larger than $2370.71.  The sentence then proceeded on the basis that the applicant did not dispute stealing $2370.71. 

The applicant has a prior criminal history in Victoria.  She was convicted of three charges of theft on 22 September 1987 for which she was given a suspended sentence of one month.  In 1990 and 1991, she was convicted of two charges of theft from shop, for which she was fined.

The applicant wrote the male principal of the complainant a letter dated 23 February 2000 which was before the learned sentencing judge as exhibit 3.  That letter is clearly threatening in tone and suggesting wrong-doing of the recipient.  The letter also stated:

"In regards to restitution for the amounts you will be claiming, be assured that I will not be able to repay any of the money that you claim you are owed.  I have no assets or money and therefore I suppose I will have to resign myself to the fact that I will be going to gaol."

Prior to sentencing, counsel for the applicant obtained instructions that the applicant was willing to repay the sum of $2370.71 but would need 18 months to two years to repay the amount.  That was advised to the prosecutor.  Neither the prosecutor nor the applicant's counsel conveyed that to the learned sentencing judge.  The applicant's counsel has sworn an affidavit explaining that omission was due to oversight. 

It was submitted on behalf of the applicant at the sentence that she stole because of her own financial difficulties.  Her husband's business subsequently failed.  The applicant has two children who, at the date of sentencing, were aged 18 years and 6 years.

The matters referred to by the learned sentencing judge were the applicant's previous conviction for dishonesty, the offence was carried out over a prolonged period and involved a deal of calculation, the applicant had made no restitution and expressed an unwillingness to do so, the applicant had cast aspersions on the character of the complainant in the record of interview, the letter the applicant had written to the male principal of the complainant contained a veiled threat, and the applicant was in a position of trust.

The grounds of appeal raised by the applicant are that the sentence is manifestly excessive and that the learned sentencing judge was mistaken in some findings of fact resulting in a potential miscarriage of justice.  As to the latter ground, the applicant relies firstly on the finding that the applicant had expressed an unwillingness to make restitution.

There was almost two and a half years between arrest and sentence.  No attempt at making restitution was made in that time in respect of the amount that the applicant admitted stealing.  Despite submissions made to the contrary, the letter which is exhibit 3 does indicate an unwillingness to make restitution.   The relevance of this is that it shows lack of remorse on the applicant's part.

Even if the learned sentencing judge had been informed of the late offer to repay the sum of $2370.71 over a period of 18 months to 2 years that would have made no difference to the lack of remorse shown by the attitude of the applicant from the time she was charged until she was due to be sentenced.

In the written outline the applicant relies on the finding that the applicant cast aspersions on the character of the complainant as a mistaken finding on the part of the learned sentencing judge.  The submission that was made as to the casting of aspersions by the applicant on the character of the complainant by the Crown prosecutor was not objected to or otherwise controverted by the applicant's counsel at the sentence.  It was consistent with the approach taken by the applicant in exhibit 3.  I do not accept that it should be treated as a mistaken finding on the part of the learned sentencing judge. 

The applicant relies on the finding about exhibit 3 containing a veiled threat also being a mistaken finding.  The learned sentencing judge's interpretation of exhibit 3 is a reasonable interpretation of that letter.

The applicant could not be sentenced on the basis that she had no previous criminal history.  Even though her prior history was old and relatively minor, the nature of the offences were similar to that of the subject charge.  The offence occurred over a period of 15 months.  The stealing was deliberate and employed different methods.  There was a distinct lack of remorse on the applicant's part until the day of sentencing.

The offence of stealing as a servant carries with it a maximum penalty of 10 years.  An actual term of imprisonment was therefore within range.  The plea of guilty and the early admission by the applicant to the police has been reflected in the sentence being suspended after 6 months.  The sentence imposed could not be said to be manifestly excessive.  I would refuse the application.

DAVIES JA:   I agree.

ATKINSON J:  I agree.

DAVIES JA:   The application is refused.

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