R v Jell

[1994] QCA 30

[1994] QCA 30

COURT OF APPEAL

MACROSSAN CJ
MCPHERSON JA
DAVIES JA

CA No 439 of 1993

THE QUEEN

v

JELL, Patricia Frances  Applicant

BRISBANE

DATE 01/02/94

JUDGMENT

DAVIES JA:  The applicant was sentenced in the District Court on 21 October 1993 in respect of a number of offences involving dishonesty as an employee.  In chronological order, those offences were first, two offences of stealing as a servant from a company called The Data Base Proprietary Limited and Technology Wholesalers Australia Proprietary Limited which were committed between 1 February 1988 and 31 October 1989.

The second was one offence of stealing as a servant from a company called Fanidal Proprietary Limited between 17 January 1990 and 19 January 1990.  The third set of offences, in number, were of fraudulent false accounting involving a company called Craig Hampson Proprietary Limited.

The offences of stealing as a servant were offences in respect of which the applicant pleaded guilty.  The 52 offences involving fraudulent false accounting, the applicant was convicted after a trial.  The applicant was born on 22 September 1944 and was therefore aged between 44 and 48 at the time of the commission of these offences and 49 at the time of sentence.

In respect of the offences for which she pleaded guilty, that is those of stealing as a servant, for one of them she was sentenced to five years' imprisonment and the other to six years' imprisonment, cumulative upon a sentence to which I'll refer shortly.  In respect of the offence of fraudulent false accounting for which she was convicted after a trial, she was sentenced to eight years' imprisonment.

No recommendation was made in respect of her parole.  The earlier offence in respect of which she had been convicted was an offence committed in October 1989 of stealing as a servant, in respect of which she had been sentenced to two and a half years' imprisonment with a recommendation for parole after eight months.

She had also been convicted in 1985 of 14 offences of stealing as a servant but she had not, on that occasion, in respect of those offences, been sentenced to imprisonment.  In respect of the offences for which she had been sentenced in 1989, she was arrested and charged with those offences in January 1988.  She was then admitted to bail and it was during the period in which she was on bail that she obtained employment with Data Base and Technology Wholesalers as a bookkeeper and it was whilst she was employed by that company that she committed the two offences of stealing as a servant from that company.

It was on 13 October 1989 that she was sentenced by Judge Howell in respect of the earlier offence I mentioned, that is, the sentence of two and a half years' imprisonment and it was after she had been released to home detention, after serving only two months of that sentence, that she commenced working with Fanidal Proprietary Limited and it was during that period that she committed the offence of stealing from that company which involved a sum of about $5,000 in cash.

She was dismissed from her employment with that company on 8 January 1991.  On 3 April 1991 while still on parole in respect of the earlier offence, she commenced employment as a bookkeeper with Craig Hampson Proprietary Limited and it was whilst she was employed by that company that she committed the 52 offences for which she was convicted after a trial which involved defrauding that company of some $83,000-odd.

The result was in respect of the three sets of offences, the subject of this appeal, that over a period of some four and a half years, the applicant misappropriated a total of over $186,000.  During most of that time, when she committed those offences, she was on bail or home detention or work release or parole.

The conviction in respect of these offences caused the cancellation of the parole. The only relevance of which, for present purposes, is that it is common ground. The learned sentencing Judge should have made a fresh recommendation for parole pursuant to section 157 of the Penalties and Sentences Act and I shall return to that a little later.

In respect of all these matters, for which she has been convicted, the applicant, as appears from what I have said, was an employee and had, as an employee, been placed in a position of trust.  As was also submitted by Mr Ridgway for the respondent, her dishonest conduct which resulted in each of the convictions, the subject of this appeal, was of a systematic and persistent kind, over a long period of time.

For example, during her employment at Craig Hampson Proprietary Limited, her frauds were committed on a regular, weekly basis and it appears that at least partly in consequence of her fraudulent conduct, the business subsequently failed.  The offences, I should add, also appear to be of a similar kind to those which she had been convicted in 1985 and again in 1989 and for which up to the date of the sentences, the subject of this appeal, she had served only two months' imprisonment.

Of the $186,000-odd, the total of the amounts of money which were misappropriated, in the course of these offences, only about $1,100 was returned.  No explanation was given as to what has happened to the balance of the $186,000.  That is not surprising with respect to the $83,000-odd which the applicant misappropriated from Craig Hampson because she denied her involvement in those offences but even in respect of the 97 or $98,000 which she took from Data Base and Technology Wholesalers and the $5,000 which she took from Fanidal in respect of both of which she pleaded guilty, she gave no explanation as to what happened to that money.

The applicant gave no evidence of remorse at any stage, even in respect of the offences for which she pleaded guilty and in respect of the offence to which she pleaded not guilty, she made, as His Honour the learned sentencing Judge said, scurrilous allegations against her employers, Mr and Mrs Hampson to the effect that they, rather than she, had been involved in stealing money from the company.

It was common ground between the applicant's counsel and the Crown before His Honour that the appropriate authorities should exercise close supervision over the applicant in what work she should do and that she should be removed from an environment involving handling of money.  It was also submitted on her behalf that she apparently showed no inclination toward the commission of offences other than those involving dishonesty but I can see no merit in that submission.

The learned sentencing Judge declined to make a recommendation in respect of early parole. That, it seems to me, was undoubtedly the correct view, in view of the attitude which the applicant adopted throughout. However, His Honour, as I have indicated earlier, should have, as is common ground before us, made a fresh recommendation for parole, pursuant to section 157 of the Penalties and Sentences Act.

The effective sentence in this case was therefore a sentence of eight years' imprisonment with parole after serving a term of four years.  In my view, that sentence is towards the high end of the range for an offence of this kind but having regard to the factors which I have mentioned, in particular, the persistence in offences over a number of years, both before and after her conviction for the 1989 offence, the persistence in these offences, throughout the period of her bail, home detention and even her parole, and her complete lack of remorse indicates to me that the appropriate sentence had to be towards the high end of the permissible range.

Accordingly, although it seems to me the sentence was towards the very high end of the permissible range, I do not think that it was so high as to be outside the appropriate range for the proper exercise of a sentencing discretion.  I would, however, allow the application only to the extent of making a recommendation that the applicant be eligible for parole after serving four years of the sentence imposed by the learned sentencing Judge.  Subject to that, I would refuse the application.

THE CHIEF JUSTICE:  Iagree.

McPHERSON JA:  Yes, I would, for my own part, add only this, the result of all that has happened is that, during a period beginning in May 1985and continuing through till sometime in 1992 or 1993, the applicant has been engaged persistently and systematically in a series of offences designed to take money from her employers.

The total amount involved, is, as has been pointed out, over $186,000.  The consequences in human terms, for at least one of the employers, which was a small family company, have, we have been told and might reasonably surmise, been disastrous.  Prevailing penal philosophy is generous to offenders in this class, with the consequence that the applicant has served only two months of imprisonment for the earlier offences that she committed.

Notwithstanding that extremely humanitarian attitude, she has shown a degree of persistence and determination in her commission of further offences, and her conduct discloses no evidence at all of any remorse on her part.  She did not plead guilty to the principal 52 charges for which she was sentenced on this occasion, and in the course of the trial, she did, as my brother Davies has pointed out, caused scurrilous allegations to be made against the innocent complainants.

Not only has she failed to make restitution in respect of any of the large amounts she has stolen, except for a paltry sum of $1,100, she has also failed to explain why she took the money or what she has done with it, although there was evidence before the sentencing Judge that the Crown had been able to trace some of it to private accounts in her name or otherwise.

In all these circumstances, the Judge was entitled to take the most unfavourable view of her conduct and to impose a sentence of a severe kind upon her in respect of what she had done.  For those reasons, as well as those that have been stated by my brother, I agree with the orders that he proposes.

THE CHIEF JUSTICE:  The order of the Court will be as Mr Justice Davies has indicated.