R v Keogh

[1994] QCA 570

COURT OF APPEAL

[1994] QCA 570

MACROSSAN CJ
DAVIES JA

McPHERSON JA

CA No 408 of 1994
THE QUEEN
v.

MARY CATHERINE KEOGH	Applicant
BRISBANE ..DATE 23/11/94

JUDGMENT
DAVIES JA: The applicant was convicted in the District Court
on 14 April this year of a total of 36 offences. On
16 September she was sentenced to a total term of seven years'
imprisonment, the learned sentencing Judge adding a
recommendation that she be eligible for parole after serving
two and a half years of that term. The applicant seeks leave
to appeal against that effective term of seven years.

The learned sentencing Judge did not appear to distinguish between the various offences as regards to the sentence which she imposed and no formal objection is taken to the manner of the sentencing process. The objection being taken as I have said to the effective term, the submission being that the term of seven years' imprisonment with a recommendation after two and a half years was manifestly excessive.

The offences consisted of seven of misappropriation with a circumstance of aggravation, one of misappropriation, two of obtaining money by false pretences, five of stealing, 1 of stealing as a servant, 10 of forgery and 10 of uttering. They were committed between June 1992 and October 1993. The applicant is 41 years of age having been born on 1 June 1953.

She has a long history of criminal conduct of a similar kind to that for which she was convicted and sentenced in the present case.

The respondent has told us in the written outline that the applicant was convicted previously of a total of 47 offences of dishonesty over 21 years in 10 separate Court appearances.

JUDGMENT

In fact, they commenced in 1970 with the offence of stealing as a servant. She was first sentenced to gaol in 1978, that being only for six months and she was then sentenced to gaol on a number of occasions since then, the most substantial term being a term of seven years' imprisonment which was imposed in 1986, it being said on the refusal of an application for leave to appeal against that sentence that she had been treated with leniency in the past.

Again, in 1991 when the applicant was sentenced to a term of three and a half years' imprisonment with a recommendation that she be eligible for parole after serving six months, the learned sentencing Judge appears to have been generous to the applicant perhaps because, as appears from his sentencing remarks, he appears to have accepted that at that time, the applicant had come to realisation of the matters which led her to the commission of the offences of the kind which she then committed which were of the same kind as the offences committed in the present case.

The applicant before us agreed that the learned sentencing Judge on that occasion was lenient to her. Notwithstanding the numerous occasions upon which she has been convicted, the occasions upon which she has been sentenced to imprisonment and the leniency which has been extended to her in the past, she appears to have learnt nothing from that in the sense that none of this has been an effective deterrent.

JUDGMENT The offences committed in the present case were, as I have said, of a similar kind to those which she had committed over the years to which I have referred. In the present case, the offences involved defrauding numerous people including her son, banks, employers and elderly people in her care.

Various methods were used to achieve this: alterations in cheques, withdrawals from banks upon deposit of worthless cheques, misuse of credit cards and cheques belonging to others, alteration of wages cheques and various other forms of trickery. In a number of cases, the deceit was practised upon persons who could ill afford to lose the money which the applicant had stolen from them.

With the money which she stole, she paid her personal debts, helped others or simply spent it on herself. It could not properly be suggested that she had altruistic motives in her criminal activity. The applicant has put before us very lengthy written submissions. They consist in part of statements - I should say allegations of fact and in part of submissions based upon those allegations of fact or facts which were before the learned sentencing Judge.

Some of the facts alleged in the written submissions appear to have been made for the first time in the sense that they were not put before the learned sentencing Judge and what is more, no reason is given, and there does not appear to be any reason why, if they were correct, they were not put before the learned sentencing Judge.

JUDGMENT It is not appropriate, in my view, for this Court to consider those facts for the first time here. The question for this Court is not what the appropriate sentence might be if this Court was sentencing for the first time, but whether there has been an error in the sentencing process such that the sentence which was imposed by the learned sentencing Judge was manifestly excessive.

The offences the subject of the present convictions continued, as appears from the dates to which I have already referred, over a substantial period of time. They involved a total loss to others of something over $47,000. Some of them were committed while the applicant was on parole, some were committed whilst she was on bail.

In her favour, it must be said that she pleaded guilty at an early stage and that she admitted, at an early stage, her involvement in the offences. It can also be said in her favour, at least to some extent by way of excuse, that psychiatrist reports which were tendered before the learned sentencing judge and to which she had reference, indicated that the applicant has severe personality deficits which include chronic low self image and poor self esteem, chronic feelings of inadequacy and inferiority and chronic feelings of not being accepted and approved of.

In the end, of course, although these are matters which may properly be taken into account, they cannot excuse the conduct

JUDGMENT which is of a most serious and, in my view, despicable kind. It was submitted before and considered by the learned sentencing Judge that there were some prospects of rehabilitation. No doubt it were these prospects, together with the early plea of guilty and admissions to which I have referred which persuaded the learned sentencing Judge to make the recommendation for early parole which she did.

Nothing in the applicant's previous criminal history or the leniency which had been extended to her in the past would have justified such a recommendation. The applicant before us, in reference to some of the comparable cases which were put before us by counsel for the respondent, in particular the cases of Winston, No 269 of 1991 and Corrigan said that they were cases in which the offences had been committed in a much more sophisticated way and had involved active and sophisticated concealment.

Some merit, it was suggested by the applicant, lay in her failure to cover up the offences which she had committed. I for myself think there is very little merit in that submission. More generally, a perusal of the cases which, to me, are comparable to the facts of this case indicate, in my view, that the sentence which was imposed by the learned sentencing Judge was well within the range of a sound sentencing discretion and I would therefore refuse the applicant.

THE CHIEF JUSTICE: I agree.

JUDGMENT McPHERSON JA: I agree. I wish to add only the following remarks. The applicant, who addressed us in person today, is an individual of some obvious intelligence and education. It is reported of her that she was in the top 2 per cent of her classes at the private schools she attended. She obtained a Diploma in Business Management from QIT, which she has since converted to a Bachelors Degree in Business Management from the University of Queensland.

She has been employed in many different occupations and appears to have less difficulty than many in obtaining employment. It is evident, however, that her extensive abilities and qualifications have not been applied to the pursuit of honest enterprises. There is a series of convictions, to which my brother Davies has referred, going back as far as 1970 and representing some 10 or more occasions in which she has committed offences of dishonesty.

The early plea of guilty, and what her Honour Judge O'Sullivan described as "the positive things that have been tendered on your behalf today", that is on the occasion of the sentencing, evidently earned the recommendation for parole which I would regard as appropriate, despite the serious number and extent of the offences on this occasion. I would refuse the application for the reasons already given.

THE CHIEF JUSTICE: The application is refused.

JUDGMENT

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JUDGMENT