R v Mahaffey

[2006] QCA 318

[2006] QCA 318

COURT OF APPEAL

McPHERSON JA
HOLMES JA
ATKINSON J

CA No 181 of 2006

THE QUEEN

v

HELEN JUDITH MAHAFFEY  Applicant

BRISBANE

DATE 28/08/2006

JUDGMENT

APPLICANT conducted her own case

MR R MARTIN SC (instructed by Director of Public Prosecutions (Queensland)) for the respondent

1. McPHERSON JA:  I will ask Justice Holmes to give her reasons for Judgment in this matter.

1. HOLMES JA:  The applicant seeks an extension of time within which to appeal against a sentence imposed on her on 1 December 2005.  On that day an indictment charging her with one count of fraud and one count of stealing was presented and she pleaded guilty to both counts.  Those offences had constituted a breach of a probation order imposed on 9th February 2005 in respect of two counts of entering a dwelling and committing an indictable offence, four counts of fraud, one count of attempted fraud and two counts of stealing.  The learned sentencing Judge therefore proceeded to resentence in respect of those counts, imposing a sentence of 18 months' imprisonment.  He said he had taken into account the fact that the applicant had pleaded guilty to those counts. 

1. In respect of the further two counts then for sentence before him, the learned sentencing Judge said that he would reflect the plea of guilty by suspending the sentence on count 1 (the fraud charge) “earlier than otherwise would be the case” and would order that the sentence on count 2 (the stealing charge), be concurrent with that on count 1.  Then imposing a sentence of 18 months in respect of count 1, he said this; "I order that it be cumulative on the sentences announced in respect of the February matters, although I order the sentence be suspended after nine months and there be an operational period of three years."  He went on to impose a concurrent sentence of nine months' imprisonment on count 2.

1. The applicant says, in support of her application for an extension of time, that she was not seen by the sentence management personnel at the Brisbane Women's Prison until 31 January 2006.  She was then given a very brief interview, in the course of which, she says, she was told she was eligible for conditional release on 6 November 2006.  It was not until 23 May 2006, on a review, that she was given a sentence calculation which showed that her discharge date was 29th February 2008.  That was calculated on the basis that she would have to serve the whole of the 18 months imposed on the matters in respect of which she had breached probation, with a further nine months to be served cumulatively in respect of the sentence of 18 months, suspended halfway, on count 1 of the December counts.

1. She has told us that she acted then when she received that information, to seek legal aid.  On 8 June a legal aid representative saw her.  On 24 June she was advised by the Legal Aid Office that she would have to represent herself on this application but she was assisted with the necessary documentation; hence the making of her application at the end of June.

1. I would allow the application for an extension of time to seek leave to appeal against sentence.  The applicant's explanation for the delay is reasonable in the circumstances.  More importantly, I think there is merit in the proposed appeal.  While a head sentence of three years' imprisonment was well within range for the totality of the offences, and it was appropriate that the sentences be imposed cumulatively, a result requiring the applicant to serve 27 months out of the 36 months total makes no allowance for her pleas of guilty in each case.  That is completely at odds with the learned sentencing Judge's indicated intention to make such an allowance.  It is possible that he meant the suspension after nine months to apply to the sentences in total or that he overlooked the effect of imposing the suspended sentence second, with the result that no early release was possible on the first.  Whatever the reason, it is clear that the result does not reflect his intention, nor does it appropriately recognise the applicant's cooperation.

1. There has been, manifestly, an error in the sentencing process which makes it appropriate for this Court to grant the extension of time, give leave to appeal and exercise its discretion to resentence. 

1. The applicant is aged 47 years and 10 months.  She had no criminal history until she reached the age of 43.  It seems that in 2002 she turned to fraud.  There is some suggestion that that was as a result of a gambling problem and it appears that various events in her life including the break down of a relationship may have played a part. Her criminal history shows that in November 2002 she was sentenced in the Magistrates Court on three charges of fraud and one of stealing as a servant.  No conviction was recorded; she was placed on probation for two years and ordered to perform 240 hours community service.  In fact, in 2004 she was fined $150 for a breach of those orders, but they were continued. 

1. In February 2005, the applicant was placed on the probation order already referred to.  The sentencing remarks indicate that the complainant in some of the counts was the applicant's mother, while two other complainants were friends, one elderly.  The learned sentencing Judge described the offences as “mean-spirited” but he accepted submissions that the behaviour had arisen out of financial and other problems, possibly exacerbated by the breakdown of a 14 year relationship.

1. The fraud count on the more recent indictment involved the applicant obtaining a loan; the amount specified on the indictment is $10,000.  The applicant says that in fact only some $6,125 came to her.  In any event, the circumstances were that the loan was obtained from a finance company in order to set up a sewing business.  The applicant offered as security a mortgage over property formerly jointly owned with her ex-husband who was unaware of the transaction. The applicant signed the necessary loan documents, as did an unknown male person masquerading as her husband. 

1. While on bail for that offence, the applicant was asked by a man with whom she was sharing a residence to deposit some money, a cheque for $60 and cash of $700 into his bank account for him. The applicant altered the amount on the cheque from $60 to $600 with the intention, it seems, of depositing it and $160 of the cash, retaining the rest.  The cheque was not accepted because the cashier could see that it had been forged.  But the applicant still only deposited $160 and kept the remaining $540 in cash.  When police interviewed her about the matter she admitted to taking the money and said she did it to pay her solicitor in a civil matter.

1. On my view, paying due regard to the totality principle, the sentence of three years' imprisonment for all matters was proper, but the applicant is entitled to some recognition of her cooperation.  It is also appropriate, in my view, in resentencing to structure an order which allows for the applicant's continued supervision.  I would sentence the applicant to 18 months' imprisonment in respect of the nine counts on the February 2005 indictment, on which she was originally placed on probation.  I would suspend that sentence after six months was served, with an operational period of three years.  That is the first sentence.

1. On count 1, the count of fraud, on the December 2005 indictment, I would sentence her to 18 months' imprisonment, again suspended after six months for an operational period of three years, cumulative on the first sentence.   

1. On count 2, the stealing count, on the December indictment, I would sentence her to six months' imprisonment, again cumulative on the first sentence, but concurrent with the sentence on count 1 on the same indictment to be followed by three years probation.  That, of course, would require the consent of the applicant.   

1. Now, it is appropriate Miss Mahaffey that I outline the conditions of a probation order in order to ascertain whether you will consent to it.  I am sure you are familiar with them from past experience.  Such an order as I have in contemplation would require that you not commit another offence during the period of the order; that you report to an authorised corrective services officer at Hervey Bay within 48 hours of your release from custody; that you report to and receive visits from an authorised corrective services officer as directed by the officer; that you take part in counselling and satisfactorily attend other programs as directed by an authorised corrective services officer during the period of the order; that you notify an authorised corrective services officer of every change of every change of your place of residence or employment within two business days after the change happens; that you not leave or stay out of Queensland without the permission of an authorised corrective services officer; and that you comply with every reasonable direction of an authorised corrective services officer.  You should know too that if you were to breach such an order you could be resentenced - I am sure you are acutely aware of that prospect - and that an order can be varied on application.  Do you consent to the making of such an order?   

1. APPLICANT:  Yes, I do, your Honour.

1. HOLMES JA:  Well, those are the orders I would make.  That is, that the application for an extension of time for leave to appeal against sentence be granted, that leave to appeal against sentence be granted and that the sentence be set aside and sentences in the terms I have outlined be imposed instead.

1. McPHERSON JA:  I agree with the reasons of Justice Holmes and with the order she has proposed.

1. ATKINSON J:  I too agree with the orders proposed for the reasons given by Justice Holmes.

1. HOLMES JA:  That certainly poses no difficulty to me.  I will be happy to amend the order that I have suggested and make it one for reporting to an authorised correctional services officer at Hervey Bay within 72 hours of your release from custody.

1. McPHERSON JA:  I agree.

1. ATKINSON J:  I agree.

1. McPHERSON JA:  The order will be in the terms which have been expressed by Justice Holmes.  You must realise Miss Mahaffey that this is the turning point.  If you do anything wrong again you will get much less sympathy than you have in the past.