R v Power - [1998] QCA 32

COURT OF APPEAL

[1998] QCA 032

FITZGERALD P
McPHERSON J
BYRNE J

CA No 440 of 1997

THE QUEEN

DEBRAH DAWN POWER Applicant

BRISBANE

..DATE 11/02/98

JUDGMENT

McPHERSON JA: The appellant seeks leave to appeal against the sentence of imprisonment for six years with a recommendation for parole after two and a half years.

On 3 November 1997, the appellant pleaded not guilty to a charge of misappropriation, or fraud as I think it is now called by the Code, under section 408C of the Code, together with two circumstances of aggravation under section 408C(2), namely that she was an employee of the victim and the amount was over $5000.

On the second day of the trial she was rearraigned and pleaded guilty after the amount misappropriated was amended from $108,574.25 to $107,969. Given those circumstances of aggravation, the statutory maximum was imprisonment for 10 years.

The facts constituting the offence are that between 18 January
1995 and 20 March 1996 the applicant misappropriated 45 cheques or their proceeds. It is a little bit difficult for me to understand why those acts of misappropriation were not charged as 45 different offences or counts in the indictment. However the fact that they were not can in the end only have served to make her offence appear less serious than it really was.

The applicant was employed as an administration officer by a small family business, Matesea Pty Ltd trading as Zoran's Homes. As such she was responsible for paying accounts, wages and looking after petty cash. There were three signatories to the company's bank account. They were Mr Zoran Stojkovic, the managing director, Mrs Maria Stojkovic, his wife and Dean Stojkovic, their son. Occasionally it seems Mr Zoran Stojkovic would sign blank cheques which were delivered to the applicant for use in connection with the business.

During the period of some 15 months or more covered by the indictment, cheques were misappropriated in four different ways. Six of the cheques, totalling $22,610.25 were made out in the name of the applicant D Power. Three cheques totalling $11,200 were made out to L J Hooker, six cheques totalling $40,314 were made out to Esanda to a joint account maintained by the applicant and her de facto husband and $33,844.75 was misappropriated by increasing the amount on the cheque and placing a false entry on the butt for the purpose, as it was put forward, of petty cash or wages. The appellant's employment was terminated in March 1996 when Mr Zoran Stojkovic discovered the discrepancies.

Before us the appellant has submitted that the sentence imposed was manifestly excessive for the following reasons; that is to say, her guilty plea, although it should be noticed that she did not change her plea to guilty until after the Stojkovics had given their evidence at the trial; also what was said to be genuine remorse, although that has to be viewed in the light of the observation I have just made; her age, that is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Power

Details

AGLC: R v Power [1998] QCA 32
Case: [1998] QCA 32
Decision Date: 11 February 1998

CaseChat Overview and Summary

In the matter of R v Power, the applicant, Debrah Dawn Power, sought leave to appeal against her sentence of imprisonment for six years, with a recommendation for parole after two and a half years, imposed by the Supreme Court of Queensland. Power was found guilty of misappropriation under section 408C of the Criminal Code, with aggravating circumstances of being an employee of the victim and the amount exceeding $5000. The misappropriation occurred over a period of 15 months, involving 45 cheques or their proceeds, with a total amount of $107,969.

The key legal issues addressed by the Court of Appeal were whether the sentence imposed was manifestly excessive and whether the trial judge erred in his assessment of the mitigating factors presented by Power. Power argued that her guilty plea, remorse, age, and family circumstances warranted a lesser sentence. The Court considered the severity of the offence, Power’s criminal history, and the impact of her actions on the victims and her family. The Court also weighed the precedent set by similar cases where different sentences were imposed for varying amounts of misappropriation.

The Court of Appeal held that the sentence was appropriate given the circumstances of the case. The judges noted Power's prior convictions for similar offences, her failure to learn from previous leniency, and the significant impact of her actions on the victim's small business. The Court concluded that there was no basis to interfere with the sentence imposed by the trial judge. All three judges agreed to refuse the application for leave to appeal.

As a result of this decision, the application for leave to appeal against the sentence was refused. The original sentence of six years imprisonment, with a recommendation for parole after two and a half years, remains in effect.

Orders