R v Riesenweber and Attorney-General of Queensland

[1996] QCA 504

COURT OF APPEAL

[1996] QCA 504

THOMAS J
DOWSETT J

WHITE J

CA No 430 of 1996
THE QUEEN
v.

DEBORAH JUNE RIESENWEBER	Respondent
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE
..DATE 15/11/96
151196 D.1 T4/SB M/T COA285/96
THOMAS J: This is an appeal by the Attorney-General in relation
to a sentence imposed for misappropriation as an employee. The
respondent pleaded guilty to that charge which alleged a general
deficiency of $40,000. She was sentenced to three years'
imprisonment wholly suspended for a period of four years.

The respondent had been secretary/receptionist for a dentist. One of her duties was to receive professional fees for the dental work. In November 1994 the dentist's wife became suspicious when, having noticed about $700 cash in a drawer on one day, she noticed that the following day's banking consisted only of $100 in cheques. On later checking she found that the day book had been replaced with a new one containing entries for days covered by the original book. Police later executed a search warrant on the respondent at her house. After initial statements attempting to deflect the police inquiry she admitted to having taken money.

The particulars, however, were very hard to track down. The dentist wished to look at some old receipts and went to the storage shed where they were kept but they had been removed. There is no doubt that her past activities were covered up by destruction of records. Because of this there was difficulty in establishing how much had been taken. An accountant was engaged to attempt reconstruction assisted by day books.

There was a committal where the amount said to have been taken was $10,000 and at the end of the committal the respondent pleaded guilty to having taken that amount. Ongoing reconstructions of facts and negotiations between the parties 151196 D.1 T4/SB M/T COA285/96

after this time resulted in a settlement for a figure of
$40,000.

Ultimately, she has pleaded guilty to an indictment which alleges that amount as the general deficiency. The indictment alleges that this occurred between 1987 and 1994. Those are outer limits and the period may have been shorter than this. But it is fair to say that the dishonesty continued over a considerable period.

The respondent started to take the money when her husband lost his job. Ultimately, the $40,000 has been repaid by means of raising a loan on her family home.

The position is slightly complication by the circumstance that the learned trial Judge stated that he would not have imposed this non-custodial sentence if the respondent had been hale and healthy. During the sentencing procedure he observed the respondent sitting in a wheel chair. She had been injured a week before and had broken her right ankle. It seems to have been a serious injury and to have required an operation in which pins, staples and a plate were inserted. She was, at that stage, in need of several dressings a day of the wound, would need to return to the hospital and would require physiotherapy.

She would be in plaster and bandages for at least six weeks.

That circumstance obviously influenced the learned sentencing Judge and indeed he indicated that this, as it were, tipped the scales in inducing him to make the sentence entirely suspended rather than requiring her to serve a component of the sentence 151196 D.1 T4/SB M/T COA285/96

such as a period of six months. His Honour stated that he considered it would not be humane to expose her to the discomforts of imprisonment in the circumstances as he saw them.

The maximum penalty for this offence is 10 years' imprisonment.
One of the main aspects in the sentencing process for such
offences is to deter those who are in a position of trust from
taking an employer's money. The learned sentencing Judge also
indicated that he had increased the operational period of the

suspended sentence in an effort to compensate for the benefit he

was extending.

Counsel for the Attorney-General has submitted that the circumstances were such that there should have been an actual custodial component in the sentence imposed and that it was an error not to send her to prison. He also submitted that it was an error to permit her injured condition to be the decisive factor that prevented her from being sent to prison.

In my view the circumstances revealed in the present case reveal it as a difficult marginal matter. The learned sentencing Judge perhaps gave undue weight to the factor of her injured condition. That, however, was a factor to which some relevance could rightly be attached. In combination with other factors it could assist in justifying a non-custodial result.

What then are the factors which need to be weighed in identifying this particular case as one which requires custody or as one where the discretion of the sentencing Judge was wide 151196 D.1 T4/SB M/T COA285/96

enough to permit a non-custodial sentence?

One starts with the good character of the respondent. She is a 43 year old mother of three. The offence was committed because of need, initially at least, generated by her husband's loss of his previous employment. The Crown Prosecutor in the sentencing procedure conceded genuine remorse on her part.

The system of the employer was one devoid of supervision although I do not place any particular store by that circumstance. It is, however, a factor which shows the temptation that obviously she did not resist. She was in an acute recovery phase at the time when the sentencing procedure was required to be exercised.

She lost her job, of course, in consequence of her activity and she has suffered extreme shame and loss of reputation.

Previous decisions of this Court show that while it is uncommon for persons who misappropriate sums of this order not to be required to serve some part of the sentence by actual custody, it is by no means impossible.

The case has a good deal of similarity to one which came before the New South Wales Court of Criminal Appeal in Martin 1990 47 Australian Criminal Reports 168. In that case the Court was of the view that the sentencing Judge had given undue weight to illness and to disability from which the respondent suffered. Indeed, the Court considered that the sentencing procedure revealed error and that the sentence had been unduly lenient. 151196 D.1 T4/SB M/T COA285/96

It, however, referred to the circumstance that it was an Attorney-General's appeal and that overall the circumstances were sufficient to lead that Court to draw back from proposing a custodial sentence on that later occasion. An appeal such as the present is of course not an occasion merely for the substitution of such a sentence as this Court might have imposed, or even for the substitution of a sentence that it thinks would have been preferable.

In the present case which I have described as somewhat marginal I consider that the respondent was undoubtedly fortunate, both in the timing of the injury which she undoubtedly suffered and in the non-custodial result. The circumstances, however, do not persuade me that overall it was an improper exercise of discretion to extend to this particular respondent the benefit of a totally suspended sentence. Being of that view I would dismiss the appeal.

DOWSETT J: I agree.

WHITE J: I agree that this is a marginal case but being an

Attorney-General's appeal I would not disturb the sentence.

THOMAS J: The order of the Court is appeal dismissed.

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