R v Smallman

[1999] QCA 282

COURT OF APPEAL  99.282

McMURDO P
CULLINANE J
JONES J

CA No 200 of 1999

THE QUEEN

v.

COLENE ANN SMALLMAN  Applicant

TOWNSVILLE

..DATE 26/07/99

JUDGMENT

JONES J:  The applicant was convicted in the District Court, Charters Towers on 11 May 1999 on 42 counts of dishonestly applying to her own use the property of another.  The total value of the property involved was approximately $22,000.  This conviction followed her plea of guilty to all counts on the second day of the trial.   She was sentenced to four years' imprisonment.  The applicant seeks leave to appeal on the one ground, namely that the sentence was manifestly excessive. 

The conduct leading to the charges had some particularly disturbing features.  The applicant was an assistant nurse at the Eventide Nursing Home at Charters Towers.  The complainant, who was then 88 years of age, was a resident at that home and dependent on the staff of the home for her care.  In the course of her duties, the applicant had access to the complainant's room, and from that room she stole two cheque books, one which was kept in a briefcase, and the other in a drawer in a bedside table. 

The applicant then negotiated a number of cheques for her own benefit using false names and addresses.  This conduct occurred over a period between 3 May 1998 and 4 September 1998.  The applicant displayed considerable boldness during the course of these activities by contacting the Westpac bank, where the complainant's accounts were held, to change the mailing address to the applicant's own post office box.  As a result of this action she obtained a new cheque book, a keycard and a PIN number, enabling her to gain access to the account funds through an automatic teller machine.  She, in fact, used this keycard on four occasions, withdrawing in total, $4,000.

She was interrupted in this course of criminal activity because of the alertness of a bank officer.  This interruption occurred when the applicant was in the course of planning to terminate investments in the complainant's term deposit accounts which had a total value of $60,000.  In short, there is no suggestion of her desisting in the conduct upon which she had embarked prior to her being apprehended in this conduct.

The counsel for the applicant has referred this Court to a number of cases, drawing comparisons between other sentences where differing amounts were shown to be received by way of fraud.  As a result of those comparisons, learned counsel suggested that the appropriate range for this combination of offences was between two to three years' imprisonment.  The learned Crown Prosecutor suggested that he would be prepared to accept such a range if the applicant had had no previous convictions or had made a timely plea. 

The sentencing Judge's discretion is not limited to making comparisons of cases involving similar amounts, or even, indeed, similar circumstances.  In this case there are other significant matters which have been highlighted in the submissions made on behalf of the Crown.  Of particular importance amongst these is the fact that the applicant was in a position of trust;  that her conduct was systematic, deliberate and calculated in the taking of resources.  More importantly is the fact that the applicant has previous convictions of a like kind, and I will come to those in a moment.  Other matters that were emphasised were the fact that there was no capacity to make restitution; that this is a case of greed rather than need.

In some of the comparative cases where higher sentences have been referred to there were circumstances of aggravation which effectively double the penalty that applies here.  The circumstances surrounding this offence does not have those defined circumstances of aggravation and so the consideration of this appeal, as indeed was the case with the sentence, proceeded on the basis that the maximum penalty was five years' imprisonment.

The previous convictions which were brought to the attention of the learned sentencing Judge included a conviction for entering a dwelling house with intent, and a conviction of stealing for which the applicant was sentenced on 4 November 1994.  The penalty imposed was community service of 200 hours.  In 1995 the applicant was found guilty of social security fraud.  She was then convicted to a penalty of seven months' imprisonment and an order to be of good behaviour for a period of three years and six months.  This series of offences occurred during that period of required good behaviour.

These previous convictions for dishonesty, and the latter of social security fraud, were matters which were bound to weigh heavily on the sentencing Judge's mind.  Against that, and the circumstances of the case, the learned sentencing Judge had to take into account the early plea of guilty, although it was made only on the second day of the trial and therefore did not have the benefit of saving the community much by way of expense, nor did it save the necessity of the complainant having to come to Court.  It did, however, save her having to give evidence.

Having read the sentencing remarks of the learned trial Judge, it is my view that he has taken into account all the matters he was required to, including the fact of the early plea.  Whilst that sentence is at the highest end of the sentencing range, it is my view that it remains within that range.  I find that the sentencing Judge's discretion has not miscarried and I would therefore dismiss the application.

THE PRESIDENT:  I agree with Justice Jones and with his reasons that the application for leave to appeal should be refused.  I also agree that the sentence imposed, whilst at the top end of the appropriate range, was nevertheless, in all the circumstances, not manifestly excessive.

CULLINANE J:  I also agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused.

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