R v Twidale

[2009] QCA 200

SUPREME COURT OF QUEENSLAND

CITATION:

R v Twidale [2009] QCA 200

PARTIES:

R
v
TWIDALE, Lisa Rose
(applicant)

FILE NO/S:

CA No 89 of 2009
DC No 1649 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 2009

JUDGES:

Muir and Fraser JJA and Wilson J
Separate reasons for judgment of each member of the Court,

each concurring as to the order made

ORDER:

Application for extension of time within which to appeal against sentence dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant seeks extension of time in which to appeal against sentence – where application made about 1.5 months late – where applicant’s excuse for delay is ignorance of time limit – where proposed appeal not viable – whether the application for extension of time should be granted

R v DAQ[2008] QCA 75, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Tindale[2008] QCA 24, applied

R v Wheeler & Sorrensen[2002] QCA 223, applied

COUNSEL:

The applicant appeared on her own behalf

D C Boyle for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Director of Public Prosecutions (Qld) for the respondent

1. MUIR JA: I agree with the reasons of Wilson J and with the order she proposes.

1. FRASER JA: I agree with the reasons of Wilson J and with the order her Honour proposes.

1. WILSON J: On 2 February 2009 the applicant pleaded guilty to fraud as an employee, to the value of $5,000 or more, between 1 January 2000 and 3 April 2007.  It was a timely plea.  She was sentenced to seven years imprisonment with a parole eligibility date fixed at 2 June 2011 (after serving 28 months).

1. Eleven weeks later, on 20 April 2009, the applicant filed an application for an extension of time within which to appeal against the severity of the sentence, and an application for leave to appeal against the sentence.

1. An application for leave to appeal against sentence must be brought within one calendar month of the sentence: Criminal Code s 671. This Court has a discretionary power to extend that time limit.

“[T]he Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.”

See R v Tait [1999] 2 Qd R 667 at 668; see also R v DAQ [2008] QCA 75 at para [8] - [11]. Factors the Court will consider include the viability of the appeal, the length of the delay and the reason for it, the public interest in the finality of litigation, whether the application for an extension of time is an abuse of process in that it has been made for a collateral and improper purpose, and in the unusual case where it is a live issue on a criminal appeal, any prejudice to the respondent.

1. The applicant was an employee of the Commonwealth Bank on two separate occasions – between 8 August 1998 and 13 March 2004 and between 16 June 2005 and 2 April 2007.  In the earlier period she worked in a variety of positions of trust, including as a teller, then a lender, a team leader and a team manager of certain groups within the bank for home lending.  In the later period she was a mobile lender on behalf of the bank.  From February 2000, at the times she worked for the bank, she defrauded it of a total of $646,450, by several means –

(a)     creating an unauthorised (Viridian) line of credit for herself;

(b)     creating unauthorised loans in fictitious names;

(c)     withdrawing money from one of the bank’s customer’s account totalling $495,814 in eight transactions between 3 January 2006 and 13 December 2006.

1. The offending came to light when the applicant’s estranged husband raised suspicions with the bank about joint accounts they held with the bank.  After an internal audit was conducted, the applicant was called upon to attend an office of the bank to discuss what had been uncovered.  She failed to attend, and was subsequently listed as a missing person.  Police located her in South Australia, and she returned to Queensland to visit her dying father.  She cooperated with police and was interviewed on 28 September 2007 when she made admissions.

1. The applicant was aged 30 to 38 at the time of the offending, and 39 at sentence.  She had no criminal history prior to her defrauding the bank, but she committed a shoplifting offence while in South Australia, for which she was fined by an Adelaide Magistrates Court in November 2007.

1. The applicant contends that the sentence is manifestly excessive in all the circumstances.

1. The applicant’s excuse for the delay in seeking leave to appeal against the sentence is that she was ignorant of the time limit.  The solicitors who represented her at the sentence did not advise her of the time limit, and she did not seek legal advice about an appeal until 11 April 2009.  This is a weak excuse, but given the comparatively short period of delay (about 1.5 months), I would be disinclined to regard it as inadequate if the proposed appeal were viable.

1. In my view it is not viable.  The offending conduct took place over an extended period of about six years.  It was calculated and systematic, and involved a gross breach of trust.  During the period of the offending the applicant made some “repayments”, which she funded partly from her income and partly by further misappropriations.  The sentencing judge was told that the money had been used to support her husband’s business and for family expenses in an endeavour to keep the family and the marriage together.  A psychologist observed that the offending occurred “in the context of a highly disturbed ongoing marital relationship”.  No restitution had been made by the time of sentence (which was almost two years after the fraud had come to light), due in part it seems to her assets being frozen by pending proceedings in the Family Court.  The sentencing judge took into account that she had made some genuine offer to make some restitution, but it had been rejected.  

1. The maximum penalty which could have been imposed was 10 years imprisonment.  The sentence imposed needed to reflect the community’s denunciation of such conduct and to be a general deterrent against similar conduct by other employees in positions of trust, as well as to punish the applicant.  An examination of other cases confirms that the sentence imposed (seven years imprisonment with parole eligibility after 28 months) was not manifestly excessive.

1. In R v Wheeler & Sorrensen [2002] QCA 223 the applicants were directors of a company which carried on business as licensed auctioneers and motor dealers. They participated in a scheme to misappropriate trust funds amounting to more than $630,000 in a misguided attempt to keep the business running and so protect their staff. Eventually they called in an administrator and their conduct was revealed. In the present case the applicant’s conduct came to light not through any action she took to reveal it, but through steps taken by her husband whose suspicions were aroused. Wheeler and Sorrensen pleaded guilty to a fraud charged by ex officio indictment, and were sentenced to six years imprisonment with a recommendation for parole after two years.  The Court of Appeal refused leave to appeal against the sentence.

1. In R v Tindale [2008] QCA 24 the applicant pleaded guilty to fraud involving the misappropriation over $425,000 from her employer and friend in 132 transactions over four and a half years. The applicant was aged between 36 and 41 years at the time of offending and 42 at sentence. She had no criminal history. Her offending was motivated, or partly so, by a desire to maintain a lifestyle that would appease her partner with whom she had a somewhat dysfunctional relationship. She exhibited symptoms consistent with clinical depression, obsessive compulsion disorder and dependent personality traits. She was sentenced to seven years imprisonment with parole eligibility fixed after 28 months. The Court of Appeal refused leave to appeal against the sentence.

1. Consideration of the reasons for judgment in these cases, including the Court of Appeal’s reviews of comparable decisions, leads me to conclude that the appeal which the applicant wants to bring in the present case would be most unlikely to succeed.

1. In the circumstances the application for an extension of time within which to appeal should be dismissed.