R v Wallace

Case [2015] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wallace [2015] QCA 62

PARTIES:

R
v
WALLACE, Michelle May
(applicant)

FILE NO/S:

CA No 314 of 2013
DC No 108 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Southport

DELIVERED ON:

21 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2015

JUDGES:

Margaret McMurdo P and Gotterson JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal and the application to adduce further evidence.

2.   Allow the appeal against sentence.

3.   Vary the sentence imposed below by:

a)   Substituting 11 years imprisonment for 12 years imprisonment on counts 4, 5, 6 and 7; and

b)     Substituting 8 November 2016 for 8 November 2018 on all counts as the date the appellant is eligible for parole.

4.   The sentence imposed below is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to six counts of fraud over $30,000 as an employee and one count of fraud over $30,000 – where the applicant was employed as the office manager of a nursing home – where the applicant had access to the business accounts of the nursing home including the residents’ bond accounts – where the applicant appropriated over $2.5 million from the nursing home’s working account and the bond accounts of some residents for her own use – where the applicant also appropriated money from the account belonging to the nursing home’s operators – where the applicant used the misappropriated money to pay for staff wages and other expenses of the two restaurants she owned with her husband – where the applicant has not paid any restitution – where the applicant was sentenced to 12 years imprisonment with parole eligibility after five years – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the applicant sought to lead evidence not led at sentence that she suffered domestic violence from her now ex-husband – where the applicant provided evidence that she suffered regular mental, emotional and verbal abuse – where the applicant’s ex-husband consistently took money from the restaurants’ bank accounts and tills and did not tell the applicant where the money went – where the applicant’s ex-husband did not contribute to the businesses but expected the applicant to ensure all bills were paid – where the applicant had not realised how much money she had taken – where the applicant became entangled in the day to day grind of trying to avoid her ex-husband hurting her – where police had been called numerous times to the applicant’s residence in response to the ex-husband’s violence against the applicant – where the applicant informed her solicitor at sentence that her ex-husband’s…

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Details
AGLC
R v Wallace [2015] QCA 62
Case
[2015] QCA 62
Decision Date

CaseChat Overview and Summary

The case of R v Wallace involved the applicant who had pleaded guilty to six counts of fraud over $30,000 as an employee and one count of fraud over $30,000. She was the office manager of a Gold Coast nursing home, a position that afforded her access to the business accounts including the residents’ bond accounts. Over a period spanning from February 2008 to June 2011, the applicant misappropriated over $2.5 million from the nursing home’s working account and the bond accounts of some residents, appropriating the funds for her own use, including to pay for staff wages and other expenses of two restaurants she co-owned with her husband. The applicant did not make any restitution. She was sentenced to 12 years imprisonment with parole eligibility after five years. The applicant appealed against her sentence, arguing it was manifestly excessive. Additionally, she sought to introduce fresh evidence that she had suffered domestic violence from her ex-husband during the time of the offending, and this evidence was not presented at the original sentencing.

The court was required to determine whether the sentence was manifestly excessive and whether the application to adduce further evidence should be granted. The key issues revolved around the impact of the applicant's domestic situation on her offending and whether this impacted her capacity to fully understand the moral blameworthiness of her actions. The court considered the nature and severity of the fraud, the applicant's position of trust, and the significant harm caused to the victims, including the nursing home's owners, residents, and staff. The court also needed to assess the credibility of the fresh evidence regarding domestic violence and its relevance to the sentencing decision.

The court found that the applicant's domestic situation, as evidenced by her affidavit and corroborated by her daughter and police records, significantly impaired her capacity to fully understand the repercussions of her fraudulent behaviour. The psychiatrist, Dr Schramm, supported this by linking the impact of the domestic violence to the applicant's “battered persons syndrome,” which affected her rational decision-making. The court concluded that the exclusion of this evidence would result in a miscarriage of justice, as it demonstrated that the applicant's offending, while extremely serious, was not in the worst category due to the mitigating circumstances of her abusive relationship. Consequently, the court granted the application for leave to appeal and the application to adduce further evidence. The appeal against sentence was allowed, and the sentence was varied to 11 years imprisonment with parole eligibility after five years.

In summary, the court recognised the gravity of the applicant's fraudulent actions but also acknowledged the mitigating effect of her domestic violence on her capacity to appreciate the full moral blameworthiness of her actions. This nuanced approach led to a reduction in the sentence, reflecting both the seriousness of the crime and the circumstances that influenced the applicant’s behaviour.

Orders

Orders of the court

1. Grant the application for leave to appeal and the application to adduce further evidence.

2. Allow the appeal against sentence.

3. Vary the sentence imposed below by:

a) Substituting 11 years imprisonment for 12 years imprisonment on counts 4, 5, 6 and 7; and

b) Substituting 8 November 2016 for 8 November 2018 on all counts as the date the appellant is eligible for parole.

4. The sentence imposed below is otherwise confirmed.

Background

Background to the litigation

The offences occurred between February 2008 and June 2011 when the applicant was between 45 and 48 years old. She was 51 at sentence. She had no previous convictions but was dealt with but not further punished for breaching a bail condition in November 2011.The facts of the offending The offending was a grave example of fraudulent behaviour. The applicant was the office manager of a Gold Coast nursing home operated by a private company whose directors were Ms Barabra Lowe and Mr Gilbert Donnay. Mr Donnay died on 27 June 2011. As office manager the applicant had access to the business accounts including residents’ bond accounts, as well as the petty cash. She was authorised to sign cheques on behalf of the company. Most business transactions were by online banking and she was the only person able to use the online banking password. She was also responsible for staff superannuation contributions and wages, and payments to suppliers and government agencies. The nursing home accommodated principally high care aged residents, with a smaller number of low care aged residents. The low care residents were required to pay a bond in an amount negotiated with the nursing home. The applicant was responsible for establishing individual bond accounts. Sometimes the bond was paid into the business working account and then transferred by the applicant to individual bond accounts. Some residents paid part of the bond and were charged interest on the outstanding balance until the full bond was paid. The applicant with her husband also operated two restaurants, one on Chevron Island and one at Broadbeach, through their own private company. She worked full-time at the nursing home from 9.00 am until 4.30 pm Monday to Friday and worked for the restaurants outside these hours. At times she monitored the restaurants via CCTV on her computer from the nursing home. She transferred money without authority from the bond accounts of some residents into the nursing home’s working account, and she failed to establish bond accounts for five residents who had deposited their bond money into the working account. She appropriated that money for her own use. Between February 2008 and late June 2011, in 149 transactions totalling $1,023,349.48, she paid her restaurant employees’ wages directly from the nursing home working account (counts 1 and 6). Between March 2008 and July 2011, in 143 transactions totalling $1,153,374.58, she paid money from the nursing home’s working account into the business account for her restaurants (counts 2 and 4). Between April 2008 and October 2010, in 49 transactions totalling $558,129.42, she used money from the nursing home’s working account to pay rent for her Chevron Island restaurant (counts 3 and 5). In June 2011 she learned that there was to be an audit of the bond accounts. She transferred $836,657 from Mr and Mrs Donnay’s personal term deposit to the nursing home working account by photocopying Mr Donnay’s signature from a fax. The day after Mr Donnay died, she sought confirmation that the transaction had taken place. Over the next three days she transferred $17,988.60 and $9,786.65 from the nursing home working account to her family business account. She also transferred $11,366.50 for restaurant staff wages. On 29 June 2011 she transferred most of the remaining funds, $612,399.04, from the Donnays’ account into the five bond accounts which she should have established earlier but did not (count 7).

Evidence

Evidence Before The Court

The judge referred to the circumstances of the offending, the applicant’s antecedents and the submissions of defence counsel. Her Honour concluded, however, that the applicant was in a position of enormous trust and her offending had caused great harm to many people, including Ms Lowe, the 117 residents and the 120 staff. Ms Lowe was left with debts of over $2.5m and the offending had a greatly detrimental impact on her. The applicant had not paid any restitution. The breach of trust, not only to the business owners but also the elderly and frail residents and the staff, placed this offending in the worst category. The applicant had been persistent and determined. The judge noted the comparable sentences to which counsel had referred and concluded that, despite the guilty plea, the applicant should serve more than one third of the head sentence of 12 years imprisonment. Parole eligibility should be fixed after five years.The application to adduce further evidence In this application the applicant has sought to lead evidence not led at the sentence. She has provided an affidavit attesting to her ex-husband’s violence towards her. He regularly verbally, mentally and emotionally abused her from the time of their marriage in 2005. This progressed to physical violence in 2007 and 2008. He once threw her to the ground. They had counselling and he underwent anger management but his violence continued. He would back fist her to the face if she said something to upset him. He physically and emotionally abused her on a daily basis. He controlled her freedom, her every move. After a fight he would take her house keys and phone so that she could not leave or get help. He threatened their children and restaurant staff. She was afraid he would harm her children. He banned her from seeing her daughter and he watched CCTV at the restaurant business to ensure that her daughter did not visit. If her daughter came to the restaurant, he would arrive within ten minutes and, in front of staff and customers, force her to leave. He was very volatile. He would pretend to be the perfect husband socially but if she said something he did not like, he would whisper in her ear, “Wait til we get home, then you’ll know about it.” When they got home he would become violent. He often threatened family and friends. She was especially worried for her daughter whom he threatened whenever the applicant stood up to him. He sometimes shoved the applicant to the ground, grabbed her by the throat and kicked and strangled her. She was mostly able to hide the resulting bruises. She was worried that if she told anyone about the abuse then that person would become a victim of his violence. She made a complaint to police about her husband’s domestic violence in 2008 and kept a domestic violence incident diary. The night she first phoned police she used an old landline phone which she recharged as he had taken her mobile phone and car keys. She was very scared and thought he was going to kill her. The police came, took her diary and charged her husband. He appeared and was sentenced to a one month suspended sentence.

Decision

Reasons for decision

The respondent did not challenge Dr Schramm’s evidence.Conclusion This Court will receive further evidence on an application for leave to appeal against sentence if its admission shows that some other sentence than that imposed was warranted in law and the exclusion of the evidence would result in a miscarriage of justice: R v Maniadis.[4]This case illustrates the importance for lawyers to be educated in the potential impact of domestic violence on its victims. Lawyers acting for those charged with criminal offences who claim to be victims of domestic violence should fully investigate those claims to determine their weight and relevance to the charged offending. If appropriate, they should obtain relevant evidence of the kind produced in this application and place it before the primary court, either as a possible defence or, as here, in mitigation of sentence.[4][1997] 1 Qd R 593. The complainant’s evidence was plausible. It was supported by the unchallenged evidence of her daughter and the police records. Psychiatrist, Dr Schramm, whose evidence was also unchallenged, found no cause to question the veracity of her account to him and persuasively linked the impact of the domestic violence to the applicant’s capacity to fully understanding the moral blameworthiness of her offending. The further evidence led in this application established that at the time of the offending the applicant was in an abusive, exploitive relationship which impaired her capacity to realise the full repercussions of her fraudulent behaviour and her ability to formulate a mature response to her financial and personal difficulties as she continued to take more and more money from the nursing home in the impossible hope that she would eventually repay it. As Dr Schramm explained, she was not acting completely rationally. She was exhibiting behavioural disturbances following her prolonged and significant physical and emotional abuse, commonly known as “battered persons syndrome.” This took her offending behaviour out of the worst category of fraudulent offending in which the sentencing judge placed it. The further evidence raises the possibility that some other sentence than that imposed may be warranted; if so, its exclusion would result in a miscarriage of justice. This Court should next consider, if it re-sentenced the applicant on the basis of the material before the sentencing court together with the further evidence produced in this appeal, whether it would impose a lesser sentence than 12 years imprisonment with parole eligibility after five years. If so, the application to adduce further evidence and the application for leave to appeal should be granted and the appeal allowed. Even in light of the applicant’s concerning domestic situation at the relevant time, her fraudulent offending was extremely serious. She perpetrated a deplorable fraud on her employers, breaching their trust and trammelling their rights, those of the elderly, vulnerable nursing home residents as well as those of the nursing home staff. Her offending has had a dreadful impact on many peoples’ lives and especially on Ms Lowe. A substantial head sentence was warranted, both as a personal and general deterrent and also to show the community’s disapprobation of such intolerable anti-social behaviour. Importantly, however, as Dr Schramm explained, her capacity to fully realise the seriousness of her actions at the time of the offending was impaired because of her husband’s abuse. This meant that her offending was not, as the sentencing judge considered in the absence of the evidence of domestic violence given in this application, in the worst category. But even with this further evidence, her offending was towards the top end of the range of seriousness of major frauds.

Ratio Decidendi

Legal Principle Established

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