Smith v The Queen
[2003] WASCA 235
•3 OCTOBER 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: SMITH -v- THE QUEEN [2003] WASCA 235
CORAM: MURRAY J
PARKER J
MILLER J
HEARD: 12 SEPTEMBER 2003
DELIVERED : 12 SEPTEMBER 2003
PUBLISHED : 3 OCTOBER 2003
FILE NO/S: CCA 92 of 2003
BETWEEN: HELEN SUSAN SMITH
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - 25 counts of stealing as a servant - Total of $667,750 stolen - $440,534 remaining outstanding - Theft over a period of 18 months - Pleas of guilty - Personal circumstances of applicant - Whether sentence of imprisonment should have been suspended
Legislation:
Criminal Code WA, s 278(7)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant: Mr D Grace QC & Mr M L Tudori
Respondent: Ms R V C Fogliani
Solicitors:
Applicant: Michael Tudori & Associates
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
Nguyen v The Queen (2001) 160 FLR 284
R v Barrick (1985) 7 Crim App R 78
R v Carmady (1998) 100 A Crim R 41
R v Greenburg (1993) 68 A Crim R 392
R v Miceli (1997) 94 A Crim R 327
Ryan v The Queen (2001) 206 CLR 267
The Queen v Sivandran, unreported; SCt of WA; Library No 960154; 22 March 1996
Case(s) also cited:
Adams v The Queen [2003] WASCA 91
Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601
Gardiner v The Queen, unreported; CCA SCt of WA; Library No 940121; 3 March 1994
Greer v The Queen, unreported; CCA SCt of WA; Library No 960173; 1 April 1996
Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
McLachlan v R [1999] WASCA 255
R v Burns (1994) 71 A Crim R 450
R v Cameron & Anor (1993) 171 LSJS 305
R v Edwards (1996) 90 A Crim R 510
R v Fischer [2003] SASC 114
R v Heferen (1999) 106 A Crim R 89
R v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997
R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998
R v Liddington (1997) 18 WAR 394
R v SLR (2000) 116 A Crim R 150
R v Stewart (1994) 72 A Crim R 17
R v Togias (2001) 127 A Crim R 23
R v White [1999] NSWCCA 60
R v Wood (2002) A Crim R 518
White v The Queen, unreported; CCA SCt of WA; Library No 7096; 22 April 1988
JUDGMENT OF THE COURT: This application for leave to appeal against sentence was heard on 12 September 2003. After hearing argument the Court refused leave and undertook to publish reasons for its decision at a later date. These are the reasons.
The applicant was charged on an indictment alleging 25 counts of stealing as a servant, contrary to the provisions of s 378(7) of the Criminal Code (WA) ("the Code"). To 22 of these counts the applicant pleaded guilty, three counts being the subject of a nolle prosequi tendered to the Court by the prosecution.
The counts to which the applicant pleaded guilty alleged offences between 26 November 1999 and 14 March 2001, which was a period of approximately 16 months. Each count was in similar terms, namely, that on a certain date at the territory of Christmas Island, the applicant, an employee of Westpac Banking Corporation Ltd, stole a sum of money being the property of Westpac Banking Corporation Ltd, contrary to s 378(7) of the Code.
The total amount, the subject of the 22 counts to which the applicant pleaded guilty, amounted to $667,750, of which $440,534 remained outstanding at the time of the applicant's pleas.
After the entry of pleas of guilty the applicant was remanded on bail to appear on 3 June 2003, on which date Kennedy DCJ heard sentencing submissions on behalf of the prosecution and the defence. Her Honour then remanded the applicant in custody for sentence on 6 June 2003 and on that day sentenced her to imprisonment to 2‑1/2 years on each count, to be served concurrently with each other and with an order for eligibility for parole. The sentence was backdated to 3 June 2003.
The applicant seeks leave to appeal against the sentence so imposed on the following grounds:
"The Learned sentencing judge erred in the exercise of sentencing discretion by failing to impose a wholly suspended sentence upon the applicant.
Particulars
1.Giving too much weight to the application of the principles of general deterrence in the circumstances of this offending.
2.Failure to give sufficient weight to the mitigating factors:
a)The excellent prospects of rehabilitation
b)The absence of prior convictions and excellent prior good character
c)The plea of guilty
d)The pending birth of the applicant's first child
e)The altruistic nature of the applicant's offending and the absence of any intention to achieve any financial gain highlighting the extremely unusual circumstances of the offence.
f)The remorse of the applicant highlighted by genuine efforts to settle the claim by the complainant against her and the fact of the intention to recompensate the complainant.
3.Failing to adequately apply the principles enunciated by the High Court in Dinsdale v The Queen [2000] HCA 54."
The facts in relation to the offences were the subject of a lengthy narration to the Court by the Crown prosecutor on 3 June 2003. They were summarised by the learned trial Judge on 6 June 2003 without going into the detail of the banking transactions undertaken by the applicant. It is unnecessary for the purposes of this appeal to recite that detail.
The applicant was the branch manager of Westpac Banking Corporation on Christmas Island during the period encompassed by the indictment. She had commenced employment with Westpac Banking Corporation (Westpac) on 24 August 1989 and she was transferred to Christmas Island in May 1997 as the branch manager.
In mid‑1998 a number of companies and individuals at Christmas Island incorporated two companies for the purpose of organising charter flights between Christmas Island, Jakarta and Singapore. The purpose was to promote business and tourism links with Christmas Island and also to provide travel services for people who resided at Christmas Island. Investors were to receive discount fares. The business began trading in early 1999 under the name Christmas Island Community Air. This was
commonly referred to as "CICA". It organised flights by leasing various aircraft.
The applicant was a director of the two companies which carried on the business of CICA between February and July 1999 and the applicant's husband had a small shareholding in one or other of the companies. Between September 1999 and March 2001 the applicant played a role in the management of CICA's financial affairs. She was not remunerated for that work. She established an account at Westpac Bank Christmas Island for CICA and she was responsible for reconciliation of the bank account and for organisation of payments of various costs associated with the project, including aircraft leasing costs, fuel, landing fees and other general expenses relating to aviation operation.
As branch manager at Westpac Bank Christmas Island, the applicant had a limited capacity to approve credit. She could approve only $5000 for unsecured loans and $20,000 for secured loans. Any overdraft facilities beyond these limits had to be approved at the Credit Centre of Westpac in New South Wales.
In October 1999 the applicant made an application to the Credit Centre at Westpac New South Wales on behalf of CICA for an overdraft facility. Later in the same month an officer from that Credit Centre telephoned the applicant to advise that the application was rejected because it was unsecured. At the time the applicant made the application the applicant withheld from the bank any advice that she was a signatory to the CICA account with the bank.
On 26 November 1999 and thereafter, regularly until March 2001, the applicant stole substantial sums of money from the bank for the purposes of the business of CICA. The learned trial Judge concluded that the applicant had arranged for the falsification of bank documents and utilised her knowledge of banking policy and procedure to steal the money by use of the bank's warrant and suspense accounts.
Staff were persuaded to pre‑sign warrant vouchers and there followed a complicated series of transactions whereby the warrant account was floated and/or the suspense account utilised to obtain moneys for CICA's use, when there was no overdraft facility approved for CICA and no deposits of money on behalf of CICA sufficient to fund the moneys that were made available. Those moneys were made available by overseas telegraphic transfers or interbank transfers on behalf of CICA. Because there were never sufficient funds in the CICA account to fund the
telegraphic or interbank transfers, at the date of transfer the applicant procured the debiting of the bank's suspense and or warrant accounts, rather than the CICA account, to pay for the transfers.
The learned trial Judge was correct in her categorisation of the applicant's behaviour as a significant breach of trust. Her knowledge of banking policy and procedure enabled her to do what she did without detection until approximately March 2001. Staff at Westpac Bank Christmas Island were sufficiently concerned about a large payment to the Christmas Island Administration of behalf of CICA, to institute inquiries to ascertain how the payment had been funded. This led to discovery of the use of the warrant account by the applicant in circumstances which were clearly contrary to bank procedure. Westpac management were alerted and in due course a bank investigator approached the applicant in April 2001. The applicant then admitted what she had done, but as the learned trial Judge found, had difficulty in accepting that her behaviour had gone beyond a mere breach of bank guidelines.
The applicant first pleaded not guilty to the charges preferred against her, but changed that plea to one of guilty. The indictment was dated 22 November 2002 and the plea of guilty was made on 30 May 2003. The learned trial Judge found that the plea had been made in time to result in enormous savings to the community by the avoidance of a trial. The trial would have been held at Christmas Island where expenses would have been considerably higher than the norm.
In sentencing the applicant the learned trial Judge acknowledged that she had gained no financial benefit from the commission of the offences. Nor would she obtain such benefit in the future. The learned trial Judge also found that had the airline venture been successful there would have been benefit to Christmas Island. Her Honour accepted that the applicant believed that the airline venture would be a success and that it would have been possible to repay the moneys stolen from the bank, although of course that belief was clearly misheld.
The learned trial Judge reviewed the matters personal to the applicant, pointing out that she was 36 years of age and had no prior convictions. There were a number of references from people who spoke well of her and in particular, her honesty and contribution to the Christmas Island community. Her Honour accepted that the offences committed were out of character for the applicant.
The learned trial Judge also made reference to the fact that the applicant was six months pregnant and if sentenced to imprisonment, would be forced to serve imprisonment in Perth. As her husband worked at Christmas Island and her family were in Melbourne, this would cause hardship to her. Further, separation of the child from its father in the early months of its life was regarded as a matter of concern to her Honour.
The learned trial Judge accepted that the applicant would not offend again but took the view that because the offences were committed in a position of trust and a very substantial amount of money was stolen over a long period of time, with significant steps being made to conceal it, a sentence of imprisonment to be served immediately was the only option open. Her Honour considered suspension of the sentence but said that she could not suspend it. She imposed a term of 2‑1/2 years' imprisonment on each count to be served concurrently with eligibility for parole.
The overall ground of appeal advanced on behalf of the applicant is that the learned trial Judge erred in the exercise of her sentencing discretion by failing to impose a suspended sentence. The third of the particulars of the ground contends that the learned trial Judge failed to adequately apply the principles enunciated by the High Court of Australia in Dinsdale v The Queen (2000) 202 CLR 321. In that case, Kirby J at [85] ‑ [87] set out the appropriate way for a sentencing Judge to approach the question of suspension of a sentence of imprisonment:
"85… This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.
86Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the 'complete discretion' which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered
undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.
87The approach which I favour also appears more consistent with what has recently occurred in Western Australia where factors quite distinct from the rehabilitation of the offender or mercy in the particular case have influenced the suspension order made or confirmed. Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two‑step approach which the statute mandates and facilitates a desirable flexibility in sentencing options that permits, in a particular case, the exploration of alternatives to immediate custodial punishment."
In this case the learned trial Judge made no specific mention of the "two‑step approach" referred to by Kirby J, but there is no reason to think that she was unaware of the requirement. Her Honour is a very experienced Judge, constantly sitting in the criminal jurisdiction of the District Court.
The learned trial Judge clearly concluded that a sentence of imprisonment was the only appropriate disposition of the matter and decided that in the circumstances of the case it was inappropriate to suspend that sentence. There is nothing to suggest that her Honour did not take into account all relevant circumstances before making that decision.
The decision of the learned sentencing Judge was truly one of discretion in the sentencing process. There is no substance in the third particular of the ground of appeal which contends that the learned trial Judge failed to adequately apply the principles enunciated in Dinsdale v The Queen.
Further, what was said by the Court in Lowndes v The Queen (1999) 195 CLR 665 at [15] is particularly applicable to the circumstances of this case:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass
and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
Given the importance of the discretionary judgment of the learned trial Judge to direct that the sentence of imprisonment she thought appropriate should be served immediately rather than be suspended, it is necessary for the applicant to show that the circumstances of the case demanded that the sentence of imprisonment be suspended.
The first particular of the ground of appeal contends that too much weight was given to the application of the principles of general deterrence. However, general deterrence is of primary importance in relation to offences of stealing as a servant where there has been deliberate, systematic and planned criminality over a lengthy period. This was made clear by the Court in R v Greenburg (1993) 68 A Crim R 392 at 400:
"In the present case there was deliberate, systematic and planned criminality over a two‑year period. On the facts of the present case general deterrence was the prime consideration. It is the type of case where the previous good character and personal mitigating factors should either be excluded from consideration or play only a minor role: cf R G Fox and A Freiburg, Sentencing: State and Federal Law in Victoria (1985), par 12.905, p 558."
In R v Greenburg the total amount misappropriated by the applicant was over $4 million and there were 51 counts alleging stealing money from a student guild and making improper use of the position of director to gain an advantage. There was an aggravating feature in that many small investors lost their life savings. Nevertheless, the observations of the Court in relation to the type of offence committed by the applicant in this case are entirely appropriate. Whilst it cannot be said that personal mitigating factors and previous good character should be excluded in this case, they must of necessity take second place to the issue of deterrence.
In this State, sentencing in cases of stealing as a servant and like offences is generally governed by the principles set out in R v Barrick (1985) 7 Crim App R 78 at 82. In The Queen v Sivandran, unreported; SCt of WA; Library No 960154; 22 March 1996, Scott J (with whom Kennedy and Wallwork J agreed) put the position as follows:
"So far as the appropriate sentence for a case such as this is concerned, the relevant principles have been set out by the House of Lords in the case of John Barrick (1985) 7 Crim App R 78 at 82 in the judgment of the Lord Chief Justice of the Court of Appeal where the factors involved in sentencing in a case such as this are set out as being:
'( i)the quality and degree of trust reposed in the offender including his rank;
( ii)the period over which the fraud or the thefts have been perpetrated;
(iii)the use to which the money or property dishonestly taken was put;
( iv)the effect upon the victim;
( v)the impact of the offences on the public and public confidence;
( vi)the effect upon fellow employees or partners;
(vii)the effect on the offender himself;
(viii)his own history;
( ix)those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.'
Barrick's case has been accepted and applied in the Court of Criminal Appeal in Western Australia on a number of occasions since it was delivered: see Birch v R (1993) 69 A Crim R 181 and R v Carreras (1992) 60 A Crim R 402. That is not to say
either that Barrick is binding upon this Court or that the list of matters set out above are exhaustive. See R v Wilkinson, unreported CCA SCt of WA; Library No 960035; 25 January 1996 per Franklyn J at 10."
In relation to this list, particulars (i), (ii), (v) and (vi) all tell against the applicant, although particulars (vii) and (viii) are in her favour.
In this case, the learned trial Judge correctly balanced the relevant factors in sentencing the applicant. She placed particular emphasis upon the breach of trust, the amount of money missing, the period of time over which it was taken and the steps taken by the applicant to conceal what she was doing. Against that, her Honour balanced all matters personal to the offender and gave them considerable weight. The quite low sentence of imprisonment reflects that fact. We do not consider there is any substance to the first particular of the ground of appeal.
The second particular contends that the learned trial Judge failed to give sufficient weight to a number of mitigating factors. However, the learned trial Judge did give weight to these factors. She made particular mention of them in the following order: (a) the plea of guilty; (b) the fact that the applicant had not made any financial gain herself; (c) the age and prior good record of the applicant; (d) the references to her good character; (e) the fact that the offences were out of character; (f) the fact of the applicant's pregnancy and the hardship which would be caused to her and her family by reason of her serving the sentence in Perth; (g) the fact that the applicant's child when born would be separated from its father in its early months; (h) the unlikelihood of the applicant offending again; and (i) the issue of reparation.
Mr Grace QC, in his eloquent submissions on behalf of the applicant, placed considerable emphasis on the evidence relating to her prior good character. Reference was made to Ryan v The Queen (2001) 206 CLR 267, and in particular, the passage of McHugh J at [23] ‑ [25] to the following effect:
"[23]It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges
refer to the offender's 'previous' or 'otherwise' good character.
[24]If an offender's character was determined by reference to the offences for which he or she is being sentenced, he or she would seldom be 'of good character'. I hesitate to say 'never' because in Ziems v Prothonotary of the Supreme Court of NSW Kitto J thought that the circumstances giving rise to the conviction of a barrister for manslaughter did not 'warrant any conclusion as to the man's general behaviour or inherent qualities'. His Honour also thought that the conviction was 'not inconsistent with the previous possession of a deservedly high reputation'. Indeed, contrary to other members of this Court, Kitto J said that the barrister should not be suspended from practice while he was undergoing his gaol sentence.
[25]Secondly, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances."
There is no doubt that the applicant was of previous or otherwise good character prior to the commission of the offences in question - a matter which the learned trial Judge was required to take into account in the sentencing process as a mitigating factor in favour of the applicant. Although her Honour did not review the oral testimony and written testimonials before the Court, it is apparent that she was well aware of them.
The Court was referred to the testimony of William Leonard Taylor, administrator of Christmas Island and Cocos (Keeling) Islands, who testified that he had known the applicant both socially and as manager of the Westpac Bank on Christmas Island from early 1999. He described the applicant as a "very quiet unassuming personality … very very moral and ethical in everything that she does" and expressed every confidence in her integrity. He was not aware of the nature of the charges against the applicant until the morning upon which he testified before the learned
sentencing Judge, but expressed the view that it did not change in any way his personal opinion of the applicant. Mr Taylor made express reference to the importance to the community of CICA by way of maintaining morale on the Island, both in the carriage of fresh goods and mail.
Other evidence was to the same effect, and it established beyond doubt the prior good character of the applicant. Her Honour made specific reference to the applicant's previous blameless life and to the fact that a range of people on Christmas Island has spoken well of her, particularly her honesty and contribution to the community. She described the situation in which the applicant found herself as "out of character and generally a disaster". It cannot therefore be accepted that the learned trial Judge failed to place sufficient emphasis upon the prior good character of the applicant.
The second matter upon which counsel for the applicant placed particular emphasis was the personal circumstance in which the applicant found herself in relation to her unborn child. The Court was informed that the applicant's child has now been born and is with her at Bandyup prison. If the applicant is released on parole when eligible for release the child will be seven months of age.
It is apparent that the learned trial Judge took full account of the pregnancy of the applicant. Specific reference was made to the hardship which would be suffered by the child in being separated from its father in the early months of its life and her Honour stated that as a significant factor. She pointed out that often in cases there "are no fathers around" but in this case the applicant had a close and ongoing relationship with the father of the child, with the result that the child would miss an important part of bonding with its father.
Reference was made to Nguyen v The Queen (2001) 160 FLR 284, and in particular to the judgment of Malcolm CJ, where at [31] his Honour quoted the judgment of Callaway JA in R v Carmady (1998) 100 A Crim R 41. There, Callaway JA at [47] said:
"There is an important difference between cool reason and cold‑heartedness. The passage that I have emphasised has to be understood (as must always be the case, however distinguished the judge) in the context of surrounding principle and other relevant authorities. In Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 King CJ said (at 212; 394) that '[t]here must always be a place for the exercise of mercy where a judge's sympathies
are reasonably excited by the circumstances of the case'. It is the word 'reasonably' which is important and explains that the generosity deprecated in Rushby is not the proper extension of mercy. It is foolish leniency that undermines one or more of the purposes of punishment."
In Nguyen v The Queen (a case which centred upon the fact that the appellant's children were left uncared for and in extremely difficult circumstances in the light of the appellant's imprisonment), Malcolm CJ (at [33]) also quoted with approval the judgment of Tadgell JA in R v Miceli (1997) 94 A Crim R 327 at 331. Malcolm CJ said:
"… The Court of Appeal of Victoria in that case held that an element of mercy had always been regarded and properly regarded as running hand in hand with the sentencing discretion. The way in which this should be approached was described by Tadgell JA at 331 that:
'… a proper consideration and evaluation of all the relevant extenuating circumstances conduced to clemency such that a merciful sentence should be imposed. That has the ready authority of Gherghe (unreported, Court of Criminal Appeal, Vic, No 179/90, 10 October 1990) in which Murphy J, speaking for the Court of Criminal Appeal, said:
"Oftentimes the fact that a person has had some compelling extenuating motive for the acquisition of money has been seen by the court as a good reason for tempering justice with mercy, mercy perhaps which may not have been appreciated by the applicant, nor indeed perhaps by the public generally." "
We are conscious of the place for mercy in the sentencing process, and in the circumstances of this case it is apparent from the low sentence that the learned trial Judge exercised an element of mercy in the sentence pronounced upon the appellant. Each sentence of imprisonment was at the lowest end of the range of sentences that could have been imposed. Each count on the indictment was punishable by a sentence of 10 years' imprisonment. Sentencing principles could well have commended a degree of cumulation of the sentences. No doubt the significantly modest sentence imposed upon the applicant was due to the combination of personal factors highlighted by the learned trial Judge.
The question of suspension of the sentence was entirely a matter of discretion for the learned trial Judge and we are of the view that it cannot be demonstrated that the discretion miscarried. To the contrary, acknowledging the fundamental importance of the discretion which the law commits to sentencing Judges in our system of criminal justice (Lowndes v The Queen (supra) at [15]), it is impossible to suggest that the learned trial Judge failed to exercise that discretion properly in this case. For these reasons, there is no substance in the second particular of the ground of appeal.
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