The King v Carpenter, Ashley

[2023] QCA 194

[2023] QCA 194

COURT OF APPEAL

MULLINS P
BODDICE JA
BURNS J

CA No 112 of 2023
DC No 143 of 2023

THE KING

v

CARPENTER, Ashley  Applicant

BRISBANE

WEDNESDAY, 27 SEPTEMBER 2023

JUDGMENT

BODDICE JA:  On 15 June 2023, the applicant pleaded guilty to one count of fraud as an employee, to the value of at least $100,000.  The offence was committed between 7 August 2018 and 4 October 2020.

On the same date, the applicant was sentenced to four years imprisonment, suspended after serving nine months in custody, for an operational period of four years.

The applicant seeks leave to appeal that sentence.  Should leave be granted, she contends the sentence was manifestly excessive by reason of the requirement that she serve time in actual custody.

The offending commenced some months after the applicant commenced work as an office manager for a small family business.  Her duties as officer manager included organising payroll and handling accounts payable and receivable.

For a period over two years and one month, the applicant engaged in systematic fraudulent transactions involving some 118 electronic transfers, totalling $125,145.77.  These transfers were from the company account into 12 personal bank accounts, 10 of which were held in the applicant’s name, one in her husband’s name, and one with an unknown name.

The fraud had a level of sophistication.  The applicant created accounts in the company’s software, hiding the fraudulent transactions by creating invoices that made it appear as a legitimate payment.  Initially, the transactions averaged $2,100.  In subsequent years, this was reduced to an average of $945, and then further reduced to $495.  The monies were used for a variety of personal expenses, including laptops, school books, and other personal stationery items.

The applicant was confronted by her employer on 6 October 2020.  She falsely claimed the payments were reimbursements.  However, upon being told the total quantum, she cried and said there was no explanation.  A demand for repayment was promptly met with the family business receiving a $100,000 payment from the applicant’s father on the following day.  At sentence, the applicant provided a bank cheque for the balance of the monies outstanding.

The applicant was first approached by police in April 2021.  She wanted to seek legal advice.  She said she would contact police, but did not do so.  The applicant also did not respond when a card was left by police at her residence later that year.  A notice to appear was not issued until January 2022.

At the sentence hearing, the sentencing judge accepted there was a full reimbursement, but noted the family business was still out of pocket between the time the money was taken and its reimbursement.  The sentencing judge also recorded the applicant did not desist of her own accord; the offending only stopped after it had been detected by her employer.  Further, the offending had a significant impact on the family business and its members.  The egregious breach of trust had resulted in those family members undertaking an increased workload, in that they had assumed responsibility for all books.  One family member had stepped away from involvement in the business due to this breach of trust.

The sentencing judge accepted the offending had occurred in circumstances where the applicant was 36 to 39 years of age, with no criminal history.  The applicant had also entered an early plea of guilty.  However, there were aggravating features: the applicant was not young; she breached the trust of individuals, taking a significant quantum of money over a lengthy period; there were concerted efforts to conceal her behaviour; and there was a false attempt to evade responsibility upon initial confrontation.

The sentencing judge accepted the offending was out of character, had occurred in the context of financial stressors, and that the applicant had demonstrated remorse in her efforts to reimburse her employer.  Nevertheless, there was a significant breach of trust over a prolonged period of offending, involving a significant monetary amount which was a significant factor in terms of general deterrence and denunciation.

The sentencing judge noted that since the offending, the applicant had undertaken 11 sessions with a mental health support worker.  There was also a report from an experienced psychologist who had concluded that the applicant, at the time, had impaired decision-making, whilst struggling with chronic depression in the context of a range of emotional stressors, of which she had self-reported.  The psychologist opined that the applicant had a low risk of recidivism.

The sentencing judge accepted the psychologist’s opinion as to the applicant’s low risk of recidivism, but was not prepared to place significant weight on the psychologist’s opinion as to a causal connection between the applicant’s chronic depression and the period of offending, because it was based, in particular, on a contention that the applicant was depressed and stressed whilst separated from her husband, with increased financial pressures.  The period of separation, according to the husband’s reference, was one year, whereas the offending occurred in excess of two years.

The sentencing judge accepted the applicant had undertaken steps at rehabilitation by attending upon her general practitioner and a mental health support worker.  Their reports were supportive of the applicant presenting with extremely severe depression and anxiety, although the sentencing judge observed it was hardly surprising the applicant would present with those features against a background of the criminal proceedings.  The sentencing judge was not persuaded that the offending was informed by a chronic stress disorder such that the applicant’s moral culpability ought to be significantly moderated.

The sentencing judge concluded:

“I place significant weight on the significant period of time that you have engaged in extensive rehabilitation since the offending ceased, and your offer to complete the restitution.  Clearly, there are tensions pulling in different directions in terms of what the appropriate sentence might be.  I am cognisant that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows an offender to stay in the community is preferable.  But general deterrence is a weighty consideration for offending of this nature, given the amount of money that you took and the lengthy period over which it was taken from a small family business.”

The sentencing judge imposed a sentence of four years imprisonment.  Taking into account the early plea of guilty, remorse, lack of criminal history, delay since the offending, efforts at rehabilitation, present employment and offer of full restitution, it was ordered the sentence of imprisonment be suspended after serving a period of nine months imprisonment, for an operational period of four years.

The applicant accepts there is no basis to contend the head sentence of four years imprisonment was manifestly excessive.  However, the significant mitigating features of full restitution, genuine remorse, rehabilitation, and low risk of recidivism, warrant a conclusion, the applicant submits, that the requirement that the applicant serve actual term in custody rendered the sentence unreasonable or plainly unjust.

In support of this contention, the applicant submits there was evidence the applicant had an adjustment disorder with features of anxiety, stress, and guilt, in respect of which the applicant had sought treatment which was successful.  Against that background, it is submitted the sentencing judge’s unwillingness to place significant weight on the opinion of the psychologist as to moral culpability unjustly diminished the significance of those mitigating factors.

A review of the sentencing remarks does not support the applicant’s contention.

The material tendered in mitigation evidenced a sound basis for the sentencing judge to have concerns as to the accuracy of the complainant’s self-reporting of her moral culpability being reduced by reason of the stress associated with the separation from her husband.

In any event, the applicant’s offending, involving a level of sophisticated fraud, in significant breach of trust over a period in excess of two years, warranted the imposition of a sentence of actual imprisonment, notwithstanding the significant mitigating factors in the applicant’s favour.  Deterrence and denunciation are very significant features in sentences for fraud involving significant breaches of trust over an extended period of time.

The requirement to serve actual custody fell within a sound exercise of the sentencing discretion.  That being so, there is no basis to conclude that a requirement that the applicant serve nine months of a head sentence of four years in actual custody was manifestly excessive.

That period was a significant reduction on the period of actual custody that may have been ordered to be served and granted the applicant certainty of release.  It properly reflected the mitigating features in the applicant’s favour, including her early plea of guilty, lack of criminal history, full restitution, and her personal circumstances, including the stressors in her life, her efforts at rehabilitation, and her low risk of recidivism.

I would order that leave to appeal be refused.

MULLINS P:  I agree.

BURNS J:  I agree.

MULLINS P:  The order of the Court is: Leave to appeal refused.