Villiers v Attorney-General of Queensland

[1999] QCA 244

99.244

COURT OF APPEAL
McPHERSON JA
PINCUS JA

THOMAS JA

CA No 176 of 1999
THE QUEEN
v.

JULIE ANTONIA VILLIERS	(Respondent)
and
ATTORNEY-GENERAL OF QUEENSLAND	(Appellant)

BRISBANE
..DATE 05/07/99
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McPHERSON JA: This is an appeal by the Attorney-General
against the inadequacy of a sentence imposed on the
respondent in the District Court.

The respondent pleaded guilty on 30 April 1999 to two counts of stealing as a servant which had the consequence of placing her in breach of an earlier suspended sentence imposed in that Court. The suspended sentence had been imposed in December 1996 in respect of 14 offences of dishonesty comprising two counts of stealing as a servant, four counts of stealing, four of forgery and four of uttering, for which the respondent was sentenced to three years imprisonment, wholly suspended, with an operational period of five years. There was, in addition, an order that she pay compensation in the amount of $8,320.00.

In respect of the sentence now under appeal, that is the sentence imposed on 30 April 1999, she was ordered to serve a period of intensive correction. As regards the suspended sentence or the breach of it she was sentenced simply to the rising of the Court.

The original offences dealt with in 1996 of stealing as
a servant related to the theft of a mobile telephone and
a radio belonging to her employer. The remaining
offences, on that occasion, related to four separate
instances on which the respondent stole a cheque from
the personal cheque book of the company manager. On
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those occasions she wrote out cheques to the value of
various sums of money totalling, in all, an amount of
$8,320.00, for which she was later ordered to make
compensation. She then forged the employer's signature
on the cheques and presented them for payment to the
Bank of Queensland, apparently giving the impression
that the cheques were legitimately drawn for wages due
to employees of the company.

At the time, she already, in 1995, had prior convictions for false pretences, three offences, we were told, of passing valueless cheques, for which she was sentenced in 1995, by being placed on a good behaviour bond. I gather that in February 1999, she was also dealt with for a breach of conditions of bail, but only a slight, if any, penalty was imposed; she appears also to have a conviction for imposition for which she was fined $100.

In relation to the subject convictions of stealing as a
servant for which she was sentenced in April 1999, the
respondent was employed as a legal secretary, by a firm
of solicitors on the Gold Coast during the period May to
December 1997. Her duties included drawing bank cheques
on behalf of the firm. The offences, which occurred on
7 October 1997 and 19 November 1997, involved the
drawing of what were designated as commission cheques,
resulting from conveyancing transactions, in favour of
the clients, as well as in favour of her flatmate.
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The respondent pleaded guilty to the charges at the
committal hearing on 7 May 1998. She was, as I have
mentioned, sentenced to 12 months imprisonment, to be
served by way of intensive correction order in the
community, pursuant to Part 6 of the Penalties and
Sentences Act, and an order for payment of compensation
in the sum of $1,140 was made, that sum to be paid by 1
September 1999.

The respondent was born on 28 June 1967 and is now 31 years of age. Her prior criminal record has been mentioned. The grounds advanced in support of the application or the appeal by the Attorney are that s.147(2) of the Penalties and Sentences Act, 1992, provides that in dealing with an offender for an offence punishable by imprisonment committed during the operational period, the Court must order the offender to serve the whole of the suspended imprisonment, unless it would be unjust to do so. For the Attorney-General, Mr Rafter submitted that the learned sentencing Judge erred in that, in deciding not to activate the suspended sentence at all, he did so without finding first that it would be unjust to order the respondent to serve the whole or any of the suspended term of imprisonment, that is three years, less a period of 10 days already served, imposed as a consequence of her earlier conviction.

I would not myself regard it as necessarily fatal to
omit to refer specifically to all the circumstances
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making it, in terms of s.147(2), unjust to order the
suspended sentence to be served if the circumstances
related by the Judge otherwise plainly demonstrated that
injustice would follow from such an order.

In fact, or rather in law, however, the matter is at least in part now regulated by statute. Section 147(4) provides, in effect, that the Court must state in its reasons the opinion that it would be unjust to order the suspended sentence or part of it to be performed; and, it should be added, s.149 provides that an order for suspension is not invalid merely because of the failure of the Court to state its reasons as so required, but its failure to do so may be considered by an Appeal Court if an appeal against the order is taken.

In resolving the question of injustice, it is right to point out that s.147(3) specifies a number of factors to which the sentencing Court must have regard in deciding whether or not injustice would result. I will not set them out in detail here. It is sufficient to say that a review of those specific provisions does not create in my mind a distinct impression that is altogether favourable to the respondent in that regard.

Some of the matters mentioned in s.147(3) - particularly that in s.147(3)(a)(vi) - seem to me to militate against her. That provision refers to the degree to which the

offender has reverted to criminal conduct of any kind.
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She is a 31-year-old woman of good education, ability
and family background. Within a period of four years,
she has on three separate occasions now been convicted
of offences of dishonesty and, on two of those
occasions, the dishonesty was practised on her employer.

The conviction in 1996, which produced the suspended sentence of three years, was sustained less than a year before the commission in 1997 of the offences of stealing as a servant, which are the subject of the charges now before us. There seem to be primarily two matters fairly capable of being regarded as going some way in mitigation of her offence on a later occasion. One is that she is said to have been suffering from a depressive or an anxiety condition, involving a lack of self esteem, for which she compensated by buying expensive clothing, which she could not afford to pay for except by stealing again. I do not find either the psychiatric report in that regard, or the reason given for her condition, a particularly persuasive one. The other is that, at the time the subject offences were committed, she is said and it appears that she was under financial pressure through liquidating the amount of $8,320 (which she succeeded in doing) which she was ordered to pay by way of compensation for the 1996 offences.

One can, in my opinion, scarcely regard these matters as
altogether justifying the conclusion that it would be
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unjust to require her to serve none of the period of the
suspended sentence in the event of her re-offending as
she did. The amounts stolen in 1997 were a good deal
less than those involved in the earlier stealing
offences; but her criminal conduct was discovered after
she had committed both of the offences, and she did not
volunteer to having committed the other one. It is
unfortunately her persistent pattern of offending in
this way that goes against her, especially when taken
with the fact that she was already serving only the
first year of the suspended sentence when she committed
the later offences.

It should, however, be added that she is now employed again, and has paid about half, or perhaps slightly less than half, of the amount of compensation ordered. She has also served some part of the time under the intensive correction order and has done so satisfactorily.

There is, in addition from the material in the record, a series of references from employers to the effect that she has a genuine ability to work and a commitment to doing so which shows up in her diligent activity in the tasks allotted to her in her employment.

It is a pity that she persists in preying on employers
in the fashion that she has done; but there is even one
of them who, despite knowing about her previous criminal
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conduct in that respect, was prepared to go to some
lengths in order to ensure that she was employed by the
firm of solicitors who provided her with work after her
offence had become known to them. She is presently
employed by a statutory authority, and everything that
we read about her behaviour in that work is, at any rate
so far, very much in her favour.

In all the circumstances, I would regard these factors as going some way to establishing that there is a reason why she should not at present be required to serve the whole of the suspended sentence. She has, in short, shown some indication of an ability and an intention to rehabilitate herself and has fair prospects of leading a useful life without engaging in further criminal acitivity.

Nevertheless, I do not think it would be satisfactory to
consider the case as one in which the applicant should
be permitted to continue without regard for the fact she
has committed a breach of the suspended sentence
conditions, and has done so in a way which is certainly
reminiscent of her conduct on the previous occasion. It
is, in short, a case in which, in my opinion, the
sentencing discretion that was being exercised in the
context of s.147(2) and s.147(3) of the Act must be
regarded, in some material degree, as having miscarried.
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The appeal should, in my opinion, be allowed. The
sentence imposed below (other than the compensation
order) should therefore be set aside. It now falls to
this Court to arrive at the appropriate penalty. I
would order that the respondent serve nine months of the
suspended sentence of imprisonment for three years that
was imposed in the District Court on 20 December 1996,
less the 10 days of custody allowed for in that
sentence. In respect of each of the two offences of
stealing as a servant now before the Court, to which she
pleaded guilty on 30 April 1999, I would order that she
be imprisoned for three months.

All sentences, including the activated sentence of imprisonment to the extent of the nine months to which I have referred, are to be served concurrently.

The order for payment of compensation of the sum of
$1,140 will stand; but to enable her to meet it, I would
extend the time for complying with it to 1 September

2000.

That is the order that I propose.

PINCUS JA: The imposition of a suspended sentence to a
considerable extent ties the hands of a Court which has
to deal with the offender for an offence committed
during the operational period. In this case, whatever
may be said about the Judge's order had he complete
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discretion, it seems to me plain that what His Honour
did, that is, what the primary Judge did, was not
justifiable as a matter of law. The circumstances in
which the Judge could refrain from ordering the whole of
the suspended term to be served are limited and it is
only, in my opinion, with some little difficulty that
one can arrive at the conclusion that it was unjust to
order the whole to be served. However, to take the
course which His Honour did which was to order that, in
substance, none of it be served, was plainly beyond the
exercise of the sort of discretion which is contemplated
by the law; I stress that Judges are not free simply to
follow their own inclinations but must apply the law.
I agree with the reasons which the learned presiding
Judge has given and with the order which His Honour

proposes.

THOMAS JA: The subsequent offences that occurred in
1997 were not "trivial" under the ordinary meaning of
that word. However, in section 147(3)(a) of the
Penalties and Sentences Act, "trivial" is used in a
completely artificial sense. In my view, having
particular regard to such factors as proportionality
under section 3(a)(ii), the respondent's genuine
attempts at rehabilitation under 3(a)(v) and to further
factors that arise under subsections 3(b) and 3(c), it
would have been unjust to require this respondent to
serve the full three years of the initial sentence.
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That sentence, I note in passing, was a very long term
for the original offences.

However, it was inevitable that some actual term of imprisonment had to be ordered having regard to her re-offending in respect of similar offences of dishonesty to those the subject of the original order and to the relative seriousness of the offences overall.

The sentence proposed by Mr Justice McPherson, in my
view, achieves the appropriate total result, having
regard to the overall criminality involved. I also
agree with the reasons that have been expressed by Mr
Justice McPherson and

Mr Justice Pincus.

McPHERSON JA: Yes. I too agree with what my colleagues

have said.

It is necessary to issue a warrant?
MR RAFTER: Yes. I ask for a warrant to issue but I do not object to it lying in the Registry for a short period, Your Honour.
MR DAVIS: Yes. My client does wish to return home to
get some things. So if it could lie in the Registry for

24 hours.

McPHERSON JA: Seven days.
MR DAVIS: Seven days. Thank you, Your Honour.
McPHERSON JA: Yes. I think it is usually seven days.
MR DAVIS: Yes, thank you.
McPHERSON JA: The Court will order that a warrant for
the arrest of the respondent issue but that it is to lie
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in the Registry for a period of seven days or until
further order.

PINCUS JA: Could I inquire whether either of you gentlemen has that report which was handed down earlier?

MR RAFTER: My instructing clerk borrowed that during the adjournment, Your Honour.

PINCUS JA: Yes, thank you.

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