DISTRICT COURT OF QUEENSLAND

CITATION:	Irwin v Commissioner of Police [2015] QDC 136	
PARTIES:	VICKI MAREE IRWIN
(appellant)
v
COMMISSIONER OF POLICE
(respondent)	
FILE NO/S:	65/15	
DIVISION:	Appellate	
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886	
ORIGINATING COURT:	Magistrate’s Court, Cairns	
DELIVERED ON:	Orders made 8 May 2015, reasons delivered 29 May 2015	
DELIVERED AT:	Cairns	
HEARING DATE:	8 May 2015	
JUDGE:	Judge Terry Martin SC	
ORDER:	1.	The appeal is allowed. 
2.	The sentence orders of the learned Magistrate are set aside. 
3.	In relation to charge 1, the appellant is sentenced to 18 months imprisonment. 
4.	In relation to charge 2, the appellant is sentenced to one month imprisonment. 
5.	The sentences are to be served concurrently. 
6.	The sentences of imprisonment are suspended forthwith for an operational period of 18 months. 
	
CATCHWORDS:	APPEAL – Justices Act 1886 – where Appellant pleaded guilty to two counts of fraud totalling $16, 315.63 – where $8,693.75 repaid before sentence – actual incarceration – whether punishment excessive
Justices Act 1886 s 222
Allesh v Maunza (2000) 203 CLR 172 at 180; 
House v The King (1936) 55 CLR 499;
Pyne v Commissioner of Police (Unreported);
R v La Rosa; ex parte A-G (Qld) [2006] QCA 019; 
R v Mara [1999] QCA 308;
R v Rees [2002] QCA 469
R v Robinson; ex parte A-G (Qld) [2004] QCA 169;
R v Viola [1996] QCA 214.	
COUNSEL:	J Trevino of Counsel for the Appellant
E Coker for the Respondent	
SOLICITORS:	Richardson and Associates for the Appellant
Office of the Director of Public Prosecutions for the
Respondent	
[1]	This is an appeal pursuant to s 222 of the Justices Act 1886.  On 21 April 2015 the appellant pleaded guilty in the Magistrate’s Court at Cairns to two charges of fraud.  
[2]	The two charges arose out of the misuse of funds of the not-for-profit organisation Cairns and District Softball Association Inc.  The appellant was the treasurer of the organisation from July 2012.  It was a voluntary position.  The total amount of the fraud was $16,315.63.  
[3]	In relation to charge 1, the appellant was sentenced to 18 months’ imprisonment suspended after four months with an operational period of three years.  In relation to charge 2, the appellant was sentenced to imprisonment for one month to be served concurrently.  In addition, it was ordered that the appellant pay compensation in the sum of $7,621.48 on or before 1 May 2016, in default imprisonment for three months. 
[4]	The appeal came before me in Cairns on 8 May 2015. I had insufficient time that day to write and publish my reasons. However, having come to a clear determination in relation to the outcome of the appeal and to avoid the continued incarceration of the appellant, I made the following orders: 
1.	The appeal is allowed. 
2.	The sentence orders of the learned Magistrate are set aside. 
3.	In relation to charge 1, the appellant is sentenced to 18 months imprisonment. 
4.	In relation to charge 2, the appellant is sentenced to one month imprisonment. 
5.	The sentences are to be served concurrently. 
6.	The sentences of imprisonment are suspended forthwith for an operational period of 18 months. 
The defendant must not commit another offence punishable by imprisonment within that period of 18 months if she is to avoid being dealt with for the suspended terms of imprisonment. 

I now publish my reasons. 
Re-hearing 
[5]	Pursuant to s 223 of the Act, subject to leave being given to adduce additional evidence, an appeal under s 222 is by way of rehearing on the evidence given in the proceeding before the Magistrate.  
[6]	In an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”.
[7]	In House v The King, the majority judgment referred to the manner in which an appeal against an exercise of discretion should be determined:
“… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”
Ground of appeal 
[8]	The sole ground of appeal is that the sentence was “manifestly excessive”.  In accordance with s 222(2)(c), properly, the ground of appeal is that the punishment was excessive.  
[9]	The appellant argues that there are discernable errors which gave rise to the excessive punishment.
[10]	The identified errors are as follows:
(a)	The learned Magistrate failed to have regard, or any sufficient regard, to the mitigating feature that the appellant repaid $8,693.75.  
(b)	The learned Magistrate gave insufficient weight in mitigation to the contents of the appellant’s letter dated 7 July 2014 to the complainant association. 
(c)	The learned Magistrate ordered actual incarceration for a period of four months and also ordered that the appellant pay compensation in the sum of $7,621.48 within 12 months, in default three months’ imprisonment, thereby exposing the appellant to the obvious risk of an additional period of three months’ imprisonment.
(d)	The learned Magistrate ignored as irrelevant the comparable District Court decision of Pyne v Commissioner of Police (unreported), delivered 30 October 2009.
Discussion 
[11]	Whilst in the decision the Magistrate referred to and “noted” the repayment of funds, his Honour did not articulate that the repayment was a feature in mitigation, let alone a substantial feature in mitigation.  In particular, when his Honour referred to weighing up the nature of the offending and the appellant’s personal circumstances as well as the issue of restitution, the point made by the Magistrate was that $7,621.48 remains outstanding, not that $8,693.75 was repaid. The Magistrate specifically stated that he took into account the offer to pay the outstanding funds but his Honour was silent as to taking into account the funds repaid.
[12]	It is important to note the full contents of the letter of 7 July 2014 to the association:
“Dear all,

I have some disturbing news.  Please accept my apology.  

Some time ago, I became ill.  I was and have been seeing a physiologist.  Around the same time, I also started breaking my teeth.  Teeth that had been repaired less than two years ago.  I have now over the past ten months broken seven of my teeth – three of them have been broken four times and four of them broken three times.  

I’m only telling you this because I’m hoping it will help you to understand that I have been in an extremely bad place, both physically and mentally over the past 18 months.  

I had in excess of $14,000 in medical and dental bills.  I have income protection, which has taken eight months and will not be through for another three months.  Since November I had been told, it would be through in January, then it was February, then March and so on.  Now they have told me that for the type of claim I have it generally takes eight to 10 months to be processed. 

This is one of the hardest things I’ve had to do.  I borrowed money from CDSA.  It totalled $7,843.75.  This has all been paid back to CDSA now.  
I am so very sorry I did this.  You all trusted me, and I have let you all down in such a big way.

Over the past 18 months, my health etc has been all over the place.  I have been in some pretty bad places at times.  Desperate places also.  It is no excuse for what I did.  I am hoping that somehow you can all try to understand where I was at.  My intention was to always pay back the money.  Unfortunately it all got out of hand.  The money has been paid back now.

As I have just moved house this weekend, all of the CDSA paperwork is packed.  I will be getting it all sorted and neatened up during this week and next week.  I will hand it all over.  Then step away from softball.  

I know I have no right to ask anything.  If I could ask you all if Tayla my daughter is still able to play.  She had nothing to do with any of this, she is at this stage completely unaware of what I have done.  I’m going to talk to her about it and tell her what I have done.  I just need to let you all know first.  

I am hopeful that somehow, you can find it in your hearts to forgive me for what I have done.  

My sincere apologies

Vicki”

(emphasis added)
[13]	This letter to the complainant association came into existence prior to police involvement in this matter.  The Magistrate found, and it was clearly open for him to do so, that the letter came into existence as a consequence of questions being raised about the association records, rather than as an unprompted disclosure.  However, his Honour was critical that in the letter, the appellant “euphemistically referred to borrowing a total of $7,843”, rather than the amount that “you now acknowledge that you misapplied from the association.”  (emphasis added)
[14]	It is relevant to also consider contents of the schedule of facts. Association members spoke to the appellant after receipt of the letter of 7 July and after a reconstruction of the association’s accounts. The relevant part of the schedule of facts is as follows: 
“The reconstruction showed that $6,418.47 in cash had been received by the defendant but not banked.  And that $10,961.58 in unaccounted withdrawals had been made from the association’s account by the defendant.  
This reconstruction was put to the defendant who stated she did not think it was that much but could not dispute it and would pay the full amount at $100 per week.”
[15]	As can be seen, contrary to the Magistrate’s assertion referred to in paragraph [13] above, the appellant did not only “now acknowledge”, at sentence, the full amount of the funds misapplied. Rather, in the discussion after the reconstruction of accounts, she did not dispute the amount asserted and immediately offered to pay back all such funds. In the event, at sentence, the prosecutor asserted an amount of about $1,000.00 less than that reflected in the reconstruction of accounts. 
[16]	By the words used, referred to in paragraph [13] above, the Magistrate’s criticism seemed to extend to the applicant disclosing in the letter of 7 July only the amount of $7,843.00. The implication being that she deliberately minimised substantially the amount misused. At sentence before the Magistrate, it was submitted on behalf of the appellant that at the time of writing the letter “the repayment” (of $7,843.75) “in her mind – that initial repayment was a total repayment. It’s – that’s accepted that that wasn’t correct. But, in her mind, at that time, that was her belief”. The Magistrate did not give any indication that this submission was not accepted and the prosecution did not dispute it.
[17]	His Honour’s criticism of the appellant referring to “borrowing” the funds was repeated and enlarged upon. Rather than regarding the contents of the letter of 7 July as clear admissions of wrongdoing, the Magistrate found that by that letter the appellant seemed to be seeking “to exculpate yourself by referring to the monies as a loan, as opposed to acknowledging it, effectively, as a fraudulent theft”.
[18]	Relevantly, an offence of fraud involves the dishonest misapplication of funds.  It need not involve an intention not to repay the funds.  In this case, as in many cases of fraud, on the evidence before the Magistrate, the appellant fell to be sentenced on the basis that she “borrowed” the funds, in the sense that she intended to repay the funds.  The appellant goes on in the letter to state this explicitly.  An intention to repay the funds is hardly inherently improbable, and the appellant’s assertion of this intention was not disputed by the prosecution.
[19]	The Magistrate was also critical of the appellant in relation to her cooperation and assistance in respect of the investigation of the offending. His Honour referred to the appellant declining to participate in a record of interview and stated: 
“There was no cooperation or assistance by you in respect of the investigation of the offence, save for the initial disclosure, restricted on the submissions that I have to the letter of the 7th of July, and a brief reference in the statement of agreed facts where there was some discussion as to the extent of the fraud following a reconstruction of the society’s financial record.”
[20]	Whilst the appellant declined to participate in a record of interview, one wonders what evidence additional to the admissions and acknowledgments made in the letter of 7 July, and in the subsequent discussions with the association, the appellant could provide against herself.  
[21]	The Magistrate also seemed to be critical that the appellant had not, beyond the contents of the letter of 7 July, written a letter of apology to the association and had not somehow further apologised during the sentencing proceedings that morning.  It is trite to point out that a copy of the letter of 7 July was tendered to the court during the proceedings that morning showing that the letter was replete with expressions of apology and remorse and that the original letter had been sent to and received by the association as early as about 7 July 2014. 
[22]	On the evidence contained in the letter of 7 July and in the schedule of facts, the mitigating circumstances in this case included the following:
(a)	The funds were taken in the context of personal and financial problems.
(b)	The funds were taken with the intention of repaying them.
(c)	Prior to police involvement but in the context of the association investigating their financial records, on 7 July 2014 the appellant wrote to the association admitting that she had misused the funds, acknowledging serious breach of trust, expressing her remorse, apologising repeatedly and seeking forgiveness.
(d)	The appellant repaid, on about 7 July 2014, $7,843.75. 
(e)	In subsequent discussions sometime after 7 July, upon being informed of the asserted total of funds taken, the appellant stated that she did not think that she had taken that amount, but did not dispute it and immediately stated she would repay the full amount at $100 per week.  Indeed, a subsequent payment of $850 was made.  
[23]	The submissions made on behalf of the appellant as to the payment of compensation in the future were premised on the appellant not suffering actual incarceration.  Unsurprisingly, the appellant needed her then current employment and needed to be earning money to pay the compensation.  The sentence orders include four months’ actual incarceration together with a compensation order of over $7,600 to be paid within about 12 months but, in default, the applicant to be imprisoned for three months.
[24]	Inevitably, the order for actual incarceration for four months would mean that the appellant’s employment would be terminated.  This court was informed that this indeed occurred.  The sentence orders had this consequence:  the appellant, at age 51 years and notwithstanding the stigma of a recorded fraud conviction and the additional stigma of actual incarceration, had to find employment sufficiently remunerative to enable her to repay $7,621.48 within about eight months.  That is, assuming the appellant found a job immediately, it had to be a job so well-paid that the appellant would have the capacity to save $950 per month.  If the appellant were to fail, she would suffer further imprisonment for three months.
[25]	In relation to the decision in Pyne v Commissioner of Police (supra) the Magistrate found that the case turned on its own particular facts, noting that the defendant in that case was permitted to adduce further evidence on the appeal that by that time she had paid full restitution of $17,000. 
Conclusion
[26]	Each of the errors argued by the appellant has been established. 
[27]	In relation to 10(a) above, whilst the Magistrate may have had some regard to the compensation paid, the sentencing remarks and the sentence orders show that insufficient regard was given to this factor in mitigation.
[28]	In relation to 10(b), even if, despite the uncontested submissions on her behalf, the appellant fell to be sentenced on the basis that she initially attempted to minimise the amount of money misused, one must really struggle to fail to see that the contents of the letter of 7 July 2014, and the discussions referred to in the schedule of facts, nonetheless reveal substantial cooperation and assistance and genuine remorse.  The Magistrate wrongly devalued the substantial mitigation to be found in the contents of the letter of 7 July 2014.  
[29]	In relation to 10(c), the combination of sentence orders clearly made the punishment excessive.  The Magistrate failed to foresee that it would be unlikely, if not impossible, for the appellant to avoid the default period of imprisonment ordered in relation to the payment of compensation.  Without conceding the appeal, the respondent acknowledged that the combination of sentencing orders made it difficult for the respondent to resist the appeal.  
[30]	In relation to 10(d), the Magistrate misinterpreted the decision in Pyne and thereby erroneously ignored the decision. The Magistrate’s misinterpretation of Pyne is concerning. In the course of submissions, the Magistrate stated in relation to Pyne:
“Pine (sic) I reread, I’m familiar with, isn’t particularly helpful, because Pine (sic) was one of those odd appeals to the District Court where the basis on which Ms Pine was resentenced by the District Court and the basis on which she was she was sentence (sic) at first instance changed markedly. She’s a young woman who’s conveniently fallen pregnant between when she’s sentenced in the first instance and when she’s before the District Court, and lo and behold, she’s also made full restoration of the funds between when she is sentenced at first instance. She goes from, at first instance, saying, ‘I’ll repay it, but I don’t know how’, to when she is ultimately dealt with in the disposition of the appeal before the now Chief Judge, ‘miraculously I found the funds and I’ve repaid it in total’… Pine says… I give leave – to adduce fresh evidence and then bearing that in mind and with the benefit of hindsight I find it unjust to see a defence (sic) of actual incarceration” 
In the Decision, the Magistrate stated, referring to Pyne: 
“That turned on it’s own particular facts. I note that the defendant was permitted to adduce further evidence at the hearing of the appeal, and in fact, by the time of the disposition of the appeal had made full restitution in relation to the sum involved there, which was some $17,000.00”. 
[31]	The following paragraphs in Pyne plainly disclose the Magistrate’s erroneous interpretation:
“[8] It is clear from his sentencing remarks that in declining to make an order for restitution and deciding instead to “factor that in” to the punishment he imposed, the Magistrate has effectively disregarded these submissions. It is contended for the appellant that the sentencing Magistrate erred in his failure to give sufficient weight to the appellant’s preparedness to make restitution and to her efforts at rehabilitation”
…
[10] In the present case, unlike Vinson, there was evidence at the time of sentence of a real commitment to making restitution. The appellant had co-operated extensively with the investigating police in determining the amount of restitution that was in fact owing. She had undertaken two jobs and within a period of three months she had managed to repay $3,000. This was not a case in which the offer of restitution can be said to have been patently illusory or improbable. It was against this background that the proposal made by the appellant through her legal representative for the payment of the outstanding restitution was to be assessed. In my view the sentencing discretion has miscarried in this case through a failure to give proper regard to these matters”. 
…
[15] Although the head sentence imposed on the present appellant was within range, the circumstances of this case did not necessarily require that she should serve a period of actual imprisonment. As indicated above, I am satisfied that the sentencing discretion did miscarry in this case and the appellant should be sentenced afresh. 

[16] The appellant has sought to adduce further evidence pursuant to s 223(2) of the Justices Act. The effect of that evidence would be that she has now repaid the outstanding amount of restitution – that being $14,703. It is submitted that this evidence fulfils the relevant requirements identified in Pavlovic v The Commissioner of Police [2006] QCA 134. It is submitted that the sentencing Magistrate had given the appellant little or no opportunity to advance any proposal for repayment and that this evidence is relevant to her capacity and willingness to make restitution as it existed at the date of the sentence. Having already found however, that the sentencing discretion has miscarried in this case, it is not necessary to consider this issue any further.” 
 (emphasis added) 
[32]	The application to adduce fresh evidence was not granted and the appeal was not allowed on any basis other than that clearly stated in the paragraphs above. Indeed, as is clear from the decision, the assertion that all of the funds had been repaid was not taken into account on the re-sentence. 
[33]	What makes the error in relation to the interpretation of Pyne particularly egregious is that the sentence order, the subject of the successful appeal in Pyne, was also an order of the Magistrate in this appeal. His Honour has here ignored a decision correcting his earlier error. Consideration of the appeal decision in Pyne would have be instructive. 
[34]	In addition to the errors argued on behalf of the appellant, the Magistrate erroneously relied upon certain statements of principle cited in R v Haugland [2009] QCA 46. However, the statements of principle there cited were taken from earlier Court of Appeal decisions. The unsuccessful appeal by Haugland was in relation to an effective head sentence of two years imprisonment suspended after four months together with probation for two years in relation to one count of stealing as a servant and one count of fraud. It should be noted that this offending resulted in a total loss of $26,111.25, in circumstances in which there was no compensation paid and the offending involved the production of bogus contracts to cloak the wrongdoing. As is obvious, the loss in Haugland was half as much again as that concerning this appellant, and, of course, nothing was repaid. 
[35]	Firstly, the Magistrate relied upon the following statement of principle in R v La Rosa wherein Keane JA stated:
“It is clear that where an offender has abused a position of trust in order to steal a substantial amount of money over a lengthy period of time, a non-custodial sentence can only be justified in the most exceptional case.”  (emphasis added)
[36]	The above statement of principle in La Rosa pertains to a case involving “a substantial amount of money”.  Keane JA, in support of that statement, there footnoted three decisions: R v Mara [1999] QCA 308; R v Rees [2002] QCA 469; R v Viola [1996] QCA 214.  As to what was there meant by “a substantial amount of money” is evident from the cases: in La Rosa, $51,000; in Mara, $35,000; in Rees, $51,000; in Viola, $65,000.  
[37]	As can be seen, the statement of principle relied upon pertains to cases involving the misuse of money at least double that misused by the appellant.  
[38]	The second statement of principle relied upon was as follows:
“Breaches of trust of this magnitude by an employee ordinarily demand an actual period of imprisonment be served to show the community’s grave disapproval of such conduct and to deter those who might be inclined to act in a similar way.”
[39]	Again, the “magnitude” of the breach of trust in that case involved the misuse of $33,239 by an employee.  On the other hand, the President elsewhere in the judgment stated the circumstances in which an offender will generally be required to serve a period of actual incarceration:
“The concerning aspect of offences of this kind is the breach of trust. These offences involved a considerable sum of money obtained over a 14 month period. The offending was planned and systemic. Compensation has not been made. Generally in these circumstances an offender will be required to serve a period of actual detention.” (emphasis added)
[40]	As can be seen, “these circumstances” included the misuse of funds in the order of $33,000 by planned and systemic offending and with no compensation having been paid. 
[41]	The Magistrate relied upon these statements of principle as justifying actual incarceration for the appellant. His Honour was plainly wrong to do so.  A proper consideration of these statements of principle underscores the excessive punishment imposed by the Magistrate. 
[42]	For the reasons articulated, the sentencing discretion was infected by multiple errors and plainly miscarried. 
Re-sentence 
[43]	In addition to the factors in mitigation referred to in paragraph 22 above, the appellant fell to be sentenced on the basis that she is 51 years of age with no criminal history whatsoever and entered early pleas of guilty. In all of the circumstances, the risk of her reoffending is low. 
[44]	In my view, given the nature of the offending including the amount involved and the numerous substantial factors in mitigation, a sentence involving actual incarceration was never warranted. 
[45]	In the event, the sentences were at large on 8 May 2015. At that time, the appellant fell to be sentenced on the basis that she had no employment and no capacity to pay compensation and, in my view, unlikely to have such capacity in the foreseeable future. This situation was directly attributable to the sentencing orders of the Magistrate. It follows that the complainant association no longer has the benefit of the appellant’s capacity, and plan, to pay the balance of the compensation. Whilst the association has lost the benefit of the appellant’s ready compensation, on the other hand, the appellant has lost her livelihood and suffered 17 days actual incarceration.