R v AAN [2010] QCA 313

He was next dealt with in the Brisbane District Court on 19 May 2004 and sentenced to 12 months' imprisonment, wholly suspended with an operational period of three years, for one count of fraud and one count of attempting to misappropriate property with a circumstance of aggravation. Both those offences occurred in June 2001.

On 11 May 2005 in the Southport Magistrates Court he was convicted and sentenced to three months' imprisonment, released forthwith on entering into a surety to be of good behaviour for three years and ordered to perform 50 hours' community service for preparing to leave Australia without consent as an undischarged bankrupt and carrying on business whilst an undischarged bankrupt.

On 24 April 2007 he was dealt with for breaching the suspended sentence imposed on 19 May 2004 but sentenced only to the rising of the Court.

On 29 May 2009 in the Downing Centre District Court he was sentenced to 18 months' imprisonment, to be released after serving nine months, on 25 February 2010, for fraudulently omitting to account for money received in violation of the terms on which that money was received between August 2001 and August 2002.

The circumstances of the present offences:

The applicant was declared bankrupt on 19 April 2002 and the bankruptcy continued until 11 May 2005. The four charges spanned a nine month period in which he obtained goods or services without disclosing that he was an undischarged bankrupt.

Count 1:

In December 2003 the applicant's son was offered a place at a private school. The applicant accepted the terms of the school's fees and payment options and enrolled his son as a boarder.

He defaulted in payments to the school under the agreement in April and May 2004. In July the school warned him that if he did not pay the fees, his son would not be allowed to return for terms 3 and 4. In August 2004 he paid $5,000, promising to pay the balance of a little under $9,000 within two weeks. He did not make any further payments.

On 15 September 2004 he offered to pay the outstanding amount of almost $14,000 by the beginning of the following term. He was told that if he did not pay that amount by 1 October 2004, his son would not be permitted to return in term 4. On 15 October 2004 he admitted that he could not make any more payments and his son's enrolment was cancelled. In all, his debt to the school was $16,634.05.

Count 2:

In late March 2004 he accepted a quote from a sole trader to install equipment at his restaurant. The equipment was installed and the applicant asked for additional equipment to be installed. That, too, was done.

The workman gave the applicant an invoice for $8,473. On 7 July 2004 the applicant's wife paid $4,000 of the bill and undertook to pay the rest by the end of the month. On 7 August 2004 the applicant's wife paid a further $800.

The trader attended on the restaurant to repossess the equipment. The applicant's wife tried to block his way and called the police. On 1 October 2004 the applicant told the trader that he would not pay any more money. The trader took successful legal action in the Small Claims Court and the applicant was ordered to pay $3,300 and return a CD player. The trader has never been paid the $3,300.

Count 3 and 4:

On 10 June 2004 the applicant contacted another trader and accepted his quote to install equipment for $25,000 in the applicant's restaurant. The equipment was installed on 16 June 2004 and the trader provided the applicant with an invoice for $25,000. The trader reluctantly agreed to allow the applicant to use the equipment for one week before payment.

The applicant then told the trader that he did not have money to pay the total bill but would pay in instalments as his business was doing very well. He claimed he owned numerous restaurants nationally and was considering using the trader to install equipment in all of them, including a further three restaurants which he was about to open. He convinced the trader to accept $5,000 then and $2,000 payable at the beginning of every month. The applicant finally paid $7,000 on 15 July 2004.

He asked the trader to supply more equipment at a cost of $2,208 later in July and the equipment was installed at the end of July. The applicant made two $2,000 payments between July and September 2004. In late September 2004 the trader gave the applicant a quote for $7,689 to install further equipment at a site next to the applicant's restaurant. The outstanding debt to the trader was almost $24,000. The applicant told the trader that he had overcapitalised and wished to add the new debt to the existing debt. The trader agreed that the applicant would pay instalments of $3,000 each month. The applicant made two further payments of $3,000 and one of $2,000, although they were made late and after repeated prompting. He made no further payment. His debt to the trader was $15,798.

Counts 3 and 4:

The total debt incurred by the applicant as an undischarged bankrupt was $67,702 of which approximately $37,730 remains unpaid.

The prosecution handed up an affidavit at sentence from a Commonwealth DPP employee in response to claims previously made by the applicant that he was a Harvard Business School graduate. Inquiries to the Harvard Business School confirmed that the applicant was not a graduate of it.

Defence counsel at sentence tendered a psychiatric report from Dr Ian Curtis. Counsel submitted a sentence not involving actual detention should be imposed on the applicant.

The sentencing Judge referred to the applicant's personal circumstances, including that he was married with seven children, one of whom is probably suffering from autism.

His Honour referred to the circumstances of the offending and the applicant's prior convictions. The Judge considered that, after referring to the affidavit from the Commonwealth DPP officer, he should exercise caution in accepting anything said by the applicant unless it was independently verified. The applicant's conduct required the imposition of a deterrent sentence of imprisonment.

The applicant had pleaded guilty and had recently been in custody in New South Wales where he had served nine months' imprisonment for offences which occurred in 2001 and 2002. There was no reason why the applicant should not fully serve the suspended sentence which he had breached. The sentence the Judge imposed is as I have set out earlier.

The applicant applies for leave to appeal against his sentence, contending it is manifestly excessive. He also seeks to adduce further evidence.

He deposes that in about March 2010, about three months before his sentence, he made contact with New South Wales police and provided them with significant information about serious criminal offending. He did not tell the New South Wales police about his pending criminal proceedings in Queensland as he mistakenly believed that they knew of it, nor did he advise the lawyers who represented him at the sentence, the subject of this application, that he had provided significant assistance to New South Wales police. This was because the New South Wales police officers had told him it was imperative their dealings were kept confidential and he must not speak to anyone about them.

The information to which the applicant has deposed is supported by his legal representative's affidavit as to conversations she had with the responsible New South Wales police officer. It seems that the respondent has also independently confirmed this.

The respondent fairly and properly concedes that, given the unusual circumstances of this matter, the reasons advanced as to why evidence of it was not adduced at sentence and its relevance to the sentencing of the applicant, the further evidence of the applicant's significant assistance to New South Wales police should now be received by this Court. That concession is rightly made and the interests of justice require that this Court now receive that evidence.

Courts have long recognised that substantial discounts should be given to offenders who are informers. This is because informers face a real risk of incidental, retributive violence. It is also to encourage such cooperation upon which law enforcement agencies place considerable reliance. See R v Gladkowski¹ and Crimes Act 1914 (Cth) s 16A(2)(h).

The respondent fairly and properly concedes that if this cooperation with law enforcement agencies had been raised at sentence, the applicant would certainly have received a lesser penalty than that imposed.

Counsel for the respondent suggests that a reduction in the actual period required to be served by the applicant for his offending from nine months to six months is within the appropriate sentencing range given the level of his cooperation and assistance.

The application for leave to appeal against sentence should be granted and the appeal allowed.

The applicant's prior criminal history and the serious aspects of his offending warranted a sentence of actual detention despite the mitigating features but had the material now placed before this Court been before the sentencing Judge, as counsel for both the applicant and the respondent submit, the appropriate sentence in respect of the four bankruptcy offences is now 18 months' imprisonment, to be released after serving six months on a recognizance of $5,000 for three years.

The breach of suspended sentence should be fully activated but with a parole release date after six months, that is, on 2 December 2010.

I propose the following orders:

(1)The application to adduce further evidence is granted. That evidence is to be placed in a sealed envelope and marked "Not to be opened without an order of a Supreme Court Judge".

(2)The application for leave to appeal against sentence is granted.

(3)The appeal against sentence is allowed to the extent of substituting six months for nine months' imprisonment on each Commonwealth offence and, in respect of the breach of the suspended Queensland sentence, substitute for the date, 2 March 2011, fixed for the offender to be released on parole, the date, 2 December 2010.

I would otherwise confirm the sentence imposed at first instance.

I will direct that the applicant's lawyers explain to him the effect of the order and of his sentence in accordance with s 16F Crimes Act 1914 (Cth).

WHITE JA: I agree.

McMEEKIN J: I agree.

THE PRESIDENT: Those are the orders of the Court.

I take it that neither of you have any submissions on those orders.

MS MORGAN: No, thank you, your Honour.

MR HUYGENS: No, thank you, your Honour.

THE PRESIDENT: Those are the orders of the Court, and when these reasons are published they will be published anonymously.