R v Alexander [2004] QCA 11

Judgment (29 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent)

[2]

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree that the application for leave to appeal against sentence should be dismissed, and with his Honour's reasons.

[3]

[2] WILLIAMS JA: This is an application for leave to appeal against sentence, the applicant having abandoned that part of his Notice of Appeal which challenged his conviction.

[4]

[3] The applicant was sentenced in the District Court at Brisbane on 5 September 2003; on that occasion he pleaded guilty to 18 charges which were set out in three separate indictments. There were six counts of aggravated fraud (the amount in each case exceeding $5,000.00), eight of fraud, three of attempted fraud and one of stealing. A Schedule was handed to the sentencing judge pursuant to s 189 of the Penalties and Sentences Act setting out a further 32 offences of dishonesty.

[5]

[4] As was summarised in the sentencing remarks the offences essentially involved five separate types of dishonesty. The first involved the applicant dishonestly obtaining credit to a total amount of approximately $98,000.00 and further attempting to obtain credit to a total value of approximately $68,000.00. The second type of offence involved obtaining money or property by the presentation of cheques which were subsequently dishonoured; the value of the property or money obtained was some $8,000.00. The third type involved entering into hire purchase agreements having provided false information to the credit provider; the value of property so obtained amounted to some $19,000.00. The fourth type of offence involved pawning stolen property for which the applicant received a total of $230.00. The final act of dishonesty involved stealing a motor vehicle owned by his former de facto partner. That vehicle was ultimately returned to the rightful owner and no loss was incurred.

[6]

[5] When the s 189 Schedule is brought into account it appears that the total value of property involved in the fraud offences was approximately $125,300.00 of which a deficiency of $75,665.97 remains. The deficiency is less than the total value of property obtained because in some instances money obtained by fraud was used to repay earlier loans fraudulently obtained. The total amount involved in the attempted fraud charges was $67,697.25. With the exception of one count of fraud (dishonestly obtaining accommodation and services between January and April 2002) the offences occurred in Townsville between 15 June 1998 and 25 August 1999.

[7]

[6] In the circumstances I do not find it necessary to set out further detail of the facts constituting the commission of the offences in question.

[8]

[7] The applicant was born on 4 September 1953 meaning that he was aged about 45 - 46 when the majority of the offences were committed and aged 50 when he stood for sentence.

[9]

[8] He had spent 539 days in custody on remand prior to being sentenced but that custody did not relate solely to the charges in question. At the material time he was also charged with a number of summary offences and a drug offence to be prosecuted in the Supreme Court. He has not yet been dealt with for the drug offence and notionally is still on remand with respect to it. In consequence the time in custody on remand could not be deducted in accordance with s 161 of the Penalties and Sentences Act.

[10]

[9] Of particular relevance in determining the appropriate sentence for the offences in question was the appellant's criminal history. In Queensland his prior convictions include 11 for imposition, 81 for false pretences, five for stealing and four for other offences of dishonesty. In New South Wales he has prior convictions for 34 counts of false pretences, 10 of stealing and three of other dishonesty; when sentenced on one occasion 379 other charges of false pretences were taken into account. In addition to all that he has been convicted of a number of drug and motor vehicle offences in each State. Of particular significance are the following previous convictions.

[11]

[10] In the Newcastle District Court on 28 March 1983 he was sentenced on four counts of false pretences and a further 379 matters were taken into account. He was sentenced to imprisonment for a period of 2 years and 6 months to be cumulative on an interstate sentence of 3 years imprisonment.

[12]

[11] In the Southport District Court on 1 April 1987 he was dealt with on three counts of imposition, four counts of false pretences, one count of uttering, and one count of unlawful use of a motor vehicle. The head sentence imposed then was 2½ years imprisonment.

[13]

[12] In the Townsville District Court on 4 October 1991 he was sentenced on six charges of false pretences and one count of stealing as a servant. The crown prosecutor informed the sentencing judge in this case that the amount involved in the 1991 offences was around the $30,000.00 mark. The head sentence was imposed on the offence of stealing as a servant and was imprisonment for five years with a recommendation for eligibility for parole after serving 22 months.

[14]

[13] At the sentencing hearing in question a report from a psychologist was tendered which confirmed that the applicant has had a problem with alcohol and morphine dependency.

[15]

[14] In his sentencing remarks the learned District Court judge referred to the offences as outlined above, referred to the fact that the applicant had absconded after arrest on the charge of stealing the motor vehicle and that had delayed proceedings, to the fact that a number of the counts were on an ex-officio indictment to which pleas of guilty were entered, to the fact that the applicant experienced constant pain because of injuries received in a workplace accident, but concluded that it "would not be too unkind to describe you as a committed con-man". He then observed that having regard "to your history there is really little in that report that gives hope for your eventual rehabilitation."

[16]

[15] On each of the counts of aggravated fraud the applicant was sentenced to 3½ years imprisonment, on the counts of fraud to 2 years imprisonment, on the counts of attempted fraud to 12 months imprisonment, and on the stealing count to 18 months imprisonment; all sentences to be served concurrently.

[17]

[16] Before the sentencing judge there was no question but that the applicant had to receive a sentence of imprisonment. The question most debated was how the learned sentencing judge should give some credit for the period spent in custody on remand. Defence counsel did at one point submit that a sentence of about 3 years would be appropriate.

[18]

[17] In the course of his remarks the learned sentencing judge said:

[19]

"Apart from these offences you have been held in custody for offences that have yet to be dealt with in the Supreme Court and the Magistrates Court. That time in custody is approximately 18 months. Because it relates to offences other than the ones I am dealing with, I cannot declare it as presentence custody in respect of these offences. However, as the offences I am dealing with would appear to be the most serious you face, I propose to take the whole of that 18 months into account when sentencing you in respect of these offences."

[20]

[18] Earlier in exchanges with counsel the learned sentencing judge did indicate that the 18 months already spent in custody could be doubled when determining the appropriate sentence because of considerations such as remissions and parole. Such an exercise has sometimes been carried out particularly in the past, but the circumstances here do not permit the making of a precise arithmetical calculation. In a case such as this, particularly where the offender is being held on remand on other serious drug charges, it is not realistic to make a discount from the appropriate head sentence of double the total time actually spent in custody on remand. It is not clear that the learned sentencing judge did that, but it was the submission of counsel for the applicant in this court that that was what was done. On that basis it was submitted that the notional head sentence adopted by the sentencing judge was six and a half years imprisonment, which it was then said was outside the range indicated by comparable decisions of this court.

[21]

[19] In my view it is consistent with principle, and not inconsistent with what was actually said by the learned sentencing judge, to conclude that a head sentence in the range five to six years was appropriate, but a sentence of three and a half years imprisonment should be imposed having regard to time already spent in custody.

[22]

[20] The critical submission advanced by counsel for the applicant was that the learned sentencing judge placed too much weight on the applicant's criminal history, and insufficient weight on the amount of money appropriated with respect to the offences in question, in arriving at the notional head sentence of six and a half years. Counsel for the applicant referred to Sheppard [2000] QCA 57, Jones CA 393 of 1997, Low [2001] QCA 67, McMillan CA 54 of 1999 and Cameron-Smith CA 537 of 1994. Counsel for the respondent referred to Cheers CA 214 of 1997.

[23]

[21] This court had to re-sentence Sheppard who had dishonestly obtained a total of $437,850 from the company which employed him. The head sentence imposed by this court was seven years imprisonment with a recommendation for eligibility to apply for parole after serving three years. He had a number of prior convictions but his history was not as extensive as that of the applicant here.

[24]

[22] In each of the other cases relied on by the applicant the offender's sentence was held not to be manifestly excessive. Low was of comparable age to the present appellant and had a less serious criminal history. The total amount he dishonestly obtained was also roughly equivalent to that involved in the instant case. He was sentenced to three and a half years imprisonment with a recommendation that he be eligible to apply for parole after serving 15 months. In the course of my reasons in that case I did say that, putting the mitigating factors to one side, a head sentence in the range of four to five years would be justified. McMillan was sentenced on 14 counts of dishonesty involving total value of about $400,000 with an actual loss of $61,000. He did have an extensive criminal history. On the major counts he was sentenced to three and a half years imprisonment. In dismissing the application for leave to appeal against sentence White J, who delivered the judgment of the court, said that the "sentences were appropriate including the parole".

[25]

[23] Cheers was of comparable age to the present applicant and was sentenced to imprisonment for seven years with a parole recommendation after two and a half years on pleading guilty to numerous offences of dishonesty where the aggregate loss to victims was of the order of $173,000. The dishonesty appears to have taken place against a background where more significant monetary issues were involved. The applicant was an undischarged bankrupt and some of the offences occurred whilst he was on bail. He had some prior convictions for dishonesty the most serious of which had led to his being placed on probation for three years.

[26]

[24] A review of the decisions to which the court was referred indicates that there are a number of factors which have been regarded as relevant in determining the appropriate sentence where dishonesty is involved. On some occasions the critical factor has been the amount of money lost by victims of the fraud, on other occasions the decisive factor has been the persistent and systematic offending. One cannot say that either one of those factors is generally more significant than the other. Each case has to be considered in the light of its own peculiar facts; all one can say is that the amount of money lost and the regularity of offending will always be relevant considerations.

[27]

[25] Here the amount of money involved was not inconsiderable. Any series of offences resulting in a loss to victims of more than $100,000 must be regarded seriously. In my opinion, of more significance here is the fact that over the years the applicant has been dealt with for some hundreds of offences of dishonesty and has previously served significant periods in custody without that deterring him from life as a "conman".

[28]

[26] Taking all that has been said herein into consideration I am not persuaded that the sentence imposed of three and a half years was manifestly excessive. It follows that the application for leave to appeal against sentence should be dismissed.

[29]

[27] MACKENZIE J: I agree with the order proposed by Williams JA for the reasons given by him.

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Judgment (29 paragraphs)

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