R v Brady; Brindley & Shale [2005] QCA 135

Court of Appeal (Qld)|2005-04-29|Before: McPherson and Jerrard JJA and Helman JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made

[1] McPHERSON JA: The three applicants are William Henry "Steve" Brady, Graeme John Brindley and Gary John Shale. The first two pleaded guilty and were sentenced in the District Court to terms of imprisonment for two counts (counts 1 and 2) of fraud under s 408C(1)(b) of the Code, one with a circumstance of aggravation in that the amount exceeded $5,000; one count of official corruption contrary to s 87(1)(b) of the Code; and one count of dishonestly obtaining delivery of postal articles contrary to the Commonwealth Criminal Code, s 471.8.

[2] The overall sentence imposed on Brady was imprisonment for 4½ years on each count, which for various reasons was suspended for an operational period of five years after serving nine months. In the case of Brindley, the sentence was 3 years suspended after serving six months with an operational period of five years. Shale, who pleaded guilty to count 2 (fraud) and count 4 (fraud with a circumstance of aggravation that the amount exceeded $5,000), was sentenced to imprisonment for 18 months suspended, with an operational period of five years, after serving three months. He was not charged with official corruption (count 5) or with the Commonwealth offence in count 6.

[3] Bradley and Brindley seek leave to appeal against their sentences. Shale also wishes to appeal, but needs an extension of time for 13 days within which to do so. The explanation for his delay is sufficient to justify the Court in permitting the application for leave to appeal to proceed.

[4] The offences were committed on dates between October 2002 and October 2003, or, in the case of Shale, whose participation was confined to a later period, between April and September 2003. The offences were committed in the course of carrying out a scheme, of which Brady was the principal proponent, to conduct authorised inspection stations (AIS) by means of authorities fraudulently obtained from the Queensland Department of Transport with the assistance of a departmental inspector named Edward Moran, whose part in it led to the corruption charge (count 5). The frauds were the subject of counts 1 and 3 against Brady and Brindley, and counts 2 and 4 against Shale, who, however, was not involved in the corruption charge concerning Moran (count 5), or the Commonwealth offence (count 6).

[5] Brady had previously held an authority to manage an inspection station which was revoked by the Department in 2002. In October of that year, he approached a mechanic named Kielly, whom he knew, asking if he wished to conduct an AIS. Kielly said he lacked the proper qualifications or certificate needed to do so; but, after consulting Moran, Brady arranged with him to obtain the required approval fraudulently. To do so, Brady completed an application to the Department on behalf of Kielly, registered a business name with the Department of Fair Trading, and prepared Kielly to undergo the necessary departmental examination set for authorised inspection operators. When Kielly began to express concerns about the operation, Brady mentioned it to Moran, who suggested setting up another inspection station JB Autos using the name of John Stanley Bailey, who was a former qualified operator who had died. This stratagem was carried out by means of false information supplied by Brady, who forged the signature of the deceased operator in order to obtain a false letter of authority and books of vehicle safety certificates from the Department. In addition, by using other documents, some of them false, Australia Post was induced to redirect mail to Brady's address, giving rise to the charge of the Commonwealth offence in count 6 of the indictment. In April 2003, a third inspection station was set up under the name Shale Mechanical, which the third applicant Shale operated after sitting and passing the departmental examination with the help of answers provided in advance by Moran to the examination questions.

[6] The basis of the fraudulent scheme was the issuing of false motor vehicle safety certificates, formerly known as certificates of roadworthiness, to second hand car dealers and on a few occasions to private individuals in respect of vehicles that were for sale or were being sold. The inspections carried out by the applicants were perfunctory, after which Brady would relay the required information, including engine numbers, to Brindley, who wrote up the certificates. They were then signed by Brady purportedly in Kielly's name or in the name of the deceased Bailey, or by Shale, although on occasions it was Brindley who forged Kielly's signature. Brindley acted throughout primarily as the bookkeeper, but he knew from the beginning what the true nature of the arrangement was and he participated fully in the illegal operation and sometimes personally attended with Brady at purported inspections. The scheme was conducted as if it was a business or partnership with meetings of participants, keeping of books of account, and the division of profits in agreed proportions.

[7] The dealers paid the applicants a fee of about $55 or $60 for each "inspection" for which the applicants issued a certificate. In some cases Brady and Brindley provided dealers with inducements in the form of cash, alcohol or food to solicit or maintain business from the dealers. In all some 3,217 certificates (amounting, it is said, to 12.4 per day) were issued, for which the dealers paid out a total of over $123,000 in the eight or nine month period from October 2002 to July 2003. The income was shared among the conspirators, Moran receiving approximately $46,000, Brady profiting (or so he said) by only some $5,000 to $8,000 while claiming that another $37,000 was still "owing" to him. Brindley claimed to have received only $7,000 or $8,000 because, he said, he was keen to limit his income so as to avoid compromising his pension entitlements. The individual receipts by those two applicants may be contrasted with those paid to Shale, who received $14,259 during the shorter period of his participation from April to July 2003.

[8] The consequences of the applicants' conduct have, as can be imagined, been serious and far-reaching both actually and potentially. After the offences were discovered, the Department arranged for re-inspection of the 3,217 vehicles for which false certificates were issued. In doing so, it has expended time, labour and money valued or estimated at over $300,000, including more than $70,000 paid to genuine authorised inspection stations to conduct fresh inspections. On the initial re-inspection, some 632 vehicles failed to pass examinations and required repairs before being re-inspected. Of these, 95 vehicles failed the second inspection, of which 87 were ultimately granted safety certificates. A few vehicle owners surrendered the registration of their vehicles and at least one was cancelled. Purchasers numbering 101 in all are pursuing claims against motor dealers from whom they bought their vehicles, of which 80 claims have been resolved through negotiations mediated by the Office of Fair Trading. A total of $115,356.13 has already been paid by dealers to purchasers and a further eight claims totalling $19,819.51 are still being pursued.

[9] It is, of course, unlawful to dispose of a registered vehicle to another person unless the owner possesses a current safety or inspection certificate under the relevant legislation and gives the original certificate to that person; and a motor dealer must not act in that disposal without making sure that the owner complies with that provision. Legislation to this effect is contained in s 21 of the Transport Operations (Road Use Management - Vehicle Standards and Safety) Regulation 1999 in the form (Reprint No 2) that was in force in July 2001 when the offences were committed. The provisions of s 21 and those in ss 25-29 of the Regulations for granting departmental approvals to operate inspection stations were well known to Brady, as well as to the other applicants, who set out to circumvent the statutory controls contained in them. As has been said, Brady had previously had his authority to issue safety certificates revoked by the Department and he deliberately set out to avoid the safeguards prescribed in the legislation. Brady and Brindley did so systematically and with persistence by devising new and additional methods of deception for enhancing and enlarging their illegal business. The use of Bailey's name is an example. These two applicants, who were later joined by Shale, conducted their partnership as if it were a legitimate enterprise, in the course of which they corrupted a public official and produced and put into circulation documents which they knew to be false.

[10] The conduct of all four participants including Moran was greedy, selfish, and socially irresponsible. It was, as they knew, potentially dangerous to life and limb of drivers, passengers, other road users and members of the public at large. It is difficult to understand how anyone could, simply for private gain, be so cynical as to place at risk the physical integrity and welfare of so many other individuals. The range of the victims affected can be gauged from the fact that the judge to whom the sentencing was originally assigned had to withdraw from doing so because a close relative was a recipient of one of the false certificates. Buyers of used cars inevitably include a wide spectrum of individuals of different means and income; but, for many who are not well-off, purchasing used vehicles is the only way they can hope to become owners of the cars so widely considered essential for the conditions of modern life. The inconvenience and anxiety to which as a result they have been subjected places this among the most serious forms of fraud. Compared with other forms in which larger amounts have been obtained, the ramifications of the applicants' actions here are much more extensive and reprehensible.

[11] In R v Sadeed [2004] QCA 32, this Court affirmed the head sentence of four years imprisonment, with a non-parole period of two years, imposed for four counts of forgery and uttering contrary to the Commonwealth Crimes Act 1914, and two years for two counts of fraud contrary to s 408C(1) of the Queensland Criminal Code. In that instance, the forged documents consisted of approvals to import vehicles purporting to have been issued in accordance with the Commonwealth Motor Vehicles Standards Act 1989, which is designed to promote and regulate national safety standards for vehicles intended for use in Australia. In dismissing an application for leave to appeal against sentence, the Court said:

"From the standpoint of the safety of vehicles and their passengers, the importance to the community at large of the Commonwealth legislation can scarcely be overrated. Having vehicles operating on public roads without their undergoing the prescribed modifications required by the national uniform standard has the potential to risk injury and even death to all road users. Moreover, vehicles imported and used without such modifications are themselves liable to seizure, or refusal of registration with all the third party insurance implications which that entails."

[12] With only slight adjustment, the same remarks apply to the present case. The appellant in that instance was convicted after a trial. But as a guide to the sentencing scale in this case the head sentence is only of limited assistance. There, fewer than 10 vehicles were involved. Here the number was over 3,200, of which about 20% were, as later events demonstrated, not in a safe condition to be driven on the roads. A far greater number of purchasers were involved in pursuing claims against sellers than the single victim able to be identified in Sadeed. The cost to the community of rectifying the misdeeds of the applicants here has been and continues to be very much larger.

[13] It has been submitted that the starting point adopted by the sentencing judge in the case of Brady was excessive. It was said that the notional starting point of sentences of six years on counts 1 and 6 in the case of Brady exceeded the permitted statutory maximum, which was five years imprisonment. But the maximum for count 2 (aggravated fraud) is 10 years and for count 5 (official corruption) is seven years. It is clear that the learned sentencing judge first arrived at an overall head sentence for all four offences before discounting to a level falling within the prescribed maximum for count 1. It is not suggested by the applicant that anything turns on this, which was described by one of the applicants as being a "technical" point.

[14] It was submitted that adopting six years meant the sentencing process started at too high a level, and that five years would have been more appropriate having regard to penalties in other cases of fraud in which larger amounts of money have been obtained. But this is to ignore the safety issues to which I have referred, as well as the corruption offence in count 5 by means of which the scheme was perpetrated, to say nothing of the postal offence in count 6. If, say, 25% were allowed for mitigating factors, including the applicants' pleas of guilty, their prior non-criminal history, their work records and the like, it would still reduce the starting point sentence of 5 years or 60 months contended for in the case of Brady to only about 45 months. At sentence, Brady was 69, Brindley was 73, and Shale was 48 years old. None of them was in a state of health that would make them unable to serve the short periods of actual prison custody imposed.

[15] The most prominent matter going in mitigation of all three of the applicants is the extent of their co-operation after the illegal scheme was detected. Brady at first set about destroying some of the incriminating records before deciding to assist fully with the investigation and inquiries, and promising to co-operate in future. Moran's participation was known but can now be more clearly established. Proceedings against him are still pending. Brindley was co-operative from the outset and handed over his books and records. Shale also confessed his part. Each of the applicants pleaded to ex officio indictments, although a genuine appreciation of the implications of their wrongdoing does not shine through their statements. In exceptional cases, where past and prospective future co-operation involve personal risks of severe retribution from other criminals, as for those engaged in large-scale drug trafficking, discounts possibly as high as 50% have sometimes been applied: see R v Gladkowski [2000] QCA 352; (2000) 115 A Crim R 446, 448; R v P [2004] QCA 365; but discounts of that extent are exceptional, and the applicants' efforts in the present case, although considerable, do not warrant comparison with the actions and risks undertaken in the cases referred to.

[16] Even if a discount approaching such proportions were awarded in the present instance, it would in the case of Brady result in a reduction in the already discounted period of custody from 45 months to a little more than 22 months. Allowing for every other conceivable factor in his favour, it would remain substantially more than the nine months he is required to serve under his existing sentence before the suspension takes effect. The impression that remains is that, even on the most favourable view, Brady may perhaps have escaped, if anything, rather lightly. A similar comment applies to the other two applicants. Brindley's participation in the illegal conspiracy was as thorough and deliberate as that of Brady, even if the latter was undoubtedly the main planner. Both Brindley and Shale were aware of the corrupt assistance being provided by Moran, even if Shale himself played no part in its inception. His written outline suggests it would have been appropriate to suspend his sentence after serving no more than four months, which is more than the penalty in fact imposed. There is a predictable tendency now to try to shift the blame on to Moran by saying that without his assistance the scheme could not have been effected. It is, however, equally true to say that, without the part played by the applicants, the illegal acts could or would not have been perpetrated. As Thomas JA said in R v Gmeinder [2001] QCA 354, extraordinary circumstances would be needed to justify a sentence that did not require some real time to be served in custody in such a case.

[17] The periods of actual custody imposed on each of the three applicants are slight compared to the losses their actions have caused and the harm they had the potential to bring about. It bears some comparison in kind but not in extent or gravity with the actions of the applicant in R v Gmeinder, where 72 counts of issuing false provisional licences and certificates of registration were visited with a sentence of three years imprisonment suspended after six months for three years. Measured against that sentence, none of the applicants has any legitimate cause for complaint about the effective period of imprisonment imposed on them.

[18] I would dismiss the applications by Brady (CA 32 of 2005) and by Brindley (CA 39 of 2005) for leave to appeal against sentence. I would grant the extension of time sought by Shale (CA 80 of 2005), but dismiss his application for leave to appeal against the sentence imposed on him.

[19] JERRARD JA: In these applications I have read the reasons for judgment of McPherson JA and the orders proposed by His Honour, and respectfully agree with those reasons and orders.

[20] HELMAN J: I agree with the orders proposed by McPherson J.A. and with his reasons.

Operations (Road Use Management - Vehicle Standards and Safety) Regulation 1999

Vehicles Standards Act 1989

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