R v Gander [2005] QCA 45

An estate agent from another branch of PRD Nationwide actually found a potential buyer, who made an initial offer of $22,000,000. The contract named Mr Og as the vendor but that real estate agent’s attempt to contact Mr Og was unsuccessful. Then the solicitors for the prospective purchaser discovered that the real property description on the contract related to a neighbouring building.

Mr Gander engaged a solicitor to act on the matter on his behalf. The solicitor also lacked experience in contracts of that variety, but also agreed to act. Mr Gander provided an unsigned contract which referred to a sale price of $24,000,000, and the solicitor endeavoured to obtain a copy of it signed by Mr Og, and to speak with Mr Og. Mr Gander continued to insist that all contact be through him.

The prospective purchaser required the production of a bill of sale, but Mr Gander required the payment of the deposit, while making excuses for his failure to immediately produce a bill of sale. A purported bill was ultimately faxed to the prospective purchaser, and Mr Gander wanted the deposit paid into his mother’s bank account. The solicitors for the purchaser refused to do this. Around that same time the actual owners of the building contacted the prospective purchaser, and police were called in. They intercepted a person delivering transfer documents and the bill of sale from Mr Gander to the prospective purchaser. When police searched Mr Gander’s residence they found a large number of documents relating to the matter, including land transfer documents, a copy of a contract, property transfer information, a bill of sale, practice signatures of Sandy Og, and computer copies of a Justice of the Peace’s signature. The loss suffered by the purchaser was $5,500 in legal fees.

Mr Gander’s other offence of attempted fraud involved his attending at a car dealership, Lexus at Kedron, with Mr Horne, to inspect and negotiate the purchase of several vehicles. After having contact with that dealership over a number of days, Mr Gander produced a document purporting to be a written guarantee for the transfer of $9.6 million from the Hong Kong Shanghai Banking Corporation to an Australian bank account supposedly held by Sandy Og. Relying on that document, Mr Gander ordered eight vehicles valued at $695,000. Mr Horne subsequently signed the purchase contract for those vehicles. However, on subsequent days Mr Gander contacted the car dealer, saying he would produce a bank cheque to pay for them, but he was arrested on 15 December 2003 before anything further could happen. He was charged with the two offences of attempted fraud and the counts of forgery and uttering, and thereafter remained in custody for a total period of 319 days until sentenced on 29 October 2004.

The third indictment presented against him when sentenced charged one offence of fraud, committed on divers days between 25 November 2003 and 28 November 2003, and one of having attempted to pervert the course of justice on 10 June 2004. The fraud charge related to the sale of six non-existent lap top computers, four to one person and two to another, for $1000 each. The second count related to the falsification of a document that he intended to use in a bail application made to the Supreme Court. He had inserted the word “cancer” into a typewritten letter from a doctor outlining certain illnesses suffered by his mother, which letter was exhibited to an affidavit he swore in support of his application for bail. His dishonesty thus persisted after arrest and detention.

The serious and aggravating circumstances of Mr Gander’s behaviour are self evident from the description given. He is, as described by the learned sentencing judge, namely a person who has simply not taken any notice of warnings given to him by the District Court on earlier occasions, and accordingly a person who presents as a considerable danger to the rest of the community because of his significant risk of recidivism, unless personally deterred by a substantial sentence of imprisonment. He has been undeterred by either probation, a suspended sentence, or by detection and arrest. In late 2003 he was engaging in a quite astonishing variety of deceptive conduct for financial advantage.

Acknowledging all that, a maximum term of five years imprisonment for the attempted fraud charges appears a very long one when the Crown conceded that the boldest of those, the attempted sale of the building, was bound ultimately to be revealed as fraudulent, and no later than when the prospective purchaser and true owner came into contact. Further, Mr Gander did not get possession of any of the Lexus motor vehicles. In R v Gregory [2004] QCA 87 that applicant, who unsuccessfully appealed against an order for six years imprisonment with post-prison community based release recommended after two years, had misappropriated $236,565 from her employer over a nine year period. There was no restitution. That six year term accorded with the six year term with a recommendation after serving two years and three months upheld in R v Gourley [2003] QCA 307, in respect of an applicant who had defrauded her employer of sums totalling over $213,000 over a four and a half year period. There was no restitution there. Likewise a sentence of six years imprisonment with release on parole recommended after two years resulted from an appeal in a matter of R v Felton, CA No 16 of 1989, where that offender misappropriated $210,000 over six years from her employing company. Those offenders succeeded in obtaining six figure amounts by dishonest conduct over a long period and obtained far more than Mr Gander. Admittedly, none of them had any prior convictions.

In a matter of R v Lim [2004] QCA 172, this court upheld a sentence of five years imprisonment imposed after a five week trial upon an offender who had been convicted of 22 counts of fraud and dishonesty, resulting in a net loss of $500,000 to a number of different complainants. That 55 year old offender also had no prior convictions. In R v Wheeler & Sorrensen [2002] QCA 223, where those applicants had dishonestly appropriated amounts totalling about $600,000 and been sentenced to six years imprisonment with a recommendation of parole after two years, this court upheld those sentences and analysed a number of similar cases. It concluded that general deterrence was important in matters of that kind, and that sentences of six and seven years imprisonment were common when large sums of money were involved.

Here this determinedly dishonest young man attempted to get a very large sum of money but failed. Mr Shepherd pointed to the sentences totalling six years imposed in the matter of R v Smith [2002] QCA 528, where that applicant was convicted after a trial on 22 counts of false pretences (each carrying a maximum penalty of five years), and where the amount actually obtained was approximately $870,000. In addition, that applicant pleaded guilty to a seven count indictment containing charges under s 408C, which involved a further $60,000. Mr Smith was sentenced to five years imprisonment on the counts on which the jury convicted him, and to a further one year cumulative on those to which he pleaded guilty. Those sentences were upheld on the appeal, and said to be well within range. On Mr Shepherd’s submission, that was so because of the amount actually defrauded from the complainant. He was a 55 year old offender, apparently with no prior convictions, and the judgment on the appeal does not refer to any restitution.

Mr Shepherd also referred the court to R v Jones [1998] 1 Qd R 672, where that applicant pleaded guilty and was sentenced to a maximum of five years on six counts of false pretences. He had been 11 months in custody prior to sentence but that was also attributable to other offences. The amount he obtained by his fraud was $25,728, and Mr Jones also had a significant criminal history. He had been imprisoned on 11 separate occasions, the last major one being to a sentence of five years imprisonment for misappropriation. His sentence was reduced to four years with a recommendation for parole after one year and nine months. Mr Shepherd contended that four years was also the appropriate head sentence in respect of all the offences to which Mr Gander pleaded guilty on 29 October 2004, while acknowledging that it was appropriate he be ordered to serve all of the suspended sentence as a cumulative term, with the resultant total period of imprisonment being five years instead of six. The Director of Public Prosecutions did not refer the Court to any comparable sentences to support the sentence imposed on Mr Gander.

Mr Gander has in his favour only his youth, the amount he actually obtained, and that this is the first term of actual imprisonment imposed on him. He has a significant and very relevant recent criminal history, and is a recidivist. However, Mr Shepherd also raised the issue of whether or not the effective term imposed for the offences to which he pleaded on 29 October should be further reduced by reason of the 319 days spent in custody. The learned sentencing judge made a declaration with respect to 79 days only of that period, being the period from 12 August 2004 (the date when Mr Gander was arrested for the offences charged in the third indictment) until 29 October. That was the only period in which he was held in custody in respect of all offences for which he was then being sentenced. The judge declared that the sentences he imposed had already taken into account the remainder of the period of time spent in custody. Mr Shepherd contends that the effective period of imprisonment imposed is one of six years and 240 days (or eight months), the extra eight months being the difference between the 319 days in custody and the 79 days declared.

I think there is substance in that argument. The facts here differ from those in R v Kunst [2002] QCA 400, where that applicant had been in and out of custody on a number of occasions prior to his ultimate sentence, being re-arrested and then sentenced for offences committed while on bail awaiting ultimate sentence. That offender was released more than once after serving short sentences, and before the ultimate imposition of a relatively long term. In this matter it is not easy to understand from the information in the appeal record whether all of the 319 days were available for declaration under s 161(4) of the Penalties and Sentences Act 1992 (Qld), or none of them. The Crown did not contest the 79 days declared, although both counsel agreed the position was unclear.

Whatever the true position be, Mr Gander did spend another eight months in custody not declared as time served. I consider that fact, those few in his favour already mentioned, and the other sentences referred to, make the sentence imposed on the two counts of attempted fraud manifestly excessive, and make it appropriate to reduce those sentences of five years imprisonment to sentences of four years imprisonment. Mr Gander should be ordered to serve the one year activated sentence cumulatively, which will result in a total period of five years imprisonment which will date from 29 October 2004.

That leaves only the manner in which the court should express the order for the cumulative term. In R v Chard; ex parte A-G (Qld) [2004] QCA 372 Williams JA, relevantly giving the judgment of this Court, expressed the opinion that where an activated suspended sentence was to be ordered to be served cumulatively with another term or terms of imprisonment being imposed, the order should require the offender to serve the whole (or the activated part) of the suspended sentence first, to be then followed by service of the sentence imposed for the offence (or offences) which constituted the breach of the suspended sentence. His Honour observed that it might then be ordered that the latest sentence(s) be served concurrently or cumulatively upon the part of the suspended sentence ordered to be served. He added that that was the course which is usually followed, and that it made it easier to calculate release dates and eligibility for post-prison community-based release. His Honour went on to note that any recommendation with respect to that eligibility would apply to the whole of the period of imprisonment to be served, and not just the sentence imposed for the substantive offence (italics mine).

The observation, in my respectful opinion, accords with each of the earlier decisions of this Court in R v Waters [1998] Qd R 442 and in R v Fifita [2004] QCA 201. In R v Waters this Court held by majority that in exercising the power under s 147(1)(b) of the Penalties and Sentences Act to order that an offender serve the remainder of the term of imprisonment previously suspended under that section, the sentencing judge has no power under either s 157(2) or s 157(3) to attach a recommendation for parole to the sentence or part of it so ordered to be served. In R v Fifita, this Court held by majority that s 157(3) only obliges a sentencing judge to make a parole recommendation if a recommendation for parole has been made in the previously imposed sentence of imprisonment. Nothing in the latter decision prohibits a judge, sentencing an offender who is already serving imprisonment for an offence, from making a recommendation for post-prison community-based release relating to the total period of imprisonment that the offender must serve as a result of the further order made by that sentencing judge. That is, it is permissible to read the word “must” in s 157(3) as including “may”. That construction accords with both the result reached in R v Fifita and the recommendation of Williams JA in R v Chard.

Accordingly, I would order that the application be allowed and the appeal allowed, to the extent of varying the orders made on 29 October 2004 by deleting the orders that Mr Gander serve five years imprisonment concurrently for each of the offences of attempted fraud, and substituting instead concurrent sentences of four years imprisonment for those offences; ordering that the concurrent terms of imprisonment totalling in all four years imposed on 29 October 2004 be served cumulatively upon the activated suspended sentence of one year; and that Mr Gander be considered eligible for post-prison community-based release after he has served two years of that total period of five years imprisonment, of which 79 days had been served prior to 29 October 2004, that is, on 11 August 2006.

MACKENZIE J: I agree with the reasons given by Jerrard JA for giving leave to appeal and allowing the appeal and with the orders proposed by him.