R v Hagan [1996] QCA 447

Court of Appeal (Qld)|1996-11-15|Before: Before Fitzgerald P, Thomas J, White J

These are applications for leave to appeal against sentences imposed upon the applicant in the Magistrates Court in Cairns on 20 September and 11 October 1996. On the earlier date, the applicant was sentenced to imprisonment for four months, wholly suspended with an operational period of two years, in relation to six offences of obtaining money by a wilfully false promise with intent to defraud. The offences had been committed in the period 8 August 1995 to 27 February 1996, and involved false travel claims totalling $1,940.00, all of which the applicant had repaid by the time when he was sentenced. After those offences had been dealt with, investigating police raised another five similar offences committed between 9 February and 22 November 1995. The applicant was interviewed, made full admissions, was charged, pleaded guilty and was sentenced within five days of the first reference by police to those offences. In the circumstances, he did not have an opportunity to make restitution prior to being sentenced on 11 October 1996, but has since repaid the full amount, $1,440.00. His sentence on that occasion was imprisonment for six months, suspended after two months, with an operational period of two years. In the result, that became the effective sentence for all eleven offences. Convictions were recorded.

The applicant is 36 years of age, born on 20 December 1959, and had no prior criminal convictions. He had been a public servant for about 15 years, and had been employed for about five years as an Aboriginal research officer attached to the State Tripartite Forum in Cairns, which was established in 1990 to provide advice to the Minister for Health on the development and implementation of policies and programs designed to promote, maintain and improve the health and well-being of Queensland Aborigines and Torres Strait Islanders. The body defrauded was the Peninsula and Torres Strait Regional Health Authority.

As a result of his offences, the applicant lost his job, which attracted a salary of about $36,000.00 per annum, and was excluded from the possibility of any financial benefits under the Public Sector Management Standard for Staffing Options to Manage Organisational Change in the Public Sector. It seems from what was placed before this Court, although not before the magistrates, that the applicant had been negotiating with other persons to establish a tourism venture in Cairns by means of a company, Rainbow Serpent Cruises Pty Ltd, which had purchased a vessel for use in the operation of the business in March 1996. A considerable amount of money has been invested, and this Court was informed that the company proposes to commence operations immediately and that its business "revolves around a central theme of Aboriginal culture and dance". The applicant, who is a director and shareholder in the company, said that his "personal input" was valued so highly that he had not "been required to inject any capital funds into the set up of the business", and that he is "the only indigenous person who holds any interest in the ... business and as such ... [holds] the responsibility to make all managerial decisions regarding cultural content in performances and promotions of the business"; he expects to be "engaged on a full time basis involved in the promotional presentation and cultural aspects of the business", and "[acts] in effect as a means of communication between the company and the performers engaged by the company". He said that his "contribution to the business is [his] indigenous heritage and ... connection with the Aboriginal community. No other person involved in the business is able to take over the functions which [he performs] and for this reason [he believes] the business would be unable to function without [his] presence". These matters were relied upon to support submissions that the applicant should not only not have been required to spend any time in prison, but convictions should not have been recorded. It was pointed out that, under the Corporations Law, the applicant will not be able to manage a corporation without the leave of the Court for a period of five years: see ss. 229 and 91A and the definition of "serious fraud" in s. 9.

The magistrate who sentenced the applicant on 20 September took into consideration the applicant's timely plea, his cooperation and remorse, the fact that the amount of money involved was not large and that he had made full restitution, that he had no prior convictions, and that his prospects for rehabilitation were good. However, his Worship also stressed the importance of deterrence with respect to frauds involving public moneys, and commented that disadvantaged indigenous people no doubt feel aggrieved by persons such as the applicant abusing a position of trust when money for health services is limited. Some scepticism was expressed in relation to the applicant's contention that, although he had not stayed at the hotels to which his travel claims related but with his family, he had made payments to a family member on each occasion. The magistrate also noted that, according to the applicant, the chairperson of the Forum had advised him to make the claims and that he did so because "everybody from the chairman down seemed to have been falsely making these claims"; his Worship said that, even so, the applicant had been willing to participate although not under any financial pressure at the time.

The second magistrate who sentenced the applicant in October acknowledged that the applicant was a mature person of good character and that it would have been preferable had all offences been dealt with on a single occasion; he was conscious that he should not disadvantage the applicant because there were two separate proceedings. He did not think that the circumstance that others in the applicant's organisation also falsified their claims entitled the applicant to leniency, but noted the applicant's full cooperation and early guilty pleas. Nonetheless, emphasis was also placed on the applicant's breach of trust and the need for deterrence.

These matters were also relied upon by the respondent in supporting the sentences before this Court; it was submitted that the applicant had engaged in systematic fraud over a period of some months, that mitigating factors had appropriately been taken into account and that deterrence was important.

Apart from the matters already referred to, the applicant relied in this Court on the relatively small amount of money involved and his absence of prior convictions. It was pointed out that maximum penalty for these offences on summary conviction is imprisonment for two years and argued that, in all the circumstances, the sentences are manifestly excessive.

The submission that convictions should not have been recorded seems to us untenable. While s. 12 of the Penalties & Sentences Act 1992 gives a court a discretion whether or not to record a conviction and specifies matters which must be taken into account (see sub-s. 12(2)), it is not the position that a conviction should never be recorded if it will have an adverse impact upon an applicant because of the consequences attached to a conviction by other legislation. Although these matters were conducted before the magistrates on the basis of the effect which convictions would have upon the applicant obtaining other employment, especially government employment, and the Corporations Law was raised for the first time in this Court, the considerations are broadly comparable and there is nothing to indicate that the magistrates' discretions miscarried. The applicant committed a series of offences and, if the matter were to be considered afresh on the material before this Court, we are satisfied that recording of convictions is the appropriate course, leaving the applicant to make an application for leave under s. 229 of the Corporations Law if he proposes to pursue the business venture to which reference has been made and leave is necessary. That section exists to protect the public, and it is not appropriate that this Court should routinely fashion a special order with the object of defeating the operation of such a section. See also R. v. Beissel K.W. and R.B. (C.A. No. 424 and 425 of 1996, ex tempore, delivered 12 November 1996).

On the other hand, the total amount involved was comparatively small, the applicant obviously has a good work history as well as a previously unblemished record, imprisonment should only be imposed as a last resort and sentences that allow the applicant to stay in the community are preferable: see the sentencing guidelines in s. 9 of the Penalties & Sentences Act 1992, particularly sub-s. 9(2)(a). In our opinion, the magistrate who sentenced the applicant on the second occasion erred when he ordered him to serve a period of actual imprisonment; especially having regard to the course adopted by the magistrate who sentenced the applicant on the earlier occasion, the proper course on the second occasion was to extend the term of imprisonment imposed - as was done - but to wholly suspend it.

We would grant the applications for leave to appeal, allow the appeals and order that the sentence imposed on the applicant on 11 October 1996 be varied only by an order that the period of imprisonment be wholly suspended. Otherwise, the sentences should stand.

APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE ARE GRANTED, THE APPEALS ARE ALLOWED.

IT IS ORDERED THAT THE SENTENCE IMPOSED ON THE APPLICANT ON 11 OCTOBER 1996 BE VARIED ONLY BY AN ORDER THAT THE PERIOD OF IMPRISONMENT BE WHOLLY SUSPENDED; OTHERWISE, THE SENTENCES ARE TO STAND.

CATCHWORDS: SENTENCE - 2 sentences relating to eleven counts of obtaining money by wilfully false promise with intent to defraud - involved false travelling claims - as a result of his offending the applicant lost his job in the public sector and associated financial benefits - had a good work history, timely plea, cooperated with authorities, demonstrated remorse, amount of money involved was relatively small and good prospects of rehabilitation - abuse of trust, need for deterrence - whether a conviction should be recorded, R. v. Beissel (C.A. Nos. 424 and 425 of 1996, ex tempore, delivered 12 November 1996).

Queensland Director of Public Prosecutions for the respondent.

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