R v Ho; ex parte A-G [2000] QCA 283

Director of Public Prosecutions (Queensland) for respondent

[1] McPHERSON JA: I agree with the orders proposed by Davies JA in disposing of this appeal; but wish to add two comments with respect to the circumstances of the offence, and the form of the sentence now being imposed. As regards the latter, counsel for the Attorney-General sought a sentence to run concurrently with the balance of the sentence that will now have to be served by the respondent in consequence of the breach of his parole. We were not asked to make the sentence now being imposed cumulative on that earlier sentence.

[2] The other point is that I do not, with respect, agree with the view of the learned sentencing judge that forging the Chans' signatures on a guarantee was made less serious because it was accepted by the prosecution at the sentence hearing that, if asked, the Chans would have signed the guarantee in any event. As a result of the respondent's forgery, the Chans did not sign the document. When the respondent defaulted, the lender was consequently unable to sue on the guarantee (see Property Law Act 1974, s 56), in order to recover its loss from the guarantors, or attempt to do so. Forging signatures on documents used in commercial transactions is, in my opinion, a serious matter because of the reliance which, in business transactions, is naturally enough placed upon the expectation that signatures on documents are genuine and not forged.

[3] I agree with the reasons of Davies JA for allowing this appeal.

[4] DAVIES JA: The respondent was sentenced on his own plea of guilty in the District Court on 7 April 2000 in respect of a total of 10 offences, seven of signing a document in the name of another without authority with intent to defraud, two of uttering a false document and one of forgery. He was sentenced to 18 months imprisonment wholly suspended for an operational period of four years in respect of the first of those counts which was the first count of making a document without authority and 240 hours community service in respect of each of the other counts. The Attorney appeals against those sentences.

[5] Four of the documents which the respondent signed without lawful authority with intent to defraud were guarantees purportedly signed by Mr and Mrs Chan, Mr Chan being described as a business associate of the respondent, in 1994, 1995 and twice in 1996 for the purpose of obtaining loans from National Australia Bank. The other three were company minutes purportedly signed by Mr and Mrs Chan, but in fact signed by the respondent, authorizing the borrowings. The false documents uttered were photocopies of a driver's licence and passport, each in a false name, for the respondent's wife and the forged document was a photocopy of a driver's licence in a false name for himself.

[6] The respondent was born in Hong Kong on 24 June 1943. He came to Australia with his wife and children in 1977 and for some time before the commission of these offences, apart from a period of imprisonment referred to below, he had been involved in restaurant and catering businesses.

[7] In about 1994 the respondent, his wife and Mr and Mrs Chan apparently commenced a restaurant business, which owned a number of restaurants, through a company called Kung Food Catering Pty Ltd. At the relevant time the respondent was an undischarged bankrupt and had a number of convictions to which reference will be made shortly. For those reasons he was not entitled to become a director of a company. He accordingly assumed a false name as did his wife and the false driver's licences and passports were used to that end. In those false names he and his wife became directors of that company. Mr and Mrs Chan were also made directors of the company. The guarantees referred to were purportedly by all four directors but the respondent signed in all four names.

[8] The business experienced difficulty from about 1997 and subsequently went into liquidation. The bank, being unable to enforce the guarantees against the Chans, was left with a debt of $52,000 from total advances of $100,000. During the period prior to the respondent's being charged there were negotiations between the respondent, the Chans and the Bank with a view to repayment of this debt but these came to an end upon the respondent's being charged.

[9] In the respondent's favour are four agreed facts. The first is that at the time the guarantees were signed it was the respondent's belief that there was sufficient security in the company assets to repay the loans without resorting to personal guarantees. The second is that all funds advanced by the bank were used for the purpose of the business in which all directors had a common interest. The third is that, if asked, the Chans would have signed the documents. And the fourth is that at the time these guarantees were signed the company was trading profitably. Also in the respondent's favour are his co-operation with the authorities and his plea of guilty, a number of favourable references including from prison officers and his wife's ill health.

[10] Against the respondent however is the fact that these offences were committed whilst he was on parole for offences of armed robbery in company and kidnapping for ransom for which he was sentenced to 10 years imprisonment in February 1990. It does not emerge clearly when he was released from imprisonment in respect of those offences but it seems unlikely that it would have been long before the commencement of these offences which was in October 1994.[1] The current offences were committed between that date and June 1997.

[11] The sentence imposed was substantially in accordance with the submission of counsel for the present respondent. One of his Honour's purposes in imposing a suspended sentence was to avoid automatic cancellation of respondent's parole.[2] The prosecutor had contended for a sentence of actual imprisonment of two years, allowing for the mitigating factors already referred to but, as he put it, because of the totality principle, that that sentence be concurrent with the remainder of his 10 year term (approximately five and a half years) which he would be obliged to serve because of the cancellation of his parole.[3]

[12] His Honour also said that the above agreed facts showed that the offending was essentially an exercise in not taking the paperwork seriously enough rather than a calculated exercise of defrauding the bank. He thought that these facts distinguished the case from one where a person simply misappropriates money. Although it may be something of an understatement to describe the respondent's conduct over some years as merely not taking the paperwork seriously, I think his Honour was correct in treating the case as less serious than that in two cases cited below and to this Court.

[13] In Gant[4] there was a sophisticated fraud, involving 31 counts, motivated by greed, enabling the offender to adopt nine different identities for him to obtain lines of credit. The circumstances indicated a high level of culpability. He had previously been convicted of similar offences. A sentence of three years imprisonment, suspended after six months was considered appropriate. Huber[5] was described as a case of deliberate and sustained deceit involving personal advantage to the offender alone. A sentence of two years imprisonment, with a recommendation after nine months, was not disturbed on appeal. No more closely comparable cases were cited.

[14] It is plain that what induced his Honour to impose the sentence which he did was the probability that the imposition of any custodial term, however short, would have resulted in the respondent being required to serve the five and a half years unserved portion of his earlier sentence or at least some substantial part of it.[6] Had it not been for that factor I think it is clear that his Honour would have imposed a custodial term. Such a sentence would ordinarily be warranted for offences of this kind by a man who had a previous criminal record of such seriousness.

[15] I am, in the end, persuaded that his Honour erred in paying too much regard to the factor I have just mentioned. The previous offences were plainly very serious ones and, as already mentioned, the respondent must have been released, still subject to the sentence for those offences, only a short time before the commencement of the offences the subject of these proceedings. To impose a sentence for these offences other than one which is a custodial one, was to impose a sentence which was manifestly inadequate.

[16] In determining what should have been the appropriate sentence two further factors must be considered. The first is that, as already mentioned, the prosecutor contended for a sentence of actual imprisonment of two years, allowing for mitigating factors but, because of the totality principle, that it be concurrent with the remainder of the 10 year term which the respondent would be obliged to serve. The second is that the respondent has performed a substantial part of the community service which, under the sentence, he was required to serve. Having regard to those factors, the mitigating factors already referred to, and the comparable sentences referred to, I would substitute a sentence of 18 months imprisonment to be imposed concurrently with the remainder of the sentence which he will now be required to serve.

[17] The only other question then is whether this Court should make a recommendation for parole. It is, I think, clear that such a recommendation may be made only in respect of the sentence substituted by this Court. No recommendation was made in respect of the 10 year sentence when it was imposed and consequently, whether or not, if it had, a recommendation could now have been made pursuant to s 157(3)(a) of the Penalties and Sentences Act, no such recommendation can be made because no such earlier recommendation had been made.[7] This Court may make a recommendation in respect of the sentence which I would now impose[8] but that could have no effect upon the respondent's eligibility for parole under the 10 year sentence the balance of which he would now be required to serve. I do not think therefore that any such recommendation would perform any useful purpose and accordingly I would not make one.

[18] I would therefore make the following orders:

impose, in lieu, sentences of 18 months imprisonment in respect of counts 1, 5, 7 and 9 and sentences of six months imprisonment on each of the other counts;

order that the sentences referred to be served concurrently with one another and with the sentence the balance of which the respondent is now serving.

[19] THOMAS JA: I agree with the reasons of and orders proposed by Davies JA.

[1] This must have been when he was released to work or on home detention for he was not released on parole until February 1995.

[2] Corrective Services Act 1988, s 187(2)(e).

[3] The imposition of a term of actual imprisonment would, ipso facto, cancel his parole: Corrective Services Act s 187(1).

[6] Notwithstanding the effect of s 187(1) of the Corrective Services Act the effect of s 166(1)(d) is that he will remain eligible for parole at the half way point of that sentence.

[7] R v Doyle [1996] 1 QdR 407 at 410.

[8] Penalties and Sentences Act 1992 s 157(2).