R v McQuire & Porter; ex parte A-G [1999] QCA 205

Court of Appeal (Qld)|1999-06-08|Before: Pincus J, Davies J, Chesterman J, Before Pincus J

1 In these appeals the Attorney complains that the two respondents, having dishonestly applied $685,000, were inadequately sentenced. Not a cent had been paid back. One of the respondents, Porter, was sentenced to 5 years imprisonment suspended after 12 months and the other, McQuire, was given a totally suspended sentence. Mr Byrne Q.C. for the Attorney suggests that the sentences should have been in the region of 7 to 8 years with recommendations as to parole which would result in each respondent serving a substantial period in actual custody. On the face of the record there is substance in Mr Byrne's submission, but for reasons we shall explain the sentencing process entirely miscarried and so we should not now re-sentence the respondents.

2 Although the respondents were co-offenders jointly charged and both were pleading guilty, for no comprehensible reason they were sentenced separately. The Crown prosecutor had it appears agreed that McQuire who was sentenced first should not go to gaol, whereas, on the material we presently have, it seems clear that he should have done so, although he had made a statement which to some extent incriminated Porter. Because of the inadequate sentence imposed on McQuire, the judge it seems felt bound to impose a low one on Porter.

3 Counsel for McQuire submits that if the appeal is to be allowed the best course is to remit both cases for resentencing. That is the course which should be followed, partly because there may be factual questions requiring investigation such as that Porter, who was neither present nor represented when McQuire was sentenced, put a substantial if not the major part of the blame for these offences on McQuire.

4 An impression was gained from submissions made to us, if indeed it was not one already held, that commercial prosecutions which look complicated - as this one was apparently thought to be - are accorded low priority both at the investigation and the prosecution stage. Adequate time and expertise are sometimes not applied to their preparation. From submissions made on behalf of the Crown below, it appears that these two cases were in a "too hard basket" and an opportunity, shrewdly put forward on behalf of McQuire, was accepted to dispose of the matters with as little trouble for all concerned, and as little expense, as possible. In the eagerness to achieve this end the necessity to ensure a proper and just result was lost sight of. If cases of this sort are treated, through inadequate funding or otherwise, as of little importance, unsatisfactory outcomes of the present kind will ensue from time to time.

5 Each of the 7 counts against the respondents alleged dishonest application to their own use of money belonging to them which came into their possession on account of a named person. In substance, the Crown case was that the respondents obtained money from people on the pretence that it would be lent out on their behalf at interest and with proper security; but in reality the money was used in large part for other purposes such as paying liabilities of the respondents' business. The Crown had to prove dishonesty and, to do so, it appears that it relied upon the difference between the representations made, principally by McQuire, as to what would be done with the money obtained and what was in fact done with it.

6 There was nothing to suggest that the Crown undertook to prove that the respondents were at material times in financial straits. If one examines the account of the facts put forward by the prosecution below, as well as the statement taken by police from McQuire, a great deal of information of little or no relevance is found. There was an absence of focus on the matters charged. The prosecutor told the judge when Porter was being sentenced that the main purpose of the statement McQuire gave to the Crown was to show that Porter knew about financial problems within a company which McQuire and Porter controlled. That was not a point which the Crown had to prove in order to establish the elements of the offences charged.

Effect of section 13A

7 Section 13A of the Penalties and Sentences Act 1992 reads, in whole, as follows -

"(1) This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.

(2) The undertaking must be in a written declaration.

(a) cause the written undertaking and the sentencing remarks under paragraph (b) to be sealed and placed on the court file with an order that it may only be opened by an order of the court, including on an application to re-open the sentencing proceedings under section 188(2)[Court may reopen sentencing proceedings]; and

(i) that the sentence is being reduced under this section; and

(ii) the sentence it would otherwise have imposed".

In summary, what the section says is that if a sentence is to be reduced because an offender has undertaken to co-operate, certain procedures must be followed. The section does not require the court to reduce any sentence; the court might decline to do so or make only a small reduction, for example because it considered the undertaking to be of little or no value.

8 In view of the text just quoted, it is surprising that a much stronger effect was attributed to s. 13A during the sentencing process. Perhaps the most remarkable assertion made (by counsel) was that s. 13A required that Porter spend some time in prison. One finds in the judge's reasons for sentencing Porter the following comment upon McQuire's sentence, imposed the previous day:

"In his case the Crown recommended the sentence that I imposed, and while it was a lighter sentence than I would have preferred I felt unable to divert or to depart from it because of the matters raised pursuant to section 13A of the Penalties and Sentences Act by which I am bound".

The judge also said in his reasons for sentencing Porter that McQuire -

" . . . voluntarily took a course which, by virtue of section 13A of the Act, I was obliged to make significant allowance by way of reduction of sentence".

As is plain from the words of the section it imposes no such obligation.

9 Why this inappropriate course was followed remains obscure. Mr Kimmins for McQuire gave us his best recollection and from that it appeared that the Crown prosecutor (who was not Mr Byrne Q.C., who appeared before us), decided that McQuire should be sentenced first and separately. Mr Kimmins candidly informed us that "we sought to be sentenced separately from Mr Porter". The judge's view, expressed in the context of submissions on behalf of Porter, as to the degree of McQuire's criminality, was that -

"This is the situation which prompted me to require that both McQuire and Porter be sentenced together".

It was never explained why that requirement did not take effect. Predictably, it produced the result that the judge had before him at McQuire's sentencing, McQuire's version of events, but not Porter's; his Honour complained during Porter's sentencing:

10 As the matter is to be remitted for re-hearing including resolving, so far as necessary, any factual conflict, it is unnecessary to discuss this comprehensively; but in the circumstances some comment must be made, to support the conclusion that, on what is presently known of the matter, the sentences were very inadequate.

11 The judge expressed the opinion that Porter and McQuire were equally responsible and that there was "no real distinction between the two in terms of their criminality". As to McQuire, the judge noted that there was no sign of remorse. It was submitted on behalf of Porter that he had suffered serious financial loss and had been reduced to doing very menial work, whereas McQuire was still living an "up-market" life. Porter's counsel also said that McQuire was just as involved and had just as much knowledge of the finances as did Porter and that both signed cheques disbursing parts of the money which they obtained.

12 An important submission made below on behalf of Porter was one to the effect that he knew nothing of the lies which McQuire was telling the complainants. The submissions made by the prosecutor on McQuire's sentencing tended to give some support to this. It was then said that of the six victims of the respondents' frauds, two only - those in counts 2 and 6 - dealt with Porter and, it was alleged, McQuire also dealt with the former. The only complainant with whom Porter admitted having had the initial contact was that in count 2. In McQuire's statement, which produced for him such a generous reward, he said that he told Porter about every "investment" he received from clients, but he accused Porter of having had the initial dealing, by which the money was obtained, only with the complainant in count 2; that accords with Porter's version.

13 There appears then to be a degree of consensus between Porter and McQuire on this point; the main difference between them is that McQuire says and Porter denies that discussions between the two made Porter fully aware of what McQuire was doing. Of course, as Porter's counsel implied below, it would be remarkable if Porter thought that the considerable sums being spent by the two on expensive motor cars and the like all represented honest earnings.

14 It is not absolutely clear what view the judge took about the conflict just discussed, the existence of which did not appear, of course, until after McQuire had been sentenced. His Honour's sentencing of McQuire was it appears based on the view that he was -

". . . bound to consider myself bound by the recommendation by the Crown".

His Honour was not so bound; a plea-bargain cannot remove from a judge the responsibility of imposing a just sentence.

15 It was, with respect, necessary for the judge properly to inform himself about the facts, which could most conveniently be done by sentencing the two together. It was also necessary for the judge to assess the worth of McQuire's statement; it could be inferred from what the prosecutor said that the main significance of McQuire's statement was to prove that Porter knew the true financial position of the business - a point which surely seemed evident enough, since Porter was the person principally responsible for day-to-day administration.

16 A week after sentencing Porter, the learned primary judge called counsel back before him to explain that on the day after sentencing McQuire, he had learnt for the first time there had been no arrangement made about compensation. His Honour said he had decided to reconsider the sentences imposed, but on inquiry being made by counsel, narrowed the area of consideration to the question of compensation only.

17 The better course, as we have indicated, is that the sentences should be reconsidered in a hearing de novo. The relevant issues will have been narrowed by the allegations and admissions made by counsel on behalf of the respondents at the earlier hearing; we have attempted to indicate areas which may need exploration. It seems desirable that, in the particular circumstances, a judge other than one whose sentences are being set aside should undertake the resentencing, including of course any consideration of offers of compensation.

18 We make the following orders with respect to each respondent:

(3) The matter is remitted to the District Court for determination, by a hearing de novo, of the sentences to be imposed on the respondent.

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