R v O'Connor [2022] QCA 65

The applicant was born in 1989. His extensive criminal history, extending across two States, commenced in 2009, when he was given a wholly suspended sentence and a community based order in Victoria for a variety of drug and dishonesty offences. In 2014, he was sentenced to 18 months’ imprisonment, with release at the halfway point, and ordered to pay nearly $25,000 in compensation for dishonesty offences. In the following year, he was sentenced for further dishonesty offences, and ordered to pay further compensation. On 17 September 2019, he was sentenced by a judge in the District Court at Brisbane for various offences, which included 13 counts of fraud or attempted fraud, one involving a value in excess of $100,000. A term of seven years’ imprisonment was then imposed, with a parole eligibility date set at 17 November 2019. About two years of pre-sentence custody was declared, with the result that the full-time release date under those orders became 18 September 2024.

He was released on parole on 9 January 2020. Of particular importance in this case, he commenced the offending the subject of this case on 5 February 2020, that is to say, less than a month after his release.

The subject offending occurred in a period from 6 February to 12 June 2020. Over that period, he engaged in a scheme whereby he made contact with vulnerable people and dishonestly convinced them to purchase mobile phones or other electronic devices, under expensive plans. Having convinced them to do that, he then persuaded the victim to give him possession of the device for the supposed reason that he would have certain software installed. By that means, he obtained from some 76 identifiable victims in excess of 150 phones and 20 other devices, such as electronic watches. The cost of the goods themselves were estimated at in excess of $300,000. That conduct was charged by count 1.

Some of his victims began to complain that their phones had not been returned, and the applicant was forced to pay to them or the telephone providers a total of in excess of $50,000. To that extent, the value of the benefit derived by the applicant was reduced. And some victims did not suffer a complete loss in having to pay out their plans. It was accepted at the sentence hearing that the overall loss to victims was about $130,000.

The second count involved the applicant selling some devices which he had obtained from victims in that way. He sold them to a mobile phone purchase and distribution business before the victims reported them stolen. By that means, he received more than $200,000 from the sale of phones.

It is necessary to explain the reasoning of the sentencing judge, and to say a little more about the outcome. The judge identified the following relevant factors, namely: the applicant’s extensive criminal history for offences of dishonesty, the fact that this offending occurred whilst the applicant was on parole and commenced only a month after he had been released, psychiatric and psychological reports showed that the applicant suffered from an acquired brain injury leading to impulsive behaviour and poor decision-making which the judge accepted had contributed to the offending, the applicant’s rehabilitation was now possible, the applicant had also been diagnosed with chronic depression and had recently disclosed a history of childhood sexual abuse, the applicant had the support of his parents, and he had a relapse prevention plan in place, which he had lacked when sentenced previously. On that last point, a letter from his parents was tendered in this Court, demonstrating their ongoing support for him, and explaining the impact of his brain injury on his education and childhood.

The sentencing judge said that regard must be had to the total period of time which he would spend in custody. Upon her preferred approach of accumulating these sentences upon the 2019 sentence, she considered that cumulative sentences of eight years resulting in a period of imprisonment of 15 years, as the prosecutor had submitted, would result in an excessive period of imprisonment, having regard to the overall criminality of the offending, and also the impact of his brain injury.

Instead, she said, there should be head sentences of five years, resulting in an overall period of imprisonment of 12 years. She considered that a new parole eligibility date should be set at 26 September 2022, upon the basis that he should be in custody for at least another 12 months from the date of her orders.

Her Honour declared pre-sentence custody of only one day, and it must be said that she was not assisted as to the operation of s 159A in this case. The operation of s 159A has recently been explained in this Court’s judgments in R v Wilson¹ and R v Braeckmans.² Section 159A was engaged in this case because the applicant was sentenced to a term of imprisonment for offences for which he had been held in custody. This Court has confirmed the decision of Bowskill J (as the Chief Justice then was) in R v Whitely,³ that s 159A empowers the sentencing court to make a declaration in the prisoner’s favour in relation to time for which the prisoner was on remand whilst serving a previous sentence.

Once s 159A is engaged, the sentencing court is obliged to consider whether to declare all of the time as imprisonment already served, or that all or part of the time is not to be taken to be imprisonment already served. There is no preferred or prima facie position that a prisoner will have the benefit of the whole of the period, unless the court is persuaded to the contrary. If a cumulative sentence is being imposed so that it will commence from a future date, the court cannot declare that any of that sentence has already been served.

Unlike the position in Braeckmans, the judge here was not obliged to impose cumulative sentences. Her Honour recognised that and explained why they were imposed in this case. I am of the same view. This offending was entirely distinct from the offences for which he was sentenced in 2019.

The applicant’s counsel refers to the decisions of this Court in R v Fares,⁴ R v O'Carrigan,⁵ R v Morehu-Barlow,⁶ and R v Kelly.⁷

In Fares, the total amount defrauded was about $157,000. Some of that offending occurred whilst she was on bail, and some in breach of a suspended sentence. This Court did not disturb a sentence of six years.

In Kelly, the amounts involved totalled nearly $800,000. This Court found an error by the sentencing judge, but did not disturb the judge’s order for five years’ imprisonment, suspended after 20 months.

In O'Carrigan, a man occupying what was said to have been a high position of trust defrauded his employer over a period of 12 years in amounts totalling more than $20 million. A head sentence of 12 years’ imprisonment, cumulative upon another sentence of three years, was not disturbed, but the parole eligibility date was moved forward by a year from the halfway mark.

In Morehu-Barlow, a public servant who forged documents and misappropriated more than $16 million over four years, leaving the State with an overall loss of $5 million, was sentenced to a total period of imprisonment of 14 years, with a parole eligibility date after five years. This Court refused leave to appeal.

The respondent refers to R v Dick⁸ and R v Ceitinn.⁹ The former is cited for the statement by Boddice J that regard must be had not only to the amount of money involved in the fraud, but also to any sophistication in carrying it out, the length of time over which it was committed, whether the offender was in a position of trust, and whether there has been any restitution or offer of restitution. The latter case is referred to as a yardstick. That offender was a part of the upper management of a sophisticated fraudulent enterprise, which took more than $2 million from over 150 victims, and from which the applicant personally benefited to the extent of about $230,000. A sentence of eight years with parole set after two years and six months was not considered manifestly excessive. That offender had an irrelevant criminal history.

The complication in this case is caused by the accumulation of the sentences which, as I have said, is appropriate in this case. I do not agree with the judge that cumulative terms of five years would be appropriate. That is not only because of the overall period of imprisonment which would result, relative to the totality of his criminal behaviour, but also because that would not give any allowance for the fact that he has been held in pre-sentence custody for 473 days. Under the previous form of s 159A, some amelioration of the later sentence might be required for a lengthy period of pre-sentence custody, although the offender was also in custody for another reason and the time could not be declared.

In applying the totality principle, the sentencing court is not permitted to proceed upon the basis that, in the light of new information, an earlier court’s discretion has miscarried: see R v CCT [2021] QCA 278, at [221]. In my opinion, the sentences of five years should be varied in each case, to three and a half years’ imprisonment. I would not vary the prisoner’s parole eligibility date. I would order as follows:

Grant leave to appeal.

Allow the appeal.

Vary the orders made in the District Court on 27 September 2021 by:

(a)varying the terms of imprisonment of five years imposed on counts 1 and 2 in the indictment to terms of three and a half years’ imprisonment;

(b)removing the declaration that the applicant had served pre-sentence custody of one day;

(c)declaring instead that the applicant was held for a total of 473 days of pre-sentence custody, between 12 June 2020 and 27 September 2021, and that none of that time is taken to be imprisonment already served under the sentence.

BOND JA: I agree.

BODDICE J: I agree.

McMURDO JA: The orders will be as I have just outlined.