R v Sea [2006] QCA 421

SUPREME COURT OF QUEENSLAND

CITATION: R v Sea [2006] QCA 421

PARTIES: R v SEA, Jack (applicant)

FILE NO/S: CA No 234 of 2006 / DC No 402 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Cairns

DELIVERED EX TEMPORE ON: 26 October 2006

DELIVERED AT: Brisbane

HEARING DATE: 26 October 2006

JUDGES: McMurdo P, Holmes JA and Fryberg J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1.Application for leave to appeal against sentence refused / 2.Applicant asks that approximately three days in May 2003 during which time he was in custody be declared time already served; if Corrective Services can confirm this and are unable to have the three days dealt with as time already served under the sentence, applicant may apply to the original sentencing judge under s 188 Penalties and Sentences Act 1992 (Qld) to reopen his sentence and have a declaration made as to those three days in custody / 3.Because of applicant's language difficulties, community correctional authorities should give consideration to his desire to serve his term of imprisonment at Lotus Glen Correctional Centre

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant first pleaded not guilty to 12 counts of attempted fraud, 36 counts of fraud and 11 counts of fraud with a circumstance of aggravation – where on eighth day of trial applicant pleaded guilty to two counts of fraud with a circumstance of aggravation that amount was more than $5,000 – where applicant had been involved in a fraudulent scheme using between 23 and 25 counterfeit credit cards with genuine credit card holders' details transferred onto them – where applicant allowed co-offenders to use EFTPOS and credit card facilities in his two shops to misappropriate monies – where applicant and co-offenders also fraudulently purchased items of electrical equipment – where applicant was sentenced to an effective total term of three years' imprisonment – where applicant has repaid misappropriated monies – where applicant's plea of guilty was late – where applicant claims that trial judge did not give sufficient weight to mitigating factors in imposing sentence – whether sentence was manifestly excessive in all the circumstances – whether applicant should be returned to Lotus Glen Correctional Centre near Cairns where he commenced serving his sentence and where his friends and relatives live – whether three days in May 2003 during which applicant claims he was held in custody should be taken into account as time already served / Criminal Proceeds Confiscation Act 2002 (Qld), s 260 / R v Adams [1999] QCA 326; CA No 114 of 1999, 20 August 1999, applied / R v Power [1998] QCA 32; CA No 440 of 1997, 11 February 1998, applied

COUNSEL: Applicant appeared on his own behalf / M J Copley for respondent

SOLICITORS: Applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for respondent

THE PRESIDENT: These are my reasons. The applicant pleaded not guilty on 11 July 2006 to 12 counts of attempted fraud, 36 counts of fraud and 11 counts of fraud with a circumstance of aggravation. On 24 July 2006, the eighth hearing day of the trial, he pleaded guilty to a new indictment containing two counts of fraud with a circumstance of aggravation that the amount involved in each case was more than $5,000. He was granted bail until 4 August 2006 when he was sentenced on the first count to three years' imprisonment and on the second count to six months' concurrent imprisonment. The prosecution did not proceed with the original indictment. He now applies for leave to appeal against that sentence.

He has no previous convictions. He was 43 years old at the time of the offences and 46 at sentence.

The offences occurred over a six-week period between 2 April and 19 May 2003. The applicant owned two shops in Cairns. The frauds concerned the use of between 23 and 25 counterfeit credit cards, the source of which was unknown to police. The magnetic strips on the cards were blank. Genuine credit card holders' bank account details were transferred onto the magnetic strips, the credit cards stamped with the genuine credit card numbers and a signature was forged on each card.

The applicant's stores each had EFTPOS and credit card facilities for the use of customers purchasing goods. Count 1 involved the use of the applicant's EFTPOS facilities on about 22 occasions during which a total of $122,659 was transferred from the accounts of genuine ANZ Bank customers to the applicant's bank account. The bank bore the loss to the customers. By the time of sentence the applicant had effectively repaid the misappropriated money. The second count involved the fraudulent purchase of five items of electrical equipment worth in total $8,700 by using the counterfeit credit cards. These items of property were recovered by the police in the course of their investigation.

The prosecutor at sentence submitted that the applicant was not the prime mover in the whole fraudulent scheme but that he was nevertheless an important player in his commission of these offences, effectively allowing the prime movers to test the use of the counterfeit cards in the relative security of his shops. When a number of offenders were arrested by police on 19 May 2003 the vehicle in which they were located was driven by the applicant. Another co-offender, Michael Ma, was found in possession of what appeared to be a shopping list of goods to be obtained by fraudulent transactions. That list had been supplied to Ma by the applicant. The offences were particularly serious because they compromised the financial affairs of innocent account holders and caused them considerable inconvenience and distress...

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THE PRESIDENT: ...caused them considerable inconvenience and distress whilst the fraudulent transactions were identified and the victims' accounts rectified. Additionally offences like these are a burden for all honest account holders in that offences are expensive and complex to investigate and the costs are passed on to all credit card users in higher fees and charges. Deterrence, both general and personal, is an important factor in sentencing. The guilty plea was at a late stage, although it did save the State some expense. The applicant was charged three and a half years before his guilty pleas and until then did not assist the police in the investigation and had shown no remorse.

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THE PRESIDENT: The prosecutor referred to sentences imposed on three co-offenders. Larry On pleaded guilty on 3 March 2004 in the Cairns Magistrates Court to offences involving about $8,800 for his part in this fraudulent scheme and was sentenced to two and a half years' imprisonment. Paul Lee and Wei Zhong Chen pleaded guilty on 24 May 2004 in the Cairns Magistrates Court to offences concerning their part in the scheme and were each similarly sentenced to two and a half years' imprisonment. The maximum penalty available in the Magistrates Court is three years' imprisonment. Those three offenders were not prime movers in the fraudulent scheme and appeared to receive no substantial benefit from their role. After referring to a number of cases said to be comparable, the prosecutor submitted that the appropriate sentencing range in the applicant's case was three to four years' imprisonment.

The prosecutor told the judge that prior to the applicant's guilty plea the Crime and Misconduct Commission had brought an application in the Supreme Court at Cairns under s 260 Criminal Proceeds Confiscation Act 2002 (Qld) and that therefore the judge could not take into account the compensation paid by the applicant. Defence counsel pointed out that since the application was brought, the parties, with the approval of the Director of Public Prosecutions in a Deed of Agreement, discontinued the application because of the applicant's repayments to the ANZ Bank and that therefore those repayments should be taken into account on sentence. The sentencing judge indicated that he had "no difficulty with that". Defence counsel explained that the applicant had been able to fund the repayment through borrowings or assistance from friends, many of whom were present in court to support him.

Defence counsel submitted that the applicant became involved in the frauds through Mr On who, with Mr Chen, was a step down from the person supplying the counterfeit credit cards, a person or persons unknown to the applicant. Mr On or one of his associates was always present when the applicant's credit card terminal facilities were fraudulently used. Defence counsel submitted that the applicant should be sentenced to no more than two and a half years' imprisonment, the sentence imposed on On and Chen. The applicant was born in Thailand and migrated to Australia in 1994. He had recently married a Taiwanese woman who hopes to migrate to Australia. He had the support, including the financial support, of many friends whom he met through the Cairns church environment in which he was heavily involved. Because of his offending he has lost his shops and his reputation in the Cairns business community; bankruptcy proceedings against him are pending. His plea of guilty, his payment of full compensation, his lesser role in the fraudulent scheme and parity with his co-offenders warranted the suspension of the term of imprisonment after six to nine months.

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THE PRESIDENT: The sentencing judge stated that the applicant was not a ringleader or mastermind in the operation of the greater fraudulent scheme. He was, however, the prime benefactor of the 22 transactions covered by the first count in the indictment and he was certainly well involved in the fraudulent scheme because a large number of items of property obtained using the counterfeit credit cards were found at his premises. The judge was not prepared to conclude that the applicant had a lesser role than his co-offenders sentenced in the Magistrates Court. His Honour noted that the applicant was entitled to benefit for his plea of guilty and that the estimated length of the trial was six weeks but considered that the guilty plea did not demonstrate genuine remorse. His Honour noted s 260 of the Act and the fact that the applicant had effectively made compensation of the outstanding amounts. His Honour found that in the circumstances here, despite s 260, he could and should take into account the compensation paid by the applicant in determining the appropriate sentence. His Honour did not regard the sentences imposed on Lee, Chen and On to require close parity with the sentence imposed on the applicant because the offences to which they pleaded guilty, whilst related, were not identical. The applicant's plea of guilty and lack of previous convictions were matters in his favour but the offences involved a great deal of money and repetitive conduct so that in all the circumstances a sentence of three years' imprisonment on count 1 and six months' concurrent imprisonment on count 2 was warranted. His Honour noted that he had taken the mitigating factors into account in arriving at that sentence and was unpersuaded that he should give further mitigating benefit by way of early suspension of the sentence or early recommendation for parole eligibility.

The applicant, who is now self-represented and has addressed this Court through an interpreter, contends orally and in his notice of appeal that the judge erred in a number of ways. His first contention is that the judge did not give any or any sufficient weight to the fact that the applicant had made compensation prior to sentence. The judge's sentencing remarks to which I have referred indicate that the judge did specifically take this matter into account. Whether he did so sufficiently will depend on whether another of the applicant's contentions, that the sentence was manifestly excessive, is correct.

The applicant next contends that the judge erred in finding that he was the "major person involved". The judge in his sentencing remarks made plain that whilst he did not consider the applicant to be the mastermind of the entire fraudulent scheme, he did consider him to be the major person involved on the first count to which he pleaded guilty. The judge was entitled to reach that conclusion in respect of count 1 where the misappropriated monies were paid into the applicant's bank account and no submissions were made that those monies were passed on to others.

The applicant next contends that the judge erred in finding that no one else was involved in these offences, particularly count 1. He particularly emphasises that others received the goods purchased with the fraudulent credit cards used in count 1.

It is plain from the judge's sentencing remarks that his Honour was clearly aware that the applicant's offending was in the context of a larger fraudulent scheme masterminded by others and in which others were also involved. Significantly, the applicant does not now contend, nor did he at sentence, that he did not personally benefit from these offences.

The applicant next submits that the judge erred in finding that no issue of parity arose in respect of the sentences imposed on On, Chen and Lee. The judge's observations that they each pleaded guilty to different offences, albeit part of the same wider fraudulent scheme, were plainly right. But in any case, the pleas of guilty were entered by each of those offenders at a much earlier stage than this applicant's plea of guilty and therefore warranted the lesser sentences imposed there.

The applicant orally submitted today that his remorse was genuine and that is why his church friends helped him make restitution, and the judge was wrong to say it was not. This was a question for the sentencing judge to determine and the lateness of the payment of the restitution made the judge's conclusion well open.

Finally, the applicant contends that the sentence was manifestly excessive and that a lesser head sentence or at least an earlier recommendation for parole eligibility after about nine months should have been imposed. The sentences imposed on On, Chen and Lee were not, as his Honour recognised, closely comparable to these offences nor it must be said are the cases to which we have been referred by the respondent. The unusual and particularly serious feature of this case is that the applicant was a shop owner in a position of commercial responsibility who knowingly allowed his credit card facilities to be used as part of an extensive counterfeit credit card fraudulent scheme. Over $120,000 was misappropriated together with over $8,000 of goods. Such conduct warranted a salutary deterrent penalty. The maximum penalty for each count was 10 years' imprisonment. The effective global sentence imposed for the unlawful conduct constituted by both offences was moderate even without any early suspension or early recommendation for parole eligibility and taking into account the repayments. Although not strictly comparable, the sentence is certainly supported by the sentences imposed in R v Power [1998] QCA 32; CA No 440 of 1997, 11 February 1998 and R v Adams [1999] QCA 326; CA No 114 of 1999, 20 August 1999.

The application for leave to appeal against sentence should be refused.

There is another matter upon which I wish to comment. The applicant's English skills appear particularly poor. He tells us that he commenced serving his sentence in Lotus Glen Correctional Centre near Cairns where his friends and relatives live. He says that he has been transferred to a correctional centre at Rockhampton. Because of his language difficulties he finds this particularly difficult, to be so far separated from his friends and relatives, and is anxious to be returned to the Lotus Glen Correctional Centre. This of course is a matter for the community correctional authorities but, on the very limited material before this Court, his wish to serve his sentence at Lotus Glen does not seem unreasonable, indeed it seems sensible in the circumstances.

HOLMES JA: I agree with the reasons and conclusion of the President. I agree also with what she has said about the apparent reasonableness of the applicant being returned to Lotus Glen in proximity to his friends and family, subject of course to whatever security and policy considerations the Department of Corrective Services must take into account.

FRYBERG J: I also agree on these matters.

THE PRESIDENT: The order is that the application for leave to appeal against sentence is refused.

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THE PRESIDENT: There is one further matter that has arisen. The applicant has now told the Court that he believes that he was held in custody for about three days in May of 2003 in respect of this matter and he submits that those three days should be taken into account as time served under the sentence. The respondent is unable to clarify the position.

If the community correctional authorities are able to confirm that he did spend those three days in custody and they are unable to have those three days dealt with as time served under the sentence an application can be brought before the original sentencing judge under s 188 Penalties and Sentences Act 1992 (Qld) to reopen the sentence and have the declaration made as to those three days of custody.