R v Webber [2000] QCA 316

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P and CHESTERMAN J: The facts relevant to this appeal appear in the judgment of Pincus JA. We respectfully adopt his Honour's recitation of the facts and analysis of the comparable cases. We would mention, in addition, R v Gadaloff [1999] QCA 286, CA No 24 of 1999, 24 September 1999 in which the appellant, an employee of a local authority stole, over a period of about three years, a little in excess of $2,500.000. Gadaloff pleaded guilty and promised to assist in the recovery of the stolen money. He was sentenced to eight years imprisonment without any recommendation for early parole. His application for leave to appeal against sentence was refused.

[2] What differentiates this case from those others is the fact that the applicant instructed Tallon in the method he utilised to commit systematic frauds against his employer and then recruited Tallon to commit similar frauds against FAI in return for 40% of the amounts dishonestly obtained. This feature makes the applicant's case substantially more serious.

[3] In the District Court the applicant sought to have his sentence reduced pursuant to s 13A of the Penalties and Sentences Act 1992 by reason of the cooperation he had promised, and in fact provided, to aid the prosecution of those who had assisted in, or benefited from, the dishonest receipt of moneys. The sentencing judge appears to have taken that cooperation into account and the sentence of eight years reflects a discount upon what would otherwise have been imposed. Unfortunately his Honour did not comply with s 13A(7) in that he did not state what sentence he would have imposed but for the cooperation. To this extent the sentencing process has miscarried and it is necessary for this court itself to impose an appropriate sentence.

[4] We agree with Pincus JA that a prisoner who provides tangible cooperation in the prosecution of others implicated in the prisoner's or some other criminal offence should receive a significant reduction in sentence sufficient to afford an inducement to others to provide such cooperation.

[5] Although the discount for cooperation must be discernible, and worthwhile, the adjusted sentence must nevertheless reflect the seriousness of the offence which is being punished. The balance between these competing demands will not always be easy to strike, as this application demonstrates.

[6] In our opinion, but for the applicant's cooperation in the prosecution of his associates in crime, the appropriate sentence would have been one of nine years imprisonment. The amount of money misappropriated, the sophisticated nature of the fraud and its systematic implementation, the prolonged period during which the breach of trust occurred and the cynical recruitment of Tallon to extend the scope and profitability of the fraud would have required such a term. A reduction of two years in the head sentence, making it one of seven years, with a recommendation that the applicant be eligible for parole after serving three years would in our view constitute a sufficient recognition of the applicant's cooperation, and, an inducement for other cases, while preserving a sentence that is commensurate with the gravity of the offences.

[7] We would grant the application for leave to appeal against sentence, allow the appeal in respect to the first two counts and reduce the sentence on each of those counts to seven years with a recommendation that the applicant be considered eligible for parole after serving three years.

[8] PINCUS JA: The applicant, having pleaded guilty in the District Court to four counts laid under s 408C of the Code, seeks leave to appeal against sentences. Two were charges of having dishonestly applied to his own use a sum of money, and the others were charges of dishonestly obtaining money. In each instance it was charged that he was an employee and that the yield was greater than $5,000, so that maximum term of imprisonment to which he could have been sentenced was 10 years.

[9] The judge sentenced the applicant to eight years imprisonment with a recommendation for parole after three years on each of the first two counts and to five years with a recommendation after 15 months in respect of counts 3 and 4. The applicant is 31 years of age and there was no criminal history before these offences were committed, between August 1995 and March 1998. There was a minor subsequent offence which is of no present relevance.

[10] The Crown case was that, being in each instance in a position of trust, the applicant abused that position by complex and lengthy frauds. The total of the amounts obtained was said to be just over $1M. The scheme was in essence to create insurance policies in fictitious names and make fictitious claims on those policies. This involved preparing false claim forms and false assessment forms, in relation to which the applicant would ask the claims section of the employer to prepare a cheque and leave it with the file. He would then put the cheque in an account set up in a false name and withdraw the money from it using an ATM. The applicant also inveigled one Tallon, employed by FAI, into adopting the scheme. He trained him in it and for his services he charged 40 per cent of the amount which that person stole.

[11] The offences began at a time when the applicant had worked for some years for the RACQ/GIO insurance company; his familiarity with the system which operated within that company no doubt enabled him to perpetrate the frauds. $951,281 was obtained from the RACQ. An assets betterment analysis of the affairs of the applicant and his defacto wife disclosed that he obtained about $600,000 from frauds, which leaves $350,000 unaccounted for. Counts 3 and 4 involved another insurance company, FAI, and as I have mentioned the applicant trained Tallon, an employee of FAI, in his system; for this tuition he obtained $55,000. Tallon, who was imprisoned for five years, co-operated fully with the police and was prepared to give evidence against the applicant. The applicant initially denied the offences completely and it appears that the frauds were motivated purely by greed. Counsel for the applicant below told the judge that the RACQ had obtained an injunction and would recover a little over half of what was described as the applicant's share of what was taken.

[12] A recent decision of this Court relating to s 408C offences is McQuire and Porter (No 2) [2000] QCA 40; CA Nos 280 and 308 of 1999, 25 February 2000 involving a comparable sum of money. The two offenders were initially given suspended sentences, McQuire's being wholly suspended and Porter's suspended after 12 months. On an Attorney's appeal the sentences were set aside and the matter remitted to the District Court, where a different judge sentenced McQuire to seven years with no recommendation as to parole, making certain orders for payment of compensation with imprisonment in default, and sentenced Porter to seven years with eligibility for parole after three. On appeal McQuire was given a recommendation for parole after three years and Porter after two and a half years. From the reasons of the Chief Justice it appears Porter had shown some remorse and that the order for compensation against McQuire related to one half of the amount misappropriated. It does not appear necessary to summarise the nature of the dishonesty there, which is explained in the reasons of the Chief Justice. His Honour dissented from the view of the majority that each applicant should receive some relief in respect of recommendations for parole.

[13] The principal judgment in McQuire and Porter relating to sentence was that of the President, who relied on the decisions of this Court in Taylor (CA No 406 of 1994, 23 November 1994), Chapple (CA No 461 of 1994, 31 March 1995), Green (CA No 426 of 1995, 30 January 1996), and Bailey ([1999] QCA 40; CA No 15 of 1999, 24 February 1999). Taylor's offences involved $650,000. Nearly all the complainants were to be reimbursed, but not by the applicant. Taylor pleaded guilty and was co-operative; on appeal his head sentence of seven years was not disturbed but he was given a parole recommendation after two and a half years. Chapple misappropriated over $1.5M, with a nett loss of $1.2M. He pleaded guilty and made attempts at rehabilitation; after his conduct was revealed in civil proceedings, he co-operated fully with police and he was remorseful. The sentence of 10 years (the maximum) with a recommendation for parole after four years was not disturbed. Green, who had prior convictions for a number of similar offences was imprisoned for nine years with a recommendation for parole after four years for misappropriating $576,806 of which $483,735 remained outstanding. In Bailey's case the amount involved was more than $300,000. He had a bad criminal record and was sentenced to eight years which was effectively an additional sentence of six years and eight months; he was eligible for parole a little more than half-way through that additional term.

[14] In addition to the cases discussed in McQuire and Porter (No 2), Corrigan [1993] QCA 417; [1994] 2 Qd R 415 should be mentioned. There were numerous counts of misappropriation there and the amount stolen was about $1.2M. The effective term was 10 years with a recommendation of eligibility for release on parole after having served four years. There was a guilty plea but no evidence of remorse. Davies JA was of the view that in substance the effective sentence should remain the same but his Honour was in dissent and the sentences were reduced to eight years with a recommendation for parole after four years. That is, Corrigan got the same sentence as this applicant.

[15] In the present cases, as I have mentioned, the total amount taken was over $1M and it is said that, by inference from what the applicant is found to have and what he spent, he must have got about $600,000. There is no sign of remorse; there was a long committal hearing. It appears that the view was taken that a year or two should be allowed off the head sentence for co-operation, discussed below. This applicant became a fraud entrepreneur. He used as a sub-contractor, so to speak, a person whom he trained in his fraudulent system, the price of the training being 40 per cent of the amount misappropriated. This shows a thoroughly business-like approach.

[16] On the other hand here there has been substantial co-operation in providing information and certain evidence against other offenders. It is not practicable to discuss its extent or the way in which the information provided is likely to be useful in the prosecution of other persons. Yet it is positively necessary to make it clear that co-operation, in the sense of incriminating other persons, will be likely to produce a significant discount in sentencing, quite apart from the discount obtained by persons who plead guilty.

[17] It seems likely that the level of sentence imposed upon the applicant was fixed having regard to the necessity of preserving a proper relationship with Tallon's sentence, which was five years with a recommendation for parole after 15 months. Tallon also gave excellent co-operation. Notwithstanding the difficulties that sentence imposes and keeping in mind that the applicant's co-operation did not begin until after a lengthy committal, it nevertheless appears desirable to reduce the sentences imposed on the first two counts from eight years to six years and six months with a recommendation of consideration of parole after two years and three months. That takes the head sentence down by about 20 per cent and the parole recommendation down by a quarter. The purpose of the reduction is to create a clearer gap between the sentence which would have been imposed but for the co-operation implicating other offenders and that which is imposed, having regard to that co-operation.

[18] I would therefore grant the application for leave, allow the appeal in respect of the first two counts and reduce the sentence on each of those counts to six years and six months imprisonment with a recommendation of consideration for parole after having served two years and three months.