DISTRICT COURT OF QUEENSLAND
CITATION:
Bailey v Commissioner of Police [2021] QDC 266
PARTIES:
RYAN JAMES BAILEY
(Appellant)
v
QUEENSLAND POLICE SERVICE
(Respondent)
FILE NO:
51 of 2021
DIVISION:
Civil
PROCEEDING:
s. 222 Appeal
ORIGINATING COURT:
Magistrates Court at Townsville
DELIVERED ON:
3 December 2021
DELIVERED AT:
Townsville
HEARING DATE:
19 August 2021
JUDGE:
Coker DCJ
ORDER:
1. That the appeal in relation to charge 3 be dismissed and that a further parole release date is fixed at 9 February 2022.
2. That the appeal in relation to charges 1, 2 and 5 to 8 be upheld and the sentences there ordered be dismissed and in substitution the following sentences be imposed:
a. Charges 1 and 2 – 12 months imprisonment concurrent with the head sentence; and
b. Charges 5 to 8 – 6 months imprisonment concurrent with the head sentence.
3. That the sentence imposed in respect of charge 4 be undisturbed.
4. That there be no order for costs.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – section 222 Justices Act 1886 – where the appellant pleaded guilty to one charge of forging documents with intent to defraud, 1 charge of uttering forged documents, 1 charge of dishonestly obtaining a sum of money from his employer, 1 charge of unlawfully possessing a thing with intent to use the thing to forge a document, and 4 charges of stealing from his employer – where the appellant was sentenced to two years imprisonment on each of the 7 charges excluding the possessing of a thing with intent to use the thing to forge a document – where all the periods of imprisonment were to be served concurrently and a parole release date was fixed at three months – where there were errors in the figures presented to the learned Magistrate – whether the sentence imposed in totality was manifestly excessive.
LEGISLATION:
Justices Act 1886 (Qld), s 222(2)(c)
CASES:
Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321
House v The King (1936) 55 CLR 499
Lowe v The Queen (1984) 154 CLR 606
Muir in Ross v Commissioner of Police [2018] QDC 99
R v Ikin [2007] QCA 224
R v Lomass (1981) 5 A Crim R 230
R v Macintosh [1923] St R Qd 278
R v Morse (1979) 23 SASR 98
R v Nagy [2003] QCA 175
R v Sigley [2002] QCA 11
Rongo v Commissioner of Police [2017] QDC 258
COUNSEL: D. Honchin for the Appellant
A. Lowrie for the RespondentSOLICITORS: Connolly Suthers Lawyers for the Appellant
Office of the Director of Public Prosecutions for the Respondent
Introduction
This is an appeal by Ryan James Bailey, hereinafter referred to as ‘the Appellant’. The Appellant was convicted on his own plea in the Magistrates Court at Townsville on 8 March 2021 to eight charges which arose during a period of his employment by Boart Longyear Pty ltd. Those charges were as follows:
1.That on divers dates between the 30th day of January 2020 and the 28th day of May 2020 at Townsville in the State of Queensland one Ryan James Bailey with intent to defraud, forged documents namely, accommodation invoices;
2.That on divers dates between the 30th day of January 2020 and the 28th day of May 2020 at Townsville in the State of Queensland one Ryan James Bailey uttered forged documents namely, accommodation invoices.
3.That on divers dates between the 30th day of January 2020 and the 28th day of May 2020 at Townsville in the State of Queensland, one Ryan James Bailey dishonestly obtained a sum of money from Boart Longyear Pty Ltd and Ryan James Bailey was an employee of Boart Longyear Pty Ltd.
4.That between the 30th day of January 2020 and the 28th day of may 2020 at Townsville in the State of Queensland, one Ryan James Bailey unlawfully possessed a thing, namely, a computer with intent to use the thing to forge a document.
5.That on the 24th day of June 2019 at Townsville in the State of Queensland, one Ryan James Bailey, being a clerk of Boart Longyear Pty Ltd stole a quantity of office products which had come into his possession on account of Boart Longyear Pty Ltd.
6.That on the 22nd day of March 2020 at Townsville in the State of Queensland, one Ryan James Bailey being the clerk of Boart Longyear Pty Ltd, stole a quantity of hardware and tools which had come into his possession on account of Boart Longyear Pty Ltd.
7.That on the 26th day of May 2020 at Townsville in the State of Queensland, one Ryan James Bailey being the clerk of Boart Longyear Pty Ltd stole a quantity of hardware and a quantity of tools which had come into his possession on account of Boart Longyear Pty Ltd.
8.That on the 27th day of May 2020 at Charters Towers in the State of Queensland, one Ryan James Bailey being the clerk of Boart Longyear Pty Ltd stole a quantity of hardware and a quantity of office products which had come into his possession on account of Boart Longyear Pty Ltd
In respect of each of the charges 1 to 3 and 5 to 8, an identical penalty was imposed of two years imprisonment with a parole release date after three months. In respect of charge 4 a penalty of one months’ imprisonment was imposed and Magistrate Keegan ordered that the computer, the subject of the charge, be forfeited.
At the outset, it should be noted that there was an error in the figures provided to the learned magistrate in respect of the total value of the property stolen. The actual amount alleged to have been stolen totalled $2,625.19 and not $3,168.12 as the prosecutor advised. The amount obtained by fraud however was $9,329.00 as indicated, such that the actual total involved was $11,954.19 and not $12,497.12 as was advised to the learned Magistrate. It was acknowledged that some of the stolen items were seized at the time that the warrant was executed and that property to the value of $2,295.70 was recovered. As such, noting the value of the property recovered, the loss by the employer totalled $9,658.49.
On 18 March 2021, the Notice of Appeal was filed and indicated just one ground of appeal, namely, that the sentence of two years imprisonment with parole release after serving three months was manifestly excessive. The Appellant’s counsel in his outline noted that the prosecutor submitted that the appellant was cooperative with the police and made full admissions. These admissions included his acknowledgement that he had “parted ways with the company on bad terms and decided to keep all of the items”. Additionally and I think significantly, the submission was made that between January and June 2020, the Appellant was provided with an American Express card to pay for accommodation and other expenses as necessary for the company and that the company became suspicious as to the use of the card.
In that respect the prosecutor said the following:
In May 2020, the company became suspicious of the use of the card and reviewed the transactions that were paid for accommodation in Charters Towers. The company contacted Hillview Motel and they advised they never had anyone stay there by the name of Ryan Bailey.
The invoices the defendant used to justify the accommodation were then compared to Hillview Motel Invoices and were found to be forgeries. Police were provided copies of fake invoices along with a real invoice and could note substantial differences in the documents.
There were a total of 16 false invoices that had been submitted to the company. They had been computer generated and then uttered to the company to justify the transfer allegedly paid for accommodation. The total of that fraudulently obtained money was over $9,329.00.
BENCH: Nine Thousand-three-hundred - - -
PROSECUTOR: Three Hundred-and-twenty-nine. And this money was transferred from the company AMEX card to accounts linked to the defendant. It appears there’s a payment platform called Square Australia which was used to transfer money. On the 27th of August 2020, the police executed a search warrant at the defendant’s address and seized his computer.
The important fact to note from this part of the prosecutor’s submissions was that there were 16 false invoices created and claimed upon between 30 January 2020 and 28 May 2020. That is therefore a period of four months during which the false invoices were created and the amount of $9,329.00 was fraudulently obtained. The issue here is the period of the false claims and at least in part an explanation given relating to unpaid wages and a disagreement as to salary and a 50% reduction in that salary. Quite simply, the issue which is vexing is that the fraudulent activity spanned four months from late January 2020 but the company’s suspicions were only to arise in May 2020.
As such the fraudulent behaviours seem to significantly precede any dispute as to salary and, of course, could not have been based on an unpaid amount of salary. Therefore whilst not raised as an excuse, as noted by the Appellant’s solicitor, it could not actually have existed at the time that the fraud commenced.
After then detailing the facts, the prosecutor addressed the learned Magistrate in respect of antecedents, criminal history and sentence. There the prosecutor said:
PROSECUTOR: Your Honour has heard the facts. The offences were committed over a 12 month period. Your Honour has heard there were some 16 false invoices in relation to the accommodation. The defendant was 30 at the time of the offences. He comes before the court with a very limited criminal history. There is one entry for an assault occasioning bodily harm. However, it is of note that he was on a good behaviour bond for that offence at the time of committing these offence, which in my submission is an aggravating feature, for the offending before the court. It is accepted that it is not a like offending.
Your Honour, in the submission on sentence, my ultimate submission would be that a period of two years imprisonment would be the appropriate range of this type of offending, taking into account the amount of money. It’s widely accepted that breaches of trust by employees when they’re placed in a position of trust, such as this defendant was, that a period of actual imprisonment is within range and appropriate.
The case that I have tendered to your Honour, which is R v Sigley [2002] QCA 11. This case, the head sentence was two years imprisonment. It was suspended after six months for an operational period of three years. However, it is no note that she had already served the three months before that appeal was heard and decided.
Her offending circumstances occurred over a six month period. She used online Direct Debit arrangements and the total amount that was appropriated on that occasion was approximately $11,000. So a similar amount to what is before the court today. She had repaid $2,000 at the time of her sentence and 9,000 remained outstanding. She was 49 years old at sentence – so older than this defendant – however, they are both not young offenders to they don’t have the benefit of that at any rate.
She came to the court, she had a significantly disadvantaged background. Your Honour will be able to read that on page 3. She had had a lot of misfortune in her life leading up to the offending. Your Honour, in this defendant’s favour, he has entered timely pleas of guilty. The matter has not been set for hearing or anything of that nature, so that goes in his favour.
He was cooperative with police. He did make full admissions, however, that was in the face of what would be considered strong evidence. Taking that into account, your Honour, my ultimate submission remains a two-year head sentence would be appropriate, and also to serve a period – a short period – for suspending for a lengthy operation period.
Noteworthy there, is that my reading of the submission was that a short period of actual custody was sought before ‘suspending for a lengthy operational period’.
Thereafter Ms Billing, solicitor then appearing for the Appellant, made submissions summarised by Counsel in his written submissions as follows:
[3.4] Defence submissions included:
-Property recovered was $2,295.70 (no issue taken by Prosecutor).
-Appellant was 30 at time of offending and 31 at sentence.
-At the time of the offending he was going through a marriage breakdown with former wife.
-Has two daughters to the former wife.
-Was sole provider for family at the time of offending.
-New wife and children at time of sentence.
-Sole provider to new family (new wife pregnant with twins due in May 2020).
-Formal education to Year 12, Certificate III in Cabinet Making, qualified diamond driller, worked in mining industry.
-Experienced workplace tragedy in 2014 with death of friend, diagnosed with PTSD and taken Zoloft medication for treatment of symptoms (not relied upon as causative or related to offending), receiving counselling as a result of past marriage breakdown (Court Order required for contact with daughters of former marriage).
-Disagreement with employer over pay cause of friction and a dispute over $5,000 owed in wages.
-No drug or alcohol issues.
-Remorse and no further offending since arrest.
-On penalty a suspended sentence of 2 years for operational period of 3 years with shorter concurrent sentences for the stealing charges.
-That the Defendant was unable to make full restitution immediately.
[3.5] In the Learned Magistrate’s Decision on penalty/sentence, Her Honour:
-Took into account plea of guilty.
-Decided not to breach the Appellant in respect of the first stealing offence committed by the Defendant on 24/6/2019 during the period of 6mths good behaviour imposed on 27/3/2019 for AOBH on 5/5/2018.
-Did not canvass the offending separately (i.e. did not make any distinction between stealing as a servant, fraud, forgery or uttering) but identified the offending that ‘is over a protracted period of time, party of it is really just to go shopping for tools, laminator, the fraud with the false invoices over $9,000.00. In total the fraud was $12,497.12.’
-Relied upon the comparative put up by the Prosecutor R v Sigley [2002] QCA 11.
-Considered the Appellant was unemployed.
-Concluded that no other sentence appropriate but one of imprisonment and sentenced the Appellant as follows:
“The head sentence is going to be two years. So for the possession of the thing, which is the computer, you are convicted and sentenced to one month imprisonment. For all other charges you are sentenced to two years imprisonment. They are concurrent sentences. You would normally have to do eight months before you would get released on parole. Due to all the factors in mitigation, I have reduced that eight month period to three months and our parole release dates is the 1st of June 2021…Forfeiture order of the computer.”
That summation is of assistance though the reference to a suspended sentence of two years, operational for three years does not fully particularise the nature of the submission made. The exchange in relation to sentence was as follows:
MS BILLING: With respect to a penalty, your Honour, it is accepted that imprisonment is in range, given the significant amount involved and as my friend submitted, the trust that his former employer did put on him. With respect to a head sentence, your Honour, I would seek that two years imprisonment is the appropriate sentence for the more serious offence, but your Honour could wholly suspend that for three years today [indistinct] as a significant deterrent for him towards his rehabilitation, and your Honour could impose shorter concurrent sentences …for the fraud and the stealing offences.
…
BENCH: But the fraud is the $9,329 - - -
MS BILLING: Sorry, your Honour. The fraud, the uttering in forgeries, in my respectful submission, are the more serious offences. I note, however, that the stealing by clerks or servants also has a very high maximum term of imprisonment, but also I note, your Honour, that is my submission with respect to the head sentence being two years, wholly suspended forthwith for an operation period of three years from today. If I turn to the case, your Honour, while it has some distinguishing features that is quite similar, I would rely upon page 6, the last paragraph, where the president states:
“Had I been sentencing the applicant at first instance, I would have fully suspended the two-year term of imprisonment and awarded some partial further restitution”
I’m certainly not seeking any partial restitution today; I’m seeking that he agrees to pay back all of the restitution that is sought today.
BENCH: He’s paid nothing.
MS BILLING: Yes, your Honour, that is so.
BENCH: In…the matter of Sigley, Ms Sigley was a single parent. At sentence, she had paid partial compensation of $2,000, she had psychological difficulties, a history of trauma there, and then she used some of the money to pay for school fees – it doesn’t really say anything else it as used on, but she certainly wasn’t putting it in, say, in a pokie.
MS BILLING: Yes, your Honour.
BENCH: Very sophisticated fraud.
…
BENCH: So they payment of the 2,000, by inference, would have been something she tried hard to do.
MS BILLING: Yes, your Honour. Mr Bailey is the sole financial provider for his family - - -
BENCH: You say he is on unemployment benefits, so the taxpayer of Australia is the financial provided for his family. He’s not working.
MS BILLING: Certainly, your Honour. He doesn’t have the financial means to pay back the full amount immediately. He would certainly - - -
BENCH: Why is he unemployed?
MS BILLING: If I can have a word, your Honour - - -
DEFENDANT: Can I speak [indistinct]
MS BILLING: Your Honour, he instructs he is simply still looking for work.
BENCH: Anything else?
MS BILLING: No, your Honour.
What is clear from this, is that whilst seeking a suspension of the whole period of imprisonment, it was acknowledged that, ‘imprisonment is in range’ given the significant amount involved and…the trust that his former employer did put in him’.
Whilst Ms Billing submitted that two years imprisonment when suspended for three years was a significant deterrent she, quite properly recognised that the offending was serious, such that imprisonment was within range. This is clear as well from the reference to R v Sigley [2002] QCA 11 and the comments of President McMurdo on page 6 of the decision.
However, the statement of the President goes further than what was noted before the learned magistrate, in that she also says:
The applicant has now served over three months' imprisonment and, in circumstances where the payment of further compensation will be difficult, to order additional restitution now would be excessive. In all the circumstances, the appropriate sentence is to order that the sentence of imprisonment now be suspended forthwith.
Two matters of importance arise there. Firstly, the inherent acknowledgement that judicial minds can differ as to the structuring of a penalty and secondly, the indication that the sentence, “now be suspended” after having served over three months imprisonment. Such comment is directly referable to the earlier indication by the President, that after considering the authorities relied upon before the Court of Appeal:
“that on the facts of this case . . . exercise its discretion afresh.”
The learned Magistrate was well aware of the guidance provided by R v Sigley and of both similarities and differences in the facts and the circumstances in that case and this. In his outline, counsel for the appellant summarised the sentencing remarks, however I note particularly the following:
BENCH: All right. Stand up for me please, Mr Bailey. I take into account your plea of guilty. You were 30 years of age at the time so you were a mature man, and although you have made full admissions, these are very serious offences. You only have one entry on your criminal history and that was from March 2019 for an assault where you were given a good month – sorry, a good behaviour bond of – for six months.
…
BENCH: the difficulty I have here is that this offending is over a protracted period of time, part of it is really just to go shopping for tools, laminator, the fraud with the false invoices was over $9,000. In total, the fraud was $12,497.12. When the police attended your home you made full admissions and they were able to recover $2,295.70.
There has been no payment of restitution. Your instructions to Ms Billing are that you were having a difficult time because of the breakdown in your relationship and financial pressures, but then part of her instructions there was that you were making the $5,000 net a month, although that was then reduced. Even if that is reduced it is still a substantial amount of money.
The quantum of the fraud is important. Frauds by employees are especially serious because they involve a breach of trust.
…
Ms Billing says that your offending was a silly decision. It was much more than a silly decision, Mr Bailey. It was a serious breach of trust committed over a protracted period for a not insignificant sum of money. The authority of Sibly was a fraud by an employee in the sum of $11,000, where the woman was a single parent who had trauma and psychological difficulties and had managed to pay back $2,000 at time of sentence. The Court of Appeal, on page 6, referred to other authorities and that a sentence of either two years imprisonment fully suspended or suspended after a short period was not manifestly excessive.
In her case, the initial judge had made an error … by sentencing her on the basis that it was a very late plea of guilty, which did not indicate a great deal of remorse. The Court of Appeal found an error in that the plea was made shortly after successful negotiations. Therefore, even though the sentence was not manifestly excessive, the Court of Appeal was able to exercise its discretion afresh, and she had served three months imprisonment and they released her at that point in time. So normally on a two year head sentence you would have to do eight months imprisonment.
I do consider there is no other appropriate sentence but one of imprisonment. The head sentence is going to be two years. So for the possession of the thing, which is the computer, you are convicted and sentenced to one month imprisonment. For all other charges you are sentence to two years imprisonment. They are concurrent sentences. You would normally have to do eight months before you would get released on parole. Due to all the factors in mitigation, I have reduced that eight month period to three months and your parole release date is the 1st of June 2021.
Interestingly in her sentencing remarks, the learned Magistrate makes reference to an error arising and that meaning that even though the sentence was not manifestly excessive, the Court of Appeal was able to exercise its discretion afresh. To all intents and purposes, the Respondent acknowledges that there have been errors, noting that there was incorrect information provided insofar as the total amount involved in the dishonesty is concerned, though it is submitted that this error would not lead to the conclusion that the sentence actually imposed was excessive.
I would generally agree with such a submission, at least insofar as the position in relation to the fraud is concerned, noting that the Respondent submits and it seems to have been the case otherwise, that the head sentence should attach to the fraud offence and the figure provided with respect to that offending was correct.
However, it is also argued, that the course followed by the learned Magistrate in entering the same sentences for each of charges 1 to 3 and 5 to 8 is an error in that it imposes upon each charge the same penalty, when the severity of the offending in respect of each charge is very different, such that an identical penalty in respect of each charge is inappropriate.
The Respondent in fact acknowledges that in suggesting that the orders made should reflect the penalty imposed regarding charge 3, two years imprisonment suspended after three months as being dismissed but that with respect to charges 1, 2 and 5 to 8, that lesser concurrent sentences should be imposed.
As such, though I include a general statement of the law here, I am satisfied that as there was an error in the sentencing process, the court should, as the learned Magistrate noted in her sentencing remarks, exercise its discretion afresh.
In relation to an application such as this, it is necessary to consider the basis on which an appeal is made. This appeal is an appeal against sentence. The right to appeal is a creature of statute, with the nature of the appeal right dependent on the construction of the statute concerned. It should particularly be noted that, as is the case here, where a person pleads guilty or admits the truth of a complaint, a person may only appeal under section 222(2)(c) of the Justices Act on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. The appeal is then dealt with by way of rehearing on the original evidence given in proceeding before the magistrate, and in the circumstances, the court has the power to confirm, set aside or vary the order of the magistrate.
It is the sole ground of appeal relied upon here, and it is suggested by the appellant, that the sentence was manifestly excessive. In order for a sentence to be “excessive” it must be “beyond the acceptable”. It must be, as has often been said, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”. In that regard, I am mindful of the decisions in R v Morse (1979) 23 SASR 98, R v Lomass (1981) 5 A Crim R 230, R v Macintosh [1923] St R Qd 278, and Lowe v The Queen (1984) 154 CLR 606.
In commenting upon appeals relating to sentences, whether they be manifestly excessive or inadequate, I would refer to the decision of her Honour Judge Muir in Ross v Commissioner of Police [2018] QDC 99. There, Her Honour, when commenting upon the exercise of an appellant judge, noted at paragraph 8:
… it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. It must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499. If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
There, Her Honour has eloquently expressed the very real need for there to be, not a simple substitution of one view for another, but a proper exercise of the appeal power and a recognition that a difference of opinion or view is not, of itself, simply a basis upon which an appeal should be upheld.
Her Honour made particular reference in her reasons to the decision of Keane JA (as he then was) in the R v Ikin [2007] QCA 224, where his Honour noted as follows:
The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred.
In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v the Queen [2000] HCA 54; [2000] 202 CLR 321 at 341, this court should allow an appeal against sentence only where the error is clearly apparent.
Perhaps most succinct of all, His Honour Judge Devereaux SC of this Court, noted in Rongo v Commissioner of Police [2017] QDC 258 the following:
It seems to me, then, that the focus in this and many appeals brought to this court on attempting to demonstrate an error in the exercise of the sentencing discretion is not misguided but slightly misplaced. The real question is whether the sentence was excessive, so that, although the appellant may argue that the magistrate made a certain error, the success of the appeal does not depend on persuading the appeal court on that point.
His Honour then goes on to note that:
Identifying a particular error might assist because it might explain why the sentence was excessive
Normally, it would now be necessary to consider whether the imposition of two years imprisonment as a head sentence was manifestly exercise. However, the further issue to address is whether the sentence imposed was erroneous in its actual form. As argued by the Appellant, there is a lack of clarity in the words, ‘for all other charges you are sentenced to two years imprisonment. They are concurrent sentences.’
The appellant argues that it is unclear if it means ‘each or all together. Some clarification comes from the Verdict and Judgement Record (‘VJR’) which notes that in respect of all counts 1 to 3 and 5 to 8 that ‘the offender be imprisoned for a period of two years, on each offence.’ The appellant suggests that a point of confusion could be that the words, ‘they are concurrent sentences’ could refer to being concurrent with count 4 and that the situation is simply one that is unclear.
The respondent’s position is to say that such an interpretation or suggestion is simply without any basis and the VJR clearly indicates and shows that it was the learned Magistrate’s intention to impose separate terms of imprisonment in respect of each charge though such intent was perhaps inelegantly phrased. Her Honour was no doubt mindful of the principles enunciated in R v Nagy [2003] QCA 175 where the Full Court noted:
‘where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher the sentence taking into account the overall criminality.”
The Respondent submits that the learned Magistrate was entitled to and did consider the totality of the offending when determining a head sentence of two years imprisonment. However, the Respondent does concede quite properly, that the imposition of two years imprisonment in respect of six other charges which were less serious than the fraud charge conflicts with the Full Court’s guidance in R v Nagy (Supra).
It is in my view a proper concession and accords generally with the Appellant’s submissions in respect of a need to resentence, though the question then arises as to whether that should occur in respect of all the penalties imposed in respect of each offence or only in respect of those which were beyond, as Chesterman J.A. said in R v Jackson [2011] QCA 103, ‘the possible range’.
That then brings me to the central consideration in this appeal which relates to the penalty imposed in respect of the most serious offending, the fraud charge, noting as I do that both the appellant and the respondent submit that there should be lesser sentences imposed in respect of charges 1, 2 and 5 to 8. The Appellant additionally says that there needs to be a fresh and lesser sentence imposed in respect of charge 3 as that penalty was manifestly excessive.
That is the nub of this appeal and leads to the consideration of the argument as to whether the sentence imposed in respect of the most serious offence was ‘manifestly excessive. As Chesterman JA pointed out in R v Jackson (Supra), it requires the appeal court to distinguish between a sentence imposed which was beyond the permissible range, ‘not that it was severe, or that a lesser punishment would have been appropriate or even more appropriate than the one in fact imposed’.
As such there needs to be consideration afresh of the circumstances of the Appellant, and the arguments put. In respect of the argument at first instance, reliance was placed by the prosecution upon R v Sigley [2002] QCA 11, noting a head sentence of two years imprisonment suspended after six months, which on appeal was reduced to being wholly suspended but the appellant there had already served about three months.
In addressing that aspect of the matter, counsel for the appellant submitted as follows:
[4.17] The comparative case provided by the Prosecution for sentencing (R v Sigley [2002] QCA 11) involved one count of fraud for $11,000.00 over a six month period. It involved making false entries in the books of account of 12 separate transactions. The offender there was older than the Appellant by almost 20 years and had been the office manager and bookkeeper. There were significant mitigating features which ultimately swayed the Court of Appeal to reduce the sentence from two years imprisonment suspended after serving just over three months. The offender in Sigley offered no explanation as to her conduct. The Appellant explained his offending arising because of the conflict with his employer over monies owed ($5,500.00) and a reduction in pay. As the sole bread winner for the family, the Appellant put his offending in the realm of need not greed.
[4.18] Whilst the Appellant was an employee and so in a position of trust, he was not in the same kind of position in Sigley who had access to the books of accounts, online payment facilities and cheques. The Court considered the exercise of a sound sentencing discretion would have provided for a wholly suspended sentence and an award of partial restitution.
In respect of the same issues when addressed by counsel for the Respondent, the following was said:
[4.7] The prosecution at first instance relied on R v Sigley as a guide to an appropriate sentence in this matter. The applicant in that matter was 49 years of age, so was like the appellant here a mature adult. That there was a difference in their actual ages is of no consequence to the matter of sentence. That is, no matter of principle such as those applying to youthful offenders or elderly offenders arise for consideration. Sigley also had no previous criminal record, unlike the appellant here.
[4.8] Sigley was sentenced for one count of fraud committed over a six month period. This involved 12 separate transactions defrauding her employer of $11,000. With respect to the appellant here, his fraud involved 16 transactions over a four month period involving a loss of $9,329 to his employer. Unlike Sigley the appellant here was also dealt with for stealing offences involving a further $2,625.19, as well as offences of forgery and uttering.
[4.9] Sigley had what was described by President McMurdo as a lifetime of more than her share of hardship. These were outlined in depth throughout pages 3 and 4 of the decision. Notably, despite her psychologically difficulties and the trauma that she had endured over 15 years, and her role as primary care giver for her children and grandchildren she had nevertheless paid back $2,000 prior to sentence, which evidenced some considerable remorse. The Appellant here too had suffered some trauma in his life, had been diagnosed with post traumatic stress disorder and had received some counselling as a result of a marriage break down. These matters of mitigation whilst of some weight, do not appear to have been as substantial as the matters suffered by the applicant in Sigley. More importantly, there had been no attempt by the appellant to pay back any restitution unlike in Sigley.
[4.10] In Sigley, McMurdo P noted the relevant authorities support the conclusion that on the facts of that case, a sound exercise of the sentencing discretion would have been a sentence of two years imprisonment either fully suspended or suspended after a term of up to six months. Further, there is nothing in the judgment to suggest that a two year sentence of imprisonment was as the top of what an appropriate sentence would be for offending of that type, with all the matters of mitigation involved.
Counsel for the Appellant also relied upon a number of other cases as indicative of lesser penalties imposed in respect of similar or even more serious offending. However, I am not with respect, much assisted by these cases, noting as is emphasised in so many of the authorities that there is a wide discretion in sentencing and that there is no one ‘right’ penalty in any case.
The authorities relied upon support the contention that a sound exercise of the sentencing discretion would reflect a sentence in the range of two years. Such was submitted by the prosecution at first instance and accepted by the Appellant’s solicitor at the sentence when she said:
MS BILLING: …With respect to a head sentence, your Honour, I would seek that two years imprisonment is the appropriate sentence for the more serious offence, but your Honour could wholly suspend that for three years today [indistinct] as a significant deterrent for him towards his rehabilitation, and your Honour could impose shorter concurrent sentences…for the fraud and stealing offences. In my respectful submission - - -
BENCH: But the fraud is the $9,329 - - -
MS BILLING: Sorry, your Honour. The fraud, the uttering in forgeries, in my respectful submission, are the more serious offences. I note, however, that the stealing by clerks or servants also has a very high maximum terms of imprisonment, but also I note, your Honour, that is my submission with respect to the head sentence being two years, wholly suspended forthwith for an operational period of three years from today.
The submission made by the Appellant as to the need to resentence is correct in my assessment because of the errors identified but that does not mean that there still must not be recognition of the penalty first imposed and an assessment of whether it was manifestly excessive.
It could not be suggested that a consideration of the authorities along with the principles enunciated in R v Nagy (supra) would lead to a finding that two years imprisonment suspended after serving three months for the fraud offence falls outside the permissible range for the appropriate exercise of the sentencing discretion.
As such, whilst the Appellant should be resentenced in respect of charges 1 to 3 and 5 to 8, the fraud sentence in respect of charge 3 should reflect the penalty previously imposed subject to the fixing of a fresh parole release date which recognises the 24 days served.
Accordingly, I would allow the appeal in respect of charges 1, 2 and 5 to 8, set aside the sentences of Her Honour Magistrate Keegan and in substitution impose the following sentence:
(a)That the appeal in relation to charge 3 be dismissed and that a further parole release date is fixed at 31 January 2022.
(b)That the appeal in relation to charges 1, 2 and 5 to 8 be upheld and the sentences there ordered be dismissed and in substitution the following sentences be imposed:
(i)Charges 1 and 2 – 12 months imprisonment concurrent with the head sentence; and
(ii)Charges 5 to 8 – 6 months imprisonment concurrent with the head sentence.
(c)That the sentence imposed in respect of charge 4 be undisturbed.
(d)That there be no order for costs.