Clarkson v Ingram

Case [2021] QDC 153

DISTRICT COURT OF QUEENSLAND

CITATION:

Clarkson v Ingram [2021] QDC 153
PARTIES:

MATTHEW DANIEL CLARKSON
(Appellant)
v
REBEKAH INGRAM

(Respondent)

FILE NO:

D386 of 20

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Southport

DELIVERED ON:

2 August 2021

DELIVERED AT:

Southport

HEARING DATE:

22 July 2021

JUDGE:

Kent QC DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – WHETHER ERRORS ESTABLISHED – where the appellant appeals the sentence pursuant to section 222 of the Justices Act 1886 – where the appellant pleaded guilty to making a false or misleading statement in a document – where a conviction was recorded – whether the sentence was manifestly excessive – where the appellant seeks leave to adduce new evidence – where the evidence was available prior to sentence – where the appellant submits that the offence was of a trivial nature – where the appellant submits that reparation was not considered – where the appellant did not advance an argument as to reparation at sentence – where the appellant submits that there was not a fair hearing 

LEGISLATION:

Corporations Act 2001 (Cth) ss 1308, 206B
Crimes Act 1914 (Cth) ss 16A, 19B
Justices Act 1886 (Qld) s 222
Limitation of Actions Act 1958 (Vic)
Limitation of Actions Act 1974 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)
CASES:

Andelman v The Queen [2013] VSCA 25, cited
Cobiac v Liddy (1969) 119 CLR 257, discussed

Commissioner of Taxation v Baffsky [2001] NSWCCA 332, cited
Gallagher v The Queen (1986) 160 CLR 392, cited
Isherwood v Tasmania [2010] TASCCA 11, cited
Kearnsley v R [2017] NSWCCA 28, cited
Kentwell v R (2014) 313 ALR 451, cited
Logan City Council v Brooks [2020] QDC 24, cited
Lowndes v The Queen (1999) 195 CLR 665, cited
MacPherson v R (1981) 147 CLR 512, cited
Mancini v Vallerlonga (1981) 28 SASR 236, cited
O’Connell v Western Australia [2012] WASCA 96, cited
Pavlovic v Commissioner of Police [2006] QCA 134, cited
R v Abdi [1994] QCA 402, cited
R v Pham (2015) 325 ALR 400, cited
R v Tomaiuolo [2007] SASC 34, cited
R v Wall [2002] NSWCCA 42, discussed
Riddle v Riddle (1952) 85 CLR 202, cited
Spies v The Queen [2000] HCA 43, cited
Tomasevic v Travaglini [2007] VSC 337, cited
Walden v Hensler (1987) 163 CLR 561, cited

Wood v Marsh (2003) 139 A Crim R 475, cited
COUNSEL:

S Blaxland for the Appellant

M Potts for the Respondent
SOLICITORS:

Arcuri Lawyers for the Appellant

Director of Public Prosecutions for the Respondent

Introduction

  1. The appellant pleaded guilty in the Magistrates Court at Southport on 16 November 2020 to one charge of making a false or misleading statement in a material particular contrary to s 1308(2) of the Corporations Act 2001 (Cth) (the respondent to this…

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Clarkson v Ingram [2021] QDC 153
Case
[2021] QDC 153
Decision Date

CaseChat Overview and Summary

Clarkson v Ingram is an appeal against sentence by the appellant, who pleaded guilty to making a false or misleading statement in a document. The matter came before the court to consider whether the sentence was manifestly excessive or inadequate. The court was also required to consider whether the appellant's application for leave to adduce new evidence should be granted. The new evidence sought to demonstrate the impact of a conviction on the appellant's business activities.

The primary issue before the court was whether the appellant's application for leave to adduce new evidence should be granted. The court considered whether the evidence could have been produced with reasonable diligence at the time of the original sentencing, whether the evidence was credible, and whether it might have led to a different result. The court found that the evidence could have been produced with reasonable diligence, and that it might not have led to a different result. Therefore, the application for leave to adduce new evidence was dismissed.

The court also considered whether the sentence was manifestly excessive. The court found that the Magistrate had considered all relevant factors, including the appellant's guilty plea and financial circumstances, and had imposed an appropriate sentence. The court found no error in the Magistrate's conclusion that the offence was not trivial and that it was not inexpedient to inflict any punishment or any punishment other than a nominal punishment.

The appeal was dismissed. The sentence imposed by the Magistrate was upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A number of issues arise in the appeal which will be considered sequentially.First issue: Application for leave to adduce further evidence The appellant also seeks leave to adduce fresh or additional evidence under s 223 of the Justices Act, namely an affidavit of Matthew Daniel Clarkson (the appellant) sworn 14 December 2020. Submissions were heard as to this aspect during the argument of the appeal, and I indicated that I would reserve my decision on the point. Fresh, additional or substituted evidence may be adduced if the court is satisfied there are special grounds for granting leave. If the court grants leave, the appeal is by way of re-hearing on the original evidence and on the new evidence adduced.[6][6]Logan City Council v Brooks [2020] QDC 24 at [3]. The three main considerations relevant to the issue are set out in Gallagher v The Queen[7] as whether “the evidence relied on could with reasonable diligence have been produced by the accused at the trial”; whether “the evidence is apparently credible (or at least capable of belief)”; and whether “the evidence, if believed, might reasonably have led a tribunal of fact to return a different verdict”.[8][7](1986) 160 CLR 392.[8]See p 395-396. These propositions were cited with approval in Pavlovic v Commissioner of Police.[9][9][2006] QCA 134 at [31]-[36]. No doubt the evidence, which seeks to tease out further details as to the impact of a recording of a conviction on the appellant (relating to his business activities)[10], may be considered to be credible or capable of belief. However, it is not clear that the evidence relied on could not, with reasonable diligence, have been produced by the appellant at the sentence. Indeed, he made submissions along similar lines to the content of the affidavit material, although not in the same depth. Further, for the reasons which follow, particularly the Magistrate’s acceptance of the proposition that the recording of a conviction would cause significant difficulties for the appellant in management of companies, and a company in particular concerning a child care centre, it is not clear to me that there is any basis to say that the content of the affidavit might reasonably have led to a different result; the matter proceeded on the same or similar basis as if the now proposed evidence had been given. Thus, the respondent submits, and I accept, that the first and third considerations in Gallagher are not satisfied and thus, in my conclusion, the application for leave to adduce fresh or further evidence should be dismissed. [10]There were some other passages in the affidavit as to the offence which might be regarded as traversing the plea of guilty, this was not persisted with at the hearing of the appeal, as set out below.Statutory Framework Section 1308 of the Corporations Act 2001 (Cth) as at July 2019 provided relevantly:1308 False or misleading statements(2) A person who, in a document required by or for the purposes of this Act or lodged with or submitted to ASIC, makes or authorises the making of a statement that to the person’s knowledge is false or misleading in a material particular, or omits or authorises the omission of any matter or thing without which the document is to the person’s knowledge misleading in a material respect, is guilty of an offence.Section 206B provided relevantly:206B Automatic disqualification—convictions, bankruptcy and foreign court orders etc.Convictions (1) A person becomes disqualified from managing corporations if the person: (b) is convicted of an offence that:

Decision

Reasons for decision

The prosecutor thus argued that the relevant test was not satisfied in the present case, and that the appellant failed each stage thereof. The appellant responded that a conviction will impact his ability to operate the childcare centre, and because of his background and character with no convictions, a fine without recording a conviction was argued for (as noted above, he had also earlier mentioned a discharge, which was legally available as a penalty if a conviction were not recorded). The Magistrate fairly pointed out that this was not possible if a fine was being imposed. Her Honour went on to explain that there is a two stage test and the three factors in the first stage.[21] She indicated that she did not think the offence was trivial. The appellant said that there was nothing more he could add. As to his financial circumstances, the appellant informed the Magistrate that he drew $80,000 a year from his property development income. [21]T1-13.The decision The Magistrate took into account the appellant’s guilty plea and said that it was indicative of remorse and gave him the full benefit of it. She had regard to all of the factors in s 16A (1) and (2). Her Honour rehearsed the facts, and referred to some of the authorities, in particular, R v Wall. She indicated that she took into account the references and that he was someone of previous good character and had donated to charity. Her Honour set out the various factors under s 19B. She observed, with reference to authority, that the fact an offender has no previous convictions is relevant but not of itself sufficient to not record a conviction. She concluded that the offence was not trivial with reference to observations from Walden v Hensler[22] where Brennan J stated:“Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed.”[22](1987) 163 CLR 561. That is, one looks at the offending, rather than a generic description of the offence in the statute. Her Honour also referred to Mancini v Vallerlonga:[23]“An offence is not trifling, if it is a typical offence of the class proscribed. And, where the breach is deliberate, it can rarely be characterised as trifling.”[23](1981) 28 SASR 236. Her Honour noted that there was no evidence put before the court in relation to extenuating circumstances (I do not understand the factor of extenuating circumstances to have been pressed at the hearing of this appeal). Thus her Honour concluded the first stage of the test against the appellant, however her Honour – appropriately - went on to consider the second stage and whether it would be inexpedient to inflict any punishment or any punishment other than a nominal punishment or expedient to release the offender on probation. Her Honour referred to Baffsky[24] for the proposition that the exercise of the discretion has been referred to as “exceptional and rare and special and singular”. Her Honour considered the consequences of the conviction and the fact that adverse consequences would flow. She noted a proper foundation should be laid in relation to that. Her Honour said that recording the conviction was not intended to further punish the appellant (an apparent reference to the comments in Wall at [87]; see [23] above). Her Honour referred to the statement of principle from Spies. She concluded that the first stage was not satisfied but, in any event, it was not inexpedient to inflict any punishment or any punishment other than nominal punishment, nor was it expedient to release the appellant on probation. She concluded a fine should be imposed. [24]Supra.

Ratio Decidendi

Legal Principle Established

In my view the respondent’s submissions should be accepted on this issue; no error is demonstrated in the Magistrate’s conclusion that the offence was not trivial.Fourth issue: S 19B (1)(d)(ii) – The reparation factor Another issue which was raised was whether the Magistrate had overlooked the possibility of reparation under s 19B(1)(d)(ii) as a condition of a discharge. The idea that was tentatively advanced was that perhaps the appellant could now offer, although he did not at the time, to make reparation by way of paying the outstanding judgment to the original judgment creditor. However, the respondent pointed out that such a course would not really be within the purview of s 19B, because the reparation referred to was “in respect of the offence concerned”. The judgment debt did not come about because of the offence; at most the offence made the judgment debt more difficult to recover. This lack of a causative nexus means that reparation, not being in respect of the offence, could not properly enter into the sentencing factors, as of course it had not at first instance. The respondent thus submitted that no error was identified on this issue; in my view this is correct.Fifth issue: S 19B - The inexpediency/ expediency stageAppellant’s submissions The appellant further submitted that in relation to the second stage of the s 19B exercise, the inexpediency/expediency stage, the general matters relevant to the sentencing process set out in s 16A(2) of the Crimes Act, are relevant. No doubt this is correct. The appellant submits in his second outline of argument[34] at p5 that the Magistrate did not get as far as considering these matters, and should have done so. This seems quite incorrect, as set out below (see [47] and the relevant transcript references).[34]Filed 4 March 2021, Court file document 8. In any case, in support of this submission the appellant emphasises the nature and circumstances of the offence which are argued to be at the lower end of the scale. Section 16A(2)(f) is relied on. It refers to contrition including by taking action to make reparation. However, as outlined above, reparation does not really seem to surface in the circumstances of this offence. Certainly, the money has never been repaid, whether it is directly relevant to this offence or not. The appellant also relies on (g), that the appellant pleaded guilty at the earliest opportunity; clearly this is correct, and the plea was taken into account. Reliance is placed on (h), that the appellant has cooperated with law enforcement, although it is not specified how. This may be a reference to the plea of guilty (again, clearly this was taken into account). The appellant also refers to (j), the fact that the proceedings have had a deterrent effect on him; no doubt this is so. Reliance is also placed on (p), the probable effect that the sentence would have on the appellant’s family or dependants. It is said that it can be assumed that the appellant’s wife will be affected. Presumably this is said to be because the appellant’s business would be affected along with his income, and that his wife would suffer as a result. This is possible but tenuous; there is no specific evidence or indeed submission referring to such a factor, or why it would distinguish the case from the general category of those to which the offence, and s 206B, relates.