Green v Muckan

[2004] QDC 572

[2004] QDC 572

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No BD1561 of 2004

JAMES VICTOR MILLS GREEN  Appellant

and

MICHAEL JOHN MUCKAN (A.K.A SMALLWOOD)            Respondent

BRISBANE

..DATE 15/11/2004

ORDER

CATCHWORDS: Appeal from magistrate to District Court - inadequacy of sentence - respondent using a false name obtained $7,000 grant to purchase a residential property under First Home Buyer Act 2000 - respondent contended that others put him up to it, and that he obtained no benefit - magistrate told whether compensation could be ordered was a "grey area", as the Act did not provide for it - appeal allowed to extent of ordering compensation under s 35 of Penalties and Sentences Act.

HIS HONOUR:  This is an appeal by the complainant asserting

the inadequacy of a sentence imposed by a magistrate in

Brisbane on the 31st of March this year.  The complaint

centres on the magistrate's declining to order pursuant to

section 35 of the Penalties and Sentences Act that the

respondent, Mr Muckan, pay compensation to the relevant State

authority in the amount of $7,000 which was made available

from public funds pursuant to the First Home Owner Grant Act

2000.

The Act contains in sections 47 and 48 provisions that enable

the Commissioner to recover moneys paid as a grant in the

circumstances indicated there, which I think would have
covered the present ones. However, the matter comes to the Court. As I read the magistrate's reasons, what motivated him chiefly in declining to order compensation under section 35 of the Penalties and Sentences Act was that he regarded the area as a "grey" one. The complainant's representative seems to have given the magistrate the impression that there was more

uncertainty about the situation than truly exists - flowing

from the absence in the First Home Owner Grant Act of

authority in the court to order repayment.

The other circumstance that motivated the magistrate was

concern that the respondent's circumstances (which included

his being an aboriginal man and doing work in the aboriginal

community) might have found the compensation order crushing.

No complaint was made by Mr Rafter on the hearing of the

appeal regarding the orders that the magistrate did make

against Mr Muckan.  The magistrate acted without recording a

conviction in deference to Mr Muckan's previous good record

and the circumstances; a $1,000 fine that was imposed, plus an

order for $120 court filing fees and an order for professional

costs of $1,000.  Fifteen days' default imprisonment was

attached to the fine.

The three offences punished by the fine imposed on Mr Muckan

were:

(A) Giving to the Commissioner of State Revenue a
     document containing information which he knew was false
     or misleading in a material particular contrary to
section 42 of the First Home Owner Grant Act;

(B) Failing to give written notice of non-compliance with
     the residence requirement, and to repay the amount of
     the grant contrary to section 22 of that Act, and;

(C) Failing to attend before an authorised officer to
     answer questions and produce documents relevant to the
     investigation contrary to section 32 of the Act.

The false information which Mr Muckan supplied related to the

surname which was used in the dealings.  He adopted the name

Smallwood.  It is accepted that Mr Muckan would have been

entitled to receive the $7,000 grant which was probably paid

over to the lender financing acquisition of a residential

property.  In the circumstances the vice of use of the

surname, Smallwood, without the further information being

given that the name Muckan was the name by which the

respondent was known, is that the way would be left clear for

the respondent to obtain a further grant in his true name.

The whole transaction has curious features.  One need not be

of a suspicious cast of mind to think that.

The contract price in respect of the subject property, which

Mr Muckan has told me was "not fit for a dog to live in", was

$160,000.  It came between an earlier sale of the property and

a subsequent sale by the mortgagee, both of which were $45,000

or less.  The vendor's agent named in the Contract of Sale is

Limestone Hill Pty Ltd trading as Walkers Real Estate.  The

Court is not in a position to say whether that agent benefited

by receipt of commission.  Also involved in the transaction

was supposedly a solicitor of the name of Craig Leonard

Stevenson who appears to be the witnessing officer in the

relevant transfer, Form 1 version 3.

...

HIS HONOUR:  It would be just to clarify that the firm of

Baker Johnson Lawyers whose name was mentioned a number of

times before the magistrate played the part of lodging

solicitors, which I take to mean that, perhaps as town

agents, they dealt with the Land Titles Office in relevant

ways.  One of the documents before the magistrate at tab 6 in

the book of documents indicates disbursement of credit

facilities of $128,000 by Homeside Lending, only $950.78 of which went to Baker Johnson. C Stevenson, on the other hand, received $35,000, and T Reiken, the vendor in the contract, $47,749.22. That document, of course, may not tell the whole story; it is concerning to the Court, and no doubt would be to the community and the authorities that professional people might be involved in calculated fraud against the First Home Owner Grant Act.

It is obscure whether Mr Muckan received any benefit at all.

He didn't reside in the property; he explains that on the

basis that he suffered a broken leg, a misfortune, no doubt,

but as the magistrate said, hardly an impressive justification

for failure to move into the premises.  It may be that the

state of them as described by Mr Muckan has more to do with it.  It may well be that he didn't receive any benefit from the rent which the tenant paid.  The Court doesn't really know.  It is certainly not shown that he did.

The failure of a person who participates (for example, by

providing a false identity) in the obtaining of government

benefits inappropriately to profit personally is not a reason

for that person's escaping condign punishment - as a decision of the Court of Appeal which received some publicity last week indicates; that is, R v. Smith [2004] QCA 417. In my opinion, it is sound sentencing policy that a person who deliberately lends aid to fraudulent depredations against public resources may be ordered to make good the loss that is incurred by the public purse. That Mr Muckan did. I don't say that there can never be special circumstances. I can detect none here.

Therefore, the appeal should be allowed and the magistrate's

order varied by the addition of an order under section 35 of

the Penalties and Sentences Act that compensation be paid to

the proper officer of the Magistrates Court, I suppose that is

right for transmission to the Commissioner of State Revenue.

...

HIS HONOUR:  I will allow four years to pay.  It may prove to

be an empty order, as the magistrate's understanding of

Mr Muckan's financial circumstances may well have been

accurate.  Also, given that the authorities - and I agree with

them in this - aren't pressing for the recording of a

conviction in the circumstances, unlike the fine the

compensation order is not backed up by default of

imprisonment.  On the other hand, it clarifies the matter, and

I would think the authorities would have not the slightest

difficulty in converting the compensation order into an

enforceable civil judgment.  You can seek extensions of time

to pay that compensation, Mr Muckan.  You don't have to see a

judge, you can see an administrative person in the Court and

it will be the Magistrates Court, won't it?

MR RAFTER:  I would think so.  He wouldn't have to come here.
I was wondering whether there was any need to specify a time
at all.  Although the Court can specify that under section 36
it is not obligatory.  He can take it up with the Office of
State Revenue.

HIS HONOUR:  Would you prefer a time wasn't specified?

MR RAFTER:  Well, that would be our preference, simply delete
that.  He can take it up with us.  The Office of State Revenue
is willing to hear proposals for costs.

HIS HONOUR:  Were you after costs?

MR RAFTER:  I see this as something in the public interest in
a way to establish a precedent, so I am not inclined to add
to Mr Muckan's weights by requiring him to pay costs.  The
Office of State Revenue has listened to your Honour say that
and we don't press costs.

HIS HONOUR:  If there is an application in this case, I don't
think I will order costs - which doesn't mean if there is no appeal similar to this I might not.

MR RAFTER:  I understand that.  There was a point of
clarification of the grey area that the magistrate referred
to, so that is why the case was brought.  We don't press for
costs, your Honour.
HIS HONOUR:  It certainly looks as though Mr Muckan probably
wasn't the major beneficiary of all of this.

MR RAFTER:  That seems a distinct possibility, your Honour.

HIS HONOUR:  Thanks, Mr Rafter.

MR MUCKAN:  What am I paying?

HIS HONOUR:  Well, you have got a $7,000 bill.

MR MUCKAN:  What about the previous charges, the fines I had?

HIS HONOUR:  Well, that remains.

MR MUCKAN:  Okay.

HIS HONOUR:  But you are going to get locked up if you don't
pay the fine.  That's nothing to do with this Court.  You
would want to take that particular seriously; not to say you
shouldn't take the $7,000 particularly seriously.  I don't
know whether you can do anything about getting the people who really enriched themselves to put in for it.

MR MUCKAN:  Well, to my understanding, sir, Mr Craig Stevenson
has been under investigation from the law firm and they want
to kick him out.  He should be kicked out for doing dodgy
deals, for setting people like me up.  I never got any money
out of this whatsoever.  He is the one who should be paying it
back, not me.

HIS HONOUR:  I am inclined to agree with you, but I haven't
got him in front of me, Mr Muckan.

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