R v Anderson

[2012] QCA 215

[2012] QCA 215

COURT OF APPEAL

MARGARET McMURDO P
FRYBERG J
NORTH J

CA No 123 of 2012
DC No 541 of 2012

THE QUEEN

v

ANDERSON, Stuart
(AKA MARSHALL, Terrence Charles)      Appellant

BRISBANE

DATE 20/08/2012

JUDGMENT

THE PRESIDENT:  Justice Fryberg will deliver his reasons first.

FRYBERG J:  The unrepresented applicant has applied for leave to appeal against ten sentences of concurrent imprisonment for three years, coupled with an order for release after 15 months, upon his entering his entering into a recognisance release order, imposed in the District Court on 16 April this year, after he pleaded guilty to ten counts related to what might broadly be described as tax fraud.

The sole ground of appeal is that the sentences were manifestly excessive.

The offences arose out of six false claims for refunds of GST made by the applicant on behalf of four different entities.  They were four companies, called respectively: Driving Miss Daisy Florist Couriers Pty Ltd., Dream Builder Essence Trading Pty Ltd., Rufus Ray Trading Pty Ltd. and Fifi Trading Pty. Ltd.

In relation to each entity, there was one count of using false documents to dishonestly induce a Commonwealth official, and to influence the exercise of a public duty.

In relation to Driving Miss Daisy Florist Couriers Pty Ltd., there were two counts of dishonestly obtaining a financial advantage from the Commonwealth by deception; in relation to Dream Builder Essence Trading Pty Ltd., one count of attempting to dishonestly to obtain a financial advantage from the Commonwealth by deception; in relation to Fifi Trading Pty Ltd., one count of that offence also; and in relation to Rufus Ray Trading Pty Ltd., two counts of that offence.

Put simply, the applicant's scheme was to lodge business activity statements claiming refunds of GST and support them when asked for documentation with forged documents.

His first two attempts were successful, and a total of more than $53,000 was paid to the courier company.  Subsequently, nearly $32,000 was recovered from that company.  That was the amount over-claimed, that is, the amount of the financial advantage obtained.

His other attempts were unsuccessful.  The attempted financial advantage sought by them exceeded $65,000.

The offences were committed between 24 October, 2001, and 7 March, 2002.  A warrant for the applicant's arrest was issued on 4 August, 2004, but it was not executed until 26 September, 2011.  The delay in executing the warrant was not explained to the sentencing judge, and there is no reason to think that his Honour proceeded on the basis that the applicant had evaded arrest.

The applicant was aged 49 at the time of the offending, and 60 when sentenced.  He had a long and continuous history of offences of dishonesty dating back to 1992.

At the time of the present offences, he was subject to a good behaviour bond given to obtain his release in respect of a 12 month term of imprisonment imposed on 19 January, 2001.  That sentence was imposed in relation to social security fraud involving an amount of almost $12,700.

Plainly, this offending demanded imprisonment.  The prosecutor submitted that the sentence should be in the range of three to three and a half years.  Counsel for the applicant submitted that three years was the appropriate sentence, and that was the head sentence imposed for each offence.

The applicant does not now challenge the appropriateness of that head sentence.

The prosecutor recognised that the applicant merited early release by reason of his plea of guilty.  He submitted that the plea in this case was of less value to the applicant as a signal of his willingness to co-operate in the administration of justice, because the offence was committed during the period of the bond, and because of his long history of similar offences.  He submitted that the applicant should be released after serving 40 per cent of the sentence imposed.

Counsel for the applicant submitted that release should occur after one third of the sentence was served.

The judge evidently preferred the submission of the prosecutor.  He noted that he took the breach into account, and subsequently the sentence for the breach was made concurrent by the Magistrates Court.

In this Court, the respondent also referred to the strength of the Crown case against the applicant.  That was another factor diluting the benefit of the plea of guilty.  The applicant contended that the period until release should be reduced from 15 months to 12 months.  He summarised his grounds thus in his outline of submissions:

"A true picture of how the offences I was convicted of occurred, and the background to how I became involved in committing those crimes, was confused by the sitting judge.  There were a number of errors in evidence given by the DPP, and all those errors are shown in Item Number 1, and supporting documents."

The attached Item Number 1 consisted of several pages of alleged but unverified facts, all or at least most of which were not put before the sentencing judge, an omission for which the applicant blamed his barrister, who was a very experienced counsel in criminal matters.

There has been no application to lead fresh evidence, and no grounds for making such an application are apparent in what has been put before us.  I would, therefore, disregard the additional evidence sought to be relied upon.

When an appeal against sentence is made solely on the ground of manifest excess:

"Intervention is warranted only where the difference between the result arrived at below, and the sentences imposed in other cases is such that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". 

The quotation is from Wong v Queen (2001) 207 CLR 584 at page 605.

The applicant attached to his outline of submissions a list of allegedly comparable sentences.  The sources of this list was not identified.  The list does not demonstrate the requirement to serve 40 per cent rather than one third of a three year sentence following a plea of guilty in circumstances such as the present, is significantly different from what has been imposed in other cases.  Far less does it demonstrate that the sentencing judge must somehow have mis-applied proper sentencing principle.

A different list of allegedly comparable sentences was placed before the sentencing Judge by the prosecutor.  The same comment is applicable to that list also.

I would, therefore, dismiss the application.

THE PRESIDENT:  I agree.

NORTH J:  I agree, and have nothing to add.

THE PRESIDENT:  The order is the application for leave to appeal is refused.  Adjourn the court.