R v Anderson

[2000] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

R v Anderson  [2000] QCA 257

PARTIES:

R
v
ANDERSON, Lewis Wilson
(applicant)

FILE NO/S:

CA No 52 of 2000
DC Nos 270 of 2000 and 271 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2000

JUDGES:

Pincus JA, White and Dutney JJ
Judgment of the Court

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PLEA OF GUILTY AND USE OF DEPOSITIONS

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – applicant committed offences of dishonesty in order to keep alive businesses in financial difficulty – creditors deprived of about $1.5M – plea of guilty – whether sentence of six years imprisonment with parole recommendation after two years manifestly excessive

COUNSEL:

M C Chowdhury for the applicant
N Weston for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  This is an application for leave to appeal against sentence.  The applicant, over a period of years, defrauded creditors, by disposing of property which constituted security for debts of the applicant's businesses and by other means.  Typical of the pattern of behaviour are counts 4 and 7 of the main indictment.

1. Under count 4 it was alleged that the applicant entered into a lease of a tractor with a finance company and a few years later sold the tractor without the consent of its owner, the finance company.  Under count 7 it was alleged that the applicant purported to sell a vehicle to a finance company, when no such vehicle existed.  By such methods the applicant diminished the extent of the property which was or should have been, in effect, security for debts due by him.  In two instances (counts 21 and 22), the applicant falsified documents which were presented to creditors and this was done to give a misleading impression of his financial position.

1. Under a separate indictment, the applicant was charged with disposing and mortgaging goods without consent, over a period of five years.  There was a stock mortgage over cattle and by fraudulent means the applicant had reduced the size of the herd very greatly, purporting to transfer stock subject to the mortgage to his son;  the amount involved was about $0.5M, being the value of the relevant stock.

1. There were 12 counts of misappropriation with a circumstance of aggravation and seven counts of other offences of dishonesty, under the first indictment;  there was also a count of disposition of mortgaged goods without consent, relating to the stock mortgage just discussed.  The applicant, aged 47, was sentenced to various terms, the longest being six years imprisonment.  There was a recommendation for parole after two years.

1. Initially the applicant, who had no criminal history, was charged with his wife and son;  a trial began.  After some evidence had been taken, the applicant pleaded guilty to the charges we have explained above and the Crown proceeded no further against the wife and son.

1. It is not immediately clear what money figure should be attributed to these offences.  Where a creditor is deprived of security for a debt, that could, in the end, cost the creditor nothing;  the inadequately secured debt might be paid.  The potential loss to the creditor is the value of the security which, but the for the debtor's fraud, would have been available and that is in the present case a sum of about $1.5M.  The total amounts which were eventually due and unpaid are not stated in the record.  It was argued for the applicant before the primary judge that where it can be shown that a particular financier had a sum equal to the principal advanced (but not the interest) repaid to him, that circumstance is a great mitigating factor;  that does not seem to us correct.  Commercially, the vice of what the applicant was doing was fraudulently depriving creditors of security for loans made to him and that was security for both principal and interest.

1. As to the stock mortgage, the ultimate loss to the creditor will depend upon the outcome of a contested claim by the creditor to the stock purportedly transferred to the applicant's son.  Subject to that important reservation, it appears to us that the proper way to approach the case is to regard the sum of which creditors have been deprived as $1.5M.

1. The applicant's misdeeds cannot be equated to ordinary theft.  As the primary judge recognized, what was being done was in large part directed towards keeping alive businesses which were in financial difficulty, an attempt which was ultimately unsuccessful.  There is no reason to think that the applicant intended not to pay the creditors;  he was in the end, unable to do so.  The applicant's case is to be distinguished from those in which the offender's frauds are committed for the simple purpose of enriching himself or herself at the expense of others.  And apart from these offences he was an exemplary citizen.

1. The primary judge's view of the matter was that there was persistent calculated dishonesty over about five years;  that the applicant had been a highly respected and generous businessman active in community affairs;  that the plea of guilty had saved a great deal of time and money;  and that the mitigating circumstances warranted recommendation of consideration for early parole.  His Honour had before him a psychiatric report to the effect that the applicant suffered from anxiety and depression.

1. It must be conceded in favour of the applicant that lesser sentences than were imposed could perhaps have been defended;  but in our opinion it is impossible to conclude that the learned primary judge went beyond the bounds of a proper exercise of his sentencing discretion.  We would refuse the application.