R v Arrowsmith

[1999] QCA 384

IN THE COURT OF APPEAL	[1999] QCA 384
SUPREME COURT OF QUEENSLAND

CA No 187 of 1999

Brisbane

[R v Arrowsmith]

THE QUEEN

v

EVLYN DAVID ARROWSMITH

(Applicant)

Davies JA Ambrose J Cullinane J

Judgment delivered 14 September 1999

Judgment of the Court

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.
Applicant convicted of offences against Financial Transactions Report Act 1988 (Cth) and Crimes Act 1914 (Cth) - whether sentence excessive because he would have been entitled to receive some monetary benefits - whether state of health justified punishment other than imprisonment.
Counsel:	The applicant appeared on his own behalf (via telephone link) Mr G C Davey for the respondent
Solicitors:	The applicant appeared on his own behalf (via telephone link) Commonwealth Director of Public Prosecutions for the respondent
Hearing date:	8 September 1999

1. THE COURT: The applicant in this matter filed a notice of appeal against conviction and an application for leave to appeal against sentence. The appeal against conviction was abandoned when the appeal was called on at the sittings in the Court of Appeal at Townsville on 26 July 1999.

2. The applicant pleaded guilty to six offences. Counts 1 and 2 are offences against the Financial Transactions Reports Act 1988 (Cth) of operating bank accounts in false names.

3. The remaining offences are offences against the Crimes Act 1914 (Cth).

4. Count 3 is constituted by the applicant's receipt of moneys from the Commonwealth in the form of a disability support pension which included a component of rental assistance which had been paid to the applicant's wife. The moneys were paid into an account jointly held by the applicant and his wife, who died on 9 September 1996. Payment of the moneys continued however, and the applicant withdrew the moneys from the joint account on a regular basis.

5. Counts 4, 5 and 6 relate to false claims made by the applicant for various forms of Social Security payments from the Commonwealth.

6. In the case of count 4, the applicant falsely represented that he and his wife paid rent for accommodation when in fact they were the owners of a property in which they resided. 7 So far as the fifth count is concerned three misrepresentations were made on the occasion that this offence was committed. Firstly, the applicant falsely stated that he was unemployed. Secondly, he falsely stated that he was not self-employed and thirdly, he falsely stated that he did not own his own home but was paying $150 per week rent.

7. The final count of imposition involved a misrepresentation that he did not have any assets other than those already disclosed to the Department of Social Security when in fact at the time he owned a house with his wife.

8. The matter was adjourned by the Court of Appeal at Townsville to Brisbane after the appeal against conviction was struck out. This was done to enable the applicant to file an affidavit in support of his appeal against, to use his words, "the --- sentence and the amount of money."

9. No affidavit has been filed by the applicant.

10. He raised two matters before us. Firstly, he claimed that the amount which he was ordered to pay reparation for and which was the basis on which he was sentenced was substantially overstated because he would have been lawfully entitled to receive some of these moneys. That is, although he was not entitled to receive the benefits he did because he misrepresented his position in the respects set out, had he disclosed the true position he would have been entitled to some of these benefits.

11. Such a proposition does not assist the applicant and does not affect either his guilt or his criminality.

12. The only other matter he raised was his state of health. He has in the past suffered a myocardial infarction and has had a defibrillator implanted. A medical report was tendered to the District Court and this appears at p 35 of the record.

13. His Honour, rightly in our view, did not regard the contents of the report as providing evidence of personal circumstances which might justify a sentence other than a term of imprisonment. This was in fact conceded by counsel who appeared for the applicant on the sentence.

14. As the learned sentencing judge observed the offences were serious and involved deliberate criminality and premeditation and persisted over a substantial period.

15. There is no substance in the application. We would refuse the application.