R v Back

[1997] QCA 484

[1997] QCA 484

COURT OF APPEAL
McPHERSON JA
DAVIES JA

MUIR J

CA No 335 of 1997
THE QUEEN
v.

LORRAINE JOY BACK	Applicant
BRISBANE ..DATE 04/11/97
JUDGMENT
041197 T4/VT26 M/T COA249/97

McPHERSON JA: Lorraine Back was convicted after a trial in the District Court of two counts of unlawful possession of a motor vehicle contrary to section 408A(1)(b) of the Criminal Code and two counts of obtaining by false pretences contrary to section 427 of the Code. She was sentenced to a term of imprisonment of three years, to be suspended for three years after she had served 12 months of it.

Her original appeal against conviction has not been pursued and indeed we struck it out at counsel's invitation at the beginning of the hearing of this application. What is left now is an application for leave to appeal against the sentence I have mentioned.

The circumstances of the offences are as follows. The applicant was an employee of the Nambour office of the Department of Transport. She had access to the computers used in that Department in order to record registrations of vehicles and changes of ownership, and so on. In 1994 a vehicle belonging to a particular individual was stolen, or received after being stolen, by the applicant's husband. Using her access to the Departmental computer which she enjoyed as an employee, the applicant registered the vehicle under particulars from another vehicle, the registration of which had been cancelled earlier. That was part of the history of the offence in count 1 in the indictment of which she was convicted.

After entering the registration particulars of the vehicle in her name she sold it to a dealer in Nambour for $9,500, that being the offence charged against her in count 2 of which she

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was convicted.

A similar procedure was followed with respect to another vehicle stolen in about 1995, which was the subject of count 4. In this instance the engine number was altered after a chassis belonging to another vehicle had been written off in an accident in March 1995. That vehicle was also registered in the applicant's name in about July 1995.

Count 7 of which she was convicted was another instance of false pretences committed by the applicant. The engine in this instance came from a vehicle said to have been stolen from a Mrs Gork. On this occasion another vehicle registration was also cancelled and the engine number was used to provide false particulars for registration of the engine or vehicle to which I have referred. That information too was obtained by the applicant from departmental records.

The reconstituted vehicle with the false engine number or registration was later sold to a Mr Tregaskis. It may be said that, in relation to that count which, as I have said, was count 7, her husband was convicted of the offence of stealing or receiving it in count 6 of the same indictment; but the applicant was acquitted in respect of that particular charge.

It is evident from what I have said that a criminal enterprise involving some degree of sophistication was being conducted by the applicant and her husband, in which she used her access to Transport Department records and her ability to alter them in order to facilitate offences that were being committed by him or

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by both of them. Her husband was, like her, sentenced to a term of imprisonment of three years, but he did not receive the benefit of a suspension of that sentence as she did after serving 12 months.

Her personal circumstances are that she is 40 years old with three children, of whom the youngest is 14. She and, as it appears, her husband also, are immigrants from New Zealand. Her family situation would therefore, one might infer, be rather difficult if she went to gaol without being able, for a lengthy period, to look after her youngest child. Arrangements, we have been told, were made that he reside with one of the older siblings; but it nevertheless is the case that she or her child would to some extent be disadvantaged by her incarceration as a result of her criminal conduct. The Judge took account of that factor in arriving at the sentence by ordering that the sentence be suspended after 12 months.

That having been done, it is nevertheless said that the applicant ought to have received a lower head sentence than her husband because, it is argued, she was not convicted of count 6 and, unlike him, she had no prior criminal record.

He had a previous conviction for obtaining by false pretences. It is perhaps more accurate to say that there were eight counts or charges involved in that offence; but they related to a single incident. In addition he had sustained two convictions for perjury arising out of having given false evidence in a District Court civil proceeding.

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An argument that there is a disparity in the head sentence therefore exists; but to my mind it does not find its mark when account is taken of the differentiation that was made in the effective sentences which the Judge imposed on each of these two offenders. The submissions made by Mr Rafter seemed, if I may say so with respect, to be occupied largely in showing that the husband should perhaps have received a heavier sentence than the one that was imposed upon him. However, without the applicant's part in the criminal enterprise it is difficult to see how the offences could have been committed by him, or at any rate concealed after commission, other than by the use of the Departmental computer and registration system.

The system for registration of vehicles is the foundation of much of the very extensive trade in cars that goes on in a legitimate way in this State; and anything that tends to undermine it should, in my view, be regarded as serious both as to its nature and its consequence.

The District Court Judge, it may be said, was also confronted not very long after these events with a further charge or charges against the applicant in respect of which she was convicted. They were offences that had been committed before these, or some of these offences, which are now before us for review. In respect of them the Judge imposed a sentence of imprisonment for 18 months to be suspended after six months. He did, however, also order in respect of that penalty that the further sentence then imposed should be served concurrently with those the subject of this application. When that further matter is taken into account, as well as the others to which I have

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referred, it does not seem to me that the applicant has been dealt with at all harshly; or that there is any fairly identifiable complaint to be made about disparity between her own fate and that of her husband. I would, in the circumstances, refuse the application for leave to appeal and dismiss it.

DAVIES JA: I agree.

MUIR J: I agree.

McPHERSON JA: The order is that the application for leave to appeal against sentence is dismissed.

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