R v Bamfield

[1995] QCA 82

IN THE COURT OF APPEAL	[1995] QCA 082
SUPREME COURT OF QUEENSLAND BRISBANE

Appeal No. 502 of 1994

[R. v. Bamfield]

THE QUEEN

v.

IAN RAYMOND BAMFIELD

(Applicant)

Macrossan CJ McPherson JA Thomas J

Judgment delivered 4 April 1995

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Stealing.

Counsel:	Applicant for himself L. Clare for the respondent
Solicitors:	Director of Public Prosecutions for the respondent

Hearing Date: 23 February 1995

JUDGMENT OF THE COURT

Judgment delivered 4 April 1995

The applicant seeks leave to appeal against a sentence of three years' imprisonment for stealing. He was convicted by a jury on the fourth day of a trial. The item he stole was a vessel named "The Perfect Lady", variously described as a 36 foot sales catamaran or a yacht, worth around $200,000. The maximum sentence for such an offence, under s.398 IX of the Code is seven years imprisonment.

The applicant made his application before this Court in person and presented a written statement and a supplementary statement of argument. Primarily he seeks a discount, suspension or reduction of his sentence or an early recommendation for parole.

Despite his indication that he respectfully accepts the verdict of the jury, some of the points attempted to be raised relate to the conduct of the trial, and are irrelevant to the present application. We shall endeavour to deal with those points which may be thought to relate to the sentencing process.

The facts upon which the jury convicted him revealed a stealing that was the culmination of an elaborate and premeditated fraud pursued over several months, accompanied when necessary by considerable effrontery. He applied a barrage of changing ploys and ultimately dispossessed the owner of his valuable yacht, despite paying no money. The story is a long one, and it is necessary only to mention a few of the episodes described in.

In January 1993 the applicant was introduced to the complainant and there was an initial verbal arrangement that he would buy the complainant's yacht for $210,000 on a deposit of $20,000. The applicant pretended that he owned a valuable house at Currimundi, that he had contracted to sell it and that he would soon get the proceeds of sale. In fact the applicant was a tenant and a notice to quit had been given. The deposit was not paid, but the applicant induced the complainant to accept a stereo which was treated as equivalent to a cash deposit of $1000 to secure the contract. A contract was signed at a price of $205,000, with settlement to occur on 29 March 1993, allegedly to coincide with "the house settlement". The applicant then took out an insurance covernote on the vessel and acted proprietorially towards the boat. He and his sons spent much time on and around it, and he became aggressive when his access was restricted by the owner. He claimed to be homeless due to the contract on his house. On 15 March the applicant secretly registered the boat in his own name. He obtained an extension of time to settle the purchase of the boat, to coincide with the alleged settlement of the house. He eventually told the complainant that he wanted to take possession of the vessel on Good Friday (7 April) in exchange for a cheque that could not be cleared until the Tuesday. Further arrangements were made for settlement on 13 April and 14 April but the applicant did not present himself or tender any money. He left a note on the complainant's trailer including the words ".. forget everything. You fool around too much". The complainant assumed that the deal was off. The applicant then sent a letter to the complainant demanding payment for losses and negligence in not having the vessel available for inspection and settlement on 13 April.

The vessel was at this stage in a canal mooring, securely locked with hasp, staple and padlocks over the door and hatches. The complainant received a telephone call from the applicant stating that "the cheque's in the mail". The complainant stated that he would not be returning until 7 May and that the applicant was not to touch the boat. On 3 May the applicant broke into the boat, and he and his sons were sailing it by 9 a.m. The 6 foot name "The Perfect Lady" was replaced by the name "Katrina". The registration numbers were removed and replaced by others in a different location. A resident alerted the coastguard, and police approached the applicant, who produced a contract and registration papers. He told the police that if further enquiries were necessary he would be available and that he would be anchoring nearby and staying overnight at Currimundi.

When police returned half an hour later the applicant and the boat were missing.
There was no cheque in the mail. The vessel could not be found. The complainant hired

a plane and alerted other authorities to conduct a search. The boat was eventually located in the Great Sandy Straits 70 to 75 nautical miles from Mooloolaba. When police found the boat, at night, all the boat's lights were off. Upon boarding the police turned them on. They found the appellant was there, with his two sons, sitting in the dark. Some of the complainant's belongings had been disposed of. The toilet was broken and the vessel filthy. During conversations with the police, the applicant variously claimed that he was the registered owner, that he had a contract to buy the boat, and that he had permission to have the boat. When asked if he had the purchase money he said "Not now".

Some of the damage to the boat was covered by insurance, but the loss to the complainant independent of insurance reimbursement was $2592. This includes some of the search costs.

In summary it was an outrageous theft of a very valuable vessel, marked by persistent

fraud and effrontery.

The applicant is a forty-two year old man with a substantial criminal record commencing in 1979. It includes numerous convictions for larceny, false pretences and breaking, entering and stealing. His last conviction prior to the present matter was in December 1990 for imposition. Perusal of his record indicates a remarkably lenient history of treatment from the courts. Despite the seriousness and repetition of his offending, he had never been imprisoned.

The applicant's written arguments include submissions that the offence was not of a violent nature and that he was exercising an honest claim of right. The first submission may be accepted, but the second has been rejected by the jury. He submitted that the true value of the vessel was never proven to the court, but the evidence includes the amounts that he had agreed to pay for it. The value of the vessel is not of critical importance, but on the evidence as it stands it is not unreasonable to act on the footing that its value was in the region of $200,000.

The applicant submitted that the learned sentencing judge did not give due credit to statements made on his behalf by his counsel, to the effect that he had recently moved with his sons (aged fifteen and eighteen) to the Agnes Waters area where he now had a number of projects under way. One was a business called "1770 Agnes Water Productions" which the applicant describes as a small but successful video film production unit, the membership of which is himself and his sons. He claims that the unit is "currently in the process of establishing a souvenir tourist video of the rienactment (sic) of Captain James Cook at 1770 called History on Show". The other is an involvement with a radio station. When the learned sentencing judge asked whether it had a licence, the applicant was permitted to respond directly and the following is contained in the record:

"PRISONER: Sorry, I've got a permit to operate from now under a restricted licence until the Australian Broadcasting Authority can allocate the band, because in the area we don't have facilities yet for a mobile telephone or any of that sort of stuff, and because it's stereo, a dipole has to be installed at an antenna that's already there, so that's why we've nominated February 28 to go to air.

HIS HONOUR: Will you show me that permit, please?

PRISONER: I don't have - I have writings of it and - but not with me, Your Honour. I can produce that that I can go to air on test transmissions and to gain public support."

Before us the applicant attempted to present further material to establish the bona fides and the potential of these enterprises. It is enough to say that on the footing that we were to give full weight and credit to that material, it would not satisfy us that the sentencing process miscarried or that any different penalty would have been rendered more appropriate.

The main points orally presented by the applicant were that he had succeeded as a father and that he had been trying to secure his own and his sons' futures in a law-abiding way. Apparently some years ago he fought protracted custody battles with his former wife, and won custody of the two boys who are now aged fifteen and eighteen. Whatever the merit of his parenting efforts, it is unfortunate that the present criminal activity was done in a way which involved the boys as well. Whatever he achieved between 1990 and 1992, his activities in 1993 afford a poor example and they were not the acts of a person abiding the law.

Given the seriousness of the circumstances, the value of the property, the sustaining of actual loss by the complainant, the absence of any discounting factors such as early plea of guilty, or a plea of guilty at all, the patent absence of remorse, and his substantial criminal record, we cannot say that the sentence was other than appropriate.

The application will therefore be refused.