R v Bendeich

[2005] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:	R v Bendeich  [2005] QCA 83
PARTIES:	R v BENDEICH, Charley Hope (applicant)
FILE NO/S:	CA No 438 of 2004 DC No 360 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	1 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2005
JUDGES:	Jerrard JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – where applicant committed fraud and attempted fraud – where applicant committed similar offences two days before she was sentenced for original offences – applicant sentenced for similar offences on a later date – whether all offences should have been dealt with at the same time
COUNSEL:	S J Pearson for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA:  I respectfully agree with the reasons for judgment and order proposed by Jones J.  I add to those reasons that the learned judge imposing sentence in December 2004 described the critical issue as being whether the Court imposing sentences in January 2004 would have imposed the same sentences if then dealing with the October 2003 offences.  As to that, the applicant's counsel stressed the relatively small amount of money involved in the October 2003 offences.  This was said to be significant in that the judge imposing sentence in January 2004 would have been unlikely to increase the unsuspended portion of the sentence, had that judge then dealt with that offence as well.

1. The fraud offences dealt with in January 2004 resulted in some $54,000 being lost to the victims.  About $131,000 was sought to be gained by the applicant by her attempted fraud offences.  The October 2003 offences would therefore have added little to the overall or intended losses caused to others by her conduct.

1. The significance of the October 2003 offences was that, if dealt with in January 2004, they would have showed to the learned judge then imposing sentence that the applicant's offending behaviour had continued until three months before she appeared for sentence.  On the facts actually presented to the sentencing judge in January 2004, the applicant's last offending behaviour had been in January 2002, two years earlier.

1. It follows that the learned judge imposing sentences in December 2004 was justified in concluding that, had the Court imposing sentences in January 2004 then dealt with the October 2003 offences, it would have ordered the applicant spend longer in custody before she was released on her partly suspended sentence.  The totality principle did not therefore require that the Court in December 2004 impose a sentence which did not increase the applicant's term of actual imprisonment before release.

1. CULLINANE J: I have read the reasons of Jones J in this matter.  I agree that the application should be refused for the reasons given by him.

1. JONES J: The applicant seeks leave to appeal against a sentence of four months imprisonment imposed by the District Court at Townsville on 8 December 2004.

1. The applicant pleaded guilty to the offence that between 12 and 20 October 2003 she dishonestly applied to her own use a credit card belonging to Australian Guarantee Corporation Pty Ltd.  The card had been issued to a friend of the applicant but she had gained possession of it and of the PIN number.  In the course of eight unauthorised transactions the amount dishonestly appropriated was $1480.

1. The difficulty for the applicant on this application arises from her commission of a number of prior offences of fraud or of dishonesty.  On 18 August 1999 at Emerald she pleaded guilty to six offences of fraud and two offences of passing false cheques.  She was admitted to probation for three years.

1. On 28 November 2001 she pleaded guilty to four counts of fraud, three counts of forgery and two counts of passing false cheques.  The probation order was revoked and she was re-sentenced on the original offences to imprisonment for six months, wholly suspended for a period of two years.  For the new offences she was sentenced to 12 months imprisonment concurrent with the re-sentence term wholly suspended.  She was also ordered to pay restitution of $7755.63.

1. On 29 January 2004 the applicant pleaded guilty before His Honour Judge Noud at Mount Isa to nine counts of fraud, and 14 counts of attempted fraud (“the Mt Isa offences”).  These offences were committed between September 1999 and January 2002.  She was sentenced to three and a half years imprisonment. The term of imprisonment was to be suspended after 14 months.  The release date would thus be 28 March 2005. In dealing with the application for the breach of the terms of the suspended sentence His Honour ordered that the applicant serve the terms concurrently with a term of three and a half years imprisonment imposed for the Mt Isa offences.

1. The subject offence was committed before the applicant was sentenced for the Mt Isa offences.  The complaint was made on 3 November 2003 but it appears that the applicant was first spoken to by the police only on 31 January 2004, two days after she had been dealt with for the Mt Isa offences.  The net result is that the subject offence was committed whilst she was on bail for the Mt Isa offences but outside the two year operational period of the earlier offences.

1. The sentence of four months imprisonment imposed by the learned sentencing judge was clearly within range for the offence: it was committed after two sets of prior convictions for dishonesty and while the applicant was on bail for another series of similar offences.  The point of contention is whether the four months imprisonment ought to be served cumulatively upon the 14 months actually being served for the Mt Isa offences.

1. The applicant argues it would have been appropriate to order the four months imprisonment be served concurrently.  The basis for the submission is that this would have been the outcome if all offences were dealt with at the same time.  Of course there is no way of knowing if this would be so.

1. The matters which the learned sentencing judge took into account were the history of offending between 1999 and 2003, the failure of the applicant to rehabilitate herself despite having been sentenced to terms of imprisonment which were then wholly suspended, and the fact that there was no prospect of the applicant making restitution to those affected by her wrongdoing.

1. On behalf of the applicant reference was made to her obligations to care for her six children.  One of them – a three year old – will stay with her in prison for the duration of her sentence.  The applicant’s mother became the carer of her other children.  Due to illness, however, she was no longer able to undertake this role.

1. The learned sentencing judge dealt with the suggestion that had this offence been punished at the same time as the Mt Isa offences the overall penalty would have been the same.  He said:-

“Had I been sentencing you for those offences [the Mt Isa offences] and the present, I would not have made a suspended sentence, but I must approach the matter on the basis that such a sentence was imposed on 29 January 2004.

In those circumstances, I do not think that the head sentence of 3 ½ years would have been likely to have been higher, but I am firmly of the view that an order that it be suspended after 14 months would not have been made but an order would then have been made that it be suspended after 18 months.”

1. To now adopt the submission made on behalf of the applicant would have the result that there would be no effective penalty for the subject offence.  Given the long history of repeated offending and the lack of any sign of rehabilitation, that would not be an appropriate course for a sentencing judge to follow.  His Honour considered the relevant circumstances and he imposed a penalty commensurate with the history and the length of the term of imprisonment yet to be served. 

1. I am not persuaded that the penalty imposed is manifestly excessive and I would therefore dismiss the application.