R v Clarke - [2001] QCA 152

[2001] QCA 152

COURT OF APPEAL

WILLIAMS JA
WHITE J
HOLMES J

CA No 3 of 2001

THE QUEEN

DONALD EDWARD GEORGE CLARKE Applicant

BRISBANE

..DATE 20/04/2001

JUDGMENT

WHITE J: The applicant for leave to appeal against sentence pleaded guilty to seven counts of misappropriation with a circumstance of aggravation and seven counts of making available a prescribed interest contrary to section 1064, as it was then in force, of the Corporations Law, on 13 October 2000.

The dates of the offences were between 18 July 1991 and 31 May 1994. The applicant was sentenced on 11 December 2000 to nine years' imprisonment with a recommendation for parole eligibility after three years for the misappropriation offences and three years' imprisonment for each of the Corporations Law offences all to be served concurrently.

The applicant submits that the sentence is generally manifestly excessive and further that greater credit should have been given to the applicant for his plea of guilty and poor health resulting in a reduction of the head sentence and of the recommendation for release on parole.

A particularly aggravating feature of this case was that on 21 August 1992 the applicant had been sentenced to a term of imprisonment of two years for 17 counts of falsifying documents as the director of a company. A further 53 offences for dishonesty were taken into account on sentence.
The applicant was eligible for parole after five months. In that case, there would appear to have been a loss of approximately $165,000. He was said, by the sentencing Judge in that case, to have been propping up a business out of some misguided sense of assistance to another but nonetheless was prepared to risk the money and assets of others to do so.

It appeared that the defendant was released on day release shortly after being incarcerated and continued to control his business interests with the help of his daughter. She became director of the company through which the business was conducted in his place. It was this business activity which involved him in committing the subject offences.

The daughter was sentenced to 18 months' imprisonment with parole eligibility after five months for her part in the misappropriation charges and lesser terms in respect of the Corporations Law offences. Parity was raised below but not pursued here.

Keradale Proprietary Limited of which the applicant and his wife were directors until the applicant's conviction in 1992, carried on a debt factoring business which solicited funds for investment from the public by newspaper advertisements and through word of mouth. The prescribed interest was a right to participate in the common enterprise operated by Keradale for the factoring of debts and other limited purposes specified in written agreements from which investors were led to expect that they would receive interest.

The seven misappropriation counts related to moneys obtained from investors which was used by the applicant in a way which was contrary to the loan agreement between Keradale and the investor. Each count…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clarke

Details

AGLC: R v Clarke [2001] QCA 152
Case: [2001] QCA 152
Decision Date: 20/04/2001

CaseChat Overview and Summary

In this case, the applicant, Donald Edward George Clarke, appealed against the sentence imposed for his guilty pleas to multiple counts of misappropriation and making available a prescribed interest. The offences occurred between July 1991 and May 1994 and involved misappropriating funds from investors and making available a prescribed interest contrary to the Corporations Law. Clarke was sentenced to nine years' imprisonment for the misappropriation offences, with a recommendation for parole eligibility after three years, and three years for each of the Corporations Law offences, all to be served concurrently. Clarke argued that the sentence was manifestly excessive and that more credit should have been given for his guilty plea and poor health.

The legal issues before the Court of Appeal were whether the sentence was manifestly excessive and whether greater credit should have been given for Clarke's plea of guilty and his poor health. The Court considered the nature and circumstances of the offences, the amount of money involved, the impact on the victims, and Clarke's criminal history, which included a previous sentence for falsifying documents while on day release. The Court also took into account Clarke's health issues, which included both hips being replaced and other ailments. However, the Court found that Clarke's health issues did not warrant a reduction in sentence, and that his plea of guilty and the need for strong deterrence were adequately reflected in the recommendation for parole eligibility after three years.

The Court of Appeal held that the sentence was not manifestly excessive, given the nature and circumstances of the offences, the amount of money involved, and the need for deterrence. The Court found that the sentencing Judge had appropriately considered the mitigating factors, including Clarke's guilty plea and the impact on the victims, in imposing the sentence. The Court of Appeal refused the application for leave to appeal against sentence.

Orders