R v Davy

Case [2017] QCA 312

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davy [2017] QCA 312

PARTIES:

R
v
DAVY, Ronald Dean
(appellant/applicant)

FILE NO/S:

CA No 201 of 2016
DC No 412 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 22 June 2016 (Long SC DCJ)

DELIVERED ON:

19 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2017

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDERS:

1.   The appeal against conviction be dismissed.

2.   The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONVICTION UNSAFE OR UNSATISFACTORY – where the appellant was convicted by a jury of one count of fraud, as a member of a governing body, in excess of $30,000 – where the appellant was sentenced to six years imprisonment, with no order as to parole eligibility – where the appellant contends that he was not afforded a fair trial as he was unrepresented, that the trial was conducted unfairly, and that the trial Judge misdirected the jury in respect of evidence – where the appellant seeks leave to appeal his sentence on the grounds that it was manifestly excessive in all of the circumstances – whether the appeal should succeed – whether leave to appeal against sentence should be granted

Dietrich v The Queen (1992) 177 CLR 292, [1992] HCA 57, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v Barwood, unreported, Martin SC DCJ, DC No 2086 of 2016, 25 October 2016, considered
R v Clapham[2017] QCA 99, applied
R v Cox[2010] QCA 262, considered
R v East (2008) 190 A Crim R 225; [2008] QCA 144, applied
R v Lim[2004] QCA 172, considered
R v Martin[2015] QCA 257, considered
R v Meehan, unreported, Atkinson J, SC No 873 of 2017, 14 July 2017, considered
R v Sheppard [2001] 1 Qd R 504; [2000] QCA 57, considered
R v Shiels[2011] QCA 115, cited
R v Spalding[2002] QCA 538, considered
R v Tindale[2008] QCA 24, considered
R v Wheeler & Sorrensen[2002] QCA 223, considered

COUNSEL:

The appellant/applicant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.

  2. McMURDO JA:  I agree with Boddice J.

  3. BODDICE J:  On 22 June 2016, a jury found the appellant guilty of one count of fraud as a member of a governing body, the property value being in excess of $30,000.  The appellant was convicted and sentenced to six years imprisonment.  A period of 390 days pre-sentence custody was declared as time served in respect of that sentence.

  4. The appellant…

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Details
AGLC
R v Davy [2017] QCA 312
Case
[2017] QCA 312
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction and sentence for fraud, as a member of a governing body, involving over $30,000. The appellant argued that he was not afforded a fair trial as he was unrepresented, that the trial was conducted unfairly, and that the trial Judge misdirected the jury in respect of evidence. The appellant also sought leave to appeal his sentence on the grounds that it was manifestly excessive in all of the circumstances. The issues before the court were whether the appeal against conviction should succeed, and whether leave to appeal against sentence should be granted.

The court held that the evidence as a whole supported the jury's verdict of guilty. The appellant had made admissions that he had made unauthorised withdrawals from the body corporate accounts and used the funds for his own purposes. The evidence showed that the appellant had engaged in persistent and serious fraudulent conduct, which resulted in a significant loss to the body corporate. The court also held that the trial was conducted fairly and that the appellant was not denied a fair trial as a consequence of his lack of legal representation. The court further held that the sentence of six years imprisonment was well within the proper exercise of the sentencing discretion, and that the lack of insight and remorse justified not fixing an earlier parole eligibility date. Therefore, the appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

The final orders were that the appeal against conviction be dismissed and the application for leave to appeal against sentence be refused.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. The application for leave to appeal against sentence be refused.

Background

Background to the litigation

The appellant also seeks leave to appeal his sentence. The sole ground, should leave be granted, is that the sentence imposed was manifestly excessive in all the circumstances.Background The appellant was born on 24 February 1944. He is presently 73 years of age. He was aged between 64 and 66 at the time of the offence which was committed between 7 August 2008 and 21 December 2010. The governing body was the Body Corporate for Tower Mill Motor Inn (Community Titles Scheme 1918). The Tower Mill Motor Inn was a complex containing 107 strata titled apartments. A large majority of the owners made their apartment available for rental to the general public on a casual stay basis. The fraud concerned monies transferred from the body corporate accounts to accounts controlled by the appellant. The appellant had been elected as body corporate secretary in 2003. He was subsequently elected chairperson, a position he held for various periods. Relevantly, he was chairperson for the period 27 August 2007 to 16 December 2010, during which period the offence was committed by him.Trial The Crown case was that the appellant made 42 unauthorised withdrawals from the bank account held by the body corporate. The funds so accessed, totalling in excess of $550,000, were used by the appellant for his own purposes, including payment of his own living expenses and/or to purchase assets in his own name. The appellant did not dispute he had undertaken such transactions. His defence was that he honestly believed he was authorised to use those funds to obtain the best return for members of the body corporate, and the use of those funds was without an intention to defraud. The best return in all the circumstances was to pursue another owner, Peter Burnitt, who had caused significant expense to the body corporate through encroaching on common areas on the ground floor of the complex.Admissions The appellant made a number of admissions at trial. Relevantly, they included that he had made the 42 unauthorised withdrawals from the bank account held by the body corporate, that the monies so obtained had been placed in accounts under his own control before being used for payment of his own personal expenses, that he did not use any of the money so obtained for body corporate expenses and that he did not consult or tell any of the owners of units in the complex that he was transferring body corporate money into his own personal bank accounts.Evidence Detective Dylan Brook, the investigating officer, took two statements from Burnitt, who indicated he was making a complaint on behalf of the body corporate’s committee. Burnitt did not produce any form of authorisation. Brook believed that as a unit owner, Burnitt was able to make a complaint. Burnitt provided documents, including a report prepared by Deloitte at the request of the body corporate’s committee. The author of that report was Graham Newton. During the investigation, Brook obtained documents from various banking institutions relevant to each of the admitted transactions. All of the relevant transactions were recorded in bank accounts held by the body corporate and the appellant.

Evidence

Evidence Before The Court

The appellant made a number of admissions at trial. Relevantly, they included that he had made the 42 unauthorised withdrawals from the bank account held by the body corporate, that the monies so obtained had been placed in accounts under his own control before being used for payment of his own personal expenses, that he did not use any of the money so obtained for body corporate expenses and that he did not consult or tell any of the owners of units in the complex that he was transferring body corporate money into his own personal bank accounts.Evidence Detective Dylan Brook, the investigating officer, took two statements from Burnitt, who indicated he was making a complaint on behalf of the body corporate’s committee. Burnitt did not produce any form of authorisation. Brook believed that as a unit owner, Burnitt was able to make a complaint. Burnitt provided documents, including a report prepared by Deloitte at the request of the body corporate’s committee. The author of that report was Graham Newton. During the investigation, Brook obtained documents from various banking institutions relevant to each of the admitted transactions. All of the relevant transactions were recorded in bank accounts held by the body corporate and the appellant. Graham Newton, a partner at Deloitte, was engaged by the body corporate on or around 3 April 2012 to conduct a reconstruction of its bank accounts for a period between 2008 and 2011. He reviewed two Commonwealth Bank accounts, a Macquarie Bank account and a Suncorp bank account. The process involved identifying debit transactions from one account and identifying identical credit transactions in another account. Some of the transactions involved cheques or bank cheques. Others involved cash or transfers by electronic means. The investigation revealed that each of the 42 transactions the subject of the charge had resulted in the debiting of funds from the body corporate’s account and the crediting of similar amounts into accounts in the name of the appellant or entities associated with the appellant. There was also a repayment from the appellant’s account to the body corporate’s account in the sum of $70,000 on 16 February 2009. As a consequence of these transactions, the balance of funds in the accounts held by the body corporate significantly reduced and the funds in the accounts held by the appellant or associated with the appellant significantly increased over that same period of time. Those monies were transferred out of the accounts controlled by the appellant over time. In cross-examination, Newton accepted he had been involved in a number of investigations concerning fraudulent entries and false invoices. In each case, there was an element of dishonesty. These transactions appeared to be relatively straight forward. Bank accounts are easy to trace within Australia. They leave a paper trail. Jeremy Francis, an employee of the Commonwealth Bank, gave evidence identifying documents obtained from the Commonwealth Bank as part of Deloitte’s investigation. The documentation recorded transactions consistent with the 42 admitted transactions. The relevant documentation included withdrawal forms, bank cheques and bank statements. There were occasions when cash amounts were given as a consequence of a cheque being presented for cash. Each of the transactions had occurred in accordance with the approved method of operation of Commonwealth Bank accounts held in the name of the body corporate.

Decision

Reasons for decision

The comparable decisions relied upon by the appellant[36] do not support a contrary conclusion. In Barwood the offender’s “brazen, unscrupulous and persistent fraudulent conduct” had not resulted in anyone being out of pocket and any funding had not been wasted, being for the benefit of the university and general public. That was a significant distinguishing feature, supporting the significantly lesser head sentence of two years imprisonment for fraud. Similarly, whilst Meehan had engaged in serious fraudulent conduct, it had not resulted in loss to any client, a significant distinguishing feature to the present case.[36]R v Barwood, unreported, Martin SC DCJ, DC No 2086 of 2016, 25 October 2016; R v Meehan, unreported, Atkinson J, SC No 873 of 2017, 14 July 2017.Conclusion A consideration of the evidence as a whole amply supports a conclusion that it was open to the jury to find the appellant guilty of the offence, notwithstanding his assertions of an honest claim of right to the funds. The appellant has not established any ground upon which to set aside the jury’s verdict. A sentence of six years imprisonment was well within a proper exercise of the sentencing discretion in the present case. Further, the lack of insight and remorse justified, in the proper exercise of the Judge’s sentencing discretion, not fixing an earlier parole eligibility date. The sentence imposed was not manifestly excessive.Orders I would order:1.The appeal against conviction be dismissed.2.The application for leave to appeal against sentence be refused.

Ratio Decidendi

Legal Principle Established

The respondent submits a consideration of relevant authority supports a conclusion that a sentence of six years imprisonment was not manifestly excessive. Further, there was no basis to afford additional leniency by way of the fixing an earlier parole eligibility date. The failure to set such a date did not make the sentence imposed manifestly excessive.ConsiderationRepresentation An accused person does not have a right to representation in a criminal trial. However, the availability of legal representation is an important aspect of a fairly conducted criminal trial.[23] As Mason CJ and McHugh J observed in Dietrich v The Queen:[24]“For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.”Accordingly, a lack of legal representation may, in the circumstances of a particular case, result in an accused person not receiving a fair trial.[25][23]R v East [2008] QCA 144 at [52].[24](1992) 177 CLR 292 at 311.[25]Dietrich v The Queen (1992) 177 CLR 292 at 311; 335-336. There is no basis to conclude that the lack of legal representation resulted in the appellant not receiving a fair trial. The appellant was afforded considerable latitude, both in the timing and conduct of the trial, to account for his lack of legal representation. The trial itself was adjourned on two separate occasions, affording the appellant well over six months to prepare his defence of the proceeding. Further, the appellant was given time in the course of the trial, and afforded a liberal approach to his questioning of witnesses, notwithstanding the objection of the prosecution. His evidence, given at the previous trial, was admitted as part of the prosecution case. The appellant did not lose the benefit of not having given or called evidence, notwithstanding that in the course of the trial the appellant tendered documents. The prosecutor, properly, waived a right of address. A consideration of those matters together with a reading of the transcript of the trial supports a conclusion that the appellant persistently and forcefully advanced his defence of the charge. There is no basis to conclude the appellant was denied a fair trial as a consequence of his lack of legal representation.Unfair trial There is also no basis to conclude the conduct of the trial was unfair. Burnitt was an owner of units in the body corporate. The body corporate had provided a copy of the forensic report prepared by Deloitte to all unit holders. The fact the report had been prepared for consideration by the committee of the body corporate did not render its receipt by police unlawful or improper. Further, the taking of over $550,000 from the body corporate by the appellant for his own use was a matter in respect of which Burnitt, as a lot owner, had a legitimate interest, supporting a complaint to police. That complaint was properly accepted, having regard to a police officer’s responsibilities and obligations in relation to the investigation of alleged criminal offences.