R v Dick - [2022] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dick [2022] QCA 59

PARTIES:

R
v
DICK, Anthony Vivian
(applicant)

FILE NO/S:

CA No 190 of 2021
DC No 406 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 2 October 2020 (Dick SC DCJ)

DELIVERED ON:

22 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2022

JUDGES:

Fraser and Mullins JJA and Boddice J

ORDER:

Leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 11 counts of fraud – where the applicant was sentenced to an effective head sentence of eight years imprisonment – where the fraud occurred between 2006 to 2017 – where the applicant was a professional financial advisor – where the total amount of the fraud exceeded $1.1 million – where the applicant made admissions bringing the matter to the attention of authorities – where the applicant submits that consideration of comparable authorities supports the conclusion that the real value of the money involved in the fraud warranted a sentence of six years’ imprisonment – where the real value or inflation adjusted value of money is one consideration for sentence – where other factors include the sophistication of the fraud, the time period, whether the offender occupied a position of trust or authority, and whether any restitution has been provided among other aggravating or mitigating features – where the sentencing judge made no error of principle – whether the sentence was manifestly excessive

R v Elliott[2002] QCA 170, cited
R v Wallace[2015] QCA 62, cited
R v Wheeler and Sorrensen[2002] QCA 223, cited

COUNSEL:

The applicant appeared on his own behalf
B J Power QC for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
MULLINS JA: I agree with Boddice J.
BODDICE J: The applicant pleaded guilty to seven counts of fraud (dishonest application of property of another value of $30,000 or more), three counts of fraud (dishonest application of property of another subject to a trust, direction or condition) and one count of fraud (dishonest application of property of another value of/over $5,000).
On 2 October 2020, the applicant was sentenced to an effective head sentence of eight years’ imprisonment. Parole eligibility was fixed at 1 June 2023.
The applicant seeks leave to appeal his sentence. Should leave to appeal be granted, the applicant relies on one ground of appeal, that the sentence was manifestly excessive.
Background
The applicant was born on 5 April 1965. The offences were committed between 2006 and 2017, when the applicant was aged between 40 and 52.
The applicant’s offending involved 12 complainants. The applicant was a professional financial advisor. The complainants were members of his client base, who relied upon his professional advice. The funds were obtained largely from superannuation or retirement savings.
The total amount of the fraud exceeded $1.1 million. That money was used by the applicant for his own benefit, including to purchase personal property for his own use. There was no restitution.
The offending came to the attention of authorities when the applicant made admissions to the financial agency of which he was an authorised representative.
Sentence
The sentencing Judge observed that the amount of money involved, the position of trust and the financial pain caused to the complainants would ordinarily attract a sentence of nine years but, having regard to the applicant’s admissions to crimes not then known, the sentence was properly to be reduced for the cooperation shown by those admissions, and the subsequent pleas of guilty.
The sentencing Judge further observed that, whilst the amount of money involved in any fraud is an aggravating factor, sentencing did not involve a sliding scale according to money. General deterrence was an important part of any sentencing process for cases of this nature, as such offending takes away public trust in the way people conduct their financial affairs. Whilst the applicant’s fraud started when he was under financial pressures, the fraud was sophisticated, diverting money into accounts other than his own. Further, the applicant did so not just for need, but also for greed.
Submissions
The applicant submits that a consideration of comparable authority supports a conclusion that the real value of the money involved in his fraud warranted a sentence of six years’ imprisonment, with parole eligibility after serving two years of that sentence, particularly as he had cooperated through his self-disclosure, and exhibited genuine remorse.
Consideration
There is no substance in the applicant’s contentions. As the sentencing Judge properly observed, there is no sliding scale having regard solely to the amount of money the subject of the fraud. Relevant factors include not only the amount of money, but also any sophistication in the carrying out of the fraud, the time period over which the fraud was committed, whether the offender was in a position of trust and whether there has been any restitution or offer of restitution. Such aggravating features are to be considered in the context of mitigating features, such as cooperation and the offender’s personal circumstances.
In the present case, the sentencing Judge had regard to both the aggravating and mitigating features, as well as comparable authority, when imposing the effective head sentence of eight years’ imprisonment.
That sentence properly reflected the serious nature of the fraud, committed over many years by a professional advisor on vulnerable clients, while recognising the significant cooperation evidenced by the applicant’s self-disclosure and pleas of guilty. No error of principle was shown in the imposition of such a sentence.
Further, a consideration of comparable authority[1] supports a conclusion that such a sentence, with parole eligibility set after serving one third of that sentence, fell well within a sound exercise of the sentencing discretion.
[1]R v Elliott [2002] QCA 170; R v Wheeler and Sorrensen [2002] QCA 223; R v Wallace [2015] QCA 62.
While the applicant contended Elliott was not comparable due to the changing value of money between 2002 and now, Elliott is a relevant comparable. Like the applicant’s fraud, it concerned fraudulent conduct by a professional advisor in respect of vulnerable clients.
I would order that leave to appeal be refused.

Details

AGLC: R v Dick [2022] QCA 59
Case: [2022] QCA 59
Decision Date: 22 April 2022

CaseChat Overview and Summary

In the matter of R v Dick, the applicant sought leave to appeal his sentence after pleading guilty to multiple counts of fraud. The court was tasked with determining whether the applicant's sentence was manifestly excessive. The applicant, a professional financial advisor, had committed fraud amounting to over $1.1 million over a period of 11 years, exploiting his position of trust with vulnerable clients. The sentencing judge imposed an effective head sentence of eight years imprisonment, taking into account both the aggravating and mitigating factors, including the applicant's cooperation and remorse.

The court considered whether the sentence was manifestly excessive, evaluating the real value of the money involved, the sophistication of the fraud, the duration, the position of trust, and the lack of restitution. The applicant argued that comparable authorities suggested a sentence of six years was appropriate. However, the court found that the sentencing judge had properly exercised their discretion by considering all relevant factors and comparable cases, concluding that the eight-year sentence was justified and did not represent an error of principle.

Given the sophistication and duration of the fraud, the applicant's position of trust, and the absence of restitution, the court held that the sentence was within the sound exercise of the sentencing discretion. The consideration of comparable cases further supported the appropriateness of the sentence. Therefore, the court concluded that there was no basis for finding the sentence manifestly excessive. The application for leave to appeal was refused.

Orders

Orders of the court

Leave to appeal be refused.

Background

Background to the litigation

The applicant seeks leave to appeal his sentence. Should leave to appeal be granted, the applicant relies on one ground of appeal, that the sentence was manifestly excessive.Background The applicant was born on 5 April 1965. The offences were committed between 2006 and 2017, when the applicant was aged between 40 and 52. The applicant’s offending involved 12 complainants. The applicant was a professional financial advisor. The complainants were members of his client base, who relied upon his professional advice. The funds were obtained largely from superannuation or retirement savings. The total amount of the fraud exceeded $1.1 million. That money was used by the applicant for his own benefit, including to purchase personal property for his own use. There was no restitution. The offending came to the attention of authorities when the applicant made admissions to the financial agency of which he was an authorised representative.Sentence The sentencing Judge observed that the amount of money involved, the position of trust and the financial pain caused to the complainants would ordinarily attract a sentence of nine years but, having regard to the applicant’s admissions to crimes not then known, the sentence was properly to be reduced for the cooperation shown by those admissions, and the subsequent pleas of guilty. The sentencing Judge further observed that, whilst the amount of money involved in any fraud is an aggravating factor, sentencing did not involve a sliding scale according to money. General deterrence was an important part of any sentencing process for cases of this nature, as such offending takes away public trust in the way people conduct their financial affairs. Whilst the applicant’s fraud started when he was under financial pressures, the fraud was sophisticated, diverting money into accounts other than his own. Further, the applicant did so not just for need, but also for greed.Submissions The applicant submits that a consideration of comparable authority supports a conclusion that the real value of the money involved in his fraud warranted a sentence of six years’ imprisonment, with parole eligibility after serving two years of that sentence, particularly as he had cooperated through his self-disclosure, and exhibited genuine remorse.Consideration There is no substance in the applicant’s contentions. As the sentencing Judge properly observed, there is no sliding scale having regard solely to the amount of money the subject of the fraud. Relevant factors include not only the amount of money, but also any sophistication in the carrying out of the fraud, the time period over which the fraud was committed, whether the offender was in a position of trust and whether there has been any restitution or offer of restitution. Such aggravating features are to be considered in the context of mitigating features, such as cooperation and the offender’s personal circumstances. In the present case, the sentencing Judge had regard to both the aggravating and mitigating features, as well as comparable authority, when imposing the effective head sentence of eight years’ imprisonment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant submits that a consideration of comparable authority supports a conclusion that the real value of the money involved in his fraud warranted a sentence of six years’ imprisonment, with parole eligibility after serving two years of that sentence, particularly as he had cooperated through his self-disclosure, and exhibited genuine remorse.Consideration There is no substance in the applicant’s contentions. As the sentencing Judge properly observed, there is no sliding scale having regard solely to the amount of money the subject of the fraud. Relevant factors include not only the amount of money, but also any sophistication in the carrying out of the fraud, the time period over which the fraud was committed, whether the offender was in a position of trust and whether there has been any restitution or offer of restitution. Such aggravating features are to be considered in the context of mitigating features, such as cooperation and the offender’s personal circumstances. In the present case, the sentencing Judge had regard to both the aggravating and mitigating features, as well as comparable authority, when imposing the effective head sentence of eight years’ imprisonment. That sentence properly reflected the serious nature of the fraud, committed over many years by a professional advisor on vulnerable clients, while recognising the significant cooperation evidenced by the applicant’s self-disclosure and pleas of guilty. No error of principle was shown in the imposition of such a sentence. Further, a consideration of comparable authority[1] supports a conclusion that such a sentence, with parole eligibility set after serving one third of that sentence, fell well within a sound exercise of the sentencing discretion.[1]R v Elliott [2002] QCA 170; R v Wheeler and Sorrensen [2002] QCA 223; R v Wallace [2015] QCA 62. While the applicant contended Elliott was not comparable due to the changing value of money between 2002 and now, Elliott is a relevant comparable. Like the applicant’s fraud, it concerned fraudulent conduct by a professional advisor in respect of vulnerable clients. I would order that leave to appeal be refused.

CITATION:	R v Dick [2022] QCA 59
PARTIES:	R v DICK, Anthony Vivian (applicant)
FILE NO/S:	CA No 190 of 2021 DC No 406 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 2 October 2020 (Dick SC DCJ)
DELIVERED ON:	22 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2022
JUDGES:	Fraser and Mullins JJA and Boddice J
ORDER:	Leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 11 counts of fraud – where the applicant was sentenced to an effective head sentence of eight years imprisonment – where the fraud occurred between 2006 to 2017 – where the applicant was a professional financial advisor – where the total amount of the fraud exceeded $1.1 million – where the applicant made admissions bringing the matter to the attention of authorities – where the applicant submits that consideration of comparable authorities supports the conclusion that the real value of the money involved in the fraud warranted a sentence of six years’ imprisonment – where the real value or inflation adjusted value of money is one consideration for sentence – where other factors include the sophistication of the fraud, the time period, whether the offender occupied a position of trust or authority, and whether any restitution has been provided among other aggravating or mitigating features – where the sentencing judge made no error of principle – whether the sentence was manifestly excessive R v Elliott[2002] QCA 170, cited R v Wallace[2015] QCA 62, cited R v Wheeler and Sorrensen[2002] QCA 223, cited
COUNSEL:	The applicant appeared on his own behalf B J Power QC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent