R v Dobie

[2001] QCA 162

[2001] QCA 162

COURT OF APPEAL

de JERSEY CJ
THOMAS JA
MACKENZIE J

CA No 42 of 2001

THE QUEEN

v.

KEITH WILLIAM DOBIE  Applicant

BRISBANE

..DATE 27/04/2001

JUDGMENT

THE CHIEF JUSTICE:  The applicant pleaded guilty to six charges, one of being knowingly concerned in an attempted defrauding of the Commonwealth, one of being knowingly concerned in defrauding the Commonwealth, one of defrauding the Commonwealth and three of attempted defrauding of the Commonwealth.  The learned sentencing Judge took another seven counts into account, one of defrauding the Commonwealth and six of attempting to defraud the Commonwealth.

The offences involved the applicant in the submission to the Australian Taxation Office of fraudulent tax returns in various people's names designed to secure payments as tax refunds.  In fact, by these means the applicant gained $14,958 and was seeking to gain another $52,451.  He acted in some of the cases in conjunction with one Krogh who apparently devised the scheme, a scheme described by the learned sentencing Judge as "reasonably elaborate".

The applicant committed the first two offences, in time, while he was serving a term of three and a half years' imprisonment for other offences, imposed upon him on
15 January 1999.  They were offences of dishonesty.  He has a lengthy criminal history for dishonesty.  He is presently 41 years old, a single man, who has been described as an habitual offender in relation to matters of dishonesty.
He is a compulsive gambler who earnestly wishes to counter his addiction.  The sentencing Judge concluded that that addiction played no direct role in relation to these offences.

A matter of great significance is that after committing the first two offences he was on 10 July 2000 released on home detention and then proceeded to commit the remaining offences.  The Judge properly considered that an aggravating circumstance.  He was sentenced on each count to three years' imprisonment to commence upon the expiration of his then current sentence on the basis that he be released after nine months of those three year concurrent terms.  No reparation order was sought or made.  The Crown Prosecutor had sought a penalty of that order on the basis that it would sufficiently reflect the applicant's prior criminal history, his pleas and the totality principle. 

The applicant complains now in particular that the treatment accorded him is disproportionate to that accorded Krogh who, for his initial similar offending, was sentenced to four years imprisonment with an 18 month non-parole period and then for this similar post-incarceration offending in league with the applicant two years' imprisonment - two years, that is, to be contrasted with the three years imposed upon the applicant.  The result in a comparative sense is that whereas Krogh is subject to a non-parole period in the aggregate of two years and three months the applicant will have to serve three years and nine months.

It is fair to observe that Krogh and the applicant carried comparable criminality in respect of these offences albeit that the plan was Krogh's.  The point to be made rightly against the applicant is that he embraced that plan and during the period of home detention acted with a degree of independence. 

It is true that the amount of money involved in Krogh's offences was substantially more than the amount involved in the applicant's - indeed, almost five times more.  On the other hand, the applicant committed more offences in number - 13 compared with two in the case of Krogh - and the applicant carries the burden of a substantial past history for such offending in the sense that it involves dishonesty, whereas Krogh offended only in these and his own preceding cases.  He did not, prior to this so-called scam, have any convictions.  The applicant's history, on the other hand, as I have said, records offences of dishonesty going back to 1987 in respect of which he had been previously imprisoned.

It is of some interest to note that the applicant's counsel did not, at the hearing before the sentencing Judge, demur to the penalty suggested by the prosecutor, which was the penalty imposed by the Judge.

I consider that the penalties imposed here were appropriate given the nature of the offending, the pleas of guilty and the totality principle and other circumstances.  There is sufficient reason why the applicant was rightly treated somewhat more severely than Krogh, that reason essentially residing in the applicant's substantial relevant prior criminal history, absent in the case of Krogh. 

In my view there is no sufficient reason to warrant this Court's now disturbing the penalties imposed upon the applicant.  I would refuse the application.

THOMAS JA:  I agree.  I was for a time concerned about possible disparity between the applicant's sentences and those of Krogh.  In some respects the applicant's conduct was less serious than Krogh's and in others more serious.  I agree with the Chief Justice's perception that overall there was comparable criminality.  However, the applicant has a much worse criminal record and this factor justifies the Court in imposing a more severe sentence. 

Further, the applicant is subject to the State system which now imposes on those who re-offend during a current prison sentence somewhat harsher consequences than the Commonwealth fixed release system.  It is not appropriate that this Court should endeavour to manipulate or fine-tune sentences to overcome the effect of the system under which the applicant fell to be sentenced. 

All things considered I do not think that the applicant can legitimately claim a sense of grievance in relation to any disparity between his sentence and Krogh's.  I agree in the order proposed.

MACKENZIE J:  I agree.  In my view, the factors referred to by the Chief Justice and Justice Thomas adequately account for the difference in treatment of the two people who have been involved in the scheme and I agree in the order proposed.

THE CHIEF JUSTICE:  The application is refused.

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