R v East

Case [2021] QCA 54

SUPREME COURT OF QUEENSLAND

CITATION:

R v East [2021] QCA 54

PARTIES:

R
v
EAST, Daniel Alan
(applicant)

FILE NO/S:

CA No 221 of 2020
DC No 2562 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 19 June 2020 (Loury QC DCJ)

DELIVERED ON:

26 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2021

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal against sentence be allowed.

3.   On each count, the applicant be sentenced to six years’ imprisonment, each sentence to be served concurrently with the other.

4.   The applicant be eligible for parole after serving 18 months of those sentences.

5.   The one day the applicant served in custody, between 17 August and 19 August 2015, be time served in respect of those sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERALLY – where the applicant pleaded guilty to two counts of fraud to the value of $30,000 or more – where the applicant was sentenced to six years’ imprisonment on each count, to be served concurrently, with a parole eligibility date fixed after having served 20 months of that sentence – where the applicant submits that the sentencing Judge erred in the determination of disputed facts on sentence – where the applicant gave evidence at the contested hearing – where the applicant’s counsel stated that it had been agreed between the prosecution and defence that the sentence hearing proceed on the basis that none of the applicant’s evidence would be taken into account, except for specified purposes – where the parties agreed for the sentencing hearing to proceed before the same sentencing Judge on the basis that the evidence of the applicant be disregarded, other than for specified purposes – where that course was expressly accepted by the sentencing Judge – whether use of the applicant’s evidence was contrary to the procedure agreed to by the parties and accepted by the sentencing Judge

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED MATTERS – where the applicant submits that the sentencing Judge erred in failing to consider parity when imposing the applicant’s sentence – where the applicant submits the failure to consider parity resulted in the imposition of a sentence which left the applicant with a justifiable sense of grievance – where the respondent submits that the sentencing Judge did not err in relation to the parity principle – whether a sentence of six years’ imprisonment represents a proper reflection of the differing roles of the applicant’s co-offenders in their joint criminal enterprise

R v Crouch; R v Carlisle[2016] QCA 81, cited
R v Henderson[2014] QCA 12, cited
R v KAX[2020] QCA 218, cited
R v Kelly[2016] QCA…

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Details
AGLC
R v East [2021] QCA 54
Case
[2021] QCA 54
Decision Date

CaseChat Overview and Summary

The case of R v East is an appeal against sentence brought before the court by the applicant, who had pleaded guilty to two counts of fraud. The applicant was sentenced to six years’ imprisonment on each count, to be served concurrently, with parole eligibility set after having served 20 months of that sentence. The primary issues before the court were whether the sentencing Judge erred in the determination of disputed facts on sentence, and whether the sentencing Judge failed to consider parity when imposing the applicant’s sentence. The applicant argued that the sentencing Judge had used his evidence contrary to the agreed procedure, resulting in a lack of procedural fairness. Additionally, the applicant contended that the failure to consider parity resulted in the imposition of an excessive sentence, leaving the applicant with a sense of grievance. The respondent argued that the sentences imposed were not disparate, unreasonable, or plainly unjust, and that the sentencing Judge had correctly identified the applicant’s role within the criminal enterprise.

The court found that the sentencing Judge had indeed erred by using the applicant’s evidence contrary to the agreed procedure, which constituted a denial of criminal responsibility and resulted in a lack of procedural fairness. This error warranted a re-exercise of the sentencing process. The court also noted that the applicant played a key role in the criminal enterprise but found that the evidence was insufficient to establish that the applicant was a part owner of the business. The court concluded that the applicant’s role as sales manager, while integral, did not warrant a different sentence from that of his co-offenders. The court held that the applicant’s sentences were to be reduced, with parole eligibility set at 18 months.

In conclusion, the court granted leave to appeal and allowed the appeal against sentence. The applicant was sentenced to six years’ imprisonment on each count, to be served concurrently, with parole eligibility set at 18 months. The court ordered that the one day the applicant served in custody, between 17 August and 19 August 2015, be time served in respect of those sentences.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal against sentence be allowed.

3. On each count, the applicant be sentenced to six years’ imprisonment, each sentence to be served concurrently with the other.

4. The applicant be eligible for parole after serving 18 months of those sentences.

5. The one day the applicant served in custody, between 17 August and 19 August 2015, be time served in respect of those sentences.

Background

Background to the litigation

The applicant seeks leave to appeal those sentences. Two grounds of appeal are relied upon by the applicant. First, that the sentencing Judge erred in the determination of disputed facts on sentence. Second, that the sentencing Judge failed to consider parity and, as a result, imposed an excessive sentence. It is conceded that, should proposed ground one fail, there is no basis for ground two to succeed.Background The applicant was born on 28 August 1982. He was aged 31 and 32 at the commission of the offences and 38 at sentence. He had no prior criminal history. The applicant’s sentence hearing proceeded on a contested basis. Whilst accepting that he was guilty of the offences, the applicant did not accept that he was a part owner of the business which engaged in the fraudulent conduct or that he was aware that the products, the subject of that fraudulent conduct, were incapable of operating as indicated to customers.Offences The applicant was charged with having committed the offences with three co-accused, Stiofan Ceitinn, Aaron Colin East and Neil John McKenny. Ceitinn and Aaron East were each sentenced to eight years’ imprisonment for each of the offences, with parole eligibility dates set after serving two and a half years of those sentences. McKenny was sentenced to five and a half years’ imprisonment, with parole eligibility set at 20 months.[1][1]It was accepted at sentence that this sentence was not a useful yardstick as McKenny was also sentenced for other offending and had undertaken to give evidence. AB450 – 451; para 12. Each count of fraud was committed between 1 January 2014 and 18 August 2015. Each arose out of a “boiler room” enterprise. The objective was to dishonestly induce customers, through a telemarketing scheme, to buy software. The applicant and his co-accused were participants in that joint criminal enterprise. The criminal enterprise was related to a separate, but very similar, operation involving McKenny, and two other men. Those three persons were the founding partners of that separate scheme. It was accepted that McKenny had devised and established the enterprise, the subject of the applicant’s offending. The sentence hearing proceeded on the basis that the applicant was initially employed in the criminal enterprise as a commission salesman but was promoted to sales manager during the period of the offences.Sentence hearing The applicant’s pleas of guilty were entered on the basis of a schedule of facts which, in large measure, was not disputed by the applicant. Facts not in dispute included that the enterprise had sold two different software packages, one being a sports arbitrage betting package and the other an automatic gold trading package; that the sales activity for the first package had resulted in 150 complainants purchasing the software for a little under $2 million; that the second package had resulted in 10 customers purchasing that package for a sum a little over $117,000; that each of the co-accused received significant sums from the operation of the enterprise. Aaron East received a little over $300,000. The applicant received $282,517.06. Ceitinn received $230,728.61. McKenny received $170,444.44.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent further submits that the sentencing Judge did not err in relation to the parity principle. The sentences imposed on the applicant were not disparate, unreasonable or plainly unjust and did not give rise to any justifiable sense of grievance, having regard to the sentences imposed on his co-offenders. Each had different levels of criminality. The sentencing Judge correctly identified the applicant’s role within that enterprise, namely, that as sales manager he was an integral part of the enterprise, without whose efforts the enterprise would not have been able to defraud so many citizens of so much money.ConsiderationGround One Although the sentencing hearing was conducted on the basis that the applicant accepted his guilt of the offence, but disputed his level of involvement within the criminal enterprise and his knowledge of the product’s inability to perform as marketed, the sentencing Judge rightly concluded that the evidence given by the applicant at that hearing constituted a denial of criminal responsibility, such that the pleas of guilty could not stand in the face of that evidence. Thereafter, the parties agreed for the sentencing hearing to proceed before the same sentencing Judge on the basis that the evidence of the applicant be disregarded, other than for specified purposes. That course was expressly accepted by the sentencing Judge. However, the sentencing Judge had regard to aspects of the applicant’s evidence for the purpose of adverse findings as to remorse. Such a use of the applicant’s evidence was contrary to the procedure agreed to by the parties and accepted by the sentencing Judge. That being so, an important fact was determined in a way which gives rise to a lack of procedural fairness. That is an error warranting a re-exercise of the sentencing process. This conclusion renders it unnecessary to formally consider Ground Two, although principles of parity will be relevant in the re-exercise of the sentencing discretion.Re-sentenceDisputed facts A consideration of the evidence led at the sentencing hearing, absent any consideration of the applicant’s evidence, supports a conclusion that, whilst the applicant played a key role in the criminal enterprise, initially as a successful salesperson and subsequently as sales manager, the evidence as a whole is insufficient to establish to the requisite high standard that the applicant was a part owner of the business. Not only were his co-offenders initiators of an earlier, similar scheme, they were plainly the persons in ultimate control of the criminal enterprise. The fact that the applicant received the second highest amount from the proceeds of the sales of the software does not alter that conclusion. The receipt of such funds is entirely consistent with the applicant’s position as a successful salesperson and, subsequently, sales manager of a profitable criminal enterprise operated over almost two years. The second disputed fact is to be determined in the context of the applicant’s express acceptance that he had made, and assisted others to make, representations as set out in Schedules A and B to the Statement of Facts, which he knew to be false. Those representations, in large measure, dealt with the attributes and advantages of the software packages being marketed as part of the joint criminal enterprise.