R v Esdale; ex parte

[2000] QCA 159

[2000] QCA 159

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
FRYBERG J

[R v ESDALE & Anor]

CA No 37 of 2000

THE QUEEN

v.

GEOFFREY KENNETH ESDALE  Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND             Appellant

BRISBANE

..DATE 04/05/2000

JUDGMENT

MACKENZIE J:  This is an Attorney-General's appeal against sentences imposed on the respondent for offences of misappropriation of property in excess of $5,000 and fraud in excess of $5,000.  He was fined $3,000 on the former and $2,000 on the latter.  No convictions were entered.  The respondent indicated at a very early stage of proceedings that he would plead guilty.

The first offence occurred in March or April 1997 and the second in the third quarter of 1998 at a time after the respondent and his wife had separated.  They are now divorced.  The first offence came to light during negotiations of property settlement.

The respondent was 47 or 48 years old at the time of the offences and had no previous convictions. He is a justice of the peace and holds a licence as a real estate agent employed as a sales person under the Auctioneers and Agents Act.

He was accustomed to conduct business transactions on behalf of himself and his wife during the marriage with her tacit consent.  However, it was not suggested that he had her consent to the transactions in the indictment.

In 1997 he was in debt to the extent of $75,000 to a stockbroking firm due to unwise transactions during the time the marriage was breaking down.  He was required to repay the debt urgently under threat of bankruptcy and arranged with a company of which a friend was a director to borrow the $75,000.

The documentation for the mortgage, which was a second mortgage, was prepared in the name of the respondent and his wife and it was said that, under pressure of the demand and knowing that his wife would not sign the mortgage, he forged her signature.  I need not go into the intricacies of whether he had to sign the document in that form at this point because a plea of guilty has been entered and no point was made in that regard.  In any event, the $75,000 were advanced and the debt to the stockbroker discharged. 

The factual material placed before the sentencing Judge was that, even taking into account the first mortgage and the second mortgage, the value of the property was such that there was no real risk of the respondent's wife losing her money.  Indeed, as part of the matrimonial property settlement in about October 1997, arrangements were made which resulted in the debt over the property being discharged and the wife paid her share.

It was alleged, without contradiction, that the settlement had been influenced by the fact that the wife's solicitors knew of the unlawful transaction and that the matter was not brought to the notice of the police for about 12 months, after the respondent had made a complaint of assault against his former wife's new companion.

The second offence was discovered by the police when they executed a search warrant in connection with the first offence.  The respondent and his wife had become entitled to shares in the AMP float and the respondent filled in the necessary documents for both of them.  He then sold the shares but was told that the stockbroker needed a signed authority from the former wife to transfer the proceeds to his account.  He presented a document purporting to be signed by the wife and the money was paid to his account.

Subsequently, after the offence had come to light he reimbursed her for her share of about $7,000.  According to a psychologist who, rather unusually, had contact with the respondent in 1996 when he participated in a pilot group for separated men and in a subsequent similar program in 1998 and as an individual client, the respondent had suffered a major depressive episode dating from about the time of his marriage breakdown and that the respondent attributed his abnormal actions to "desperation, confusion and despair" in the midst of it.

Counsel for the Attorney-General submits that the sentencing Judge erred in failing to impose a sentence that would act as a general deterrent, failing to give sufficient weight to the fact that the respondent was a justice of the peace who, by forging a mortgage document, obtained $75,000 and failing to record a conviction given the nature and magnitude of the offences of dishonesty.

It was submitted that a short term of imprisonment and recording of a conviction was called for.  That would be automatic if a suspended sentence, which was all that was sought, was imposed.  It is, of course, a live issue as to whether a conviction should be recorded if the appeal were not allowed to the extent of imposing some term of imprisonment.

The submission essentially was whether fraud to a value in excess of $80,000 by a justice of the peace was appropriately deterred by fines of $5,000 and not recording a conviction.

It was submitted that, despite the matrimonial context, the respondent had forged legal documents to obtain substantial sums of money and had implicated, or persuaded at least, another justice of the peace to witness the forged documents.

During the sentencing submissions it was assumed that the respondent would cease to hold a real estate license as a result of proceedings whether a conviction was recorded or not. 

However, the submission was made that, given the respondent's age, it may assist him to find work if there were no conviction and the sentencing Judge, on the assumption that was acted upon, was persuaded not to record convictions.

The interpretation of section 29 of the Auctioneers and Agents Act was discussed by Mr Justice McPherson in the matter of Gallagher and proper interpretation of the section is something that would have to be resolved if it became necessary in these proceedings.

The view is taken by the Office of Fair Trading that the order that has been made does not automatically result in cancellation of the license and that is based on the proposition that the non-entry of a conviction achieves that effect.

In the result that I have come to, it is not necessary to finally resolve today the issue of the proper interpretation of section 29, although I would consider it still an open question.

Otherwise in his sentencing remarks the sentencing Judge referred to the fact that the forgery was serious.  However, he took into account that it was committed at the time of stress in the life of the applicant, that no loss was actually caused, the respondent's age, the absence of prior convictions, the fact that he was a Justice of The Peace and of good character prior to the offences, that he had addressed his problems by obtaining counselling and attending relevant courses, and that he had participated in a full hand-up and given an early indication of a plea of guilty notwithstanding the original reaction when questioned was a denial.

The learned sentencing Judge concluded that fines were a sufficient punishment.  Stripped to the essentials the first offence was committed to stave off a demand made in respect of a debt incurred by the respondent.

Knowing that his wife would not co-operate he forged her signature and persuaded the Justice of The Peace to witness the signature.  This was done in the aftermath of the marriage break-down and emotional turmoil which resulted from it.

No loss was actually caused to anyone.  The respective rights of the parties were adjusted in the matrimonial settlement.  The mortgagee also suffered no loss although it was defrauded in the sense that it was induced to act on the false assumption that the document was genuine.

The second offence arose in the situation where he had been accustomed to conducting share transactions on behalf of both himself and his wife during the marriage, but he could not have believed that he had any authority at the time of the offence to deal with shares to which his wife was entitled.

The shares were derived from policies in the wife's name or in joint names and prima facie were ones to which she had some entitlement without payment, as is common knowledge in the case of the AMP float.

Knowing this he forged the authority to enable the money to be paid to his account.  There was a clear intent to conceal her entitlement from her.  Subsequently after the offence had been discovered he paid his wife the sum representing her entitlements.

On that occasion there was no evidence of any pressing need for money although there was reference to the fact that he had obligations under the Family Court order and to his father.  Each offence in a way involves a quite deliberate intent to keep knowledge of what was occurring from his wife.

In my view it cannot be overlooked that the assumption upon which the sentencing Judge acted was that the respondent would lose his license as a real estate agent irrespective of whether a conviction was entered or not and for that reason it seems to me that the discretion is re-enlivened.

So far as the primary question is concerned whether the disposition by way of fines was within the proper exercise of sentencing discretion, I have come to the conclusion, although the matter is close to the borderline, that it was and for that reason I would not disturb the imposition of the fines.  However, taking into account the assumption upon which the decision to not record a conviction was taken, and having regard to the factors that must be taken into account in addressing that issue, it seems to me that when one balances the public interest aspects of real estate agents not committing offences of fraud and the person circumstances of the respondent, the balance lies in favour of recording convictions on each of the offences and I would therefore allow the Attorney's appeal by deleting the order that no conviction be recorded on each offence and substituting an order that a conviction be recorded for each offence.

McPHERSON JA:  Yes, I agree.

FRYBERG J:  I agree.

McPHERSON JA:  The Attorney-General's appeal will be allowed to the extent of recording convictions in respect of each offence.
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