R v Flint

Case [2015] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION:

R v Flint [2015] QCA 275

PARTIES:

R
v
FLINT, Matthew John
(applicant)

FILE NO/S:

CA No 137 of 2015
DC No 63 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Bowen – Unreported, 17 February 2015

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2015

JUDGES:

Margaret McMurdo P and Morrison JA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed to the extent of omitting the orders that the applicant pay the sum of $17,832.14 to the Registrar of the District Court at Bowen within two years for transmission to Trinity Marine Pty Ltd, PO Box 590, Airlie Beach 4802; in default of payment within that time, that the applicant be imprisoned for a period of nine months; in the event of non-payment that the applicant appear in the District Court at Bowen when called upon by notice given to him to show cause why imprisonment should not be imposed for failure to pay that sum.

3.   The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to fraud involving property of a value of more than $30,000 – where the applicant was employed by the complainant and his responsibilities included creating invoices for customers on the business accounting software used by the complainant – where on 17 occasions involving 16 customers, the applicant provided his personal banking details instead of those of the complainant, so that the customers paid him not the complainant – where the total amount defrauded in this way was $65,021.28 – where to avoid detection, the applicant used the complainant’s computer software to amend the customers’ invoices to reflect lower amounts than charged to and paid by the complainants – where the applicant then used an eftpos machine of a subsidiary business of the complainant to transfer the lower amount in the amended invoices to the complainant’s bank account – where the applicant retained the differences between the two amounts, in total $32,832.14 – where the applicant paid into court $15,000 which was paid to the complainant – where the applicant was sentenced to two and a half years imprisonment suspended after eight months with an operational period of three years – where the court further ordered that the applicant pay $17,832.14 to the complainant within two years and if the applicant was in default, the applicant would be imprisoned for a further nine months – where the applicant contends that the sentence is manifestly excessive in relation to the compensation order of $17,832.14 – whether the sentence is manifestly excessive

Bankruptcy Act 1966 (Cth), s 82(3)
Penalties and Sentences Act 1992 (Qld), s 188

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Details
AGLC
R v Flint [2015] QCA 275
Case
[2015] QCA 275
Decision Date

CaseChat Overview and Summary

The case of R v Flint involved an appeal against sentence, where the applicant pleaded guilty to fraud involving property of a value of more than $30,000. The applicant, employed by the complainant, had misappropriated funds by substituting his own banking details for those of the complainant on invoices, resulting in a total fraud of $65,021.28. To avoid detection, he manipulated the accounting software and amended invoices to reflect lower amounts, subsequently transferring only the lower amount to the complainant’s account. After paying $15,000 into court, the applicant was sentenced to two and a half years imprisonment, suspended after eight months with an operational period of three years. Additionally, he was ordered to pay $17,832.14 to the complainant within two years, with a further nine-month imprisonment if in default. The applicant argued that the sentence, in relation to the compensation order, was manifestly excessive.

The legal issues before the court were whether the sentence was manifestly excessive given the compensation order and whether further evidence should be admitted regarding the applicant’s financial situation. The court noted that the compensation order was a penalty under the Bankruptcy Act 1966 (Cth) and thus unaffected by bankruptcy. The applicant sought to adduce further evidence of his financial position post-release from prison, but the court found the affidavit insufficient as it did not provide current information about his financial status, employment prospects, or assets. The court concluded that the additional evidence would not demonstrate that another sentence was warranted.

The court held that the sentence was manifestly excessive because there was no evidence that the applicant had the capacity to pay the compensation order upon his release from prison. The applicant’s financial situation, compounded by debts and lack of employment prospects, indicated he could not meet the compensation requirement. Therefore, the court allowed the appeal, omitting the compensation order, while confirming the rest of the sentence.

ORDERS:
1. The application for leave to appeal is granted.
2. The appeal is allowed to the extent of omitting the orders that the applicant pay the sum of $17,832.14 to the Registrar of the District Court at Bowen within two years for transmission to Trinity Marine Pty Ltd; in default of payment within that time, that the applicant be imprisoned for a period of nine months; in the event of non-payment that the applicant appear in the District Court at Bowen when called upon by notice given to him to show cause why imprisonment should not be imposed for failure to pay that sum.
3. The sentence imposed at first instance is otherwise confirmed.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed to the extent of omitting the orders that the applicant pay the sum of $17,832.14 to the Registrar of the District Court at Bowen within two years for transmission to Trinity Marine Pty Ltd, PO Box 590, Airlie Beach 4802; in default of payment within that time, that the applicant be imprisoned for a period of nine months; in the event of non-payment that the applicant appear in the District Court at Bowen when called upon by notice given to him to show cause why imprisonment should not be imposed for failure to pay that sum.

3. The sentence imposed at first instance is otherwise confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At the hearing this Court raised with the parties whether, and if so, how, the order for compensation would be affected by any subsequent bankruptcy of the applicant. The parties were given leave to make a further written submission after the hearing on this matter. They helpfully produced a joint outline which makes clear that the compensation order in this case is a penalty as defined in s 4 Penalties and Sentences Act and is therefore a penalty under s 82(3) Bankruptcy Act 1966 (Cth). Under s 82(3) penalties imposed by a court in respect of an offence against a law, including a state law, are not provable in the bankruptcy. If the applicant were to become bankrupt, his liability under the compensation order would be unaffected and the availability to creditors in the bankruptcy to his estate would be unaffected by the order for compensation: Victoria v Mansfield.[17]Conclusion[17][2003] FACFC 154; (2003) 199 ALR 395, [15], [29] – [33] and [51].The application to adduce further evidence The applicant’s affidavit, which is the further evidence he seeks to adduce, is not helpful as it does not provide any current information as to his financial position since his release from prison in mid-October, about six weeks before his appeal hearing. The affidavit does not disclose whether he has declared or is about to declare bankruptcy, whether he has obtained or is about to obtain employment, or any details of his current assets, income and liabilities. It is not possible to conclude that the admission of the applicant’s affidavit evidence would demonstrate that some other sentence whether more or less severe was warranted in law.[18] For those reasons the application to adduce further evidence must be refused.[18]R v Maniadis [1997] 1 Qd R 593.Does the further compensation order make the sentence manifestly excessive? The applicant’s counsel at sentence did not state in terms that the applicant lacked capacity to pay the $17,832.14 compensation to the complainant after his release from prison. The only rational inference, however, from the material placed before the sentencing court was that the applicant would have serious difficulty in paying that amount of compensation at that time. This followed from the evidence of his parlous financial position following his marriage breakup which his counsel gave as the primary reason for the offending. It was not contested at sentence that the applicant owed a debt to the bank of about $75,000 after the sale of his house and that he had a further debt to the person who lent him $15,000 for the compensation that he paid to the complainant. He was represented by Legal Aid Queensland. There was no evidence that he would have employment on his release from prison. Two referees said that, should they be in the position to offer him employment, they would do so, but one was retired and apparently not in a position to offer employment and the other only offered a position should one become available. The only rational inference was that he had no assets of value. There was no evidence before the court as to his likely income and commitments when released from prison when he would have to repay his other significant debts and support not just himself but also his young daughter. The applicant’s counsel did not by his silence implicitly imply that his client could pay the remaining compensation when released from prison. The judge should have concluded that there was no evidence that the applicant had the capacity to make the remaining compensation.

Ratio Decidendi

Legal Principle Established

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