SUPREME COURT OF QUEENSLAND
CITATION: R v Gliddon [2021] QCA 248 PARTIES:
R v GLIDDON, Anthony Michael
(applicant) FILE NO/S:
CA No 177 of 2021 DC No 330 of 2019
DIVISION: Court of Appeal PROCEEDING: Sentence Application ORIGINATING COURT: District Court at Brisbane – [2021] QDC 137 (Smith DCJA) DELIVERED ON: 19 November 2021 DELIVERED AT: Brisbane HEARING DATE: 10 November 2021 JUDGES: Sofronoff P and Bond JA and Henry J ORDERS:
1. Leave to appeal sentence granted. 2. Appeal allowed.
3.
The sentence imposed in the District Court is quashed and in substitution therefor it is ordered:
(a) the applicant is fined $5,000;
(b) if the fine is not paid by 31 March 2022 the applicant is to be imprisoned for a period of three months;
(c) no conviction is recorded.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE –
SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant repaired and sold caravans which had previously been registered as roadworthy vehicles but had been written off due to damage – where the applicant disclosed this to prospective purchasers – where the
applicant believed registration of the repaired vehicles was allowed because of the rules in Queensland – where the sentencing judge accepted the Chief Executive had the discretion to authorise registration of previously written off
vehicles – where the applicant was initially charged with various serious offences – where over four years later the
indictment before the District Court was discontinued and the applicant pleaded guilty to a new indictment charging him with a single count of fraud – where the charge was premised upon the allegedly inducing consequences of the applicant’s manner of completion of 73 Vehicle Registration Application forms –
where the benefit of the fraud to the applicant was only that the caravans were registered somewhat more quickly than they
otherwise would have been – where the applicant was sentenced to 15 months imprisonment wholly suspended for an operational period of two years – where the applicant is 69 years old and in poor health, has no relevant criminal history, had already borne the pressure and expense of having to defend himself, pleaded guilty at an early stage and had not
offended further since this offence – whether the sentence was manifestly excessive in the circumstances Motor Dealers and Chattel Auctioneers Act 2014 (Qld),
s 26(5), s 62Criminal Code Act 1899 (Qld), s 194, s 408C, s 568(3) s 12(3), s 182A
Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld), s 17 Transport Operations (Road Use Management) Act 1995 (Qld), s 52(2) Gould v Vaggelas (1984) 157 CLR 215; [1985] HCA 75, cited Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545; [1999] FCA 357, cited
Hawker de Havilland Aerospace Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2005] FCA 804, cited
R v Moxon [2015] QCA 65, cited
R v Singleton;…
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- AGLC
- R v Gliddon [2021] QCA 248
- Case
- [2021] QCA 248
- Decision Date
CaseChat Overview and Summary
The court found that the offence, while serious, was less grave than previous cases of fraud considered in the submissions. It noted that the principle of personal deterrence was not strongly applicable as the appellant had already endured a lengthy and costly defence against more serious charges. Additionally, the court found no compelling reason why the appellant’s status as a licensed motor dealer during the offending period should increase the severity of the sentence. Given the appropriate level of criminality and the absence of relevant criminal history, the court concluded that a non-custodial sentence was more appropriate.
Considering the nature of the offence and the arguments presented, the court determined that a substantial fine was the most suitable form of punishment. The fine was intended to serve both as a punishment and a deterrent, particularly given the appellant's involvement in the vehicle registration business. The court re-sentenced the appellant to a substantial fine, acknowledging that the original sentence had been imposed due to an error in identifying the legal foundation for liability.
ORDERS:
1. Leave to appeal sentence granted.
Orders
Orders of the court
1.
Leave to appeal sentence granted.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The respondent also sought to characterise the consequence of the offence as undermining the system of registration. It is of course important that the public complete Vehicle Registration Application forms truthfully and that, when they do not, the ensuing sentence gives weight to deterrence. The difficulty for the respondent here is that the undermining consequence it so emphasises is no different in gravity than the undermining consequence of the conduct if it had been charged as offences of making a false declaration or making a false statement, which are less serious offences than fraud. Charging the offence as fraud did not uplift the comparable gravity of that consequence. Consideration It turns out that this was a comparably much less serious fraud than most. It was materially less serious than any of the past fraud sentences referred to in the parties’ submissions.[15] [15] R v Singleton; R v Singleton [2019] QCA 302; R v Moxon [2015] QCA 65. Fraud remains within that category of offence to which the principle in s 9(2)(a) Penalties and Sentences Act 1992 (Qld) applies, namely that “a sentence of imprisonment should only be imposed as a last resort”. The sentence of imprisonment imposed below was no less a sentence of imprisonment by reason of its suspension. Having regard to the level of criminality involved and the applicant’s absence of any relevant criminal history a sentence of imprisonment was not warranted. That such a sentence was imposed demonstrates there must have been error. In fairness to the learned sentencing judge, that error appears to have largely been a product of the parties’ failure, amidst their obviously pragmatic resolution of this unfortunate saga, to properly identify a legal foundation for liability. It falls to this court to re-sentence the applicant. Once it is accepted that a non- custodial sentence is apt, a substantial fine presents as the most appropriate form of punishment here. The offending was of course prolonged and there were many registration forms involved, but other considerations are also relevant in arriving at an appropriate quantum of fine. Personal deterrence would ordinarily be a significant consideration, in that the offending was persistent and the applicant has been in, and apparently aspires to continue to be in, the business of repairing vehicles in order that they may registered to his customers. However, the applicant has already borne the pressure and expense of having to defend himself, in a no costs jurisdiction, against more serious charges for more than four years before they were dropped. That process, in itself an indirect punishing consequence of his foray into wrongful completion of registration forms, will already have had a strong deterrent effect against him again being tempted to fill out a registration form incorrectly or incompletely. Personal deterrence is not a significant consideration in the circumstances. It was submitted that because the applicant became a licensed motor dealer during the offending period, that made the continuation of his offending more serious than it otherwise would have been. The detail of why that would be so went unexplained. For instance, it was not suggested the applicant’s status as a motor dealer made the wrongful completion of registration forms by him less likely to be detected than forms wrongly completed by any other declarant. Nonetheless it may be accepted it is more than ordinarily important that registration forms are filled out correctly by those who are in business as motor dealers because of the frequency with which they complete such forms. The desirability of a sentence tending to deter such persons from dishonest completion of such forms is self-evident.