R v Grant

[1999] QCA 497

99.497

COURT OF APPEAL

McMURDO P DAVIES JA HELMAN J

CA No 361 of 1999
THE QUEEN
v.

CHARLES EDWARD GANT	Applicant
BRISBANE ..DATE 30/11/99
JUDGMENT
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THE PRESIDENT: Justice Davies will deliver the reasons of the Court first.

DAVIES JA: The applicant pleaded guilty in the District Court on 30 July last to a total of 31 counts. It is now agreed that they were four of forgery with a circumstance of aggravation, three of uttering with a circumstance of aggravation, nine of forgery, nine of uttering, three of misappropriation with a circumstance of aggravation, one of misappropriation, one of receiving stolen property and one of false pretences.

He was sentenced on 30 September to imprisonment for three years, suspended after six months with an operational period of three years in respect of each of those counts. At the date of sentence the applicant had been in custody, at least partly in relation to proceedings for these offences, for 75 days.

It appears to be, I think, common ground but certainly now the case that that 75 days does not represent a period which is in respect to these offences and no others. Consequently it is not surprising that no order was made by the learned sentencing judge under s.161 of the Penalties and Sentences Act.

However the primary submission for the applicant in this Court, who was represented by Mr Maher, was in reliance on the decision of this Court in Wishart and Jenkins [1994]

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2 QdR 421, which as he quite rightly submitted, left open the general discretion to make an allowance for time previously spent in custody where it was not wholly in relation to proceedings for the offences before the Court, in other words, a discretion where the circumstances do not bring it within s.161.

Unfortunately it is unclear from the learned sentencing judge's sentencing remarks whether or not it was his intention to make allowance for that period in the sentence which he imposed. I shall return to that question a little later.

The documents which the applicant forged and uttered were used by him for the purpose of providing no less than nine different identities. He used a number of these to obtain lines of credit from a bank and a retailer, and by the time he was apprehended, he had obtained approximately $26,000 worth of property. It may be accepted that all of that property did not go to him beneficially.

By the time of sentence, $11,843 of this was still outstanding, but on sentence the applicant provided a bank cheque for that amount.

The forged documents to which I have referred included driver's licences and birth certificates.

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Although it was never suggested, and it could not properly be suggested, by the respondent that the applicant should be sentenced for other than the offences for which he had pleaded guilty, it is plain that he was apprehended before he had time to fully utilise his false identities. It is equally plain that the procedure which he adopted was a sophisticated and carefully planned one.

It was accepted in the applicant's favour below that he had been encouraged to engage in this activity by a friend or associate, that he had engaged in it partly to assist his friend's financial difficulties and that the motivating force and perhaps the technically more sophisticated mind was that of his friend.

Nevertheless, his Honour accepted that what the applicant did was done partly to further his own interests. In other words, greed was a motive of the applicant.

The applicant, as I have said, did not contend that a sentence of three years was excessive. It was conceded on his behalf that that was not outside the range of the learned sentencing judge's sentencing discretion. However it was submitted that the learned sentencing judge, if, as it may appear, he intended to effectively order that the six months be spent in actual custody, failed to give sufficient weight to mitigating factors which should have resulted in fixing a period after which the sentence was to be wholly suspended at three and a half months instead of six months.

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In other words, Mr Maher submitted that if that was his Honour's intention it was wrong, and his Honour should have allowed at least some part of the period of 75 days pre-sentence custody, and he would submit almost all of that period - that he should have given allowance to that period and consequently should have ordered that the sentence be suspended after a period of three and a half months, or perhaps a little more than that.

In answer to a question by counsel at the conclusion of the sentencing remarks, his Honour stated that the six months after which the sentence was to be suspended was to be six months from the date of his order, and it seems to me to be a reasonable inference from that that his Honour intended that the whole of the six month period be served before the sentence be suspended.

In other words, although his Honour may have taken the period to which I have referred, the 75 days, into account he still had in mind that in addition to that, six months of the sentence which he had imposed should be served before it was suspended.

The applicant had been convicted and sentenced for very similar offences in Victoria in 1993. When that is taken into account together with the very sophisticated nature of the scheme and that one of the applicant's motives was that of greed, I do not think that a sentence of three years imprisonment suspended after six months, even having regard

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to the fact that he had already spent 75 days in custody partly in relation to these offences, was manifestly excessive.

Nothing in the matters mentioned in his favour and to which I refer, that another was the prime mover, that he pleaded guilty, that it was partly for the benefit of another and that full restitution had been paid, in my submission require a lesser sentence than that.

The comparative sentences which have been referred to us and in particular the decision considered by this Court in Hoelscher CA No 43 of 1997, 29 May 1997 indicate that the sentence which in my view his Honour imposed was not manifestly excessive.

For those reasons, I would refuse the application.

THE PRESIDENT: I agree.

HELMAN J: I agree.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused.

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