R v Green

[1992] QCA 180

COURT OF APPEAL [1992] QCA 180

FITZGERALD P
DAVIES JA

DEMACK J

CA NO 126 OF 1992
THE QUEEN
v.
ELIZABETH MAUD GREEN

BRISBANE

... DATE 9/6.92

THE COURT RESUMED AT 11.14 A.M.

JUDGMENT
THE PRESIDENT: Mr Justice Demack will give the first judgment.

DEMACK J: The applicant pleaded guilty to 52 charges of false pretences, one charge of uttering a false document, one charge of attempted false pretences and one charge of wilfully false promise. She was sentenced by His Honour judge Kimmins on 27 March 1992. His Honour, in sentencing her, simply said, "On the uttering charge, I sentence you to 12 months' imprisonment. On each of the other charges I sentence you to imprisonment for four years. I order that all the sentences be served concurrently

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with one another and with any sentence you are presently
serving".

The first of the offences occurred on 4 November 1989 and the last occurred on 20 November 1991. Included in the material placed before the sentencing Judge was a report from Dr Josephine Sundin, consultant psychiatrist. In the course of the report the doctor says that Mrs Green, who was born on 1 April 1954, immigrated to Australia with her husband and two children from New Zealand in October 1988. She said they left New Zealand with the hope of obtaining a better lifestyle in Australia. She told the doctor that her husband was primarily responsible for the decision to immigrate and that he found work at the Brisbane steel mill within two weeks of arriving in the country.

During the ensuing six months Mrs Green experienced considerable difficulty in adjusting to her new home. She missed her family in New Zealand and was deeply distressed that she could not provide her children with the material objects that she felt they wanted and deserved. It was in response to her concerns over the lack of these material possessions that she said that she began to engage in fraudulent practices.

The report also notes that Mrs Green did not report experiencing any major mood disturbance during the period when the offences

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were occurring, similarly she did not give any history of any dysfunction of her sleep, appetite, energy, level of interest or concentration. She gave no history of any symptomatology that might suggest that she had been suffering from a psychotic disorder. At the most her mood state during this period could be described as one of anxious anticipation given that she was aware of the likely consequences of her continued behaviour.

The schedule which Mr Ridgeway had prepared and tendered to the Court shows that she had every reason to be aware of the likely consequences of her continued behaviour. Prior to the commission for the first count on the present indictment on 4 November 1989, she had been in Court on 8 August 1989 on four charges of forging and four of uttering. She was convicted and discharged on recognisance of 12 months and ordered to pay $1900 restitution within 14 days.

On 26 October 1989 she committed an unlawful use of a motor vehicle offence and she was brought before the Court in respect of that on 11 December 1989 and fined $250. In the meantime she had committed both the offences in count 1 and in count 2 on the present indictment. There were then no offences or other criminal activity recorded from 25 October 1989 until 29 December 1990.

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However, after that she committed offences on a very regular basis and some of those are reflected in the counts on this indictment and some of them were caught up in a Court appearance on 27 June 1991.

The history shows a complete indifference to the appearances that she had in Court. For example, on 7 June 1991 she was before the Magistrates Court on three charges of forging and three charges of uttering and sentenced to 100 hours community service. The next day she committed the offence which is count 41 in the indictment. She was before the Magistrates Court on 27 June 1991 on 10 charges of false pretences. On 28 June 1991 she committed the offence in count 46 in the indictment.

The story continues up until she was finally brought before the Court in March 1992. There on 5 March 1992 she was dealt with in the Magistrates Court for a breach of the community service order, imposed in June 1991. She was sentenced to six months' imprisonment. On 25 June 1992 she was again before the Magistrates Court in respect of four counts of imposition and received 12 months' imprisonment. On 27 March 1992 she was sentenced on the charges which are the subject of this application for leave to appeal against sentence.

She was also brought before the Court only last week to be dealt

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with for a breach of a community service order made on 27 June 1991, and sentenced to 12 months' imprisonment to be concurrent with the earlier order made on 5 March 1992. The matter that was particularly raised before us concerned the question whether there was some overlapping of sentences so that the total effective sentence was out of proportion to the criminality. However, it seems clear enough that when all of the orders of the various Courts are held in perspective the effective sentence is one of four years' imprisonment from 27 March 1992. She had been in custody for some three weeks prior to that but in view of the fact that the reason for her being in custody was because she was sentenced in respect of a breach of community service order imposed some nine months previously, it does not seem to me that that particular three-week period needs to be taken into account in this sentence.

It is always a distasteful task to send to gaol a woman who is brought before the Court for this kind of dishonesty which involves the effective theft of goods from various shops. However, each accused person must be dealt with according to the particular facts of the case. Here the impositions and dishonesty were not because it was necessary to have things to feed her family. There was a great range of articles taken and it appears from the passage I have read out from the psychiatrist's report that this was done because of some

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misguided view that the children had to have these things, not because they needed them. It is an example of blatant and persistent criminality and in my view the sentence imposed by the learned District Court Judge is a proper sentence in the circumstances.

In my view the application for leave to appeal should be refused.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The application is refused.

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