R v Hansen

[1998] QCA 202

[1998] QCA 202

COURT OF APPEAL

McPHERSON JA
AMBROSE J
LEE J

CA No 83 of 1998

THE QUEEN

v.

ANTHONY CHRISTOPHER HANSEN
                  (Applicant)

BRISBANE

..DATE 05/06/98

JUDGMENT

AMBROSE J:  This is an application for leave to appeal against a sentence imposed in the District Court on 9 March 1998 when after a fairly long trial the applicant was convicted on six counts; two of forgery, two of uttering and two of false pretences.

Those offences occurred on two occasions between 28 September 1990 and 5 November 1990 and 28 December 1990 and 10 January 1991.

The applicant, prior to those offences, had obtained finance for the purpose of modifying and improving and constructing a dwelling-house.  The exercise seems to have been designed to permit him to make a profit.

Initially he persuaded a number of people to guarantee his
re-payment of moneys advanced by a finance company for his use.  However, eventually those persons indicated that they did not wish to give further guarantees.

When advised of this change of heart on the part of the guarantors, the applicant forged, on two occasions, their signature on guarantees and persuaded somebody to witness the offender's signature as a witness to the forged guarantees.  These were provided to the bank and the bank, on the basis of them, advanced further moneys.

Eventually, the house was sold for non-compliance with the mortgage and so on and it was at that stage that the bank indicated it was going to take proceedings, or the finance company was going to take proceedings against the purported guarantors.  They then denied they had signed them, questions of forgery were raised and in May 1994 a complaint was first made to the police.  That is, nearly four years after the offences had been committed.

Well, there was some delay after that in the proceeding and it was not until May 1996 that the applicant faced committal proceedings.  When police attempted to interview him he elected, on legal advice, not to discuss the matter.  The matter eventually came to trial in March 1988 and at the trial the forgery was put in issue, all events were put in issue and the purported guarantors were cross-examined with a view to suggesting that they may well have signed these guarantees.

Well, the jury convicted the applicant and a period of seven years or so had passed between the commission of the offences and the conviction.

The District Court Judge imposed a sentence in respect of each of the offences of two and a half years; they were all to be served concurrently, so in effect a sentence of two and a half years was imposed in respect of each of the two forgery exercises.

On appeal it was not really strenuously contested that the sentence of two and a half years was not within range; indeed it may be said that it was about the middle of the appropriate range of sentence for these sorts of offences.

However, it is contended that it is a manifestly excessive sentence because no order was made either suspending it after a short period had been served, or because no order was made recommending that he be eligible for parole earlier than at the expiration of 15 months when he would become eligible under statute.

So, it really boils down to whether it can be said in the circumstances of this case that the failure to partly suspend the sentence, or to make an early recommendation, makes it manifestly excessive.

It is not sufficient that this Court may have imposed a slightly different sentence.  It is not sufficient that this Court may have thought, well, it would have been satisfactory to suspend the two and a half year sentence after nine months or 12 months, or make a recommendation that he be eligible for parole after nine or 12 months.

It has to be shown that the sentencing Judge's failure to do either of those things manifests a failure to properly exercise the sentencing discretion he was given.

In this case, in my view, what is absolutely clear is that there was a complete lack of remorse on the part of the applicant.  In my view the situation may well have been different had he pleaded guilty at an early stage and attempted to make some sort of refund or provide some sort of restitution to the bank although the persons whose signatures he forged on the documents he uttered of course suffered, I am sure, loss and a great deal of consternation in trying to persuade the bank and other people that they had indeed not signed the guarantees that the jury found the applicant had forged.

In my view, it cannot be said in the circumstances that the fact that he had not been convicted before these offences of any other offence makes it necessary that he should have received a suspended sentence or a partly suspended sentence or that he should have received an early recommendation for parole.  No restitution was offered and it appears that in all the years that elapsed between the commission of the offences and the time when police investigations commenced or indeed up to the time he was convicted and sentenced no effort was made to make any restitution whatever.

In my view there is nothing in the material to suggest that the sentencing discretion of the learned sentencing Judge miscarried and I would dismiss the application for leave to appeal.

McPHERSON JA:  I agree.  The application bears close resemblance to the application in The Queen v. Drew
(CA 103/97, 30 May 1997) where a similar sentence was imposed without any recommendation for parole.  I agree with the reasons that Mr Justice Ambrose has given for dismissing this application.

LEE J:  I agree.  On the question of lack of remorse, in my opinion, this is further demonstrated by the fact that very shortly after the conviction and sentence a notice of appeal was lodged complaining of the conviction in various ways.  It was not until 2 June that it was notified that the appeal against conviction was abandoned.  This, in my view, demonstrates a continued lack of remorse.  I agree with the orders proposed.

McPHERSON J:  The order is that the application for leave to appeal against sentence is dismissed.

-----