R v Harrison

[1992] QCA 338

COURT OF APPEAL  [1992] QCA 338

MACROSSAN CJ
DAVIES JA
AMBROSE J

CA No 228 of 1992

THE QUEEN

v.

DEREK ERICKSON HARRISON                   Applicant

BRISBANE

..DATE 09/09/92

JUDGMENT

090992
THE CHIEF JUSTICE: The applicant applies for leave to appeal against sentences imposed on 17 July 1992. He was sentenced for participation in a very large number of offences. He had been charged with eleven counts involving fraudulent conduct of one sort or another ‑ uttering, forgery, forgery with circumstances of aggravation ‑ and he asked, having pleaded guilty, that the sentencing Judge take into account a considerable number of other instances, so that, as the record reveals, he was in a situation where there was taken into account about sixty further offences of procuring forgery.

The sentence that was imposed in respect of all these offences was effectively a term of imprisonment of seven years, and the sentencing Judge added a recommendation that he be considered for parole after he had served eighteen months of the sentences.

The applicant is a 42 year old and had no previous convictions. The circumstances in which the offences came to be committed showed that the applicant was involved in a major scheme of wrongdoing. There was a scheme for false and fraudulent evasion of licence fees imposed under legislation

concerning tobacco products. Arrangements in place between the States at the relevant time from a revenue point of view resulted in the scheme's being a viable one; that is, in the criminal way in which it was prosecuted here.

The applicant was approached by another man called Bryce, and the material shows that he acceded to Bryce's proposition that
he involve himself in the scheme. He was said to be under some financial pressure at the time that he yielded to Bryce's representations. The applicant, anyhow, having involved himself, was quite active during the period that the scheme was in operation and he himself procured the services of another man, Clinton, who then undertook the forgery of documents necessary to carry out the scheme.

Clinton posed as a wholesale licensee and in this way the transaction tax which would have been imposed pursuant to the Act in the true state of affairs was avoided. There were 69 orders altogether before the scheme came to an end. It was a major matter. The total value of purchases arranged under the scheme was $6.3 million, there were 88 million cigarettes involved, and according to the Crown $1.9 million in revenue was lost. According to the applicant's representative, the amount of revenue lost was $1.6 million, but from the point of view of our consideration there is not a critical difference there. The significant fact is that it was a major scheme.

The man Bryce, to whom I have referred, is said to have got 45 percent of the profit which resulted from the activity, and another man whom the applicant recruited, a distributor in New South Wales, got 30 percent of the profit that became available. We were told that nearly $1 million in profit came to the total syndicate of persons involved under the scheme.

The applicant was in charge of the distribution of the further share of the profits; that is, after the 75 percent, to which I have referred, had been taken off. The applicant, for
example, distributed a share of profit to Clinton and to certain other persons who were engaged in the enterprise.

Clinton has been sentenced.  He was sentenced on the basis that he obtained $30,000 profit for himself under the scheme. The applicant received almost $70,000. The maximum penalty under the Code for the offences in which the applicant was involved was 14 years. The sentencing Judge in imposing a term of seven years and adding a recommendation to apply after 18 months had been served outlined the matters which he took into account, and he described some of the aspects which motivated him in sentencing.

He said that he accepted that the applicant had been pressured into the fraud but as against that he noted that the applicant's participation involved him in his becoming its superintendent and it involved his recruiting others. The Judge said that obviously a long sentence was called for.

The applicant did give very considerable assistance to the authorities. The sentencing Judge referred to this. He noted his cooperation and his plea. He accepted that that showed that the applicant felt contrition in respect of what he had done.

The Judge then said that he felt he should give some credit in the head sentence for the matters which he had outlined and which I have just repeated and he said, apart from those particular circumstances, that he would think in terms of 9 or 10 years' imprisonment for the applicant. He did then give some credit in the head sentence reducing it to 7 from the figures that he had mentioned that he would otherwise impose, and he as well gave a recommendation, as I have already stated, to apply after 18 months.

In the application to us, it was submitted that the head sentence was excessive, but nothing was said in respect of the recommendation, that is, we were not urged to interfere with that.

There is no doubt that for behaviour of the kind which we have to consider a substantial sentence is called for. It was a very large enterprise. In matters like this it is particularly important to have a deterrent. When a calculated fraudulent scheme is undertaken for very large gains, the importance of an appropriate deterrent is emphasised. One particular matter, however, which we are urged to consider is the treatment of Clinton.

Clinton was sentenced to an effective term of three years' imprisonment and a recommendation for consideration for parole was made in his case after 12 months. It is submitted to us, on behalf of the applicant, that apart from all of the other circumstances personal to the applicant, the disparity which exists in respect of the treatment of Clinton called for some reduction in the head sentence here.

The applicant's head sentence effectively is over twice the length of the effective term imposed in Clinton's case. The question is whether it is right to refer to this as a disparity in the sense which would call for the intervention of this Court.

The age of the applicant, about 42, without previous convictions is a matter which must be noticed. The extent of cooperation with the authorities was great. We are told that not only were full admissions made by the applicant on his own behalf but that he cooperated in the obtaining of evidence from others. The Crown relies very much on the seriousness of the criminal enterprise. It says nothing against the Crown submission if I mention that the factor which in the end weighs with me and persuades me that it is appropriate to
interfere is the disparity with the sentence imposed in Clinton's case.

Clinton was an extremely active participant also, and even allowing for the fact that the applicant was more an organiser
and controller of the arrangement than Clinton, the difference in treatment of the two, that is Clinton and the applicant, appears to me to be disproportionate. In coming to the conclusion that I do, I should also say specifically that I have in mind the applicant's criminality in relation to the greater criminality of the instigator of the scheme, that is on the description of it that we've been given here. However, that is for another place.

I would favour allowing the application and then allowing the appeal and substituting in lieu of the terms of 7 years imposed an effective term of 5 years and I would allow the recommendation for consideration for release on parole after 18 months to remain.

That means that in the case of the very numerous offences with which we are concerned, in any case where a sentence in excess of 5 years was imposed below, that sentence will be set aside and a term of 5 years substituted.

DAVIES JA: I agree.

AMBROSE J: Yes, I agree.

THE CHIEF JUSTICE: The way in which I described the orders of the Court Mr Martin that will be clear to anyone, won't it?

MR MARTIN: Yes, Your Honour, it is certainly clear enough to me so I would imagine that‑‑‑‑­

THE CHIEF JUSTICE: Yes. Because I don't think we have to comb through the 60‑something offences and specify, do we? I think it‑‑‑‑­

MR MARTIN: There are in fact only 11 on the indictment and I think only 7 of them are effective but nevertheless Your Honour's order is clear enough.

THE CHIEF JUSTICE: It is clear. All right, thank you, well that will be the order of the Court.

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