R v Hyland

[1996] QCA 355

[1996] QCA 355

COURT OF APPEAL

THOMAS J
de JERSEY J
DOWSETT J

CA No 300 of 1996

THE QUEEN

v.

GAVIN KEITH HYLANDApplicant

BRISBANE

..DATE 22/08/96

JUDGMENT

THOMAS J:  This is an application to extend time for appealing against sentence.  The applicant was convicted of eight counts of making a wilfully false promise and one of false pretences. He was sentenced on each count to imprisonment at varying levels ranging from two years to four and half years.  The four and a half years imprisonment applied to the last count, count 9. 

The lateness of the notice is not particularly great and the explanation offered is that he had filled out a form in time and believed that the officers of the Sir Arthur Gorrie Correctional Centre would forward the form to the Supreme Court.  There is some confusion in the material relating to this circumstance, but on the whole I would be prepared to regard the delay as having been explained.

However, in this particular case, counsel for the respondent has advanced material on the question of whether there are any reasonable prospects of success if the extension were to be granted.  In this respect counsel who appeared for the applicant conceded that the sentencing remarks basically encompass the nature of the activities which were revealed during a three weeks trial.  It was not suggested that the evidence in the matter could show that those remarks were inaccurate in any respect, and no contradiction was suggested of the summary of facts given to this Court in the outline of argument of the respondent.

The only point which counsel for the applicant wished to preserve for argument on appeal is that the effective sentence of four and a half years was too close to the upper limit.  The maximum sentence in respect of the offences charged is five years.

The circumstances are these:  the applicant, between April 1988 and February 1989 set himself up as an investment adviser in an office at Level 39, Riverside, Brisbane.  He managed to obtain funds from six separate investors totalling $228,000.  His promises were generally to the effect that he would lodge their funds in a secure form of investment.  Instead of doing this he placed the investors' funds upon the futures market in Sydney.

Thereafter from time to time he repaid small amounts when requested by the investors, seemingly to distract any suspicion on their part.  On some occasions he created false documents to give the impression that the investments were doing well even when the funds had already been lost.

The first complainant was an aged widow, Mrs Lambert, who lost over $70,000.  It is sufficient to make further mention in this short statement of only the circumstances of the last count.  In two separate acts the applicant obtained a total of $88,000 from a single mother.  That money represented all the assets that she possessed.  The applicant knew that it represented the proceeds of sale of her house and of her car and her savings.  She instructed the applicant to invest the money in National Australia Bank term deposits.  The money was lost partly on the futures market and partly applied to reduction of the applicant's company's bank overdraft.

He obtained these funds from the complainant at a time when other investors were actively pursuing him for the repayment of their moneys and when he knew that he had lost the other investors' funds in the futures market.  The small repayments which have been mentioned total $68,000 which means that a total of $160,000 remains outstanding and irrecoverable.

The offences were particularly cruel and very serious.  Counsel for the Crown Prosecutor had urged upon the sentencing Judge the imposition of a cumulative sentence with respect to the last count which would have, for argument's sake, allowed the Court to sentence the offender to the maximum of five years on the other counts and impose an additional say two years on the final count.  Such a course was upheld by the Court of Criminal Appeal in The Queen v. Armstrong, CA 6 of 1987, 22 May 1987, and the effective overall sentences of seven years were not disturbed.  However, the learned sentencing Judge did not accept that invitation.  Instead he imposed a sentence of four and a half years which is less than the maximum.

For my part such a sentence does not seem excessive at all.  The circumstances speak for themselves.  It seems to me to be a plain case where the further pursuit of any appeal against sentence would be a futility.  I would accordingly refuse leave to extend time.

de JERSEY J:  I agree.

DOWSETT J:  I also agree.

THOMAS J:  Application refused.

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