R v Ibbetson

Case [2020] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ibbetson [2020] QCA 214

PARTIES:

R
v
IBBETSON, Justine Claire
(applicant)

FILE NO/S:

CA No 89 of 2020
DC No 105 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 16 March 2020 (Cash QC DCJ)

DELIVERED ON:

2 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2020

JUDGES:

Sofronoff P and Philippides JA and Lyons SJA

ORDERS:

1.   The application to adduce further evidence is refused.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to nine counts of obtaining a financial advantage by deception and two counts of attempting to obtain a financial advantage by deception – where she was sentenced to two-and-a-half years’ imprisonment to be released after serving ten months on a $1,000 recognizance to be of good behaviour for a period of two-and-a-half years – where reparation in the sum of $200,553 was also ordered – where the applicant had no criminal history at the time of her conviction – where the applicant seeks leave to appeal her sentence on the basis that the sentence is manifestly excessive and that relevant material in relation to the state of her mental health was not properly placed before the sentencing judge – where the applicant also raises a number of other matters including a contention that she was prejudiced by a late change in advice from her barrister as to the likely sentence which might be passed, and that the learned sentencing judge did not take into account the effect of her incarceration on her daughter and the impact of COVID-19 on her in custody – whether the court should accept new evidence from the applicant concerning her mental health conditions – whether that material was available at the time of sentence and whether it would have materially affected the sentence imposed – whether the decisions relied upon at first instance are distinguishable from the applicant’s case – whether the sentence imposed was manifestly excessive

Crimes Act 1914 (Cth), s 16A(2)
Criminal Code Act 1995 (Cth), s 11.1, s 134.2(1)

Acosta v The Queen [2015] VSCA 94, considered
De Hollander v The Queen [2012] WASCA 127, applied
R v Huston, Fox and Henke; Ex parte Director of Public Prosections (Cth) (2011) 219 A Crim R 209; [2011] QCA 350, applied
R v Massey[2015] QCA 254, considered
R v Melrose[2016] QCA 202, considered
R v Karam [2020] VCC 496, considered
Police v Miller (Unreported, Brisbane Magistrates Court, 1 May 2020), considered

COUNSEL:

The applicant appeared on her own behalf
W S Ferguson for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

  1. SOFRONOFF P:  I agree with Lyons SJA.

  2. PHILIPPIDES JA:  I agree…

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Details
AGLC
R v Ibbetson [2020] QCA 214
Case
[2020] QCA 214
Decision Date

CaseChat Overview and Summary

In the case of R v Ibbetson, the applicant, who had pleaded guilty to multiple counts of obtaining a financial advantage by deception and two counts of attempting to obtain a financial advantage by deception, appeals against her sentence. The applicant, who was sentenced to two-and-a-half years’ imprisonment with a release after ten months, argues that the sentence is manifestly excessive and that the sentencing judge did not properly consider her mental health conditions. The applicant also raises issues regarding the impact of her incarceration on her daughter and the effect of COVID-19 on her in custody. Additionally, she contends that she was prejudiced by a late change in advice from her barrister as to the likely sentence.

The court was required to decide whether to accept new evidence from the applicant concerning her mental health conditions, determine if that material was available at the time of sentence, and assess whether it would have materially affected the sentence imposed. The court also had to consider whether the decisions relied upon at first instance are distinguishable from the applicant’s case and whether the sentence imposed was manifestly excessive.

The court found that the applicant's mental health conditions were taken into account at the time of sentencing, and that the new evidence would not have materially affected the sentence imposed. The court also held that the sentence was not manifestly excessive and that the applicant's other contentions did not warrant interference with the sentence. Therefore, the application for leave to appeal against sentence was refused, and the application to adduce further evidence was also refused.

Orders

Orders of the court

1. The application to adduce further evidence is refused.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The applicant is self-represented and in addition to that major ground she also raises a number of other matters in her outline of submissions. These include a contention that she was prejudiced by a late change in advice from her barrister as to the likely sentence which might be passed. She also argues that the effect of her incarceration on her daughter and the impact of COVID-19 on her in custody have not been taken into account.Factual Background to the Sentences The applicant operated a mobile phone store in Coolum which sold mobile phone plans and handsets. She was the sole director and joint shareholder of Coolum Telecoms Pty Ltd (Coolum) which traded as One Zero Coolum (Business). Coolum held an ABN and was registered for GST. The applicant’s Business sold Telstra mobile phones under a sub-dealership agreement with Vita Pty Ltd (Vita) whereby it would purchase mobile phones from Telstra and for each mobile phone that it sold, Telstra would pay Vita for both the cost of the phone and commission for the plan. The Business would then claim against Vita for reimbursement of the cost of the phone and for the commission, of which Vita retained a portion. Coolum was required to submit a business activity statement (BAS) to the Australian Taxation Office (ATO) on a quarterly basis. In August 2013, the ATO identified that Coolum had only lodged one BAS in the period between April 2011 and June 2013. The applicant subsequently provided the figures and lodged the outstanding returns in October 2013. That resulted in some refunds being paid to Coolum. Between March 2014 and April 2015 however, the applicant amended three BAS returns that she had lodged in October 2013 and electronically lodged eight further BAS returns. All of the returns included false and exaggerated figures for GST on purchases and refunds said to be owed. The lodgement of nine of these 11 returns caused the ATO to pay Coolum $200,553 in excess of its entitlement. The last two returns lodged in early 2015, which comprise the two attempt counts, claimed an amount of $55,413 in refunds. The ATO commenced an investigation in July 2016 during which the applicant claimed the errors were due to her accounting software. Whilst the applicant had been asked on 2 March 2017 to participate in an interview with the ATO, she had not taken advantage of the offer. At the time of sentence, no restitution had been made.The Sentencing Hearing At sentence, the Commonwealth prosecutor noted that the applicant’s only cooperation with the administration of justice was her guilty plea, given she had declined the opportunity to participate in an interview. Whilst there had been a registry committal on 30 October 2018 and an indictment presentation on 16 March 2019, there had been some delay as the matter had taken a year to come to sentence due to issues in relation to the applicant arranging legal representation. The prosecutor outlined the facts whereby the applicant had dishonestly obtained $200,553 and attempted to obtain a further $55,413 from the ATO over a 13 month period by lodging BAS returns on behalf of Coolum. On each of the statements that the applicant lodged for the ten BAS periods, there was false information which resulted in her receiving refunds to which neither she nor Coolum were entitled. Each amount was deposited into her business account to which she was a signatory. Counts 8 to 11 were committed after the commencement of the audit into her Business.

Evidence

Evidence Before The Court

In imposing the sentence his Honour stated:“Having regard to the cases to which I have been referred and as well having regard to the matters set out in section 16A of the Crimes Act, it is my view that imprisonment is the only appropriate sentence to impose today, but I will impose a sentence which is, in my view, the shortest sentence that is appropriate to reflect the need for deterrence but to also see you released from custody in the shortest amount of time that I think could be considered right so that you can try and get on with your life. The effect of the sentences that I will impose will be that you are imprisoned for two years and six months, but you will be released after 10 months, and I will explain that to you in a few minutes.”[7][7]ARB 32, ll 19–27.Application to Adduce Evidence As part of her submissions to this Court, the applicant argues that her mental health conditions were not taken into account and that her solicitors had not obtained material from the Sunshine Coast University Hospital and her general practitioner which should have been provided to the court. Accordingly, she seeks leave to adduce new evidence, namely the Discharge Summary from the Sunshine Coast University Hospital dated 14 December 2017,[8] and a Report from her psychiatrist, Dr Mohamed Milad, to her general practitioner Dr McKibbin, dated 12 May 2017.[9] As the latter document was in fact before the sentencing judge, the application would appear to relate only to the Discharge Summary.[8]ARB 56–58.[9]Applicant’s Outline of Submissions filed 20 July 2020 at pp 14–19. This Court has power to receive evidence that was not before the sentencing judge if the evidence indicates that a sentence, other than the sentence imposed, would have been warranted. The respondent objects to the receipt of this new material on the basis that not only are litigants generally bound by the way in which their cases were presented, but that there must be finality in litigation. Furthermore it is argued that not only was the material available at the time of sentence, but it would not have materially affected the sentence imposed as it was in fact taken into account. It was argued that such additional evidence should only be admitted where the desire for finality in litigation is overborne by a need to avoid a miscarriage of justice and this is not such a case. In determining whether this Court should accept that new material I note that not only was the Discharge Summary available at sentence, but that it would have been very dated at the time of sentence. The Discharge Summary was prepared some two years and four months prior to the sentencing hearing. Furthermore, it refers to one specific episode which involved a deterioration of mood and suicidal ideation where there had been no further involvement by the hospital. The Discharge Summary refers to the fact that whilst the applicant’s mood had deteriorated over the 12 months since the demise of her Business, the primary diagnosis was pathological gambling with a secondary diagnosis of a moderate depressive episode. The Discharge Summary noted she had been seen by the acute care team during that period on two occasions but had been difficult to engage.[10] That document also indicates that the applicant resisted all follow up from the acute mental health team at the hospital because she intended to have future treatment with her private psychiatrist whom she had seen on 11 December 2017 and with whom she had scheduled a further appointment for 31 January 2018. She did not attend that appointment and there was no further follow up with her psychiatrist. She did not, on the evidence before the sentencing judge, have any further engagement with mental health professionals after 11 December 2017 as the letter from Dr Milad,[11] tendered at sentence, made clear.[10]Applicant’s Outline of Submissions filed 20 July 2020 at p 15.[11]ARB 54.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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