R v Jacobson

[1994] QCA 517

[1994] QCA 517

COURT OF APPEAL

FITZGERALD P 
McPHERSON JA 
DERRINGTON J

CA No 319 of 1994

THE QUEEN

v. 

JAKE ERROL JACOBSON  Appellant

BRISBANE

..DATE  26/10/94

JUDGMENT

McPHERSON JA:  The appellant was tried and convicted in the District Court at Gympie of seven counts of obtaining, by a combination of false pretences and wilfully false promises.    In each case the pretence alleged was that he was going to receive a substantial inheritance, and the false promise was that out of the inheritance he would repay various sums of money he borrowed on receipt of the inheritance.  The victims of this conduct were two individuals.  One complainant, whose name is Trevor O'Sullivan, lent separate sums totalling $53,200 to the appellant on six different occasions.  They are the subject of the first six counts on the indictment.

The other complainant was David Wood who lent $10,000 which is the subject of the charge in count 7 of the indictment.  The money has not been repaid and it is quite clear that it never will be.  There is no doubt that the money was lent and hence that there was an obtaining of it in each case.  The prosecution adduced evidence that the appellant represented that the money would be paid on receipt of the inheritance.  The complainant O'Sullivan said he would definitely not have lent the money if he had not been promised that he would be repaid out of the inheritance.  Wood said he would not have lent the money if there was no inheritance. 

There was therefore evidence of the requisite representation and inducement on which the jury did and could act.  On appeal the point taken is that there was no false pretence because the Crown had failed to prove a representation of present or past fact, and that there was no wilfully false promise because there was no evidence that at the time the promise was made the appellant did not intend to repay the monies borrowed.  I do not consider that either of these objections to the conviction is sustainable. 

The representation that a person will pay out of his inheritance involves an assertion of an available inheritance, which is itself a present fact, out of which he is or will be able to pay in due course.  My impression is that not much attention was given at the trial to this element of the offence and that that was so because the appellant, who gave evidence on his own behalf, completely denied that he had ever made any representation about having an inheritance.  However, in the course of giving his evidence, he also said that he had in fact been entitled to an inheritance in 1985 but had shortly afterwards lent or distributed the money to his brother and sister in England.  All that was left of it when he visited England in 1991 was some $25,000, which he said he collected during that visit.

It follows that at the time when the representations were made by him in 1992 he no longer had, if he ever had had, any inheritance which he would be receiving in the future.  The representation or promise that he would pay on receipt of the inheritance was therefore also plainly false and wilfully so, because there was no existing inheritance out of which he would ever be able to repay the loans.

That, no doubt, explains why he denied making any some representation to the complainants.  It may also be added that there was also additional evidence from the appellant's wife who had left him before the trial, that at the time in question the appellant had no money or assets, apart perhaps from the sums he was borrowing from the complainants.  She, from her own assets derived from a previous marriage, provided whatever was used to conduct the joint business that they were carrying on at the time.

It was, at first, sought to add a ground which comprehended the complaint that the learned trial Judge ought to have ruled that there was no case for the appellant to answer at the close of the Crown case.  In the end, however, Mr Rafter did not press the point separately from the one I have already mentioned.  The fact is that the case was one in which a submission of no case having been rejected, the appellant himself went into the witness box and in the course of giving his evidence supplied some of the proof which might otherwise have been lacking in the Crown case had it stood alone.

In those circumstances, it is for us to look at all the evidence in deciding whether or not there has been a substantial miscarriage of justice such as would attract our intervention.  I am satisfied for the reasons I have given that no such miscarriage of justice took place in relation to the conviction in this case.  I would therefore dismiss the appeal against conviction. 

In addition to that appeal, there is an application for leave to appeal against sentence.  The sentence imposed by the learned Judge below was two years in respect of each of the first six counts, such sentences to be served concurrently, and a further two years cumulative upon the earlier sentence in respect of the charge in count 7.  The submission essentially is that such a sentence is excessive and that a sentence of three rather than four years should have been imposed.

The applicant is a man of 52 years.  Even his date of birth and his place of birth seem to have been in dispute.  He claimed he was born in Sweden but there is evidence he was born in England.  He had previous convictions, none of them of a very relevant kind, except perhaps three convictions for obtaining false pretences recorded in the Brisbane Magistrates Court in 1971.  They are, in terms of the penalties imposed, evidently so minor as to be almost capable of being ignored in this context.

Inevitably, in relation to even those convictions, the applicant denied his identity with the person in the criminal history tendered.  The learned sentencing Judge therefore heard evidence on the subject and in the end disbelieved the applicant.  It is quite evident from all this that the applicant displayed no remorse whatever for the offences he had committed and the Judge was therefore not in a position to make any allowance on that account.

There has, as I have said, been no restitution and there is no prospect of it.  When one looks at the individuals concerned, it is a case where they have suffered what many would think were heartbreaking losses.  That is particularly so in the case of the complainant, Wood, who said that he and his wife had worked very hard in order to save the $10,000 which the applicant obtained from him.  They had it in mind to buy a house with the money but that hope is now gone.  No doubt the fact that there were two separate complainants, as well as the circumstances I have just mentioned in relation to count 7 concerning the complainant Wood, explains why the Judge made the two year sentence for the false pretence conviction in relation to count 7 cumulative on the sentence or sentences imposed for the other six counts.

There is no objection to his taking such a course provided the overall sentence of four years is not excessive.  In my view it is not, having regard to a number of the factors I have already mentioned; that is to say, the number of the offences, the amounts involved, the fact that there is no prospect of restitution, the hardship inflicted on the individuals concerned and the fact that the applicant quite plainly betrayed the trust of persons who thought he was a friend of theirs. 

The total absence of remorse or even any human feeling in the way in which he behaved and conducted himself leaves the Court with no sense of sympathy at all for a person who has perpetrated offences of this kind.  It would, I think, have been possible for the Judge to have imposed a sentence of lesser duration, such as three years, for an offence of this kind without creating any impression that he was being unduly lenient; but when one comes to an appeal in a matter of this kind I find myself unable to say that the overall sentence imposed was excessive.

I would therefore refuse the application for leave to appeal as well as dismiss the appeal against conviction.

THE PRESIDENT:  I agree.  I would only add that I find that there is no difficulty in categorising the misrepresentation and the false promise as relating to present fact.  There seem to me to be a number of bases for this.  The representations and promises related to a present expectation of a future receipt of the inheritance, a present entitlement to future receipt and a present intention to repay. 

I agree with the orders proposed by Mr Justice McPherson.

DERRINGTON J:  I agree with both my brothers.

THE PRESIDENT:  The order of the Court is appeal dismissed.  Application for leave to appeal against sentence refused.

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