R v Lovett

[2002] QCA 512

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lovett [2002] QCA 512

PARTIES:

R
v
LOVETT, Brian James

(appellant)

FILE NO/S:

CA No 291 of 2002

DC No 329 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EXTEMPORE ON:

22 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2002

JUDGES:

Davies and McPherson JJA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   That the appeal against conviction be dismissed;

2.   That the application for leave to appeal sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR UNSUPPORTABLE VERDICT – where appellant convicted of fraud in dishonestly applying money in excess of $5,000 – where profit-sharing agreement between complainant and appellant – where appellant did not pay complainant – where appellant alleged inconsistencies in complainant’s evidence – where complainant’s evidence accepted at trial

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where appellant convicted of fraud and sentenced to 3 years imprisonment – where appellant had substantial criminal history for offences of dishonesty – whether manifestly excessive.

R v Ferguson CA No 381 of 1995, 12 December 1995, considered

COUNSEL:

The appellant appeared on his own behalf

P D Kelly for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Qld) for the respondent

DAVIES JA:  I will ask Justice Philippides to read her reasons first.

PHILIPPIDES J:  The appellant appeals against his conviction in relation to one count of fraud, on the grounds that the conviction is unsafe and unsatisfactory and contrary to law.

The appellant was convicted in the District Court at Maroochydore, on 4 September 2002, of dishonestly applying money in excess of $5,000 and sentenced to three years' imprisonment.  He also seeks leave to appeal against his sentence, on the basis that it was manifestly excessive.

The circumstances of the offence are as follows.  The appellant met a Mr Isaac, the complainant, in November 2000 and moved in with him and his family shortly thereafter.  A short while later, Mr Isaac became aware of a mango farm, with produce ready for harvesting.

At the suggestion of the appellant, an agreement was entered into, with the owner of the land, a Mr Pederson, to harvest the mangoes and to sell them.  Mr Pederson was to be paid a percentage of the profit, with the net profit being divided between the appellant and Mr Isaac.

Mr Isaac was to harvest the crop and the appellant was to be responsible for packing and marketing.  Payment for the truck hire and transporting the mangoes was to come from the proceeds of sales.   A joint account was set up by Mr Isaac, on 8 January 2000, at the Westpac Bank in Nambour, to assist in the venture.

During January 2001, the mangoes were harvested and picked.  Evidence was adduced from various merchants that sales of the mangoes took place at various centres from the Sunshine Coast to the Gold Coast.

The Crown case was that the appellant sold those mangoes, but kept the proceeds for himself.  The defalcation could not be precisely estimated, but on the appellant's version, a sum of $7,470 should have been banked.

Evidence was given by Mr Isaac that, on one occasion, he confronted the appellant over some sale monies not being in the joint account set up for this purpose.  Mr Isaac gave evidence that the appellant told him he had deposited $1,000 into his own account, because of a holiday period overlapping.

The appellant said he had done this through a deposit at an ANZ ATM at Southport.  Evidence was also given by Mr Isaac that the appellant told him that he, the appellant, had made deposits of $2,470 and $4,000.

Mr Isaac expressed disappointment at the sale figures, but was told by the appellant that it was a hard market.  The appellant and Mr Isaac travelled together on one occasion to retrieve some money for the purpose of paying some debts of the venture and it was at this time that the appellant revealed he may have made some error in the banking process.

The appellant indicated to Mr Isaac where he had deposited the money and said he may, in error, have deposited the money into a garbage bin disposal, attached to the respective ATM machines.  The appellant indicated that he had deposited $2,470 through the NAB ATM at Moorooka and $4,000 through the NAB ATM at Lutwyche.

The appellant's evidence was that he had obtained envelopes for the ANZ and NAB deposits at the Burpengary branches of those banks, as he was on the way down to the Gold Coast.  He said that he used the envelopes to bank monies he collected from the sales of the mangoes, to the ANZ Bank ATM at Southport and the NAB ATM at Lutwyche and Moorooka.

His evidence was that although at the time he thought he was banking the monies correctly, he subsequently realised that on each of the three occasions, he had put the envelope containing the money, into what was in fact the refuse container, beside the ATMs.

Mr Isaac also gave evidence that the appellant told him that he had made deposits through the NAB, using the joint Westpac card.  Banking evidence was heard, essentially showing that foreign cards, that is non NAB cards, could not make deposits at NAB branches.

There were no reports of finding monies in ATM rubbish bins at the branches involved and there was no money deposited into the joint account by the appellant, or indeed any other account known to be held by the appellant.

At one stage, a refrigerated truck was hired for the transportation of the mangoes.  Evidence concerning the arrangement for payment of the hire of the truck was given by Mr Flack, the man whose credit card was used for the hire and by the appellant.

Mr Flack gave evidence that he had provided his credit card to hire the vehicle, on the understanding that the hire was to be paid in cash soon thereafter, when the truck was returned.  The receipt was to be destroyed, in exchange for the cash payment, which was to be made out of the sale proceeds.

The appellant, however, asserted in his evidence, that the arrangement was that the hire was only to be paid after receipt from sales from southern markets.  His evidence was that after taking out expenses, there was no money left from those proceeds.

The appellant's version of the arrangement was not put by the appellant's counsel to Mr Flack.  This was subject to a comment by the learned trial Judge and it was problematic for the jury to consider when assessing the credit of the witnesses.

The appellant's appeal is based on the proposition that the Crown witnesses can not be believed and that the evidence given by the appellant should have been preferred.  However, the version given by the appellant was clearly rejected by the jury.

The appellant now points to what he says are inconsistencies in Mr Isaac's evidence. 

None of what are said to be the inconsistencies raise any matter which could be said to have caused a jury to have a reasonable doubt as to the appellant's guilt.  While Mr Isaac acknowledged that the arrangement was a "clumsy amateurish business" and "sloppy", his evidence was also that there was a "clear arrangement about profit sharing".

It was submitted by the respondent that the appellant's proposition that the jury's verdict was unsafe, unsatisfactory and contrary to law would seek to undermine the advantage that the jury had in seeing as assessing the witness.  Reference was made to M v. The Queen (1994) 181 CLR 487. I must say, I completely agree with that proposition.

I am unable to conclude that any basis has been shown on which it can be said that the conviction was unsafe, unsatisfactory, and contrary to law. 

It was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant's guilt.

The appeal is completely without merit. 

I would dismiss the appeal against conviction.

The appellant also seeks leave to appeal against his sentence of three years' imprisonment imposed.  The appellant has a substantial criminal history, with numerous offences of dishonesty.

In imposing the sentence, the learned sentencing Judge took into account the fact that he considered the appellant had a gambling problem, he was in a position of trust, his atrocious criminal history, and the lack of any conduct by the appellant which would justify any leniency from the Court.

The respondent submitted that the sentence was well within the appropriate range.  The respondent, in its written submissions, placed particular emphasis on the appellant's recidivism, the fact that his previous sentences had not deterred his offending, and the need to protect the public from recidivist offenders.

In making these submissions, the respondent referred to the case of R v. Ferguson CA No 381 of 1995, 12/12/95, where a sentence of three years' imprisonment, suspended after three months, with an operational period of four years, was imposed on a 24 year old offender who was convicted of one count of misappropriation of property.

There were, in that case, two circumstances of aggravation, in that Ferguson was an employee, and the property in question was valued in excess of $5,000.

Ferguson had no criminal history, and had appropriated money partly to assist his mother in repaying a debt incurred by his deceased father.

On appeal, it was held that notwithstanding Ferguson's youth, lack of criminal history, and motivation, a custodial sentence was appropriate, although it was reduced to two years.

I consider that the sentence imposed by the learned sentencing Judge fell within the range of a proper sentencing discretion.

I would dismiss the application for leave to appeal against sentence.

DAVIES JA:  I agree.

McPHERSON JA:  I agree.  The appeal against conviction is dismissed, and the application for leave to appeal against sentence is also dismissed.

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