R v Magagna

[2004] QCA 426

SUPREME COURT OF QUEENSLAND

CITATION:

R v Magagna [2004] QCA 426

PARTIES:

R
v
MAGAGNA, Anthony John

(appellant/applicant)

FILE NO/S:

CA No 268 of 2004

DC No 312 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction and sentence

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

8 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2004

JUDGES:

McPherson JA, Jerrard JA, Fryberg J

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

ORDER:

1.   Appeal against conviction dismissed;

2.   Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – UNSAFE AND UNSATISFACTORY VERIDCTS – whether the conviction of the appellant for two counts of fraud and one count of extortion is unsafe and unsatisfactory  

CRIMINAL LAW – SENTENCING – EXTORTION AND FRAUD – where appellant had dishonestly obtained $37,000 from an married couple and made death threats to the wife – where appellant had a substantial criminal record – whether cumulative sentences adding up to 7 years imprisonment manifestly excessive

COUNSEL:

The appellant/applicant appeared on his own behalf

M J Copley for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

McPHERSON JA:  The appellant appeals against his conviction on two counts, of which counts 1 and 3 were charges of fraud to the value of 5,000 or more each, and count 2 is one of extortion, with count 3 as a lesser alternative to count 2.  The notice of appeal claims simply that the verdicts of guilty are unsafe and unsatisfactory. 

There is also an application for leave to appeal against sentence, which was an effective sentence of seven years, which is said to be manifestly excessive.  The total amount involved in all three counts - or two as they really were - was approximately $37,000 all up, which was obtained by the appellant from Mr and Mrs Banfield, a married couple who lived at Eagleby. 

Mr Banfield is a tradesman who works at installing blinds as a subcontractor for a company which supplies those blinds to him.  Mrs Banfield was, at the time of these events, which was between October and November 2002, living at home and confined to a wheelchair because of a condition of severe mutilating rheumatoid arthritis from which she suffered.  Earlier in 2002 she'd been in hospital for surgery where she and her husband met the appellant through a woman he was visiting, who was in the same ward as Mrs Banfield.

The appellant at that time expressed an interest in buying Mrs Banfield's car which, because of her disability, she was no longer able to drive.  In the course of this transaction he invited the Banfields to join with him in a venture he was bringing about for the buying or acquisition of some electrical cable and re-selling it at a huge profit.  The appellant first obtained $7,000 from them, for which he gave a receipt, and then further sums of $1,300 and $6,000 which he induced them to pay on various pretexts or pretences about the need to complete the deal and to have further money for that purpose.

Having obtained $15,000 in this way without producing the electrical cable or any evidence of it, the appellant then turned his attention to Mrs Banfield.  At times when she was at home alone and her husband was at work, he visited or telephoned her demanding more money.  When she weepingly protested that they had no more money, he called her "a blubbering bitch" and threatened to kill or injure her husband or children.  She said that he said things about there being "bullets with their names on them" and that he "had put others into the bush" and would do the same to her or her husband.

She took his threats seriously and provided further sums from her and her husband's joint resources, not telling him - that is her husband - or the police about it because the appellant had told her not to do so and had threatened to kill them if she did.  He told her also to burn the bank statements showing the withdrawals which she had made.  Eventually the secret came out and the appellant was arrested and charged in late December 2002 or thereabouts.

It is a little difficult to discern what, if any, defence the appellant was advancing at the trial, except that the complainants had willingly lent him these substantial sums of money without security, which was an account that was inherently unlikely.  He has not paid back any of it but through his counsel claimed that the dispute was a purely civil matter.

In the course of Mrs Banfield's evidence about the threats that he made to her, he is recorded in the transcript as having at one stage in the trial from the dock shouted out, "That's bullshit."  But that was the closest he came to giving evidence himself at the trial.  His counsel therefore had not much to go on, except to cross-examine Mr and Mrs Banfield in an attempt to find weaknesses in their testimony about matters that did not in the end count for very much, such as whether the money provided to the appellant had come from one or another of their various sources of finance.

The success of the prosecution case depended in the end on whether or not the Banfields were believed by the jury; which they were, after a summing-up that was, in fact, in some respects, favourable to the appellant.  Mrs Banfield's memory of the details of dates and conversations was far from perfect.  She was in a debilitated condition through her illness and claimed to have suffered two strokes which had affected her memory; but her recollections of essential matters constituting the elements of the offence was sufficient to persuade the jury beyond reasonable doubt.

The jury, acting reasonably, were therefore entitled to believe her and her husband's uncontradicted testimony which, in certain respects, is supported by other evidence from the bank, and the like, in a way that made it appear to the jury to be convincing.  The Judge's directions have not been challenged in any way, and in these circumstances the appeal against conviction must be dismissed.

The sentence imposed on the appellant was five years on count 1 for fraud, for which the relevant maximum is in this case 10 years; and seven years on count 2 - extortion - in which the maximum is 14 years, less some 509 days of presentence detention.  On first impressions that sentence seems heavy but, as the sentencing Judge said, the offence of blackmail is particularly despicable and, it has often been observed, it is notoriously difficult to detect.

In this case it was practised on a vulnerable woman at a time when she was ill and on occasions deliberately selected by the appellant when her husband was absent and when the appellant used menaces about what would happen to him if she confided in him or informed the police.  The appellant knew that Mr and Mrs Banfield needed their money to provide domestic help for her in her disabled condition but he went on to defraud them in what can only described as a completely heartless and cruel fashion.

That is one aspect of the appellant's conduct that goes to support the sentences imposed here.  The other is the appellant's criminal record in the past. 

In about 1997 or thereabouts he came to Queensland from Victoria where he was born in 1964 and had a good upbringing, but where he has been convicted on numerous occasions:  the first in 1984 for burglary; then in 1985 for false pretences; in 1987 for a drug offence; in 1988 for burglary, forgery and uttering and theft by deception and again for burglary; in 1989 for obtaining by deception, burglary, false pretences; and in 1990 for offences of the same kind.

There is a conviction for trafficking heroin in 1991 and in 1992 for opening and operating an account in a false name, and then for receiving stolen goods and again for obtaining property by deception; the same on several occasions in 1994, as well as for blackmail, for all of which he was sentenced to 48 months' imprisonment.  There is said to be a total of some 157 offences of dishonesty against his name in his native State. 

He appears to have been released in about October 1997 and he came to Queensland in 1998.  It was, I suppose, inevitable that in the population movement from Victoria to Queensland this State should garner a fair proportion of criminals, who in this instance included the applicant, who went to Cairns to seek a new beginning. 

In February 1999 he pleaded guilty to three indictments.  The facts of some of the offences charged against him on that occasion bear so striking a resemblance to the subject offences against the Banfields that it is plain that the appellant has a distinctive modus operandi. 

In February 1998 he offered to supply a quantity of electrical cable to a Mr Collins who traded as an electric goods supplier.  By various representations over time, he obtained a total of $34,100 from Collins.  At about the same time he met a Mr Williamson at the Casino in Cairns.  Again he used the electrical cables story to extract $13,250 from this victim.  Later when the appellant was arrested he even had the effrontery - or confidence perhaps it was - in his influence over him to ask Williams to bail him out.

The first indictment to which he pleaded guilty also included frauds on Westpac and the ANZ Bank, which cost Westpac over $9,500 before it stopped.  The total covered by the appellant's offences in the first indictment was over $58,000.

Indictment 2 of those in February 1999 contained an offence for attempted fraud, committed after he was released on remand, against a plumber named Angel.  This time the subject matter of the attempted swindle was copper wire.  Happily, despite many blandishments, Mr Angel would have nothing to do with the appellant's proposal.  The appellant told the police in that case, as he did in this, that he was simply trying to obtain a loan but, unlike the Banfields here, he did not succeed in his attempt to defraud.

The third indictment, starting with count 1, was the defrauding of a cabinetmaker named Hill, by means of the old electrical cable trick, of a sum of $6,700, less $500 which the victim succeeded in getting back as part of the continuing fraud upon him. 

In count 2, the fraudulent method used involved the substitution of a quantity of gold for the electrical cable; but on this occasion the appellant met his victim, a Mr Gambino, while the latter was working in a jeweller's shop.  The total loss to that complainant in the series of frauds that followed was $18,170, although the appellant - rather punctiliously, one would think - insisted it was only $17,200.

Next, in count 3, he hired a car for which he paid by passing a series of cheques that were dishonoured.  Counts 4 and 5 consisted of defrauding a mother and son by the name of Matterson of a total of $4,200.  Count 6 concerned a cheque, later dishonoured, for the purchase of three drums of fibreglass resin. 

Count 7 was a variation of the electrical cable story but this time with a BMW car as the bait that he used, and which he said had been repossessed.  The loss to the victim, Mr McGregor, in that case was $1,490.  Then in count 8 he defrauded an electrical wholesaler of $4,300 and $399.75.  Count 10 on indictment 3 related to frauds on the National Australia Bank which cost the bank over $4,000.  Finally, in count 10, he passed some 19 dud cheques to Suncorp Metway. 

The total loss involved in all these dishonesty charges was over $102,000, which does not include tainted property found in his possession when he was arrested and worth $11,985.

Judge  White in the Cairns District Court sentenced him to terms of imprisonment amounting - and the duration has been the subject of some discussion here - to somewhere between three and a half years and five and a half or five years less 210 days already served.  The sentence was re-opened at one stage and the upshot according to the appellant himself was some four years in prison.

The appellant is a qualified electrician who, under current economic conditions, could easily have found employment.  His problem appears to be addictive gambling, for which his victims have to suffer as well as he.  There is some indication in the evidence of the inevitable disastrous financial and emotional consequences for his victims, which can be well imagined.

The appellant has been given rehabilitative sentences in the past with a view to trying to persuade him to give up this sort of life, but they have done no good.  He is now over 40 years of age and experience tells us that at that age he is unlikely to reform.  Society cannot afford to wait until he does so, if in fact he ever does.  He will in the meantime only continue to wreak havoc on honest and trusting citizens as he has done on Mr and Mrs Banfield.  It is apparent that he has made a career of preying on tradesmen and small businessmen who can ill afford it or the financial consequences that it involves.

In my opinion the sentences imposed here, both for the fraud and additionally for the extortion, were not excessive but appropriate to the serious offences committed, particularly having regard to his persistent record of past offending and the need for personal deterrence.  He did not plead guilty in this case and he has no claim therefore to leniency from the Court.  I would dismiss the application for leave to appeal against sentence as well as the conviction appeal.

JERRARD JA:  I agree with the reasons for judgment and orders proposed by the presiding Judge.  I add that the seven year sentence for extortion is a very heavy one. 

The applicant has a record of convictions extending back to April 1981 and, significantly, which records many occasions when he has been convicted and sentenced for varieties of dishonesty.  These include, as described by the presiding Judge, a sentence of four years' imprisonment imposed on the 26th of July 1994 in the Melbourne County Court for offences which are recorded as being for obtaining property by deception, and for blackmail.

He has then recorded against his name sentences totalling at least five years' imprisonment, imposed in the Cairns District Court in February 1999, for offences of fraud committed soon after he came to Queensland in 1998 and described in detail in the reasons for judgment of the presiding Judge.

Those sentences did not succeed in deterring him from re-offending, which he did very soon after being released in late 1997 in Melbourne and then again in early 2002 in Queensland. 

That pattern of serial and serious dishonesty in a variety of forms explains and justifies the very heavy sentences imposed for these serious offences.

FRYBERG J:  I agree with the order proposed by the presiding Judge and with the reasons expressed by my colleagues.

McPHERSON JA:  The order is that the appeal against conviction is dismissed.  The application for leave to appeal against

sentence is also dismissed.

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