R v Martin

[1996] QCA 162

[1996] QCA 162

COURT OF APPEAL

FITZGERALD P
WILLIAMS J
BYRNE J

CA No 53 of 1996

THE QUEEN

v.

CRAIG ANTHONY GERARD MARTIN  Applicant

BRISBANE

..DATE 14/05/96

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against a sentence imposed in the District Court by
Judge Boulton on 2 February 1996.  The 33 year old applicant was there found to have been in breach, for a second time, of a community service order and orders with respect to restitution and sentenced to 15 months imprisonment and ordered to pay $2,205 restitution with no provision for default.

The original offences, a series of property offences, occurred between 16 October and 13 November 1992 and included two counts of stealing; one of forgery; one of uttering; one of attempted false pretence; and one of obtaining credit by fraud.  To that time his only prior criminal history involved dishonesty offences in 1985 and 1986 for which he was convicted and fined and there is no indication that there has been an offence since 13 November 1992.

So far as the offences are concerned, the applicant, over a relatively brief period, systematically stole cheque leaves and forged and uttered them for a total of $9,410.  The complainant husband and wife were close friends of the applicant who had a key to their house and removed cheques relating to a business account.  The cheques were then deposited into his own account and he was said to have used the funds for gambling.  He accepts that he had a gambling addiction at that time.  On 3 May 1994 the complainants confronted the applicant who admitted the dishonesty and repaid $1,000.  On 14 October that year he pleaded guilty to the counts brought against him, which I have detailed above.

At that time the Court was told of misfortune which the applicant had suffered.  It seems that he had separated from his wife as a result of being caught out and subsequently his wife and child had been killed in a motor vehicle accident.  The Court was also told that the applicant attended Gamblers Anonymous; had beaten his gambling addiction; that he had some funds to make restitution which he would supplement with a bank loan.  Amongst the matters which he now tells us is that he was unable to proceed with that loan because the bank would not proceed once the matter was before the Courts.

The sentencing Judge, Judge Helman, as His Honour then was, accepted that the applicant genuinely desired to make restitution and accordingly ordered that he perform 240 hours community service with a condition that the balance, $8,410, be paid within two weeks, that is by 28 October 1994.  On that day another District Court Judge, Judge Hoath, amended the original order by allowing a further two weeks to pay, that is to 11 November 1994. 

On 19 May 1995 the applicant was dealt with for breach of the orders as he had repaid nothing and had only performed three hours community service.  On that occasion the story for the Court was that a guarantor of a loan had gone overseas and the applicant's loan application had been rejected and that the applicant had formed a relationship with a woman whom he had met at Gamblers Anonymous but that she also had been killed in a car accident and that he was unable to work for a while after that, but that he had $600 on him to pay the Court.

Judge McMurdo, before whom the matter then came, re-sentenced the applicant requiring 240 hours community service but reducing the compensation payable by him to one-half of the original amount ordered by Judge Helman, that is $4,205, expressing the opinion that expecting payment of the full amount was unrealistic.  The applicant was ordered to pay $600 immediately and $300 each month thereafter. 

On 2 February this year the applicant came before a fourth District Court Judge.  He was again in breach of the orders which had been imposed.  In the eight and one-half months approximately since he had been before Judge McMurdo he had completed only a further 11 hours work and repaid only $2,000 when, in fact, $3,000 should have at least been paid for that period.  Judge Boulton, before whom the applicant then came, re-sentenced the applicant, imposing the sentence which is the subject of this appeal.  His Honour said, in re-sentencing the applicant, he took into account that there was no proper explanation for his poor performance and that the leniency that had been extended on two previous occasions appeared misplaced.  I cannot recollect - but think I am correct in saying - that there is no indication that His Honour took into account, on that occasion, the amount which had been repaid or the small number of hours of community work completed. 

Before this Court, the respondent, understandably, submits that despite the leniency that has been extended to him on previous occasions the applicant has consistently failed to comply with the community based orders, that he has not made the restitution that was ordered.

He appears to have gained judicial sympathy by inaccurate accounts of personal tragedy and by exaggerated submissions about his ability or willingness to make restitution.  It was submitted correctly, in my view, that on the occasion when he came before Judge Bolton, a term of imprisonment was almost inevitable.

The applicant's written submissions before this Court tend to repeat, to some extent at least, the pattern of his submissions on earlier occasions really constituting an attempt to gain sympathy and to deflect criticism from himself.  For example, he talks about the stress he was under consequent upon the loss of his wife and daughter; his drinking and gambling problems; that his behaviour which, in committing the offences, was out of character.  He refers to the restitution he has been able to make.  He talks about an intention to remarry another fiancee with whom he has become involved, and talks about a good position which he says he has been offered.

He also offered the rather implausible excuse that the employment which he had enjoyed as a full-time tennis coach for two years in 1994 and 1995 - for which, in the course of argument, he told us he received about $25,000 a year - was so onerous that he had found it difficult to do the 240 hours of community service.  None of that weighs very heavily with me.  However, I have gained the impression that the applicant may finally have seen the error of his ways.

There are references in many cases to the significance to persons who first go into prison, of the clanging of the door, and he has now been in prison for a little over three months and it is quite apparent, watching him here in Court, that he has not enjoyed the experience one bit.  Further, he has finally come to the point where he seems to be able to make some attempt at honesty in his statements to a Court.  He has accepted that the reason he did not do the community service was that he was too lazy and, in effect, the reason that he has not made the restitution was that he was too selfish, to put it briefly.

Although my mind has fluctuated I have, in the end, concluded that the sentence imposed by Judge Boulton was excessive and was not the sentence which might best have been moulded to both bring home to the applicant the error of his ways, deter him and others who are like-minded from such offences, and have the best result for his former, I assume, friends whom he so callously took advantage of.  The appropriate sentence, in my opinion, would have been a sentence of imprisonment such as that imposed by Judge Boulton but with an order that it be suspended after five months and a restoration of the original order for restitution which will leave the applicant - we were told by the Prosecutor and the applicant has agreed - with the obligation to make payment of $6,410.  He has assured the Court that a period of 15 months after he comes out of prison will be adequate for that purpose and it remains, I think, only to say that, in my view, the operational period for which the suspended sentence should operate should be two years.

In summary therefore:

(1)I would grant the application;

(2)allow the appeal;

(3)vary the sentence imposed below only to the extent of ordering that it be suspended after the applicant has served a period of imprisonment of five months;

(4)the operational period to be two years.

I would order that the applicant repay to the complainants the balance restitution of $6,410 within 15 months from the date when he is released from prison.

WILLIAMS J:  I agree.

BYRNE J:  I am of a different opinion. 

The facts have been set out in the reasons for judgment of the President.  The question is whether the sentence is manifestly excessive. 

In my view, the applicant was fortunate not to have been sentenced to imprisonment when first dealt with by Judge Helman.  He then had prior convictions for offences of dishonesty committed on more than one occasion.  He was extended leniency by Judge Helman, and then by other Judges on the occasions to which the President has referred.  Each time he failed to take advantage of the opportunity. 

His prior failures to satisfy orders for restitution and community service give me no confidence that he would make the restitution now proposed to be ordered.

I am fortified in that view by the written submissions which the applicant has recently filed in support of this application.  They persuade me that he has not yet gained an appreciation of his personal responsibility for his crimes or of the need to comply with orders of the Courts rather than to order his priorities selfishly. 

In my opinion, the view taken by the learned sentencing Judge was open, and the sentence is not manifestly excessive.

THE PRESIDENT:  The orders will be as I have indicated, by a majority of myself and Mr Justice Williams, with
Mr Justice Byrne's dissent, of course, noted.

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