R v Martin

[1993] QCA 39

THE COURT OF APPEAL [1993] QCA 039

SUPREME COURT OF QUEENSLAND

C.A. No. 353 of 1992

Brisbane

[R. v. Martin]

T H E Q U E E N
v.
KENNETH MORGAN MARTIN

(Applicant)

The President

Mr Justice Byrne

Reasons for Judgment of the Court delivered 3rd March, 1993

ORDERS MADE ON 25 FEBRUARY 1993. APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED. TERM OF IMPRISONMENT SUSPENDED. APPLICANT MUST NOT COMMIT ANOTHER OFFENCE PUNISHABLE BY IMPRISONMENT IF HE IS TO AVOID BEING DEALT WITH UNDER S. 146 PENALTIES AND SENTENCES ACT 1992 FOR SUSPENDED IMPRISONMENT OF TWO YEARS FROM 25 FEBRUARY 1993.

C	ATCHWORDS:
C	riminal law - sentence - suspended sentence of imprisonment
Counsel:	P. Hardcastle for applicant/appellant J. Hunter for respondent
Solicitors:	Mallett and Woods for applicant/appellant Director of Prosecutions Office for respondent

Hearing date: 25 February 1993

I	N THE COURT OF APPEAL
Q	UEENSLAND

C.A. No. 353 of 1992

Before The President

Mr Justice Byrne

[R. v. Martin]

T H E Q U E E N

v.

KENNETH MORGAN MARTIN

(Applicant)

REASONS FOR JUDGMENT OF THE COURT

Delivered the 3rd day of March, 1993

The applicant pleaded guilty in the District Court to two

counts of false pretences. He was sentenced to 12 months imprisonment with a recommendation that he be eligible for parole after three months.
The offences arose out of the financial difficulties of a company controlled by the applicant and his wife. By May 1990 its business needed more cash. So the applicant arranged borrowings of about $39,000. Repayment was to be guaranteed by the applicant and his wife. Security took the form of bills of sale granted by the company over two items of heavy machinery and a real property mortgage given by the applicant and his wife.

In June 1990 the applicant used invoices he had forged to convince the financier that his company had taken delivery of the heavy machinery. This was not the fact, although the machinery had been ordered and the applicant expected the items to be delivered imminently. As things happened, there were delays in delivery and in the meantime the funds were applied for other purposes.

The applicant did not anticipate that the financier would suffer any loss, and it has not done so. Substantial periodic repayments were made in accordance with the loan agreements and the applicant repaid the balance of the principal and interest due on the day he was sentenced.

The applicant is a 45 year old businessman. He is highly regarded in his community. His religious convictions made him deeply anxious about what he had done and prompted him to tell the financier about his deception early last year. The applicant has no previous convictions. He co-operated fully with the authorities. He entered an early plea of guilty to an ex officio indictment.
The Judge commented that the applicant had been of excellent character and had for many years participated in worthwhile community organisations. The Crown did not press for imprisonment and his Honour gave serious consideration to another punishment. Apparently under the impression that a decision of the Court of Criminal Appeal mentioning the importance of deterrence in such cases compelled him to do so, the Judge ordered imprisonment. We think he erred in doing so.

Although it is correct to bear in mind the deterrent aspect in fraud cases, there can be circumstances in which imprisonment is inappropriate; see, for example, R. v. Bell [1982] Qd.R. 216. In this exceptional case, no more than a suspended sentence was needed.

It is for those reasons that we have already ordered that the application for leave to appeal be granted, the appeal allowed and the term of imprisonment imposed upon the applicant suspended. The applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s. 146 of the Penalties and Sentences Act 1992 for the suspended imprisonment for two years from when we pronounced these orders on 25 February.