R v Melrose

Case [2016] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION:

R v Melrose [2016] QCA 202

PARTIES:

R
v
MELROSE, Ronald James
(applicant)

FILE NO/S:

CA No 33 of 2016
DC No 429 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 13 January 2016

DELIVERED ON:

16 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2016

JUDGES:

Morrison and Philippides JJA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application to adduce fresh evidence is refused.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his plea of guilty of 23 counts of obtaining a financial advantage by deception and two counts of attempting to obtain such an advantage – where the applicant was sentenced to four years imprisonment for the obtaining counts and two years imprisonment to be served concurrently for the attempt counts with parole eligibility after serving two years imprisonment – where a reparation order for the amount of $182,287.23 was made – where the applicant submitted that the sentencing judge erred in not reducing the amount of the reparation order by the quantum of fraud involving a co-offender – where the applicant argued that a reference by the sentencing judge to the fact the applicant had not initially co-operated may have amounted to the sentencing judge impermissibly taking the applicant’s lack of initial co-operation into account as an aggravating factor – where the applicant complained that a reference in the prosecution’s sentence submissions to the applicant being on bail for other alleged offending amounted to an error – where the applicant contended that the sentencing judge gave insufficient weight to the delay that occurred between the detection of the offences in late 2005 and when the applicant was charged in 2013 – whether the delay was a relevant factor – whether the weight to be given to the delay went to the issue of manifest excessiveness – whether the exercise of the sentencing discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty of 23 counts of obtaining a financial advantage by deception and two counts of attempting to obtain such an advantage – where the applicant was sentenced to four years imprisonment for the obtaining counts and two years imprisonment to be served concurrently for the attempt counts with parole eligibility after serving two years imprisonment – where a reparation order for the amount of $182,287.23 was made – where the applicant submitted that the sentence was manifestly excessive – where the applicant contended that the sentencing judge gave insufficient weight to the delay that occurred between the…

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AGLC
R v Melrose [2016] QCA 202
Case
[2016] QCA 202
Decision Date

CaseChat Overview and Summary

The applicant, convicted on his plea of guilty to 23 counts of obtaining a financial advantage by deception and two counts of attempting to obtain such an advantage, sought to appeal against the sentence of four years imprisonment for the obtaining counts, two years for the attempt counts to be served concurrently with parole eligibility after serving two years, along with a reparation order for $182,287.23. The applicant raised several grounds for appeal, including errors in the making of the reparation order, insufficient consideration of delay between the offence and sentencing, and the possibility that the sentencing judge considered his lack of cooperation as an aggravating factor. Additionally, the applicant sought to adduce fresh evidence regarding his role in the scheme. The court had to determine whether the sentence was manifestly excessive or inadequate and whether the sentencing judge misapplied the law in any way.

The court addressed each ground of appeal in turn. It found no error in the sentencing judge’s decision to make a reparation order for the full amount as it was within his discretion and the amount was an agreed fact at sentence. The court also held that the sentencing judge did not improperly consider the applicant’s lack of initial cooperation as an aggravating factor, nor did the judge take into account the applicant being on bail for other alleged offences. The court found that the sentencing judge had adequately considered the delay as a mitigating factor, noting that the non-parole period of two years was within the appropriate sentencing range. The court dismissed the application to adduce fresh evidence as it did not reveal anything that was not already known or reasonably obtainable at the time of sentence and did not warrant a different sentence.

The court concluded that the sentence was not manifestly excessive and that the sentencing judge exercised his discretion appropriately, taking into account all relevant factors, including delay. The application for leave to appeal against sentence was therefore refused. The court also refused the application to adduce fresh evidence as it did not warrant a different sentence. The final orders were that the application to adduce evidence and the application for leave to appeal against sentence were both refused.

Orders

Orders of the court

1. The application to adduce fresh evidence is refused.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In this respect, his Honour observed that some delay was inevitable given that the investigation was “extremely complicated” and that “multiple other offenders” were involved. Additionally, his Honour observed that no onerous bail conditions were imposed as a result of the charges brought on 13 May 2013. The applicant’s counsel pointed to the exacerbation of the applicant’s depression that the delay had caused. The sentencing judge stated that the fact that there was some delay was a factor he would take into account in reducing the parole eligibility date.Application to adduce evidence This Court has power to receive evidence that was not before the sentencing judge if its admission would mean that some other sentence other than that imposed was warranted in law.[1] The material that was the subject of the application went to the matter of the finding by the sentencing judge that the applicant was the “architect and instigator” of the scheme. The respondent contended that the material sought to be admitted as further evidence did not reveal anything that would not have been known about, or that could not have been reasonably obtained, at the time of sentence. Rather it sought to re-litigate the factual basis of the sentence, which was the subject of an agreed statement of facts, and the findings of the sentencing judge that were based on those facts. The respondent’s submissions should, in my view, be accepted.[1]R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242 at 597 per Davies and Helman JJ. There is no basis to consider that the evidence sought to be put before the Court was unavailable or unknown at the time of sentence. Moreover, the sentencing judge’s conclusion (not challenged at sentence) that the applicant was the “architect and instigator” was an objectively reasonable finding in all the circumstances and within his Honour’s discretion at sentence. The applicant was sentenced on the basis that he falsely completed returns for all 25 claims relevant to the indictment and that he forged supporting documentation in relation to a number of those returns. He received a lower proportion of proceeds from his offending with a co-offender but he obtained or retained the majority of the funds from the remainder of the fraud, being $111,582.97. He was the contact point for all of the taxpayers and provided some with excuses when they received unexpected returns. The application to adduce evidence should be refused.Grounds of appeal The applicant’s grounds of complaint are as follows:Error as to the quantum and making of the reparation order Section 21B of the Act confers a discretionary power to make a reparation order representing the loss suffered or expense incurred by reason of the offence.[2] As this Court noted in R v Theodossio & Said:[3]“Liability to make reparation, in the case of co-offenders, is joint and several. It is up to the court whether, in a case like this, it apportions the loss between the co-offenders. But that does not exclude a court from ordering each to pay the total sum. We note the passage in Archbold (1997) paragraph 5-399:‘[a]n offender may not complain on the ground that the order is for a greater sum than he received as his share of the proceeds of the crime, so long as it is not larger than the total amount stolen (see R v Lewis, unreported, January 31, 1975) or on the ground that there is an objectionable disparity in making such an order against him but not against his accomplices: ibid.’ Of course, the Commonwealth cannot in fact recover more than the total of [the loss suffered by the victim]. But it should reasonably have the right to recover the loss from either. Each caused the loss, by respective acts of participation in the fraud.”[2]Hookham v The Queen (1994) 181 CLR 450; [1994] HCA 52; the making of an order constitutes proof of final judgment should the beneficiary of the order choose to pursue the matter in a court of competent civil jurisdiction: see Crimes Act 1914 (Cth), s 21B(3).[3][2000] 1 Qd R 299; [1998] QCA 421 at [24].

Decision

Reasons for decision

Anderson concerned the lodgement of six false BAS statements with the ATO in respect of four different entities, three of which did not trade. The offending occurred over four and a half months, during which time Anderson obtained nearly $32,000 and attempted to obtain a further $65,000. Anderson was 49 at the time of the offending, 60 at the time of sentence and had a criminal history that included dishonesty offences. The offences were committed while subject to a good behaviour bond given to obtain his release in respect of a 12 month term of imprisonment imposed for social security fraud. The Court of Appeal dismissed the application for leave to appeal against the sentence imposed, on his guilty plea, of three years imprisonment with release on a recognizance after serving 15 months.Conclusion While the sentence imposed upon the applicant was greater than that in Massey, there were a number of distinguishing factors and, in some respects, the offending could be considered more serious. Nor do any of the other comparatives outlined above demonstrate that the sentence imposed was manifestly excessive, even when regard is had to the matter of delay. In Massey, McMurdo P observed that, unlike the position when sentencing for state offences, more commonly when sentencing federal offenders release dates are set to recognise mitigating factors at between the half to two thirds point of the sentence.[23] As to the recognition of the effect of delay, Holmes JA in R v Cox; R v Cuffe; R v Morrison[24] reduced the sentence imposed on two of the offenders by one sixth. Both of these authorities were referred to before the sentencing judge.[23]R v Massey [2015] QCA 254 at [28].[24][2013] QCA 10 at [102]-[103]. The sentencing judge had regard to the observation of McMurdo P in Massey and also noted that the delay was “a factor which [the sentencing judge would] take into account in reducing the parole eligibility date”. In my view, the non-parole period imposed in this case of two years was within the range regarded as an appropriate exercise of the sentencing discretion, having regard to all the circumstances of the case including the factor of delay. It cannot be said that the overall sentence was manifestly excessive so as to indicate that delay was not adequately taken into account. There being no demonstrated error in principle by the sentencing judge and the sentences imposed being within the appropriate sentencing discretion, and not being manifestly excessive, the application should be refused.Orders I would make the following orders:1.The application to adduce evidence is refused.2.The application for leave to appeal against sentence is refused. BURNS J: For the reasons expressed by Philippides JA, I agree that the application to adduce evidence and the application for leave to appeal against sentence should both be refused.

Ratio Decidendi

Legal Principle Established

The applicant submitted the “actual” fraud amount that was the basis of sentence should be reduced by the quantum of fraud involving a co-offender. The obvious difficulty with that submission is that the quantum was an agreed fact at sentence. There is no merit in the submission as to the making of the order, which was not opposed. In any event, it was within his Honour’s discretion to make the reparation order for the full amount. Section 16A(2)(e) of the Act stipulates that the Court must take into account the “injury, loss or damage resulting from the offence”. It was correct to attribute $182,287.23 as the amount fraudulently obtained and open to the sentencing judge to make the order on this basis.Lack of cooperation The applicant argued that a reference by his Honour to a lack of cooperation may have resulted in additional punishment. The sentencing judge stated the applicant had not initially cooperated, which was accurate. As the respondent submitted, if the applicant had cooperated at the earliest possible opportunity, this would have been a relevant factor to take into account in mitigation. There was no evidence to suggest his Honour made an error in the form of impermissibly taking the applicant’s lack of initial cooperation into account as an aggravating factor.The applicant being on bail for other offending The applicant also complained of a reference in the Crown’s written submissions at sentence to his being on bail for other alleged offending. However, as the respondent contended, the submission as to the applicant being on bail for other matters pending the finalisation of this matter was made in the context of the issue of delay. The prosecution did not contend that being on bail for other offending was relevant to the applicant’s antecedents. Nor is there any reason to consider that the sentencing judge took the matter into account in imposing sentence.Delay The applicant submitted that the sentencing judge gave insufficient weight to the issue of delay as a mitigating factor in imposing sentence. Although delay is not a consideration listed in s 16A of the Act, the respondent accepted that it could be a relevant sentencing consideration depending on the circumstances of the case. The applicant contended that the delay in commencing and finalising the prosecution was “unfair, resulting in anxiety, depression and alcoholism”. The offences related to conduct that occurred between 2003 and 2005. The applicant submitted that he had already been punished at the date of sentence for “eleven years” and that he had done “nothing whatsoever to impede the investigation”. The applicant distinguished his case from that of R v Suarez,[4] which was referred to by counsel at sentence, on the basis that the sentencing judge in Suarez was justified in not mitigating the sentence to reflect delay which had largely been caused by the offender. The applicant placed reliance on R v Cox; R v Cuffe; R v Morrison,[5] which was also put before the sentencing judge. In that case, the applicants (Cuffe and Morrison) were resentenced to take account of the strain they had experienced during the delay of seven years between investigation and proceedings being commenced, during which time they had not reoffended, which had not been taken into account. The applicant relied in particular on the following statements of Holmes JA:[6]“The focus must be on whether there is either a significant element of punishment in the delay because of the uncertainty and anxiety involved or the interval of delay is of sufficient length to make a law-abiding life in the interim a promising indication of rehabilitation.The fact that an offender has expressed remorse for a plea of guilty may be an important indicium of rehabilitation, but the failure to do so does not exclude it. Nor is it imperative, in my view, that there be direct evidence that delay has had an impact through the protracted anxiety of the threat of prosecution; in a sufficiently obvious case an inference to that effect may be drawn.”[4][2012] QCA 190 at [27]-[32].[5][2013] QCA 10 at [98]-[103].[6][2013] QCA 10 at [101]-[102].