R v Quinn
[2005] VSCA 100
•14 April 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 283 of 2004
| THE QUEEN |
| v. |
| ALLAN JOHN QUINN |
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JUDGES: | BATT, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 April 2005 | |
DATE OF JUDGMENT: | 14 April 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 100 | |
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Criminal law - Sentencing - 15 counts including theft and obtaining property by deception - Elderly and vulnerable victims - Sentenced for like offences committed during substantially same period in New South Wales and Queensland - Due recognition not given by previous sentencing courts to appellant's significant assistance to Queensland authorities regarding unrelated matter - Significant sentencing discount entitlement for such assistance - Sentence of 30 months' imprisonment with 18 months suspended for three years manifestly excessive when notionally combined with sentences imposed for New South Wales and Queensland offending - Appellant re-sentenced to 20 months' imprisonment with 14 months suspended for period of two years - Mill v. The Queen (1988) 166 C.L.R. 59 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R.E. Carlin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Slades & Parsons |
BATT, J.A.:
I will ask Chernov, J.A. to deliver the first judgment in this matter.
CHERNOV, J.A.:
The appellant, Allan John Quinn, who is now aged 53 years, pleaded guilty in the County Court at Melbourne on 15 October 2004 to a presentment containing 15 counts, namely, five counts of theft (counts 1, 2, 5, 9 and 12), four counts of obtaining property by deception (counts 3, 7, 10 and 14), four counts of attempting to obtain property by deception (counts 4, 8, 11 and 15), one count of obtaining financial advantage by deception (count 6) and one count of handling stolen goods (count 13). The maximum penalty for theft and obtaining property by deception is 10 years' imprisonment. The maximum penalty for attempting to obtain property by deception and handling stolen goods is five years’ and 15 years' imprisonment respectively. The appellant admitted 48 prior convictions from 22 court appearances in New South Wales, Queensland and Victoria between November 1969 and November 1994. These included 25 convictions for dishonesty-related offences and a conviction for larceny from a bank and armed robbery. In addition, as I shall explain later, on 17 November 2000 the appellant was sentenced in Queensland to six years' imprisonment, commencing on 1 July 1999, for like offences committed by him there. Furthermore, on 19 December 2002, he was sentenced by the New South Wales Court of Criminal Appeal to a total effective sentence of six years' imprisonment with a non-parole period of four years in respect of like offences committed in that State, but in light of his offending and sentence in Queensland. I will say something more about these sentences later.
The appellant admitted his offending conduct the subject of these proceedings during a police interview conducted on 4 May 2000, while he was in custody in relation to his Queensland offending. Notwithstanding these admissions, Victorian authorities did not prosecute him in respect of those offences until late 2004. It is convenient to note at this point that the appellant had been on parole in New South Wales since 30 June 2003 and later came to this State of his own volition in order to have the Victorian charges finalised.
On 22 October 2004, after hearing a plea for leniency made on 15 October 2004 on the appellant's behalf, the learned sentencing judge imposed a total effective sentence of 30 months' imprisonment and directed that 18 months be suspended for three years, thereby effectively requiring the appellant to serve 12 months' imprisonment. More specifically, in respect of each count of theft and obtaining property by deception, his Honour imposed a sentence of six months' imprisonment. On each count of attempting to obtain property by deception, his Honour imposed a sentence of four months' imprisonment. In respect of count 13 (handling stolen goods), his Honour sentenced the appellant to two months' imprisonment and on count 6 (obtaining financial advantage), his Honour imposed a sentence of six months' imprisonment. In his sentencing remarks, his Honour stated: "Where several counts effectively amount to a fraudulent course of conduct to obtain funds from one or two accounts [belonging to the same person], I shall impose concurrent sentences with respect to each of those several counts." Accordingly, his Honour ordered that the sentences imposed on each of counts 2, 3 and 4, which relate to the appellant's obtaining funds from the Commonwealth Bank account belonging to one of his victims, be served concurrently with each other and cumulatively on all other sentences. Similarly, his Honour ordered that the sentences imposed in respect of the counts in each of the following groups, namely, counts 5 to 8 (which relate to his obtaining fraudulently funds from the cheque account of a victim), counts 9 to 11 (which relate to his obtaining fraudulently funds from the bank account of another victim) and counts 12 to 14 (which relate to obtaining fraudulently funds from the bank account of yet another victim) be served concurrently with each other and cumulatively on all other sentences. In respect of count 1, his Honour ordered that the sentence imposed on it "be served cumulatively with all other sentences imposed". I note that his Honour's orders for cumulation do not accord with the directions given by this Court in a number of cases regarding the proper method of cumulating sentences. More particularly, no base sentence was nominated by his Honour on which other sentences, or portions of them, were to be cumulated, and the orders were made in respect of groups of sentences rather than in relation to individual ones. In relation to some offences, the sentences imposed were impermissibly ordered to be served, as I have noted, "cumulatively with all others". I shall come back to this matter later.
On 3 November 2004, the appellant filed a notice of application for leave to appeal against sentence and on 27 January 2005 filed a Full Statement of Grounds of Appeal containing three proposed grounds. On 4 March 2005, a single judge of this Court granted the appellant leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958.
Circumstances of the offending
The circumstances of the offending are described by the learned sentencing judge in his sentencing remarks and there is no need to re-state them here. It is sufficient to note that the offences in question were committed by the appellant during the period 6 March 1997 to 23 April 1998 against quite elderly and vulnerable victims. The appellant, who normally resided in New South Wales, came to Victoria for the purpose of committing these offences and fraudulently obtained, or attempted to obtain, in excess of $75,000 from his victims, as well as, in the case of most of them, their banking documents and other personal documentation. In each case, the victim was, as I have said, an elderly and vulnerable member of the community, who lived in a nursing home or retirement village. As his Honour stated in his sentencing remarks, the appellant targeted these individuals in a purposeful way and, although the two banks from which money was fraudulently withdrawn by the appellant were the ultimate financial victims of each of the counts other than counts 1 and 14, I think that his Honour probably understated the position when he said "at least some of your frail and elderly victims would have been disturbed by your dealings with them, and their property".
It is sufficient to describe the appellant's fraudulent conduct in relation only to one of his victims because it typifies his modus operandi in relation to the others. Thus, counts 12, 13, 14 and 15 relate to his fraudulent dealings with Arthur Williams, who was then aged 92 and resided in a retirement village in Eltham. On 21 April 1998, the appellant introduced himself to Mr Williams as a Commonwealth Bank official and said that he wanted to discuss certain banking matters with him. The appellant had brought with him, to facilitate his fraudulent activities, amongst other material, a bank passbook belonging to Frederick Milton Baird, who lived in New South Wales, and in relation to which the appellant was later charged with handling stolen goods (count 13). The victim invited the appellant into his unit and, in response to the appellant's queries, and in the context of their brief conversation about Mr Williams's banking arrangements, showed the appellant his bank passbook. The appellant then fraudulently returned to Mr Williams the Baird passbook on the pretence that he was returning the victim's document (count 12). Over the next two days the appellant made four successful withdrawals from the Williams account at four different branches of the bank. The funds withdrawn totalled $18,300 (count 14). He also attempted to withdraw a further $4,400 from the Williams account on 23 April 1998, but was prevented from doing so by a teller who was made suspicious by the large amounts withdrawn over the previous two days (count 15).
New South Wales and Queensland sentences
It is necessary to mention briefly the relevant sentences that were imposed on the appellant in Queensland and New South Wales. The appellant committed, as I have said, numerous offences in the two States that were of a similar nature to those that are the subject of this appeal and, broadly, he there used the same modus operandi. The despicable feature of his fraudulent activities was his carefully planned defrauding of elderly, usually gullible and otherwise vulnerable victims. The New South Wales and Queensland offences were committed between April 1997 and February 1999, that is, broadly over a period of time encompassing the commission of all but one of the Victorian offences. In Queensland, the appellant fraudulently obtained or attempted to obtain in excess of $100,000 and in New South Wales, over $300,000.
It can be assumed for present purposes that the appellant was taken into custody by Queensland police on 1 July 1999 and charged with 24 representative counts of the same nature and character as the current ones. He was sentenced in relation to those offences on 17 November 2000 to a total effective sentence of six years' imprisonment with a non-parole period of two years. The learned sentencing judge directed that this sentence commence on 1 July 1999, effectively in order to take into account the time spent by the appellant in pre-sentence detention. As I have said, whilst in gaol in Queensland, on 4 May 2000, the appellant was interviewed in relation to the Victorian offences and made full admissions, but no application for his transfer under the relevant legislation was made by the Victorian authorities, seemingly because at this time he was also subject to charges for offences committed in New South Wales.
Whilst he was serving his sentence of imprisonment in Queensland the appellant befriended a co-prisoner, Leonard John Fraser, who was suspected by the police of having murdered four young women from the Rockhampton community. As the learned sentencing judge in this case explained, because of the appellant's relationship with Fraser, he obtained information from him that he passed on to the authorities, which resulted in the police being shown the location of the bodies of three of the victims and which otherwise materially assisted them in their investigation and conduct of their case against Fraser.[1] Later, the appellant gave evidence in Queensland in relation to the proceedings against Fraser.
[1]As things transpired, it was discovered that one of the victims was still alive.
The appellant became eligible for parole in respect of the Queensland offences on 30 June 2001. On this date, he was extradited to New South Wales and remanded in custody for the purpose of facing 25 counts for like offences committed by him in that jurisdiction. On 15 May 2002 the appellant was sentenced by a judge of the New South Wales District Court to a total effective sentence of six years' imprisonment with a non-parole period of five years. On appeal against the sentence, on 19 December 2002, the two-judge Court of Criminal Appeal in New South Wales[2] effectively varied the sentence to six years' imprisonment with a non-parole period of four years. The sentence was imposed in respect of both the New South Wales and the Queensland offences and was, therefore, to commence on 1 July 1999. Thus, the appellant became eligible for parole on 30 June 2003 and his sentence will expire on 30 June 2005. I will return to the decision of the Court of Criminal Appeal.
[2][2002] N.S.W. CCA 508.
In a case such as the present, where a number of like offences have been committed by the offender here and in another jurisdiction, and he or she has been previously sentenced in relation to the interstate offences, the basis on which the offender is to be subsequently sentenced in this jurisdiction has been authoritatively stated in Mill v. The Queen[3]. Their Honours in that case made it clear that, in circumstances such as the present, the correct approach is to act on the basis that all the offences were committed in one jurisdiction and that the offender is to be sentenced for them at the one time. The sentencing court must then consider whether the sentence that is proposed to be imposed by it, when notionally combined with the earlier sentence, would offend the principle of totality, having regard to the offender's overall criminality and taking into account mitigating factors. During the hearing of the appeal before us it became apparent that a critical issue was whether the appellant's considerable co-operation with, and assistance to, the Queensland authorities had been given appropriate recognition by the sentencing courts so as to produce a notional total sentence that did not offend the principle of totality, or was not manifestly excessive.
[3](1988) 166 C.L.R. 59 at 66-67.
It seems plain enough that the appellant was not given a sentencing discount for this mitigating factor when he was sentenced in Queensland. That is understandable because, at the time of sentence there, the extent and perhaps even the fact of his assistance were not appreciated.
But that was not the position when he came to be sentenced in the District Court of New South Wales. By then the fact of his assistance to the Queensland authorities was known. Nevertheless, for a reason which escapes me, the sentencing judge refused to take that matter into account when imposing sentence. It seems that when the case came before the Court of Criminal Appeal, there was a debate as to whether it could properly take that factor into account when considering the appropriateness of the appellant's sentence. Why that should have raised a query is not made clear in the court's reasons. Be that as it may, Sperling, J. (with whom Buddin, J. agreed) said that he was "strongly inclined" to think such a sentencing discount was allowable, but said that it was "unnecessary to resolve the question in the present case for the reasons which follow". His Honour's subsequent reasons, however, do not, in terms, deal with this issue and, as I explain, an inference to that effect cannot be drawn from his reasons. The closest his Honour came to indicating that he took the appellant's Queensland assistance into account for sentencing purposes was when he said that an overall effective head sentence for the "totality of [the appellant's] criminality" involved in the two States could not be less than six years' imprisonment. Ms Carlin, for the Crown, submitted that it is implicit in his Honour's conclusion that he recognised the appellant's assistance to the Queensland authorities but nevertheless held that, even so, a period of imprisonment shorter than six years would be too low. Counsel said that this constituted "the reasons which follow", as his Honour promised at paragraph 9 of his reasons. In my view, however, it is difficult, if not impossible, to draw the inference for which counsel contended because, in the passage of his Honour's reasons on which counsel relied, the learned sentencing judge states explicitly that he has taken into account the assistance given by the appellant to New South Wales authorities but makes no mention whatsoever of the help the appellant provided to their Queensland counterparts. Notwithstanding Ms Carlin's well presented argument on this issue, I consider that this relevant mitigating factor was not relevantly taken into account during the New South Wales sentencing process. (Furthermore, it should be noted that after the appellant was sentenced in New South Wales, he gave further assistance to the Queensland authorities.)
Thus, the question for present purposes is whether this mitigating factor and the failure to give it relevance in the New South Wales proceeding, has been sufficiently taken into account by the learned sentencing judge here when he came to sentence the appellant for the Victorian offences. His Honour said that he recognised the appellant's "valuable assistance" to the Queensland police and the Rockhampton community from which Fraser's murder victims came. He also noted the appellant's assistance in New South Wales "in relation to a major police investigation". Nowhere, however, does his Honour mention the fact that the appellant was not accorded a due sentencing discount in New South Wales for his assistance to the Queensland authorities.
I consider that none of the sentencing courts has given due recognition, for sentencing purposes, to the appellant's significant assistance to the Queensland authorities. It is clear that the appellant was entitled to a significant discount for such co-operation, notwithstanding that it went to matters that were unrelated to his offending. See, for example, R. v. Golding and Golding[4], R. v. Hayes[5], R. v. Perez-Vargas and Stevens[6], R. v. Rostom[7] and R. v. ZMN[8]. In light of this, I consider that the impugned sentence offends the principle recognised in Mill or, put another way, is, in the circumstances, manifestly excessive. It follows that it should be set aside and the appellant be re-sentenced by this Court.
[4](1980) 24 S.A.S.R. 161 at 172 to 173 per Wells, J.
[5][1981] W.A.R. 252 at 253 per Burt, C.J.
[6](1986) 8 N.S.W.L.R. 559 at 564 per Street, C.J.
[7][1996] 2 V.R. 97 at 103 to 104 per Charles, J.A.
[8][2002] 4 V.R. 537 at 543 to 544 per Charles, J.A.
Re-sentencing
In re-sentencing him, it is impossible, I think, to come to any conclusion other than that his total criminality was considerable. As I have noted, he preyed, in a calculated and premeditated manner, on very vulnerable victims and he has undoubtedly caused them considerable distress, if not worse, by reason of his brazenly fraudulent conduct. His behaviour towards his victims has been, as Vincent, J.A. observed in the course of the hearing before us, despicable. It continued over a period of approximately two years and was consistent with his long criminal history, which shows, as Ms Carlin pointed out, that he continually offended when he was not in gaol and did so by practising fraud on patently vulnerable people. Moreover, the sentencing principles of general and specific deterrence and denunciation are of considerable importance for the purpose of this sentencing disposition. Nevertheless, the appellant's personal circumstances, which are set out sufficiently in his Honour's sentencing remarks, and other significant mitigating factors must be taken into account. The principal ones include his plea of guilty and his admissions, without which the Crown may not have been able to prove a number of the charges, his seemingly reasonable prospects of rehabilitation, his abstention from gambling and offending since he was released on parole in June 2003 and, as I have noted, the undoubtedly valuable assistance he gave to the authorities in New South Wales and Queensland.
In the circumstances, I would re-sentence the appellant as follows. I would impose on each count the same term of imprisonment that was imposed by his Honour, other than on count 7, in relation to which I would impose a sentence of 7 months' imprisonment. Thus, I would impose the following terms of imprisonment.
On count 7, seven months
On counts 1, 2, 3, 5, 9, 10, 12 and 14, six months
On counts 4, 8, 11 and 15, four months
On counts 6 and 13, two months.
In order to reflect the appellant's total criminality, I would regard count 7 as the base count, that being the most serious of the counts[9], and cumulate two months of the sentence imposed on each of counts 1, 3, 10 and 14 and one month of the sentence imposed on each of counts 4, 6, 8, 11 and 15 upon count 7 and upon each other,
thereby producing a total effective sentence of 20 months' imprisonment. I would also order that 14 months of that sentence be suspended for a period of two years.
[9]See R. v. MDB [2003] VSCA 181 at [14] per Batt, J.A.
If the other members of the Court agree with my above conclusions, there is no need to deal with the appellant's remaining grounds. For completeness, however, it should be said again that his Honour's method of cumulation, which was attacked by the appellant in ground 3, is, as I have said, contrary to the directions of this Court made in a number of cases, many of which are referred to in the recent case of R. v. JG[10].
BATT, J.A.:
[10][2005] VSCA 74 at [22].
I concur in the reasons for judgment of Chernov, J.A., including in particular his remarks about the irregular cumulation directions of the sentencing judge.
VINCENT, J.A.:
Were it not for the fact that I agree with Chernov, J.A. that at no point in the sentencing processes, to which the appellant has been subject, was proper regard given to the important assistance provided to the authorities in Queensland, I would unhesitatingly express the view that this appeal should be rejected. However, by reason of the matters to which he has adverted, and specifically that level of assistance, I also agree.
BATT, J.A.:
Mr Quin, as you may have been able to understand, the Court proposes to make an order suspending part of the 20-month sentence of imprisonment to be imposed on you. The purpose and effect of that order is to mitigate or lessen your punishment in favour of rehabilitating you by releasing you into the community once you have served six months' imprisonment, calculated from the date you were sentenced in the County Court, 22 October 2004. Whilst the remaining 14 months
count as a sentence of imprisonment, actual service in prison will be suspended for an operational period of two years, calculated from 22 October 2004. You should note that, if during that operational period of two years you commit, whether in Victoria or outside Victoria, another offence punishable by imprisonment, whether or not you are actually imprisoned for it, you commit an offence for which you may be fined, but also, more importantly, that you will be brought before the County Court, which will require you to serve in prison the whole 14 months that have been held in reserve unless you show exceptional circumstances making that unjust. Do you understand?
APPELLANT:
Yes, your Honour.
BATT, J.A.:
The order of the Court is as follows:
1. The appeal is allowed.
2.The sentence imposed on the appellant in the County Court at Melbourne on 22 October 2004 is quashed.
3.In its place -
(a)the appellant is sentenced to the following terms of imprisonment:
on count 7 - seven months;
on counts 1, 2, 3, 5, 9, 10, 12 and 14 - six months;
on counts 4, 8, 11 and 15 - four months; and
on counts 6 and 13 - two months;
and the Court directs that two months of the sentence imposed on each of counts 1, 3, 10 and 14 and one month of the sentence imposed on each of counts 4, 6, 8, 11 and 15 be served cumulatively upon each other and upon the sentence imposed on count 7, so that the total effective sentence is imprisonment for 20 months;(b)the Court orders that 14 months of the aggregate period of imprisonment be suspended for a period of two years from 22 October 2004.
4.The Court declares that the period of 175 days, calculated to this day, 14 April 2005, is to be reckoned as already served under the sentence and directs that the fact that this declaration was made and its contents be noted in the records of the Court.
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