R v Quirey

[2001] QCA 64

[2001] QCA 64

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
AMBROSE J

CA No 281 of 2000

THE QUEEN

v.

BRENDON JOHN QUIREY  Applicant

BRISBANE

..DATE 27/02/2001

JUDGMENT

DAVIES JA:  The applicant was sentenced in the District Court on 10 October last to an effective term of five years and four months imprisonment with a recommendation that he be considered for parole after serving two years.  A declaration was made that 62 days pre-sentence custody be imprisonment already served under the sentence.

The effective sentence of five years and four months imprisonment was a sentence imposed by the learned sentencing Judge for a large number of offences, 59 in all. He imposed a two year sentence in respect of two other offences which were offences of stealing.  The total of
61 offences for which the applicant was sentenced were committed between 18 April 1999 and 29 January 2000.

They were 23 counts of fraud, one of fraud with a circumstance of aggravation, one of attempted fraud, 18 of receiving with a circumstance of aggravation, 10 of breaking, entering and stealing, one of entering a dwelling house and stealing, three of unlawful possession of a motor vehicle with a circumstance of aggravation, one of unlawful possession of a motor vehicle, one of uttering a false document and, as I have already mentioned, two of stealing.

It is common ground that in respect of a large number of offences for which his Honour imposed a sentence of five years and four months, the maximum penalty was less than the sentence which was imposed.  It will accordingly be necessary to set aside those sentences and re-sentence the applicant in respect of those counts.

The parties are also agreed that appropriate sentences for each of counts 1, 7, 9, 12, 13, 14, 16, 17, 19, 27, 30, 33, 36, 39, 40, 48, 49, 55, 57, 58, 59, 60 and 61 would be three years and for each of counts 18 and 45, 18 months.  The setting aside of those sentences and the substitution of the sentences suggested does not in any way alter the substance of this application.  I would make the orders suggested in respect of those counts.

At the time of commission of these offences the applicant was 28 years of age.  He had previously been sentenced on five charges of fraud and one of stealing in the Magistrates Court in April 1998 and was on probation in respect of those offences when he committed these and he had earlier in 1997 been sentenced by a fine in New South Wales for obtaining a benefit by deception.

The offences the subject of the present sentences involved the construction of false identification, the use of people's credit card details, the use of stolen cheques, the construction of false ID in relation to the applicant including the obtaining of a false driver's licence and, as appears from some of the offences themselves, involved the applicant in breaking and entering premises in relation to some of these offences.

The total amount of money and value involved in these offences was over $140,000 and although a substantial amount of property was recovered in the applicant's possession there was still a shortfall of something like $59,000. 

What I have said so far indicates that the applicant's conduct was, as the learned primary Judge thought, on a commercial scale.  It involved systematic fraud and a considerable amount of money.  It was said on the applicant's behalf below that he had a drug problem.  Whilst accepting that, the learned primary Judge said, rightly in my view, that that could not explain the extent of the applicant's dishonesty.  He was found to be in possession of a large amount of the property which had been stolen.

As I have already mentioned, all of these offences were committed whilst the applicant was on probation.  He was arrested in respect of some of them and granted bail and the balance were committed whilst he was on bail. 

As I have also mentioned, the applicant pleaded guilty and his Honour rightly thought that some allowance should be made for that.  However, his plea was made in a context in which his interview with the police does not appear to have been full and frank.  He failed to disclose the whereabouts of much of the stolen property and the police were able to recover that only because its whereabouts were identified by his co-accused and he has persistently declined to name co-offenders with whom he was plainly involved.

The extent of the discount for that plea should therefore be limited to the time and resources saved by an early plea and I did not understand Mr Shepherd, who appeared for him in this application, to assert the contrary.

The sentencing process was complicated somewhat by the fact that at the time of sentence the applicant had been in custody for about eight and a half months, only 62 days of which could be declared to be time served under the sentence.  The balance had been served in respect of traffic offences but the learned sentencing Judge rightly accepted the argument that he should be sentenced for these offences on the basis that the sentence for these and the traffic offences had been imposed at the same time.

Accordingly his Honour, having decided that a head sentence of six years was appropriate for these offences, then discounted it by eight months to a total sentence of five years and four months.  As the respondent's counsel submitted to this Court, that was a generous discount having regard to the fact that only a little over six months of that period could be attributed to both the traffic offences and these offences, credit having been given already for the other two months that I have mentioned.

In the circumstances the applicant, through Mr Shepherd, does not submit that the effective term of five years and four months was excessive.  His contention is limited to one that the recommendation that the applicant be eligible for parole after two years did not make sufficient allowance for the matters in his favour, in particular the plea of guilty.  And moreover he submitted that it did not give effect to his Honour the sentencing Judge's intention.

Looked at as a sentence of six years imprisonment from
29 January 2000, the date on which he commenced to serve custody in respect of his traffic offences, the sentence would represent eligibility for parole after approximately two years six and a half months of the six year sentence. 

In my opinion, having regard to the matters to which I have referred, including the applicant's failure to cooperate in naming his co-offenders and his lack of frankness in his police interview, I do not think that the sentence as a whole, including the recommendation made by the learned sentencing Judge, was manifestly excessive. 

Nor do I think, despite Mr Shepherd's submission to the contrary, that it failed to give effect to the learned sentencing Judge's intention.  His intention was, I think, to make the recommendation which he did, that is for two years in respect of the sentences which he imposed.

I would therefore grant the application and allow the appeal only to the extent of setting aside the sentences imposed on counts 1, 7, 9, 12, 13, 14, 16, 17, 19, 27, 30, 33, 36, 39, 40, 48, 49, 55, 57, 58, 59, 60 and 61 and substituting in lieu a sentence of three years imprisonment and setting aside the sentences imposed in respect of counts 18 and 45 and substituting in each case a sentence of 18 months imprisonment.

WILLIAMS JA:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The orders are as I have indicated.

‑‑‑‑‑