R v Ramsay

[1999] QCA 395

99.395

COURT OF APPEAL

McPHERSON JA
AMBROSE J
CULLINANE J

CA No 172 of 1999

THE QUEEN

v.

IAN WESLEY RAMSAY  Appellant

BRISBANE

..DATE 15/09/99

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal in this matter is Ian  Wesley Ramsay.  He was convicted after a trial in the District Court at Brisbane and sentenced in respect of various offences of dishonesty.

The notice of appeal before us incorporates an appeal against conviction, but the applicant, who appeared in person to support his application, affirmed to the Court that he no longer wished to pursue that appeal.  If not already formally abandoned, the appeal against conviction is dismissed.

The matter therefore resolves itself into one of sentence, and of whether the application for leave to appeal against that sentence has any merit.

The sentence imposed in respect of each of the offences was imprisonment for two and a half years, to be served concurrently, for five counts of false pretences; one of misappropriation; one of forgery; and one of uttering forged documents.  All of these offences arose out of what was substantially the same course of criminal conduct on the part of the applicant.

What happened was that the applicant formed a relationship with the complainant Mrs Sue Collins, and maintained that relationship between 31 May 1997 and 27 June 1997.  Soon after it commenced, he began staying at her unit and shared her bedroom with her. 
The dishonesty was initiated almost immediately.  He defrauded Mrs Collins of a deposit of $20,000 and interest which represented, according to the material before us, nearly all of her life savings.  He left her soon after her money was exhausted.  The strategy used by the applicant was such that Mrs Collins did not realise the money was missing until some 12 months later.

She was a dental receptionist in her mid-40s, although at the time in question she appeared to be working only part-time as a result of an illness she was suffering. When she met the applicant, she had separated from her husband and they were later divorced.  She had been saving for her retirement, and the money which she had saved was in a term deposit which was automatically rolled over each year.  Every June she received from the bank a maturation notice recording the total amount which, with the addition of interest, was of course a sum of money that was growing in amount.

At the time of the fraud, or at the time when it commenced, she had just over $21,000 in the account.  She also maintained a cash or working account with the same bank, in which her wages were deposited.  By means of a forged direction to the bank, the applicant arranged for the transfer of $20,000 from Mrs Collins's term deposit to her cash account, and did so without her authority or knowledge.
He then persuaded Mrs Collins that the $20,000 that had been freshly credited to her working account was his own money.  The fraud was effected by telling her that he had needed to deposit $20,000 into a cash account in order to avoid being taxed on shares he had sold.  He raised the matter a number of times before she eventually agreed, under some pressure from him, to participate in the arrangement.

She kept her financial papers, including bank papers, annual maturation statements and tax file numbers, in a bag in the bedroom which she shared with the applicant.  The applicant knew of this and he obtained access to them.  He then forged her signature on a direction to transfer the amount into a working account on 23 June 1997.  Having told Mrs Collins that he had deposited his own money into her account, he then prevailed on her to withdraw it and give it to him.  In accordance with the applicant's instructions, the entire $20,000 was withdrawn by Mrs Collins in instalments of either $2,000 or $500.  Those were the maximum amounts available through payments over the counter and ATM withdrawals.

She gave all of the money to the applicant, believing it to be his.  Following a withdrawal from the term deposit account, it was the practice for the bank to send a computer generated notice of advice to Mrs Collins.  In fact, she never personally received any such letter from the bank at the time in question.  During that period, the applicant stayed at her unit during the day while she was at work, and so he had ample opportunity for intercepting the notice when it arrived.

No further documentation was sent by the bank in respect of the term deposit until the following June, when the maturation notice arrived.  Mrs Collins, having seen it, then informed the police.  It may be added that during some of this time she was incapacitated by glandular fever, and so no doubt was giving less attention to the detail of her affairs than might otherwise have been the case.

The applicant, when confronted with his conduct, did not
co-operate with the police.  Despite his withdrawal of the appeal against conviction which was initially brought before us, he did not in the Court below plead guilty, but went to trial on all charges.  At the time the trial was listed, he sought an adjournment through his solicitors on the basis of a medical condition.  The learned Judge, in the course of sentencing or otherwise, considered that the applicant had exaggerated his condition for the purpose of obtaining the adjournment.  In the end, the applicant surrendered himself soon after a warrant was issued and the trial commenced.  Thereafter, bail was refused to him, despite his making some further representations to the trial Judge, who was evidently inclined to characterise what was said as also being false.  The Judge noted that further delay would have caused even greater stress to the complainant, whose condition was described as "fragile".  One can well understand that.

The Judge also emphasised that none of these matters went to increase the sentence, but only that they demonstrated an absence of either co-operation or remorse on the part of the applicant.  I consider it was legitimate for him to take those factors into account in that limited way; but, whether or not that is so, the sentence imposed was, in my opinion, not excessive to the circumstances or the record of the applicant.

It may be observed that the misappropriation in count 6 was not charged with a circumstance of aggravation, which meant, as the sentencing Judge pointed out, that the misappropriation had to be treated as of a sum of not more than $5,000, with the result, which was fortunate for the applicant, that the maximum penalty for the offence in question, was limited to imprisonment for five years.  It may be recalled that the sentence imposed was only half of that.

The applicant's personal circumstances are that he was born on 8 July 1970, and so was 29 years of age.  He has a prior criminal history, which between 1988 and 1998 has resulted in his being fined or admitted to probation or being required to perform community service on one or more occasions in the past.  It may also be observed that, on one occasion, he committed an offence while under probation and on another he committed an offence while he was on bail for or in respect of the offences with which he was charged and of which he was convicted in this case.

Specifically, his past record includes two convictions for stealing in 1988 and 1989, 22 convictions for false pretences in 1989, one or more convictions for attempted false pretences in 1993, blackmail (that is demanding property with threats) in 1989, five occasions of being unlawfully in a casino, in 1988 and 1989 and 1998, one instance of being unlawfully in a yard, and dangerous driving whilst affected by alcohol in 1997.

His submission before us is that his sentence should have been suspended or that he should have the benefit of an earlier recommendation for parole, to enable him to receive counselling for the gambling problem, which he now realises he has but claims he has not previously recognised.  However, it is evident from his previous criminal history that he has been given the opportunity to reform himself by being fined or admitted to probation or otherwise by being given in the past the benefit of sentences less than that of incarceration.

Anyone who persists in offending knows - and I am quite certain that the applicant is not an exception to this rule - that he will eventually be sent to gaol.  The goodwill that is generated in favour of a young man who errs is not inexhaustible and a series of offences, whether large or small, in a period spanning the years 1988 to 1998 sufficiently demonstrates that moderation in sentencing has been exercised in favour of the applicant in the past.

On the side of the respondent in this matter, the Crown advances, as matters going to support the sentence, that this was a particularly callous and heartless fraud practised upon a victim who was in a vulnerable position.  It involved a carefully contrived plan and a degree of calculation in its execution.  Both those submissions are in my view, unassailable.

The applicant pretended an affection for the complainant in order to defraud her and steal her money.  He left her as soon as he had taken nearly all the money that she had.  It was money that she had worked hard for, and saved for a long time and with which she had intended to provide for her retirement.  There is, I am satisfied, no prospect of restitution or compensation, and none at all was offered at the hearing.

In regard to what I have said, I ought to add that it has also been pointed out by the applicant that (which was certainly not in dispute) the complainant was at the time, or some time before, the time in question, engaged in negotiations with her former husband for a settlement of property, which it may be assumed was part of the matrimonial property which one or both of them owned.

However, there is nothing that I can see in the record which suggests that she was in a financial position better than that which I have described, namely short of money, with her only readily realisable assets being those that were taken from her.  She was living in a small rented unit, for which, because of the part-time nature of her work, she was finding it difficult to pay the rent.

There is in short, in my opinion, no mitigating or redeeming feature of any kind in the conduct of the applicant here.  One sometimes encounters explanations in cases of this nature where an even larger amount is stolen or obtained.  I see no explanation or excuse of that kind in this instance.  In any event, what makes these offences a serious instance of their kind is the applicant's modus operandi and the condition and susceptibility of the victim who was preyed upon.  This unfortunate complainant has been doubly the innocent target of the applicant's machinations.  He abused her trust and affection, as well as taking her money.  His only explanation for his deplorable conduct is that he has an addiction to gambling, which he says he has now recognised.  He urges upon us that, for that reason we should let him go free at an early date, in order that he can cure or attend to curing this disability.  In my opinion, that is not a sufficient reason for entertaining this application. 

There is indeed little, if anything, that can be said in favour of the applicant, except his expressed hope that he will rid himself of his gambling addiction in due course.  He is not without ability to earn an honest living, having told us that he is a qualified electrical contractor.  Having regard to the statutory maximum as well as the number of offences committed in carrying out his criminal conduct in this case, it is, in my opinion, impossible to regard the sentence as excessive, the more so because of the complete lack of remorse on the applicant's part.

He was perhaps fortunate that, apparently through some oversight, he was not charged with an aggravating circumstance which would have made him liable to a higher penalty.  Be that as it may, I can see no reason for interfering with the discretion that was exercised by the Judge in this case in arriving at what was really a reasonable and moderate sentence in the circumstances of the case.  I would therefore dismiss the application for leave to appeal.

AMBROSE J:  I agree with the observations made.  In my view, the sentence imposed was at a lower level than one which the circumstances may very well have justified.  In my view, the applicant was fortunate really to have imposed upon him in the circumstances of this case, a sentence of only two and a half years.  I would also dismiss the application.

CULLINANE J:  I agree also that the application for leave to appeal against sentence should be refused.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed. 

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