R v Rolles; ex parte

[1998] QCA 165

[1998] QCA 165

COURT OF APPEAL
DAVIES JA
McPHERSON JA

DERRINGTON J

CA No 67 of 1998
THE QUEEN
v.

ROBERT JAMES ROLLES	(Respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND	(Appellant)
BRISBANE ..DATE 06/05/98
JUDGMENT
060598 D.1 T16/JJD24 M/T COA96/98
McPHERSON JA: Mr Justice Davies will give the first judgment.

DAVIES JA: The Attorney appeals against a sentence of two years imprisonment wholly suspended for a period of three years imposed on the respondent for five counts of false pretences, two of forgery and two of uttering, all occurring between 4 July 1991 and 18 January 1993. The respondent has made an offer of compensation in the sum of $22,500 which was ordered by the learned sentencing Judge to be paid by 12 August 1998 in default of which the respondent was ordered to undergo six months imprisonment. It was this offer of compensation which, it appears from the learned sentencing Judge's remarks, led him to wholly suspend the sentence which he imposed.

The Attorney does not contend that a sentence of two years imprisonment for these offences was manifestly inadequate but that the failure to order that at least part of the term be actually served in prison rendered it as a whole inadequate.

The respondent was 46 or 47 years of age at the time of these offences and is now 52. He has a substantial criminal history, but most of it is quite old, and quite rightly, not taken into account by the learned sentencing Judge in imposing the sentence here. Indeed the only previous offence which is of any relevance is one for which he was sentenced in 1983 for obtaining a financial benefit by misleading statement for which sentence was deferred upon his entering into a

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recognizance in the sum of $300 for a period of three years and paying compensation in the sum of a little over $3,000. That offence apparently involved the respondent, in seeking finance for the purchase of a motor vehicle, falsely overstating the purchase price of that vehicle.

The offences the subject of the present charges involved a number of complainants but followed a similar pattern in each case. Each seems to have involved obtaining money from an investor by representing that the respondent was the sole owner of a sunscreen product, the development and sale of which would be profitable for the investor. However I should mention having said that that the offences against the first two victims involved only forgery and uttering, that is, that the counts of false pretences involved only the third and fourth victims.

The first investor was Lawrence Young, who was the complainant in counts 3 and 4. He advanced money to a company, then without reference to him, the respondent approached the Messrs Robson, who were the second set of victims, on the basis that the product would be developed by another company in which they and the respondent would be shareholders, in the meantime telling Young that the product was developing satisfactorily and not revealing to him the existence of the Robsons or their involvement.

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The respondent appeared then to have set up a third company. Mr Hannant, the complainant in counts 5, 6 and 7, answered an advertisement in the Courier-Mail inserted by the respondent guaranteeing 100 percent return within three months on an investment opportunity.

He, Mr Hannant, lost $13,500.

The last of the victims of the respondent's fraud was Charles Wilson who answered a similar advertisement in the Gold Coast Bulletin. Various misrepresentations were made to him and he also invested money in the business thinking, like the others, that it was simply he and the respondent involved. He lost $9,000.

It is unnecessary to set out details of the specific frauds or forgeries involved. It is sufficient I think to set out the general nature of the scheme by which the respondent relieved innocent victims of their money.

It is not clear how much, in total, the respondent's victims lost in consequence of his dishonesty. However it seems to have been accepted that the total value of fraudulent activity alleged in the indictment was $22,500 and the respondent made an offer of compensation in this sum. Apparently the sale of a business owned by the respondent's wife will be sufficient it is hoped to realise the sum. The $22,500 represents the $13,500 lost by Mr Hannant and the $9,000 lost by Mr Wilson.

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There is no doubt that the respondent was attempting to develop and sell a sunscreen product and it seems he put some of his own money in it. I doubt however that that makes a great deal of difference to the seriousness of the offences. All that can be said in his favour is that he had a genuine belief in his product, not that he had any genuine belief that any of his victims would derive any profit from the business, or that they would even get their money back. It seems to me that there are, in the circumstances, few if any redeeming features of these offences. A series of complex frauds were perpetrated upon a number of innocent victims. The respondent, as I said, may have had some faith in the product and he may have put some money into it, but they do not seem to me to be substantial mitigating factors.

Two other matters appear to have been taken into account by the learned sentencing Judge as mitigating factors. The first of these is the respondent's poor health. He apparently suffers from high blood pressure and heart disease and has suffered a stroke which has caused weakness in his left arm. It was said that these conditions were improving with treatment. It is not suggested that he could not receive adequate treatment of this condition in prison, however it was suggested - and I think accurately enough - that imprisonment would be a greater burden for him with those conditions than with others who did not have them. I do not think, however, that looking at that factor it could be said that his medical condition was such that it ought to

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have been sufficient to prevent him spending a term of
actual imprisonment.

The other factor taken into account by the learned sentencing Judge was the offer of compensation. Indeed his Honour said that he was disposed to order a non- custodial penalty only because compensation had been offered. He rightly said that, in an offence of this kind, it is very important that the victims be reimbursed. However I do not think that the offer of compensation justified not imposing a term of actual imprisonment.

The learned sentencing Judge rightly took into account the respondent's plea of guilty but also rightly said it was not an early plea. Plainly some allowance must be made for that and his Honour did this.

In this Court counsel have really agreed it seems, that a sentence of up to three years imprisonment was justified as a head sentence having regard to the seriousness of the offences committed here and the previous criminal conduct of the respondent. That seems plainly to be borne out by the authorities cited to us.

However, as I have said, the Attorney does not contend that the head sentence of two years imprisonment was manifestly inadequate; rather that the order wholly suspending it made it, on the whole, manifestly inadequate. In my opinion that contention is correct. I do not think that the learned sentencing Judge was

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justified in wholly suspending the sentence either for the reasons which he gave or for any other reason. The seriousness of the offences required that a term of actual custody be served. On the other hand I agree with His Honour that the offer of compensation was a relevant factor and if compensation is paid pursuant to that offer some credit should be given to the respondent for that. Mr Meredith for the appellant has submitted that this could be done by reducing the head sentence to 18 months imprisonment but imposing a cumulative six months term in default of payment of compensation.

I would adopt Mr Meredith's reasoning but not the figures which he gave us. I would to that end substitute a sentence of 12 months imprisonment, with a sentence of six months imprisonment in default of compensation. So in summary, I would allow the appeal, set aside the sentence imposed below and substitute a sentence of 12 months imprisonment. I would order compensation in the sum of $22,500 by 12 August 1998, in default six months imprisonment cumulative upon the term already imposed.

McPHERSON JA: I agree.

DERRINGTON J: I agree and would add that the figure of 12 months imprisonment on the charges should be kept at that level only because of the additional factor that there will be further imprisonment if the compensation is not paid.

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McPHERSON JA: Yes, the appeal will be allowed. Justice Davies has stated the sentence to be substituted and the terms as he has stated them will represent the sentence that is now imposed. Any other matters?

MR MEREDITH: Just in the reading out of that judgment, I believe Your Honour meant to say - I proposed 18 months - and you didn't agree with the 18 months you proposed. You said 12-----

DERRINGTON J: Yes.
MR MEREDITH: Yes, sir. I proposed 18 months, plus six and Your Honour was saying-----
DERRINGTON J: Yes, well I think-----
DAVIES JA: I thought I said that.
MR MEREDITH: No, I think you said 12 the first time sorry.
DAVIES JA: Did I?
MR MEREDITH: Yes.
DAVIES JA: I will correct that now.
McPHERSON JA: It can be checked.
MR MEREDITH: I ask for a warrant to issue.
MR HUNTER: Again I would ask that the warrant lie for seven days.

McPHERSON JA: Well, so ordered. There will be a warrant that will lie for seven days in the Registry, or until further order. We will adjourn now. Thank you, gentlemen.

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