R v Silver

Case [2020] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

R v Silver [2020] QCA 102

PARTIES:

R
v
SILVER, Bradley Keith
(applicant)

FILE NO/S:

CA No 267 of 2019
DC No 1602 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Sentence: 6 September 2019 (Richards DCJ)

DELIVERED ON:

12 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2020

JUDGES:

Sofronoff P and Boddice and Williams JJ

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal against sentence be allowed.

3. The sentences imposed in respect of Counts 8 to 13 inclusive be varied, such that the applicant is sentenced to three years’ imprisonment on each count, with an order that he be released on recognizance under s 19AC of the Crimes Act 1914 (Cth), after serving 2.5 years of each sentence. The applicant is to give security, without surety, after he has served that period of imprisonment, in the amount of $2,000.

4.   The sentences otherwise be confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to seven counts of fraud under section 408C of the Criminal Code (Qld) and six counts of using his position dishonestly with the intention of gaining financial advantage under section 184(2)(A) of the Corporations Act 2001 (Cth) – where the amount involved in the fraud counts was $2,383,000 – where the amount involved in the other counts was $1,635,000 – where the applicant was sentenced to eight years’ imprisonment for the fraud offences and a parole eligibility date was set after he had served two and a half years of that sentence – where the applicant was sentenced to three years’ imprisonment for each of the other counts and a non-parole period of two and a half years was imposed on those counts – where the applicant applies for leave to appeal against sentence on the ground that the sentences were manifestly excessive – where the applicant was aged 19 to 21 years at the time of the offending – where the applicant did not have any criminal history – where the applicant was involved in two unregistered managed investment schemes – where the moneys received by the schemes were deposited into accounts controlled by the applicant or his father – where the dissipation of the funds from the scheme benefited either the applicant or his father – where the applicant provided a statement to the Australian Securities and Investments Commission – whether the sentence imposed was manifestly excessive

Corporations Act 2001 (Cth), s 184(2)(A)
Crimes Act 1914 (Cth), s 19AC
Criminal Code (Qld), s 408C
Penalties and Sentences Act 1992 (Qld), s 13A

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Heiser & Cook; Ex parte Attorney-General (Qld)[1997] QCA 14, cited
R v Henderson [2014] QCA 12, cited
R v Kelly[2016] QCA 293, cited

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AGLC
R v Silver [2020] QCA 102
Case
[2020] QCA 102
Decision Date

CaseChat Overview and Summary

In the case of R v Silver, the applicant appealed against his sentences, arguing that they were manifestly excessive. The applicant pleaded guilty to multiple counts of fraud and using his position dishonestly with the intention of gaining financial advantage. The court was required to determine whether the sentences imposed were manifestly excessive and whether there was an error in the sentencing structure regarding the counts of dishonest use of position. The applicant was sentenced to eight years’ imprisonment for the fraud offences and three years’ imprisonment for each of the other counts, with a non-parole period of two and a half years imposed on the latter counts.

The court considered whether the sentences were manifestly excessive and concluded that they were neither unreasonable nor plainly unjust. The court acknowledged the applicant’s youth, lack of criminal history, and his cooperation with authorities but also considered the significant harm caused by his actions. The court held that the sentences were not manifestly excessive, as they reflected the applicant’s cooperation and the severity of the offending. However, the court identified an error in the sentencing structure regarding the counts of dishonest use of position, as there was no power to order a non-parole period for sentences of three years’ imprisonment under the Crimes Act 1914 (Cth).

The court allowed the appeal against sentence and varied the sentences imposed in respect of Counts 8 to 13 inclusive. The applicant was sentenced to three years’ imprisonment on each count, with an order that he be released on recognizance after serving 2.5 years of each sentence. The applicant was also required to give security, without surety, in the amount of $2,000 after he had served that period of imprisonment. The sentences otherwise were confirmed. The court granted leave to appeal, allowed the appeal against sentence, and varied the sentences in accordance with the provisions of the Crimes Act.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal against sentence be allowed.

3. The sentences imposed in respect of Counts 8 to 13 inclusive be varied, such that the applicant is sentenced to three years’ imprisonment on each count, with an order that he be released on recognizance under s 19AC of the Crimes Act 1914 (Cth), after serving 2.5 years of each sentence. The applicant is to give security, without surety, after he has served that period of imprisonment, in the amount of $2,000.

4. The sentences otherwise be confirmed.

Background

Background to the litigation

The applicant seeks leave to appeal those sentences. The ground of appeal, should leave be given, is that the sentences imposed were manifestly excessive.Background The applicant was born on 13 January 1989. He was aged 19 to 21 years when committing the offences. He was aged 30 years at sentence. The applicant did not have any prior criminal history. All of the offences arose out of the applicant’s involvement in two unregistered managed investment schemes by which members of the public provided borrowed funds which were lost through calculated dishonesty, manipulation and deception. The schemes were strikingly similar to an earlier scheme operated by the applicant’s father, who was a driving force in the schemes the subject of these offences.Offences Central features of the schemes were the provision of false documentation for the purposes of having clients obtain bank loans, the proceeds of which loans were invested in the schemes operated by the applicant. A consequence of that false documentation was that a total of $2,763,000 was loaned to seven investors. Of that amount, $2,383,000 was invested in the applicant’s schemes. The loan processes were undertaken by the applicant engaging an experienced loans manager, who had access to the banks internal systems. As a consequence of this arrangement, there was generally no separate substantiation of the information by the bank. This loans manager undertook the process of having the customers sign the appropriate loan offer and mortgage documentation, and undertook the subsequent dispersal of the money in accordance with the customers’ instructions. The investors were unable to service those loans upon liquidation of each scheme. All but one of those investors were recipients of pensions. As a consequence, slightly less than $300,000 of the sums loaned was recovered by that bank. The applicant was a director of one scheme and a shadow director of the other. He was, in respect of both schemes, the principal decision-maker and in complete control of the movement of the investment moneys. The moneys received by the schemes were deposited into accounts controlled by the applicant or his father. The dishonest use of his position counts related to the applicant’s dishonest dissipation of funds for purposes other than those for which the investors made the investment, and contrary to the representations made to those investors. Investors were provided with false monthly investment statements purporting to show the growth of their investments. Their content was prepared on the applicant’s instructions. The dissipation of the funds benefited either the applicant or his father, or was used to pay employees or interest payments to other investors. Funds were used to purchase properties in the name of the applicant, family or friends. No properties were purchased in the names of the companies operating the scheme. Between 6 February 2009 and 14 February 2012, the applicant contracted to sell properties that had been purchased and developed using those funds. A total of $4,178,761.55 in net settlement funds were deposited into bank accounts belonging to the applicant during that period.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Once it is concluded that the notional head sentence was in accordance with a proper exercise of the sentencing discretion, there is no basis to conclude that the sentences imposed, having regard to the applicant’s additional section 13A cooperation, were manifestly excessive. Those sentences resulted in an effective reduction of 20 per cent in respect of the head sentence and an even greater reduction in respect of the non-parole period. Those reductions evidenced a proper reflection of the extent of the applicant’s cooperation, whilst also ensuring that the sentences did not constitute an affront to society.Conclusions The sentences were neither unreasonable nor plainly unjust. There was no misapplication of sentencing principles. The sentences were not manifestly excessive. There is, however, substance to the respondent’s contention that the structure of the sentences, on the counts of dishonest use of his position, was not in accordance with the provisions of the Crimes Act 1914 (Cth) (“Crimes Act”). That error is to be corrected by ordering that, in respect of each of those counts, the applicant be released on recognizance after serving 2.5 years of those sentences of imprisonment.Orders I would order:(1)Leave to appeal be granted.(2)The appeal against sentence be allowed.(3)The sentences imposed in respect of Counts 8 to 13 inclusive be varied, such that the applicant is sentenced to three years’ imprisonment on each count, with an order that he be released on recognizance under s 19AC of the Crimes Act, after serving 2.5 years of each sentence. The applicant is to give security, without surety, after he has served that period of imprisonment, in the amount of $2,000.(4)The sentences otherwise be confirmed. WILLIAMS J: I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.

Ratio Decidendi

Legal Principle Established

The respondent submits there was an error in the sentencing structure in respect of the dishonest use of position counts. As those offences were Commonwealth offences, there was no power to order a non-parole period for sentences of three years’ imprisonment. The sentences on those counts should be varied to order that the applicant be released on recognizance after serving 2.5 years.Consideration An assertion that a sentencing Judge failed to give appropriate weight to various factors in the sentencing process, absent specific error, is insufficient to establish that a sentence imposed was manifestly excessive. A sentencing process involves the exercise of discretion. There is no one single correct sentence.[1][1]Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25. The ground of appeal that a sentence was manifestly excessive will only succeed if the sentence imposed is so unreasonable or plainly unjust as to give rise to an inference that there had been a failure to properly exercise the sentencing discretion or where the appellate Court, having regard to all relevant factors, is satisfied that “the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases” gives rise to the conclusion that there must have been some misapplication of principle.[2][2]R v Pham (2015) 256 CLR 550 at 559; [2015] HCA 39. The reasons of the sentencing Judge establish that the sentences were imposed after consideration of all relevant factors, both aggravating and mitigating in nature. Regard was had for the applicant’s youth and vulnerability, as well as the circumstances that the offending occurred against the background of the applicant’s father’s involvement in earlier dishonest schemes and the current schemes. There is no basis to conclude that the sentencing Judge failed to have regard to those factors. There is also no basis to conclude that the sentencing Judge failed to determine relevant disputes of facts. The sentence proceeded on the basis of an agreed statement of facts. The sentencing Judge recognised the influence of the applicant’s father but properly noted the applicant’s integral involvement in the offending conduct. The applicant’s significant cooperation, evidenced by not only the applicant’s pleas of guilty, but also the provision of a statement and an undertaking to give evidence in pursuant to section 13A of the Act, was also expressly acknowledged by the sentencing Judge. The sentencing Judge had regard to the findings of the psychological report. The testing evidencing borderline intellectual functioning was taken into account. However, the sentencing Judge rightly observed that that finding must be viewed in the context of a sophisticated scheme, where the applicant was himself actively involved in key aspects of that offending, including the preparation of false documentation and the dishonest use of his position as a director. The applicant also significantly benefited financially from that dishonest conduct.