R v Smith

Case [2021] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2021] QCA 116

PARTIES:

R
v
SMITH, Pauline Mary
(applicant)

FILE NO/S:

CA No 258 of 2020
DC No 221 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 12 November 2020 (Coker DCJ)

DELIVERED ON:

28 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2021

JUDGES:

Morrison and McMurdo JJA and Bradley J

ORDERS:

1.   Application to adduce further evidence refused.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered into a five-year lease for a new vehicle – where the applicant sold the leased vehicle without obtaining the lessor’s consent – where the applicant forged bank statements purporting to show funds repaying the outstanding amount under the lease – where the applicant was sentenced for one count of fraud to three years’ imprisonment suspended after serving nine months and for one count of attempting to pervert the course of justice to two years’ imprisonment suspended after serving nine months – whether the sentence was manifestly excessive

Human Rights Act 2019 (Qld), s 29
Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

R v Valery, unreported, Coker DCJ, DC No 1775 of 2020, 13 November 2020, distinguished

COUNSEL:

The applicant appeared on her own behalf
D Nardone for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  Ms Smith seeks leave to appeal from a sentence imposed upon her on 12 November 2020 in the District Court.  She entered a plea of guilty on 10 July 2020 to one count of fraud to the value of $30,000 or more, and one count of attempting to pervert the course of justice.  The sentences, to be served concurrently, were:

    (a)Count 1 – Fraud – 3 years’ imprisonment, suspended after serving nine months, with an operational period of five years; and

    (b)Count 2 – attempting to pervert the course of justice – 2 years’ imprisonment, suspended after nine months, with an operational period of five years.

    Circumstances of the offending conduct

  2. An agreed statement of facts was tendered to the sentencing judge.[1]  What follows is taken from that agreed statement.

    [1]Exhibit 1, Appeal Book (AB) 35.

  3. By way of overview, the count of fraud involved Ms Smith selling a car for $46,000, when at the time it was being leased from Toyota Finance Australia Limited.  It was still subject to the lease at the time of the sale and, as a consequence, Ms Smith was prohibited from selling or assigning the car without Toyota Finance’s consent.  She acted dishonestly because she did not obtain that consent, and falsely represented to the buyers that she was lawfully entitled to sell the car.

  4. Again by way of overview, on the second count, police interviewed…

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AGLC
R v Smith [2021] QCA 116
Case
[2021] QCA 116
Decision Date

CaseChat Overview and Summary

In the case of R v Smith, the applicant, Smith, sought to challenge the sentence imposed by the Court, arguing that it was manifestly excessive. Smith had entered into a five-year lease for a new vehicle but sold the leased vehicle without obtaining the lessor’s consent. Smith also forged bank statements to cover up the fraud. Smith was sentenced to three years' imprisonment for fraud, suspended after serving nine months, and two years' imprisonment for attempting to pervert the course of justice, also suspended after serving nine months.

The primary legal issue in this appeal was whether the sentence imposed on Smith was manifestly excessive or inadequate. Smith argued that the sentence was excessive, given her medical conditions and the fact that she had not been imprisoned solely due to her inability to perform a contractual obligation. The Court needed to consider whether the sentence was within the proper exercise of the sentencing discretion and whether it was justified by the nature and circumstances of the offences.

The Court reasoned that the sentence was within the proper exercise of the sentencing discretion. The fraud alone could have warranted a custodial sentence, and the attempt to pervert the course of justice, which involved lying to the police and fabricating a bank statement, further aggravated the offences. The combination of the two offences justified a period in actual custody. Although the nine-month period might be seen as at the higher end of the discretion, it was not beyond it. The Court found that Smith had not demonstrated that the sentence imposed on her was manifestly excessive. The application for leave to adduce further evidence was also refused as it would not have had any determinative effect on the sentencing process.

The Court concluded that the application for leave to appeal against the sentence should be refused. The Court made the following orders: 1) the application to adduce further evidence was refused, and 2) the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1. Application to adduce further evidence refused.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

On that basis sentences were imposed which, most relevantly to Ms Smith’s application to challenge the sentence, included a period to be served of nine months.Challenge to the statement of facts In the course of her submissions before this Court Ms Smith sought to challenge a number of statements in the agreed schedule of facts. As will appear, I do not consider that challenge to be determinative. The first thing to note is that a challenge to an agreed statement of facts is difficult to reconcile with the entry of a plea of guilty. Ms Smith contended that she was lawfully entitled to sell the car “as it was in my name, and I didn’t require the lessor’s consent”. This refers to paragraph 1 of the overview in the schedule of facts.[3] That challenge should be rejected. Ms Smith did not challenge paragraph 3 of the agreed schedule which includes two pertinent facts:(i)the car belonged to Toyota Finance; and(ii)she was not permitted to sell it, or otherwise permanently part with it from her possession, without the prior written consent of Toyota Finance.[3]AB 35. As to paragraph 7 of the schedule, Ms Smith referred to the agreed fact that the original advertisement for the car did not mention the fact that the car was leased. Her point was that she did not believe it was a requirement to do so when an ad was placed for a car. That is of no moment in light of the admitted fraud, which was to sell the car without seeking or obtaining the lessor’s consent, and without paying out the lessor. Ms Smith disputed part of paragraph 8 of the agreed schedule of facts.[4] In particular, she referred to the statement that when she accompanied Mr Stevenson on the test drive, she did not tell him that the car was still subject to finance. Ms Smith contested that now, saying that she did explain to him that the car was still subject to finance. She did not disagree with the balance of paragraph 8, which includes the fact that she had not approached Toyota Finance about the early termination of the lease, nor to seek their consent to the sale.[4]AB 36. Ms Smith challenged paragraph 12 of the agreed schedule of facts.[5] When pressed as to the extent of the challenge, it transpired that it was to qualify the fact that she had facilitated the transfer of the registration of the car, which she said was from her personal registration plates to normal generic registration plates, done at the request of Ms Candotti. Further, there was a qualification on the last sentence of paragraph 12, which stated that Ms Smith did not reveal to Ms Candotti that $49,326.40 remained owing on the lease. It transpired that the extent of her dispute was that she “may not have said the actual amount but I did say there was the amount still outstanding”.[5]AB 36. Ms Smith made the point that the changeover of registration plates on her car was under the control of Ms Candotti, who took it upon herself to continue to use the Queensland generic plates so that the vehicle remained in Ms Smith’s name. So far as Ms Smith was aware, the car registration was not changed until July 2018, 15 months after it was collected.

Evidence

Evidence Before The Court

In those circumstances Ms Smith was not imprisoned “only because of [her] inability to perform a contractual obligation”.Application to adduce further evidence Ms Smith sought to adduce evidence before the court which, it was contended, went to show:(a)that she had instructed Mr Stevenson to pay a $1,000 deposit into her bank account, explaining that the vehicle was subject to a lease; further, she understood that Mr Stevenson would pay the balance direct to Toyota Finance;(b)Ms Candotti collected the car without changing the registration, and Ms Smith did not sign vehicle transfer documents;(c)Ms Smith was unable to get payout details from Toyota Finance due to the Easter break at the time; and (d)she continued to service the lease in anticipation of the transfer of ownership of the car. There is no necessity to canvass the details of the evidence sought to be advanced in support of those contentions. None of that evidence disturbs the underlying facts which were the subject of the agreed schedule tendered at the sentencing. Ms Smith took the $46,000, knowing it was payment for the car, and knowing that she had neither sought nor obtained the consent of Toyota Finance to the sale of the car, or to her relinquishing possession of it. Delays in registration and difficulties in obtaining payout details from Toyota Finance are immaterial to the substance of the fraud, and wholly irrelevant to the count of attempting to pervert the course of justice. One category of evidence sought to be advanced concerns Ms Smith’s condition of shingles and fibromyalgia, from which she continues to suffer while in custody. In response to her affidavit the respondent adduced evidence from the Corrections Service. That was to the effect that Ms Smith’s fibromyalgia was a known condition, she had been seen by medical practitioners and offered medication, but declined it. In those circumstances, the additional evidence would not have had any determinative effect on the sentencing process. Ms Smith contended that her medical records were not put forward at the sentencing hearing. That may be so, but there is nothing in them that would operate to deny the imposition of actual custody as an option. Ms Smith’s submissions otherwise were that incarceration was not a particularly pleasant experience. That may be so, but it has no impact upon the sentences imposed. Not only was that not submitted on her behalf at the sentencing hearing, what was said did not rise to such a level that it would compel a non-custodial sentence. The application for leave to adduce further evidence should be refused.Conclusion For the reasons given above, Ms Smith has not demonstrated that the sentence imposed on her is manifestly excessive. It was within the proper exercise of sentencing discretion to impose a period of actual custody. The fraud alone could have called for that notwithstanding the absence of prior criminal history, good history and mitigating circumstances. However, as the sentencing judge recognised, the attempt to pervert the course of justice took matters to a different level. That involved not just lying to police but fabricating a bank statement to pretend that money had been paid to the lessor when it had not. That conduct hampered the investigation and prolonged the aggravation of those who had been damaged by the fraud.

Decision

Reasons for decision

The application for leave to adduce further evidence should be refused.Conclusion For the reasons given above, Ms Smith has not demonstrated that the sentence imposed on her is manifestly excessive. It was within the proper exercise of sentencing discretion to impose a period of actual custody. The fraud alone could have called for that notwithstanding the absence of prior criminal history, good history and mitigating circumstances. However, as the sentencing judge recognised, the attempt to pervert the course of justice took matters to a different level. That involved not just lying to police but fabricating a bank statement to pretend that money had been paid to the lessor when it had not. That conduct hampered the investigation and prolonged the aggravation of those who had been damaged by the fraud. The combination of the two offences justified a period in actual custody. Once the head sentence was set at three years, a nine-month period was one quarter of that time, and factored in, as the sentencing judge said, a degree of amelioration for mitigating circumstances. It may be that nine months could be seen as at the higher end of discretion, but it cannot be said to be beyond it. The application for leave to appeal against sentence should be refused. I propose the following orders:1. Application to adduce further evidence refused.2. Application for leave to appeal against sentence refused. McMURDO JA: I agree with Morrison JA. BRADLEY J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

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