R v Taylor

[1994] QCA 574

[1994] QCA 574

COURT OF APPEAL
FITZGERALD P
PINCUS JA

DOWSETT J

CA No 406 of 1994
THE QUEEN
v.

WESLEY GRAHAM TAYLOR

BRISBANE

..DATE 23/11/94

JUDGMENT convicted of a number of offences of dishonesty in the District Court. He was sentenced to various terms of imprisonment, the longest being seven years and no recommendation was made for parole.

Ms Richards who appears for him today complains principally of that circumstance, that is, the absence of a recommendation for parole and the grounds of counsel's complaint are the pleas of guilty, cooperation and requesting matters other than those charged to be taken into account.

The total amount involved in the offences charged and in two further offences which were taken into account under section 189 of the Penalties and Sentences Act 1992 was about

$650,000. Nearly all the money involved was reimbursed or was
to be reimbursed to the persons from whom it was taken but
this reimbursement was not being done by the applicant.

The charges were 33 in all. There was alleged in each of them dishonest application to the applicant's own use of money or other property. With respect to 25 of them, circumstances of aggravation were charged but it seems unnecessary to set out the details of that.

The primary Judge sentenced the applicant, who pleaded guilty, and through his solicitors cooperated with the police to a substantial extent on the basis that he was involved in a deliberate and extensive scheme over a long period of time involving a number of individual clients. Her Honour thought the worst factor was that moneys were taken from people who trusted the applicant. JUDGMENT

These offences were of the "white collar" kind - no houses were broken into. No-one was subjected to violence or the fear of violence. Nevertheless, considered as a whole, they

must be regarded as very serious. Counsel for the applicant securities sold by insurance companies, such as superannuation, bonds and investment bonds. By various means he stole from his clients moneys with which they entrusted him for the purpose of such investment. His simplest method of operation was to take moneys which were supposed to be paid to an insurance company and put them into his own account, but a considerable part of the money he obtained was got by forging letters of withdrawal, obtaining a cheque in favour of a client and endorsing it to himself.

below told the Judge that the applicant had worked principally
as a car salesman and to some extent a farmer until 1985 when
he began to work as an insurance agent. After engaging in
that for some unspecified time he went out on his own,
apparently in association with some others and began to deal
with a number of insurance companies as an independent agent.

It seems odd that these activities went on, apparently on a substantial scale, for some years without detection. If there is a public perception that there are adequate safeguards against crude fraud of the kind in which the applicant engaged in the insurance business, such a perception may be overly optimistic. JUDGMENT

The applicant gave no evidence before the primary Judge, but his counsel said that the money was taken with the purpose of keeping the agency business he was running going, and that sometimes money was taken to restore funds he had previously stolen. Counsel also said that some unspecified part of the money taken was spent on living expenses but not, it was asserted, on high living. It is unclear to what extent Her Honour acted upon these statements but she certainly made reference to them and I think took them into account.

The schedule of sums taken shows the pattern of behaviour started in 1987, but misappropriations became heavier in the period from 1991 to 1993. Over this period of years, the applicant continued these frauds and his doing so involved a number of subsidiary deceptions such as sending out false statements of account and the like. But there is one principal factor which makes this group of offences serious and that is the amount involved.

Second to that, perhaps, is a point on which the Judge placed emphasis, namely that the money was taken from individuals who had entrusted it to the applicant. The principal factors favouring the applicant are that he had no previous convictions, that to a substantial extent there was cooperation with the police including pleas of guilty, and that, according to his counsel, much of the money taken was used to prop up the business rather than being spent on the applicant personally. The case seems to be one in which it might have been desirable for the learned primary Judge if time were available to have obtained in rather more detail and in a more concrete form than merely statements from the Bar table, the applicant's own version of his motives from time to time in this long course of dishonesty. It appears to me, however, that this Court must act on the basis that the rather broad assertions made by counsel on behalf of the applicant below were substantially accurate. JUDGMENT

Before dealing with the principal question, namely whether the sentence imposed can stand, it is desirable to mention that the Crown concedes that two of the sentences imposed cannot stand. They were related to matters which were not charged but which were taken into account under section 189.

Ms Richards focused her attention almost solely upon the been made, I might have been slightly more hesitant about doing so, it appears to me that the proper orders of the Court are application granted; appeal allowed; sentence imposed below varied by making a recommendation of consideration for parole after the applicant has served a period of two and a half years; sentences imposed in respect of the two matters taken into account under section 189 of the Penalties and Sentences Act set aside, otherwise I would confirm the sentences imposed below. JUDGMENT

proposition that in view of the cooperation and pleas of
guilty one would have expected some significant discount and
she asserts that one cannot find it in the head sentence.
It is in substance conceded by Mr Ridgway on behalf of the
Crown that that is so.

THE PRESIDENT: Subject to stating that I am satisfied the concession made was correctly made, I agree.

DOWSETT J: I also agree.

THE PRESIDENT: The orders of the Court are as indicated by

Mr Justice Pincus.

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JUDGMENT