R v Tyson

[1992] QCA 468

DAVID CHARLES TYSON	Applicant
BRISBANE .. DATE 03/12/92

COURT OF APPEAL [1992] QCA 468

DAVIES JA
McPHERSON JA

WILLIAMS J

CA No 272 of 1992

THE QUEEN

v.

JUDGMENT sentences, one of 1 year and one of 5 years’ imprisonment for, in total, 5 offences. Count 1 was by false pretences inducing the execution of a valuable security. Counts 2, 3 and 4 were inducing delivery of money by false pretences, and count 5 was partly by false pretences and partly by a wilfully false promise inducing the delivery of money.

The maximum penalty on count 1 was 3 years and he was sentenced by the learned sentencing Judge to 12 months’ imprisonment and the maximum penalty for counts 2 to 5 was 5 years' imprisonment, and the applicant was sentenced to that maximum term. In addition, the learned sentencing Judge made the sentence on count 1 cumulative upon those which he imposed on counts 2 to 5. The sentence was imposed on 1 September this year.

The applicant is 41 years of age, having been born on 25 February 1951. The applicant has a number of previous convictions. All of them, it is fair to say to him, were some considerable time ago and the most relevant of them, which was obtaining property by false pretences and fraudulent misappropriation, was in February 1978. He was convicted of an offence of a cheque not being met on presentation in December 1984. He was charged but did not appear to that charge of false pretences in 1985.

All of the offences involved a fraudulent scheme which the applicant had and promoted for a unique type of polish which he fraudulently said in different ways was quite different from the operation of normal polishes. And the scheme involved generally the sale of franchises for which he advertised and the victims of these offences were those who, unfortunately, answered his advertisements.

The offences occurred over a period of 2 years and involved a total loss to complainants of in excess of $150,000, most of which is gone and no restitution has been made. One of the sets of victims, a couple, lost their home. Another lost what may well have been their life savings. It was, as I said, a series of offences of similar kinds and there were, I think, 3 sets of victims.

The matters to which the learned sentencing Judge referred in imposing the maximum term in counts 2 to 5 and an additional year on count 1 were that the applicant had organised a franchise scam, that he was an undischarged bankrupt, an aggravating circumstance when the scheme was organised, and as His Honour described it "a huge swindle from beginning to end". That was disputed by Mr Glynn who appeared for the applicant before us and, indeed, quite a bit of the debate before us was as to the magnitude of the offences involved; whether they were of the very worst kind.

Mr Glynn submitted to us that, although undoubtedly as he couldn't dispute now the representations made were fraudulently made, nevertheless the applicant, as appeared from evidence of some chemists, wanted a good product and he was concerned about the quality of the business. Mr Bullock for the Crown on the other hand said that, really, that wasn't to the point because - and this seems correct to me - that what the applicant was trying to promote was a product of a revolutionary kind not something which was just a sound product and perhaps even a slightly sounder product in the market than those with which it competed. And it was his representations of the revolutionary nature of this product which induced his victims to part with these sums of money.

Other facts to which the learned sentencing Judge had regard were that there was no remorse and no co-operation with the authorities in the investigation, that the applicant was a swindler and a confidence trickster and that this type of case was too prevalent, too difficult to detect, that general deterrence assumes great importance in a case of this kind, and that there was no basis for leniency in this case and, as I have already mentioned, the previous convictions for dishonesty.

Subject to the qualifications which I have mentioned, all of those are relevant factors and matters to which I would also have regard in this application. The offences were committed over a long period as His Honour also noted. And, his Honour when discussing the question of whether this was the case of the very worst kind, said in effect that no doubt there were worst cases, but this was a very bad case.

I would agree with that view. No doubt there are worst cases, but, it seems to me that this was a very bad case. On the other hand, I do not agree with the way in which His Honour approached the task of sentencing; that is by making the penalty on count 1 cumulative on the penalties in respect of counts 2 to 5.

It seems to me, having regard to the circumstances which I have mentioned, that is that the offences all related to 1 general scheme and that there were several sets of victims, though in the course of what appeared to be a general conduct of selling 1 scheme. I think the appropriate course should have been by His Honour to treat all the offences as concurrent offences.

It seems to me that having regard to the totality of the criminal conduct over the period to which I have referred that the appropriate sentence which His Honour should have imposed for that totality was a sentence of 5 years imprisonment.

Now, I would therefore set aside the sentences and impose in lieu thereof 1 sentence of 5 years imprisonment in respect of each of counts 2 to 5 and impose a sentence of 12 months imprisonment in respect of count 1, those sentences to be served, concurrently.

McPHERSON JA: Yes, I agree the sentences should be 5 years in respect of each of counts 2 to 5, 12 months in respect of count 1, and 3 that those sentences should be concurrent each with the other. I agree with the reasons that my brother Davies has given for the orders that we are proposing.

WILLIAMS J: In my view there was no sufficient reason for making the sentence with respect to count 1 cumulative on the sentences imposed with respect to counts 2 to 5. Making the sentences cumulative had the effect of rendering the overall sentence in my view manifestly excessive. I would therefore delete the cumulative aspect and make all the sentences imposed concurrent. I agree with the reasons and orders proposed by the learned presiding Judge.

DAVIES JA: The orders are as I have indicated.