R v Whatmore

Case [2022] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Whatmore [2022] QCA 127

PARTIES:

R
v
WHATMORE, Grant Lachlan
(applicant)

FILE NO/S:

CA No 198 of 2021
DC No 408 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 8 March 2021 (Dearden DCJ)

DELIVERED ON:

15 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2022

JUDGES:

McMurdo and Bond JJA and Flanagan J

ORDERS:

1.   Application for leave to adduce evidence refused.

2.   Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 10 years for one count of dishonestly obtaining property from another as an employee to a value greater than $30,000 and a concurrent three year sentence for one count of uttering forged documents – where the sentence proceeded on the basis of an agreed statement of facts – where the applicant conducted an elaborate fraudulent scheme – where the applicant would issue to his employer false invoices for fabricated contractors and credited the money owed – where the applicant stole money from their employer over many years – whether the learned trial judge had all relevant information – whether the learned trial judge had sufficient regard to the applicant’s remorse – whether the learned trial judge should have had regard to the applicant’s suggestion that the culture of the employer implicitly encouraged the charged acts – whether the learned trial judge erred in giving too much weight to a victim impact statement – whether the learned trial judge failed to consider the extra-curial punishment experienced by the applicant following the offending

Penalties and Sentences Act 1992 (Qld), s 9(2)(e)

R v Daswani (2005) 53 ACSR 675; [2005] QCA 167, cited
R v Dick[2022] QCA 59, cited
R v Gadaloff[1999] QCA 286, cited
R v Goodwin; Ex parte Attorney‑General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, applied
R v Heiser, Cook & Attorney-General of Queensland[1997] QCA 14, cited
R v Kawada[2004] QCA 274, cited
R v Lovell[2012] QCA 43, cited
R v Morehu-Barlow[2014] QCA 4, cited
R v O’Carrigan[2013] QCA 327, cited
R v Verrall[2015] QCA 72, applied
R v Webber (2000) 114 A Crim R 381; [2000] QCA 316, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied

COUNSEL:

The applicant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

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

  1. McMURDO JA:  I agree with Flanagan J.

  2. BOND JA:  I agree with the reasons for judgment of Flanagan J and with the orders proposed by his Honour.

  3. FLANAGAN J:  The applicant seeks leave to appeal against his sentence imposed in the District Court at Brisbane…

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Details
AGLC
R v Whatmore [2022] QCA 127
Case
[2022] QCA 127
Decision Date

CaseChat Overview and Summary

In the case of R v Whatmore, the applicant appealed against his sentence of 10 years for one count of dishonestly obtaining property from another as an employee to a value greater than $30,000 and a concurrent three year sentence for one count of uttering forged documents. The applicant argued that the trial judge had erred in various respects in determining the sentence, including by not having all relevant information, not sufficiently considering the applicant’s remorse, not considering the suggestion that the culture of the employer implicitly encouraged the charged acts, giving too much weight to a victim impact statement, and not considering the extra-curial punishment experienced by the applicant following the offending. The applicant also sought leave to adduce evidence in support of his appeal.

The central legal issues in the appeal were whether the trial judge had all relevant information before him, whether the trial judge had sufficient regard to the applicant’s remorse, whether the trial judge should have had regard to the applicant’s suggestion that the culture of the employer implicitly encouraged the charged acts, whether the trial judge erred in giving too much weight to a victim impact statement, and whether the trial judge failed to consider the extra-curial punishment experienced by the applicant following the offending. The court considered these issues in the context of the principles governing appeals against sentence and the discretion of the trial judge in determining sentence.

The court found that the trial judge had all relevant information before him and had given appropriate weight to the factors relevant to the sentence. The court also found that the trial judge had given sufficient regard to the applicant’s remorse and that the suggestion that the culture of the employer implicitly encouraged the charged acts was not a relevant consideration for the trial judge in determining sentence. The court found that the trial judge had not erred in giving too much weight to a victim impact statement and that the extra-curial punishment experienced by the applicant following the offending was not a relevant consideration for the trial judge in determining sentence. The court found that the sentence was not manifestly excessive or inadequate and that there were no grounds for interference with the sentence.

The court refused the applicant’s application for leave to adduce evidence in support of his appeal and dismissed the appeal against sentence.

Orders

Orders of the court

1. Application for leave to adduce evidence refused.

2. Application for leave to appeal refused.

Background

Background to the litigation

The applicant has also filed two applications for leave to adduce evidence. The evidence consists of a transcript of proceedings of a s 590AA application heard before Judge Sheridan on 23 July 2020 and a claim and statement of claim received by the applicant on 26 November 2021 after he had been sentenced.Statement of facts The sentencing of the applicant proceeded on the basis of an agreed statement of facts which was tendered. The applicant commenced employment with the Advance National Service Pty Ltd (ANS) on 10 February 2009 as the Regional Operations Manager – Cleaning Division. The applicant reported directly to the Chief Operating Officer, Mr Miller. ANS is a national company with various divisions, including cleaning and environmental services. It obtains contracts and employs subcontractors to complete the work required. The subcontractors submit invoices and are subsequently paid by ANS. Part of the applicant’s role was to engage new subcontractors to work for ANS. In setting up new subcontractors the applicant was required to complete a number of documents including forms entitled “Subcontractor Action Form” and “Subcontractor File Information Form”. Once a subcontractor had been approved its details were entered into ANS’s computer system by the accounts payable department. These details included payment information and the subcontractor’s ABN which was taken from the forms provided by the applicant. The applicant’s employment responsibilities included authorising payment of subcontractor invoices. The applicant operated two fraudulent schemes against ANS that resulted in money being dishonestly paid into one or more of his bank accounts. The first related to fictitious subcontractors named Bryant, in which the applicant would claim for work carried out by the Bryants in circumstances where they were not legitimate subcontractors to ANS. The statement of facts referred to this as the Bryant offending. The second scheme related to two legitimate subcontractors, Mr Ahmed and Mr Amir Balagafsheh. The applicant would inflate the invoices sent in by these two subcontractors and amend the BSB and account numbers on the invoices so that the money was paid into his account. The applicant would then pay the amount of the legitimate invoices submitted by Mr Ahmed and Mr Balagafsheh and retain the difference. The statement of facts referred to this as the Ahmed and Amir offending. As to the Bryant offending, the Bryants had been involved in a different company with the applicant in 2007. At some time prior to 11 April 2011 the applicant created new subcontractors for ANS in the names of the Bryants. These were false subcontractor agreements dated 13 September 2012 and 25 November 2013. Between 11 April 2011 and 23 January 2017 the applicant created 232 false invoices from Jessie M Bryant Window Cleaning, J M Bryant and T A Bryant. These invoices were paid by 214 deposits into the defendant’s account and totalled $2,194,338.78. These monies were obtained dishonestly and the applicant was not entitled to receive this money.

Evidence

Evidence Before The Court

In arriving at the sentence his Honour had read and considered a detailed 15 page written submission of the applicant’s counsel. The applicant at the time of the offending was 38 to 44 years of age and 48 years of age at the time of sentence. The Crown submitted for a sentence of up to 12 years imprisonment, with the applicant’s counsel seeking a sentence of six to eight years with a parole eligibility date set at less than one third. His Honour while imposing a head sentence at 10 years did fix the parole eligibility date at less than one third observing:“… I have recognised the value of some of the matters in mitigation that have been placed before me comprehensively by Mr Minnery … and as best as possible, given you credit for that mitigation in the parole eligibility date.”[1][1]RB 39 lines 37–40.The applications for leave to adduce evidence In considering the application for leave to adduce the transcript of the s 590AA application it is necessary to briefly outline some of the history of the proceedings. The original indictment presented in April 2018 did not include the Amir offending. The matter was originally set down for a contested sentence on 22 August 2019. On that day the applicant’s plea was vacated and the matter was listed for mention to obtain a trial date. On 29 May 2020 a s 590AA application was filed seeking a Basha hearing which was heard on 23 July 2020. The three witnesses who were crossed‑examined on that occasion were Mr Miller, Mr Putland, the Financial Controller and Mr Thomas, the National Operations Manager. The s 590AA hearing was therefore conducted in the context that the matter had been set down for trial. The matter was listed for trial to commence on 8 March 2021. However, on 24 February 2021 the applicant was arrested by police and charged with the Amir offending. The applicant requested an ex officio indictment in relation to those allegations. The new indictment was presented on 1 March 2021 to which the applicant entered pleas of guilty and the sentence proceeded on 8 March 2021. The applicant asserts in his statutory declaration in support of the application for leave to adduce the transcript of the s 590AA application as evidence, that had the transcript been before the learned sentencing judge his Honour would have been assisted in making “an informed decision on sentencing”. The relevance of the transcript is further explained by the applicant in his written submissions as showing that ANS and its senior management misled the prosecution and therefore the Court. By the claim and statement of claim ANS seeks damages in the amount of $596,188.98 from the applicant for breach of contract, breach of fiduciary duty and/or as restitution for unjust enrichment. Paragraphs 9 to 17 of the statement of claim plead allegations generally consistent with the Ahmed offending. Paragraphs 18 to 20 plead allegations generally consistent with the Amir offending. The statement of claim does not plead any allegations concerning the Bryant offending. In his statutory declaration in support of his application for leave to adduce the statement of claim as evidence, the applicant alleges that if it was before the sentencing judge it would have affected the outcome “and would have added additional weight to mitigation and the lack of credibility, dishonest culture and poor character of the management of the complainant company whose information the prosecution was relying upon”. The statement of claim does not, however, make any allegations relevant to the conduct of ANS or any of its employees apart from the applicant. The applicant also refers to the amount claimed in the statement of claim as being approximately half the net gain to him of $1,200,000 alleged by the Crown.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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