Smith v The Queen
[2003] TASSC 76
•28 August 2003
[2003] TASSC 76
CITATION: Smith v R [2003] TASSC 76
PARTIES: SMITH, Alan David
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 36/2003
DELIVERED ON: 28 August 2003
DELIVERED AT: Hobart
HEARING DATES: 18 August 2003
JUDGMENT OF: Crawford, Slicer and Blow JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Character of offence – Generally – Crimes of dishonesty – Scale of offender's criminality.
Aust Dig Criminal Law [832]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: D G Coates SC
Solicitors:
Appellant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 76
Number of Paragraphs: 9
Serial No 76/2003
File No CCA 36/2003
ALAN DAVID SMITH v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
BLOW J
28 August 2003
Orders of the Court
The appeal is allowed.
The sentence imposed on 2 April 2003 is quashed.
In lieu thereof the appellant is convicted and sentenced to imprisonment for 21 months with effect from 12 December 2002.
The appellant is not to be eligible for parole until he has served half of that sentence.
The appellant is to pay the victims of crime compensation levies of $850 within six months after his release from prison.
Serial No 76/2003
File No CCA 36/2003
ALAN DAVID SMITH v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J
BLOW J
28 August 2003
The appellant pleaded guilty to 17 crimes of dishonesty, was sentenced to three years' imprisonment with a non-parole period of two years, and contends now that that sentence was manifestly excessive.
The appellant applied to a bank for a cheque account with a $5,000 overdraft facility. He falsely represented that he was Dr Alan Smith, that he was an IT specialist, that he was engaged in the business of medical imaging, that he was a self-employed forensic scientist, and that his income was $6,500 per month. He provided the bank with false documents showing that this income was derived from a business in the United Kingdom which did not exist. He forged a British driver's licence, and uttered it by providing it to the bank. He was successful. He dishonestly acquired a financial advantage for himself contrary to the Criminal Code, s252A, by obtaining a cheque account with a $5,000 overdraft facility. He made similar false representations as to his academic qualifications, occupation, and financial position to the employees of a car dealer and a finance company and thereby obtained possession of a Nissan Nirvara motor vehicle. He thereby committed the crime of obtaining goods by a false pretence contrary to the Criminal Code, s250. He subsequently made similar false representations to employees of the RACT, and thereby obtained a loan of $6,000 from a credit union. This amounted to the crime of dishonestly acquiring a financial advantage, contrary to the Criminal Code, s252A. Subsequently, he made two purchases of car accessories using valueless cheques, on each occasion committing the crime of obtaining goods by a false pretence. Subsequently he obtained a Toyota Camry sedan by false pretences, pretending to an employee of a car dealer that he was a self-employed medical practitioner, and giving false details of his financial position. In fact he and his wife ran a small café and take-away shop. On eight occasions he committed the crime of dishonestly acquiring a financial advantage by paying trade creditors with valueless cheques, and thereby obtaining in each case a crediting of his account in the records of the creditor. These crimes were all committed between 14 June 2002 and 27 August 2002 inclusive.
The following calculation gives some indication of the extent of the appellant's criminal activities:
Count Details Amount 1 Credit union loan $6,000.00 2 Nissan Nirvara $38,000.00 3 Toyota Camry $19,500.00 4 and 5 Car accessories $5,303.00 6 – 13 Trade creditors $9,717.55 15 – 17 Overdraft $5,000.00 Total
$83,520.55
The learned primary judge commented when passing sentence that the appellant was engaged in fraudulent dealings "to a total value of just under $100,000", and noted that the motor vehicles and motor accessories had been recovered. Not only had both vehicles been recovered, but at the time of sentencing there was no money owing to the finance companies that had financed the transactions involving those vehicles. Before the appellant was sentenced, his counsel told the learned sentencing judge in relation to each vehicle that there was no longer any money owing. What he said was not disputed by the Crown. His Honour mentioned that the vehicles had both been recovered, but did not mention that nothing was any longer owing in respect of them.
The learned sentencing judge was told that the appellant had given valueless cheques to trade creditors on eight occasions but was not told to what extent those creditors were thereby induced to provide further goods on credit that they would not otherwise have provided. One can infer that some or all of them must have lost money as a result of providing further goods on credit, but the learned sentencing judge was not in a position to assess the impact of such transactions, nor are we.
The fact that the two vehicles, whose prices totalled $57,500, were recovered, together with accessories whose prices totalled $3,463, suggests that the total of the losses suffered by the victims of the appellant's crimes was probably somewhere in the vicinity of $23,000. It is difficult to predict what would have happened to the two vehicles if the appellant's crimes had been detected less quickly ¾he was interviewed and charged on 5 September last. However it is a matter of some significance that both vehicles were recovered and that neither finance company suffered a loss in relation to them.
The appellant was 51 years old when sentenced, and has no significant prior convictions. His crimes were serious. They were premeditated. His fraudulent conduct was sustained over a period of nearly 11 weeks. Nevertheless, with great respect to the learned sentencing judge, we think that a sentence of three years' imprisonment with a non-parole period of two years, for someone who was for practical purposes a first offender, and who pleaded guilty, was out of proportion to the scale of the appellant's crimes. It may be that the learned sentencing judge attached insufficient weight to the fact that no losses were suffered in respect of the two vehicles. Whether or not that was so, we consider the head sentence and the non-parole period to be sufficiently long to indicate error on his Honour's part. We have come to the conclusion that the sentence is manifestly excessive.
We think that an appropriate sentence would be one of 21 months' imprisonment. As the appellant has no significant prior convictions, we think it appropriate to impose the shortest possible non-parole period, ie, half of that sentence.
Accordingly, the sentence will be quashed. In its place the appellant will be convicted and sentenced to imprisonment for 21 months with effect from 12 December 2002. It will be ordered that he not be eligible for parole until he has served half of that sentence. He will be ordered to pay victims of crime compensation levies of $850 within six months after his release from prison.
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