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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Evelyn  QSC 97
MARK WILLIAM EVELYN
Indictment No 1794 of 2019, 1570 of 2018, 4 count indictment presented on 28 April 2020 and 3 count indictment presented on 28 April 2020
Bench Charge Sheet 1923 of 2019, 1650 of 2018 and 645 of 2020
Supreme Court at Brisbane
6 May 2020
28 and 29 April 2020
The order of the Court is that:
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS –TOTALITY –GENERAL PRINCIPLES – where the defendant pleaded guilty to 97 offences – where the offending could be categorised into two categories of offending: drug offences and offences of fraud and dishonesty – where the defendant had no previous criminal history – where the prosecution submitted that the sentence should be structured so as to notionally arrive at a head sentence for the most serious offences upon the drug offending and the fraud offending respectively, provided that the head sentences for the two types of offending should be served cumulatively, but reduced for totality – where the defendant’s counsel did not challenge the prosecutions submissions except for submitting a lesser period of imprisonment for the accumulated offences.
Penalties and Sentences Act 1992 (Qld), s 9, s 159A(1)
R v Alexander  QCA 11.
R v C’Ward  QCA 15
R v Gabbert  QCA 133
R v Hesketh  QCA 116
R v Jones  QCA 251
R v Norris  QCA 376
The Queen v Connolly  QCA 132
The Queen v Reid  QCA 190
The Queen v Wilson  QCA 98
H McIntyre for the Crown
C Wilson for the defendant
Director of Public Prosecutions for the Crown
A W Bale & Son Solicitors for the defendant
- The defendant fell to be sentenced for an extremely large number of offences for a single sentencing hearing. For that reason, and because of the need to compile a significant volume of information into a comprehensible form, these sentencing remarks are delayed by several days from the sentences which I imposed on 29 April 2020 last.
- In all, there are 97 offences for which sentences were imposed. The period of offending began on a date between 11 May 2016 and 12 June 2016 and ended on 12 December 2018. The range of offences is extensive, but can be described as falling into two categories. First, there are 37 drug offences, the most serious of which are two trafficking offences for a period of slightly in excess five weeks and approximately 8 months later for a period just under four weeks. The maximum penalty for the trafficking offences is 25 years’ imprisonment
- Second, there are 51 offences of fraud or dishonesty, of which the most serious is an offence of fraud by dishonestly gaining a benefit or advantage to a value of over $30,000 over a period of slightly in excess of ten months. The maximum penalty for fraud by dishonestly gaining a benefit or advantage to a value of over $30,000 is 14 years’ imprisonment.
- The 97 offences are charged on four indictments (1794 of 2019, 1570 of 2018, a four count indictment presented on 28 April 2020 and a three count indictment, also presented on 28 April 2020), and three bench charge sheet files transmitted to this Court (BRIS-SUP-1923/19, BRIS-SUP-1650/18 and BRIS-SUP-645/2020). To make sense of the great number of offences they have been reduced to a chronological list contained in Exhibit 5 which cross refers each offence to the relevant indictment or bench charge. A copy of the list is appended to these sentencing remarks.
- In dealing with the factual circumstances of the offences, I will mention only those for which the prosecution submitted that a penalty by way of a term of imprisonment should be imposed. That submission was made for 54 of the offences. I will not mention the facts relating to the 43 other offences for which the prosecution submitted it was appropriate to record a conviction but order that the defendant not be further punished.
- On 19 June 2016, police executed a search warrant at the defendant’s unit. An Oppo brand phone was seized that contained evidence that the defendant was trafficking in methylamphetamine from 11 May to 19 June 2016. The defendant sold methylamphetamine in amounts that varied from half grams to quarter ounce. He sold drugs on 13 occasions. On four occasions, the amount was a ball or 3.5 grams. On three occasions, the amount was a half ball or 1.75 grams. On one occasion, the amount was four balls plus 2 grams (inconsistently said to be an ounce in the statement of facts) and on another occasion the amount was three quarters of an ounce or 21.6 grams. There were 13 customers. Several of the customers were intending to on supply. The defendant supplied drugs “on tick” and then followed up unpaid debts. There was an image on the phone of a handwritten tick sheet for one customer. The customer owed $5,795. While the trafficking primarily involved methylamphetamine, there was an occasion where the defendant indicated that he could obtain cannabis if the customer ordered it. As well, there were supplies of GBL referred to.
- At the time of the search, the defendant was found to be in possession of 2.718 grams by pure weight of methylamphetamine, 0.682 grams of MDMA and 0.997 grams of cocaine. Neither the MDMA nor the cocaine was analysed for purity.
- On 24 July 2016, police executed a search warrant at the defendant’s address. They found items including $595 in cash. The defendant could not provide a reason as to how he obtained the cash, which was reasonably suspected as being the proceeds of a drug offence.
- On 15 November 2016, police executed a search warrant at the defendant’s unit. 17 clip seal bags each containing ten pills were located. A further bag containing 88 pills was also located. On analysis, the pills were found to contain MDMA of 5.698 grams by pure weight, methylamphetamine of 2.167 grams by pure weight and a quantity of ethylone that was not measured. The defendant possessed the pills for a commercial purpose.
- Police also located in the unit a cache of identity documents that the defendant had received being ID cards and bank cards that had been stolen from 18 different victims.
- On 25 November 2016, police executed a search warrant at the defendant’s unit. Four separate containers each holding a substance that tested positive for 1, 4-butanediol were located, totalling 151.3 grams of the substance. As well, two clip seal bags were found inside a car the defendant had hired. One of them contained methylamphetamine of 0.249grams by pure weight. Another of them contained 0.833 grams of methylamphetamine by pure weight, which was packaged for supply to a customer in a clip seal bag and an envelope bearing the customer’s name.
- On 13 December 2016, police executed a search warrant at the defendant’s address. They located a clip seal bag containing 0.4 grams of methylamphetamine, a packet containing 10.5 grams of cannabis and a quantity of documentation in the name of other persons consisting of personal bank records, traffic infringement notices and registration renewals for vehicles.
- On 8 March 2017, police executed a search warrant at the defendant’s address. They located a number of electronic devices that were seized and later analysed to reveal offences of dishonesty.
- On 13 January 2017, the defendant used one Martin Drennan’s identification information to send an online submission to open a bank account with the ANZ bank.
- Between 17 January 2017 and 9 March 2017, the defendant received the driver’s licence of one Simon Goodburn, which was stolen.
- On 27 January 2017, the defendant entered into a rental agreement with Budget Rent-a-Car, Surfers Paradise. The defendant rented a car and agreed to return it on 11 February 2017 but did not do so.
- Between 18 February 2017 and 9 March 2017, the defendant received a driver’s licence of one Jordan Keras, which was stolen.
- Between 18 February 2017 and 9 March 2017, the defendant received a driver’s licence of one Hideaki Takayama, which was stolen.
- On 28 February 2017, police attended the basement carpark of the defendant’s address and located the car which had stolen registration plates affixed to it.
- On 8 March 2017, the defendant received tainted property being a Medicare card in the name of Martin Drennan.
- Also on 8 March 2017, when police executed the search warrant at the defendant’s unit, they located a Samsung S7 phone. Analysis of the information on the phone evidenced the defendant trafficking in methylampetamine between 16 February 2017 and 9 March 2017.
- The defendant supplied methylamphetamine to 14 customers in amounts that ranged between 0.1 of a gram and a quarter of an ounce. There were 17 distinct arrangements for supply. Three were for an amount of a ball or 3.5 grams. Six were for an amount of a half ball or 1.75 grams and three were for one half gram in amount. The defendant supplied drugs on credit and communicated their availability to customers.
- As well, during the trafficking period, the defendant supplied three MDMA pills to a customer.
- On 8 March 2017, the defendant was in possession of 5.341 grams of methylamphetamine by pure weight and two MDMA tablets as well as four diazepam tablets.
- On 15 July 2017, the defendant entered Europcar vehicle rentals at Brisbane Airport, presented a driver’s licence in the name of Ivor Hodgson and signed a rental agreement in Hodgson’s name to hire a Mercedes Benz. The defendant paid $510.83 with an American Express card in Hodgson’s name (“Hodgson Amex card”).
- On 15 July 2017, the defendant attended at the DFO Eagle Farm and Coles Express Brisbane Airport and made purchases using the Hodgson Amex card being $30.97 at Coles Express, $69.95 at Country Road and $253.63 at Calvin Klein.
- On 18 July 2017, the defendant attended Coles supermarket at Ann Street, Gatton and made purchases using the Hodgson Amex card in the amounts of $51.75 and $28.50.
- On 19 July 2017, the defendant attended Coles Express Brisbane Airport and made a purchase of $48.80 using the Hodgson Amex card.
- On 18 August 2017, the defendant attended Woolworths supermarket Surfer’s Paradise and made a purchase of $9.55 using the Hodgson Amex card.
- On 19 August 2017, the defendant attended Officeworks and & 7-Eleven in Morayfield and made purchases of $59.00 at Officeworks and $23.27 at 7-Eleven using the Hodgson Amex card.
- On 19 August 2017, the defendant attended Woolworths supermarket Carindale and made two purchases in amounts of $23.85 and $60.79 using the Hodgson Amex card
- On 19 August 2017, the defendant attended the Coles Express Nudgee and made a purchase of $26.74 using the Hodgson Amex card.
- On various dates between 5 November 2016 and 11 October 2017, the defendant obtained and used driver’s licence data and other personal information relating to 123 different complainants for the purpose of making fraudulent applications to finance companies, banks and telecommunication companies in order to secure finance, credit cards or phones in their names.
- Also, on various days between 1 January 2017 and 11 October 2017, the defendant used the identities of 29 complainants and made online applications to finance companies, banks and telecommunication companies in order to secure finance, credit cards or phones in their names. 67 of the applications were successful. 77 of the applications previously referred to were rejected.
- The value of the successful applications was $58,820.13
- Further, during this period, the defendant forged a number of documents in the name of one Clive Thompson, including a Queensland driver’s licence, an RACV credit application, an Energy Australia account statement, a Westpac Banking Corporation (“Westpac”) statement and a Queensland Transport driver’s licence change of address application.
- On 4 August 2017, the defendant lodged the forged RACV credit application in the name of Clive Thompson with a credit provider. On that day, the defendant obtained an Audi sedan purchased in the name of Clive Thompson from the Audi Centre on the Gold Coast using the forged RACV credit application. The value of the Audi was $42,660.95.
- On 4 August 2017, the defendant thereby broke a condition of a bail undertaking he entered into on 20 March 2017 by going to the Gold Coast City Council area other than for the purpose of visiting his solicitors or to attend court.
- On 8 August 2017, the defendant similarly breached that bail condition.
- On a date between 1 April 2017 and 11 October 2017, the defendant obtained a gold chain from Shiels Jewellers dishonestly. The value of the gold chain was $5,000.
- On 1 September 2017, the defendant made four fraudulent withdrawals from the Commonwealth Bank account of one Mandy Turner in the total amount of $702.
- On 25 July, 17 August, and 25 September 2017, the defendant made three fraudulent withdrawals from the Westpac bank account of Wiston Smitt in the amount of $1,476.
- On 10 October 2018, the defendant obtained and used Wayne John Ward’s identification information to obtain a Visa card from St. George bank in that name, and to hire and book a room at the Oaks Hotel in Brisbane City.
- Between 5 November 2018 and 12 December 2018, the defendant removed an electronic monitoring device which was fitted to his leg on 14 July 2018, thereby damaging it.
- On 7 November 2018, upon or after removal of the device, the defendant was unlawfully at large.
- On 7 November 2018 the defendant breached a condition of a bail undertaking entered into by him on 2 July 2018 requiring him to reside at an address approved by the Director of Public Prosecutions.
- On 26 November 2018, the defendant was required to attend the Southport Magistrates Court and failed to appear.
- On 7 November 2018, the defendant was required to attend the Supreme Court at Brisbane and failed to appear.
- On 6 December 2018, the defendant impersonated one Dominic Nastasi and used a falsified driver’s licence as proof of his identification as that person to hire a car from Thrifty Car and Truck Rentals.
- On 6 December 2018, the defendant used a Bank of Melbourne Visa card he fraudulently obtained in the name of Dominic Nastasi (“Nasatasi Visa card”) to pay a fee of $1,836 for the hire car from Thrift Car and Truck Rental.
- On 12 December 2018, police executed a search warrant at a room occupied by the defendant at Peppers Resort Broadbeach. They located 8 clip seal bags containing 13.628 grams of methylamphetamine by pure weight and 0.852 grams of MDMA by pure weight.
- They also located two bottles containing remnants of liquid tested as 1, 4-Butanediol.
- On 12 December 2018, the defendant was occupying the room at Peppers Resort Broadbeach booked under the name of Dominic Nastasi for which he had paid a $200 deposit using the Nastasi visa card.
- The defendant pleaded guilty to all 97 charges on Exhibit 5 when arraigned before me on 28 April 2020. The pleas were indicated at an early stage and are accepted as an early plea by the prosecution and by me.
Prosecution submissions as to sentence structure
- The prosecution submits that the sentences for the range of offending ought to be approached and structured so as to separate the drug offences, of which the two trafficking offences are the most serious, on the one hand, and the fraud and dishonesty offences, of which the fraud by dishonestly gaining a benefit or advantage to a value of over $30,000 was the most serious, on the other hand.
- The prosecutor submits that the sentence should be structured so as to notionally arrive at a head sentence for the most serious offences upon the drug offending and the fraud offending respectively on the footing that the head sentences for the two types of offending should be served cumulatively, but reduced or ameliorated for totality.
Criminal history and presentence custody
- The defendant has a criminal history of a single offence committed 32 years ago at 24 years of age which was a minor offence of dishonesty that I do not consider presently significant. Otherwise, he has no criminal history.
- At the time of the present offending, the defendant was aged between 51 and 54 years of age, and is now 55.
- For the offences charged prior to 8 March 2017, the defendant was on bail. On 8 March 2017 the defendant was first remanded into custody until 5 April 2017. He was then granted bail again until 10 October 2017 when he was remanded until he was again granted bail on 13 July 2018. He was then again remanded on 12 December 2018 until 29 April 2020.
- The prosecutor submitted that both the defendant’s trafficking offences to be characterised as street level dealing, although the quantities and the period of the first trafficking offence were slightly greater. The prosecutor pointed to the fact of a single threat that appears to have been made by one of the texts on the defendant’s phone during the first trafficking period and to the apparently business-like way in which the defendant operated in that period.
- The prosecutor further submitted that the fraud and dishonesty offences were carried on in a continuing way over a protracted period involving significant complexity. He submitted that manifested more than simply supporting an addicted drug user’s habit or lifestyle, illustrated by the example of the unlawful obtaining and use of the Audi motor vehicle.
- The prosecutor submitted that both general deterrence and personal deterrence are important sentencing considerations in arriving at the appropriate sentences.
- For the trafficking offences, the prosecutor submitted that the relevant range of sentences for comparable offending is between four and six years, relying on The Queen v Reid  QCA 190, The Queen v Connolly  QCA 132, The Queen v Wilson  QCA 98, R v Hesketh  QCA 116, and R v Gabbert  QCA 133. Reference was also made to R v C’Ward  QCA 15 at  as to the making of a threat.
- In relation to the fraud offences, the prosecutor submitted that as a notional head sentence the fraud by dishonestly gaining a benefit or advantage to a value of over $30,000 offence would, on comparable sentences, be in the range of five to six years, relying on R v Norris  QCA 376 and R v Jones  QCA 251 and the reference in each of those cases to R v Alexander  QCA 11.
- The prosecutor submitted that it would be appropriate to accumulate the notional head sentences for the drug offending and fraud offending and then to reduce the period of imprisonment for totality to result in approximately eight years.
- The defendant grew up and was educated in New South Wales to year 10, and thereafter obtained a certificate in hospitality.
- From 1980 to 1992, he was a bank employee at two different banks.
- From 1992 to 1998, he carried on business operating a menswear store.
- From 1998 to 2000, he was employed as a chef.
- From 2000 to 2012, he continued to work as a chef in and carried on the business of his own restaurant in Port Macquarie.
- In 2012, he sold the restaurant and worked thereafter as a sous chef until 2014.
- In 2014, the defendant moved to Brisbane and worked for Foxtel.
- He became unemployed in 2016.
- The defendant’s childhood is not remarkable. He has a good relationship with his parents. He has one sibling with whom he does not have a good relationship. His parents are aging and his father is suffering from dementia.
- At the age of 26, the defendant married. He and his wife separated in 2012 and have lived apart since, although they are not divorced. They have no children. The defendant describes his life as having fallen apart on the breakdown of his marriage.
- The defendant relied on a pre-sentence psychological report prepared by Dr Gavin Palk dated 17 December 2019. The report canvasses a substantial amount of all of the offending previously referred to, but not all of it.
- The defendant moved to the Gold Coast in 2014 and became involved in a homosexual relationship that has since ended.
- The defendant acknowledged that he developed an ice drug use habit but the timing of that is not precise. He says that there were no drugs prior to the breakup of his marriage.
- He accepted his guilt of the offences and attributed them to developing the ice drug use habit. Dr Palk reported that the defendant seemed genuinely regretful and very sorry about the impact his drug habit has had on his life.
- The defendant’s counsel submitted that although at about 2012 on the sale of his business he had acquired a number of assets, they were now gone. The defendant told Dr Palk, they were gone but for a 2005 car and about $20,000 in superannuation.
- Dr Palk assessed the defendant’s personality profile as characterised by adjustment difficulties following the breakdown of his marriage on which he became unstable and commenced using ice, and became involved in the drug scene. He has developed a substance use disorder and struggles with psychological drug dependencies.
- Dr Palk assesses the defendant of above average intelligence with no clinical evidence of cognitive impairments or memory problems. He has the ability to discern right from wrong and his adaptive behavioural functioning skills are adequate. His verbal comprehension abilities are in the superior range of intelligence and his perceptual reasoning skills are above average. Dr Palk assessed the defendant as a man who impressed as having a strong desire to go back to living a responsible and drug free lifestyle. Dr Palk assessed that he currently falls in the low risk range for further use of illegal drugs.
- Whilst in prison, the defendant completed a number of programs. He obtained a certificate of completion of the Artius Recovery from Substance Abuse Program, a certificate of completion of the Lives Lived Well – Do It program together with a positive exit report and associated relapse prevention and management plan. The defendant asked the facilitator of the Do It program to set up a referral to address his trauma issues, that I need not further mention.
- The defendant’s counsel did not challenge the facts as previously described.
- The defendant’s counsel submitted that his offending should be viewed as that of an intelligent and resourceful man who naturally fell into the business side of the sale of drugs in supporting his personal drug habit. He submits that overall the defendant’s offending is drug related, including the fraud and dishonesty offences. He submits that although some of that offending is sophisticated, it is still sourced in the defendant’s personal drug habit.
- The defendant’s counsel submitted that overall the defendant should be viewed as a person of previously good character whose life fell apart at 50 years of age and he has thereafter spent the best part of five years descending into a life of drug abuse and its trappings.
- As to the prosecutor’s submissions on penalty, the defendant’s counsel did not challenge, generally speaking, the submissions as to the drug offences or offending.
- However, as to the fraud and dishonesty offences or offending, the defendant’s counsel submitted that both R v Jones and R v Norris were substantially worse cases than the present, because of a number of factors. In particular, he submitted that they were worse cases because the offender in each case was a recidivist offender for fraud and dishonesty offences with a long criminal history, unlike the defendant. Second, he submitted that the monetary amounts of the offending which are reflected in the penalties imposed were more serious in those cases than the offending in the present case.
- In general, I accepted those submissions, although the present case is distinguishable in the sense that the defendant has a significantly larger number of smaller offences of fraud and dishonesty.
- The defendant’s counsel submitted, unsupported by any comparable case, that the appropriate range for the notional head sentence for the fraud and dishonesty offences, before accumulation and any reduction for totality is two to two years and six months. In my opinion, that period would be too low to give effect to the purposes for which sentences may be imposed and factors that are the relevant considerations under s 9 of the Penalties and Sentences Act 1992 (Qld).
- Overall, however, the defendant’s counsel submitted that it would be appropriate to arrive at a period of imprisonment for the accumulated offences of seven to seven years and six months. I accepted that submission.
- Otherwise, the defendant’s counsel did not challenge the particular submissions made by the prosecutor as to the appropriate penalties to be imposed for particular offences.
- In reaching my conclusions, I took into account the defendant’s early pleas of guilty in relation to the extremely large number of offences and, as well, his cooperation with authorities, at least to some extent.
- As well as taking those matters into account in relation to the sentences to be imposed on the trafficking offences and the most substantial fraud offences, in particular, having regard to the overall criminality of the defendant’s conduct, I took them into account in fixing a parole eligibility date for the overall period of offending.
- A very significant factor, in my view, was that prior to this extraordinary period of offending, the defendant had virtually no criminal history until the age of 50 years. In some ways that marked him apart.
- The defendant’s counsel submitted that the parole eligibility date should be fixed at 29 April 2020. The prosecutor agreed that was an appropriate date in the circumstances of the present case.
- In reaching the conclusions as to the orders to make and sentences to be imposed, I took into account the requirements under s 9 of the Penalties and Sentences Act 2003 (Qld), in particular, as to both general and specific deterrence, and the community’s denunciation of the conduct in which the defendant was involved, in arriving at punishments to an extent and in a way that is just in all circumstances and that will provide conditions I considered will help the defendant’s rehabilitation.
- I also had regard to the totality principle.
- For those reasons, I made the orders recorded above on 29 April 2020.
- Published Case Name:
R v Evelyn
- Shortened Case Name:
R v Evelyn
 QSC 97
06 May 2020