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  • Unreported Judgment

R v Alexander

 

[2006] QCA 17

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Alexander aka Fairfax [2006] QCA 17

PARTIES:

R
v
ALEXANDER, Jordan Dale
aka FAIRFAX, Jordan James
(applicant)

FILE NO/S:

CA No 8 of 2006

DC No 3666 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

9 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2006

JUDGES:

McMurdo P, McPherson JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES - where applicant pleaded guilty to seven counts of attempting to obtain financial advantage by deception, three counts of uttering counterfeit money, one count of possessing counterfeit money and three counts of obtaining financial advantage by deception – where applicant was also dealt with for committing an offence during a suspended sentence – where applicant was sentenced on each count to six years’ imprisonment with a non-parole period of three years to be served concurrently – where unserved balance of applicant’s partially suspended sentence of two and a half years’ imprisonment was activated, to be served concurrently with the six year sentence – where applicant had an extensive criminal history under many aliases - where applicant claims that sentence was manifestly excessive – where applicant claims that sentence did not take into account his plea of guilty and eight months served in custody prior to sentence – whether sentencing judge should have awarded a non-parole period of two to two and a half years to reflect applicant’s eight months served in pre-sentence custody

Penalties and Sentences Act 1992 (Qld), s 161

R v Alexander [2004] QCA 11; CA No 331 of 2003, 13 February 2004, distinguished

R v McMillan [1999] QCA 287; CA No 54 of 1999, 27 July 1999, distinguished

R v Skedgwell [1999] 2 Qd R 97, not followed

COUNSEL:

B J Butler SC for the applicant

P G Huygens for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Commonwealth Director of Public Prosecutions for the respondent

 

THE PRESIDENT:  The applicant pleaded guilty in the District Court at Brisbane on 22 December 2005 to seven counts of attempting to obtain a financial advantage by deception, three counts of uttering counterfeit money, one count of possessing counterfeit money and three counts of obtaining a financial advantage by deception.  He was also dealt with for committing an offence during the operational period of a suspended sentence.  On each count to which he pleaded guilty he was sentenced to six years imprisonment with a non-parole period of three years.  The unserved balance of the partially suspended sentence imposed on 15 March 2002 of two and a half years imprisonment was activated in full with the effect that it will be served concurrently with the six year sentence on the other counts.

The applicant contends that the sentence imposed was manifestly excessive and did not sufficiently take into account his co-operation with the administration of justice in his plea of guilty to an ex officio indictment and that he had served eight months in custody prior to sentence which could not be the subject of a declaration under s 161 Penalties and Sentences Act 1992 (Qld).  His counsel does not contend that the six year head sentence is manifestly excessive but submits that a non-parole period of two or two and a half years rather than three years should have been imposed.

The applicant was 37 years old at the time of the offences and when sentenced.  He has an extensive and relevant criminal history under many aliases.  In 1990 he was convicted and sentenced to an effective term of three years imprisonment for 42 counts of false pretences, nine counts of passing valueless cheques, five counts of attempted false pretences and two counts of stealing.  On appeal his sentence was reduced to 18 months imprisonment.  In 1991 he was convicted and fined for stealing.  In 1997 he was convicted of two counts of making a false statement under the Passports Act 1938 (Cth), seven counts of opening an account in a false name and seven counts of operating an account in a false name under the Financial Transaction Reports Act 1988 (Cth), 10 counts of false pretences, nine counts of misappropriation, three counts of attempted false pretences, two counts of forgery and two counts of uttering.  He was sentenced to an effective term of four years imprisonment.  In 2002 he was convicted of one count of fraud with a circumstance of aggravation, 10 counts of opening a bank account in a false name, six counts of operating a bank account in a false name and five counts of imposition.  After an appeal his sentence for these offences became effectively four years imprisonment suspended for four years after serving a period of 18 months cumulative on the sentences already being served.  (The offences which concern this application were committed during the operational period of that suspended sentence.)  On 15 April 2005 in the Southport Magistrates Court he was convicted of eight charges of opening an account in a false name and sentenced to 18 months imprisonment suspended after 12 months imprisonment.

The maximum penalty for possessing counterfeit money is 12 years and the maximum penalty on the remaining counts is 10 years imprisonment. 

A statement of facts was tendered by the prosecution at sentence.  The offences occurred in three distinct periods.  The applicant was released from custody on 14 September 2004.  He immediately purported to commence a business, Asia Pacific Wholesale and Export.  He submitted a Business Activity Statement for the month of September on 7 October 2004 with the Australian Tax Office claiming a net refund of $151,167 for input tax credits and luxury car tax for the purchase of non-capital purchases, namely a Lamborghini motor vehicle valued at $620,000 and a yacht for $265,205.  In the process of verifying the claim the applicant was interviewed.  He provided a copy of a contract and an invoice in relation to the purchase of the Lamborghini.  This offence was committed with the assistance of a Mr Piagentine, whom the applicant had met whilst in custody and who also had a criminal history for fraud offences.  The Australian Tax Office attempted to pay the amount claimed by the applicant, over $150,000, to his nominated account but luckily this was unsuccessful as one digit of the account number was wrongly recorded.  These facts constituted count 1 on the indictment.

The second group of offences, counts 2 to 5 on the indictment, occurred on 29 January 2005 when the applicant presented $50 counterfeit notes to three shops on the Sunshine Coast.  Police apprehended him later that day and found a further 14 counterfeit notes in his wallet.  He admitted the notes were his and that he knew that they were counterfeit.  He said he had a large outstanding debt which he had been told to repay by passing the counterfeit notes for $10 each.  An unnamed accomplice taught him how to pass the notes which he exchanged for inexpensive items and received the bulk of the $50 in change.  He was charged and released on bail.

The third series of offences, counts 6 to 14, occurred in this way whilst the applicant was on bail.  He came into possession of a file containing the personal information of the employees of a business called Filestock Pty Ltd, including the tax file numbers and personal details of the company's employees.  Between January and March 2005 he opened bank accounts in false names and registered a number of companies.  He then lodged Business Activity Statements with the Australian Tax Office for these companies claiming a refund in each case.  On three occasions a refund was paid into the nominated bank account.  The Tax Office then withheld payment for the other six claims pending verification.  All the claims were false.  The total amount of false claims submitted was $65,355, of which $23,927 was paid to the applicant and remained outstanding at sentence.

The Prosecutor at sentence submitted that because the offences had been committed during the operational period of the earlier four year sentence, of which two and a half years imprisonment remained to be served, the applicant should be ordered to serve the whole of that two and a half years imprisonment and that a six year concurrent sentence was appropriate for his more recent offending.  If the sentences were to be made cumulative the six year sentence should be moderated to take into account principles of totality and release on parole was appropriate after serving three years.

Defence counsel tendered a psychological report which noted the applicant's early history and that whilst imprisoned he had obtained a Bachelor of Commerce from the University of Southern Queensland and had now commenced a post-graduate degree.  Although the applicant's upbringing was unexceptional it seems he has not formed deep attachments to his family nor to his series of partners.  He has regularly changed his name by deed poll to compensate for his criminal history and to create a new identity and lifestyle.  He reported a pattern of problematic substance abuse including ecstasy, cocaine and alcoholism prior to and at the time of committing his most recent offences.  He appeared to now have some insight into the seriousness of his illicit drug and alcohol use.  His history and reported behaviours were consistent with a narcissistic personality disorder.  He had also suffered recurrent episodes of depression, particularly following substance abuse, making it likely that he had suffered from substance-induced mood disorder.  He reported that on his release from prison he obtained a loan of $20,000 with a monthly interest rate of $2,000 in an attempt to establish a legitimate business.  He found it impossible to afford to service the loan and his lifestyle and was frustrated at his lack of work opportunity on his release from prison.  He received intermittent threats from the lender who importuned him to pass the counterfeit money.  He claimed he was assaulted by the "loan sharks" and his life was threatened so that he committed the offences to repay his debt.  The psychologist considered the applicant may be assisted in his rehabilitation by legitimate employment opportunities, appropriate treatment programs and individualised psychotherapy.

Defence counsel submitted that the applicant's 2005 convictions in the Southport Magistrates Court for opening accounts in false names occurred at the same time as counts 6 to 14 on the indictment and were directly related.  The applicant had therefore been in custody since 15 April 2005 on matters closely associated with the present offences.  He submitted that although no pre-sentence declaration could be made under s 161 the sentence imposed should give effect to this period in custody of over eight months.  He contended that the appropriate effective total sentence was one of six years imprisonment but with a non-parole period of between two to two and a half years to reflect the period spent in custody since April 2005 which cannot be the subject of a declaration under s 161.

In sentencing the applicant the learned primary judge referred to his lengthy criminal history for serious offences of false pretences and dishonesty.  His Honour considered it was plainly appropriate to activate in full the unserved balance of the sentence partially suspended in 2002.  His Honour referred to the psychologist's report which he described as helpful, detailed and balanced.  His Honour stated that the applicant must be given allowance for his plea of guilty by ex officio indictment which manifested co-operation in the administration of justice.  The judge stated the particularly difficult aspects of sentencing this offender were to take into account the sentence he is already serving for related conduct, to impose a penalty for the serious offences before the court and to activate the previously suspended period of imprisonment.

Finally, his Honour determined to impose an effective sentence of six years imprisonment with a non-parole period of three years for the offences before the court and to order that the activated period of imprisonment for the 2002 offences be served concurrently.

In contending that the effective sentence imposed is manifestly excessive, the applicant has referred to observations by this Court in R v Skedgwell [1999] 2 Qd R 97 at 100:

"[…] for a number of reasons, it is desirable that, in making allowances for pre-sentence custody in matters falling outside the literal terms of s 161(1), the sentencing court or judge should make it plain in the sentencing remarks whether and to what extent and in what manner, such an allowance is being made on account of a period of that custody."

Those observations were made in a slightly different context to this and in any case do not warrant this Court's interference with the sentence imposed unless it was manifestly excessive.  In contending that the sentence was manifestly excessive the applicant refers to two cases, R v Pearce (aka McMillan) [1999] QCA 287; CA No 54 of 1999, 27 July 1999, and R v Alexander [2004] QCA 11; CA No 331 of 2003, 13 February 2004. 

Although there are some similarities between those cases and this they are not closely comparable to the unique combination of circumstances here and nor did they, for example, include offences of uttering or possession of counterfeit money.

The applicant is a mature man who has a criminal history which suggests that he has become a recidivist fraudster.  He commenced committing these offences only weeks after his release from serving his then most recent sentence in prison for other fraud-related offences.  His offending was premeditated, although it seems inevitable that sooner or later it would have been detected.  It is particularly concerning that the offences were committed during the operational period of a lengthy suspended sentence and that counts 6 to 14 were committed whilst he was on bail for counts 2 to 5. 

The only thing in his favour is that he pleaded guilty to an ex officio indictment and in that way co-operated with the administration of justice. 

It is significant that the sentence imposed here is to be served concurrently with the two and a half year balance of the 2004 suspended sentence.  That circumstance, together with the applicant's shocking criminal history for like offences, has the effect that the sentence imposed here is not manifestly excessive, even taking into account the eight months imprisonment already served for associated offences and the early plea of guilty to an ex officio indictment.  Nor has the judge acted on any wrong principle in arriving at the sentence imposed.

I would refuse the application for leave to appeal against sentence.

McPHERSON JA:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  That is the order of the Court.

 
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Editorial Notes

  • Published Case Name:

    R v Alexander

  • Shortened Case Name:

    R v Alexander

  • MNC:

    [2006] QCA 17

  • Court:

    QCA

  • Judge(s):

    McMurdo P, McPherson JA, Muir J

  • Date:

    09 Feb 2006

Litigation History

No Litigation History

Appeal Status

No Status