The Queen v Jones[1998] QCA 40

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 393 of 1997.

Brisbane

[R v. Jones]

T H E     Q U E E N

v.

CRAIG VICTOR JONES

(Applicant) Appellant

Pincus J.A.

Williams J.

Fryberg J.

Judgment delivered 13 March 1998

Joint reasons for judgment of Pincus J.A. and Williams J., separate concurring reasons of Fryberg J.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED.  SENTENCES IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF:

(A) SENTENCES OF 3 YEARS IMPRISONMENT ARE IMPOSED IN RELATION TO THE OFFENCES CHARGED IN INDICTMENTS 1 AND 2;  AND

(B) SENTENCES OF 18 MONTHS IMPRISONMENT ARE IMPOSED IN RELATION TO THE OFFENCES CHARGED IN INDICTMENTS 3 AND 4;

SENTENCES (B) TO BE CUMULATIVE ON SENTENCES (A).

RECOMMENDATION MADE THAT APPELLANT BE CONSIDERED FOR PAROLE AFTER HAVING SERVED 18 MONTHS. OTHER ORDERS MADE BY SENTENCING JUDGE CONFIRMED.

CATCHWORDS: Criminal Law - appeal against sentence - false pretences - extensive criminal history involving offences of dishonesty - only one prior sentence of imprisonment - charges related to offences committed in 1992 and 1996 - 4 years imprisonment imposed for 1992 offences and 2 years cumulative for 1996 offences - sentencing judge inaccurately informed of amount of money wrongly acquired.

J.C. Jones (C.A. No. 63 of 1997, 27 May 1997)

Counsel:  Ms J Dick S.C. for the applicant/appellant.

Mrs L Clare for the respondent.

Solicitors:  Legal Aid Queensland for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date:   27 February 1998.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND WILLIAMS J.

Judgment delivered 13 March 1998

1. The applicant was, having pleaded guilty, convicted in the District Court on 3 October 1997 on charges relating to two groups of offences, the first committed in 1992 and the second in 1996. All of them involved pecuniary dishonesty. The applicant was born in 1964 and is now 33; he has an extensive criminal history and the judge sentenced him to a total of 6 years imprisonment, 4 years for the 1992 offences which were the more serious group and 2 years cumulative for the 1996 offences. His Honour recommended that the applicant be eligible for parole after having served 2 years and made a declaration in his favour as to a 73 day period of custody.
2. The criminal history begins with charges of false pretences, in May 1985, when the applicant was 20. In each year since then, except 1987 and 1990, the applicant has been convicted of a number of offences of dishonesty. The primary judge said that swindling became a way of life with him and that seems to be so. The present charges were 3 counts of false pretences dating from 1992 and 13 counts of various other offences of dishonesty in 1996. The 1992 offences attracted the sentence of 4 years imprisonment which we have mentioned. The first count was based upon the applicant having held himself out as a financial consultant able to assist people in borrowing money. He extracted $31,356 from prospective borrowers by this means, then later in that same year, 1992, he promised a complainant that if $9,000 were invested it would be paid back with good interest; the same happened with a sum of $28,000, but the money paid was never returned. After having committed the 1992 offences the applicant went to New South Wales and resumed his dishonest activities there. When he came back to Queensland he committed a number of other offences in 1996 involving lesser sums of money, principally by depositing valueless cheques.
3. The primary judge was told that the applicant had a problem with addiction to drugs and also gambling. No-one can be certain what the future holds for the applicant, but he is still young enough to mend his ways and he is intelligent enough to make a real contribution to the community of which he forms part. His repeatedly dishonest acts from 1985 to 1994 did not attract severe sanction. He was sentenced to 6 months imprisonment in 1985 but that was set aside on appeal. It may be that if he had been more severely punished before he got into his 30's the applicant could have been shocked into a reassessment of his mode of life. His counsel submitted below that the applicant was entitled to leniency because of his plea of guilty and co-operation with the authorities and because there had been what counsel described as a fundamental change in the applicant. Counsel also said that if released the applicant expected to be able to make full restitution. A comprehensive report from a psychologist Mr Perros was tendered and it appears to be commendably objective, but as the judge below noted, not entirely helpful to the applicant’s case. The psychologist formed the view that the applicant was a very clever opportunist, that he lacked insight into the magnitude of his own problems, and saw himself cured of his drug and gambling addiction - although as Mr Perros said, as recently as mid-1995 he was spending over $2,000 per week on these activities. Mr Perros’ opinion was that the applicant remained at considerable risk of relapse for both drug and gambling problems.
4. Ms Dick, who appeared for the applicant, pointed out that one factor upon which the level of sentence depends is the amount of money wrongly acquired. Ms Dick suggested that perhaps the judge was inaccurately informed on that subject. His Honour remarked in the course of his reasons:

"Altogether, through a variety of different transactions, all fraudulent, you obtained over a period of time, from 1992 to 1996, $109,000 from various people".

5. The impression created is that the judge perhaps thought that the amount involved in the transactions with which he was concerned was $109,000. In the course of submissions to the primary judge his Honour was told by counsel for the Crown that the total amount defrauded starting from August/November 1992 culminating in December of 1996 was $109,000, rounded off. During the period mentioned by counsel the applicant committed not only the Queensland offences, with which we are dealing, but also a number of others, in New South Wales. He was dealt with in that State in respect of those offences. The material before the Court does not contain any relevant figures which sum to about $109,000 and it is unclear by what calculation that total was reached.
6. To revert to the sentence beginning, "Altogether . . . " from the judge’s reasons, which we have quoted, one would hardly expect a judge to set out such a total as a ground for imposing a particular sentence unless it was the sum involved in the offences before the Court. It is not absolutely clear whether the judge sentenced under the impression that $109,000 was acquired by those offences; since his Honour mentions no other figure, however, it appears that the proper course is to proceed on the basis of the assumption more favourable to the applicant. That is, this case should be decided on the foundation put forward, that the judge understood that $109,000 was the sum involved in the relevant offences; the true figure is $76,820.90.
7. An error of about 40% in the amount involved is not a trivial one and is such, in our view, as to require this Court to reconsider the sentences imposed.
8. To go back to the criminal history, from 1985 to 1994 one sentence of imprisonment was imposed and that was set aside on appeal. The appellant was dealt with in various ways short of incarceration: by fines, community service and the like. At the age of 30 he served his first term of imprisonment, from June 1995 to April 1996; that was imposed in Sydney. He came to Queensland by extradition and was released on bail, being then free to commit an act of shoplifting and also the various other offences of dishonesty which attracted the 2 year cumulative term we have referred to. They were 11 counts relating to depositing or passing valueless cheques (totalling over $8,000) and 1 count of attempted false pretences for which no money was received. That was not the end of the applicant’s wrong-doing. In 1997 he failed to appear in respect of the matters just mentioned and for breach of the Bail Act received terms of imprisonment totalling 3 months.
9. It goes against the applicant that when he was finally sent to prison, in 1995, it did not seem to deter him; he continued to offend in the ways we have mentioned. On the other hand, a total term of 6 years imprisonment is a substantial jump from the only previous term he had received, particularly when it is kept in mind that 4 of those 6 years relate to offences committed years before that first bout of imprisonment.
10. It was argued for the applicant that the totality principle should be applied in favour of the applicant and reference was made to Mill (1988) 166 C.L.R. 59. The scope of the principle of Mill was discussed in Postiglione (1997) 71 A.L.J.R. 875 at 881, 882. There McHugh J. applied unreported remarks of King C.J. to the effect that the principle applies "where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court . . . ". In the present case the sentences cannot merit this description; nevertheless we must be concerned to ensure that the whole period of imprisonment "fairly represents the totality of criminality involved in all of the offences to which that total period is attributable": Gordon (1994) 71 A.Crim.R. 459 at 466, quoted with approval in Postiglione at 882.
11. We have looked at a number of decisions but have found none whose facts closely resemble the present where the real point, in our view, is whether a total of 6 years imprisonment as the applicant’s second prison sentence is defensible. In J.C. Jones (C.A. No. 63 of 1997, 27 May 1997) the applicant had been to prison 11 times, his last previous imprisonment being a 5 year sentence. His criminal career extended over 27 years. In the instant case his penalty for offences of dishonesty was 5 years imprisonment with a recommendation for parole after 2 years 3 months. The amount involved was substantially less - about $25,000, roughly one-third of the present amount. However, that is to a considerable extent balanced by the fact that the applicant had been sent to gaol so many times without deterring him. This Court reduced the sentence from 5 years to 4 years with a recommendation of consideration for parole after 1 year and 9 months. Reference was also made during the course of the hearing to misappropriation cases arising under s. 408C of the Code and to the fact that sentences of the maximum of 10 years - compared with a total of 6 years in the present case - have been imposed under that provision where the amount involved was many times the sum in question here.
12. Not without hesitation, we have come to the conclusion that both the sentences imposed in respect of the 1992 offences and those relating to the 1996 offences should be reduced, the former to 3 years and the latter to 18 months; the total will be 4 years 6 months. We have reached this conclusion after approaching the matter, for the reason explained, on the basis that we have an obligation to consider the case afresh, in view of the apparent slip with respect to the amount involved. We would also recommend that the applicant be considered for parole after having served 18 months, and otherwise confirm the orders made by the primary judge.

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 13 March 1998.

1. As my colleagues demonstrate in their reasons for judgment, the sentencing judge was misinformed of the total amount of money wrongly acquired by the applicant. Because it is not possible to be sure that this factor did not lead the judge to impose heavier sentences than otherwise he would have imposed, the sentences must be set aside. That is my only reason for setting them aside. They do not in my view infringe the totality principle.
2. The sentences which the judge imposed were, perhaps, heavy, but were not outside the range possible for the circumstances of the case as we now know them to be. The sentences proposed by my colleagues are also within the range. I am content to concur in them.