R v Weiss[2000] QCA 262

COURT OF APPEAL

McPHERSON JA

DAVIES JA

THOMAS JA

[R v Weiss]

CA No 102 of 2000

THE QUEEN

v.

PETER BRIAN WEISS

BRISBANE

DATE 04/07/2000

JUDGMENT

McPHERSON JA:  The applicant pleaded guilty in the District Court at Southport to a series of Commonwealth and State offences committed between 9 May 1995 and 6 August 1999.

In the case of the Commonwealth informations, there was a total of 60 offences.  There were 43 charges of imposition, together with two of attempted imposition, both of which offences attract a maximum penalty of imprisonment for two years; one charge of forgery and one of uttering, with a maximum of 10 years imprisonment; seven of opening a bank account in a false name and six of operating a bank account in a false name, each of which attract a maximum of two years imprisonment.  The amount of money involved or taken as a result of those offences was some $142,000.

So far as the State offences were concerned, there was a total of 16, including four counts of misappropriation with a circumstance of aggravation, namely, that the amount involved was over a certain figure.  Those offences were charged in counts 1, 2 and 4 of indictment 613 of 1999, and count 1 in indictment 641 of 1999.  The penalty for an offence of that kind with a circumstance of aggravation is 10 years.  In addition, there were eight counts of misappropriation without a circumstance of aggravation, three of false pretences and one of a wilfully false promise.  The total amount in that instance was some $138,000, producing a grand total for both series of offences of some $275,000.

The pleas of guilty, the conviction and the sentence all took place on 14 March 2000.  It is pertinent to state at this point that the applicant is a man aged 36 years, or so he was at the date of sentence.  He was born on 7 March 1964.  He is a builder with some qualifications or ability, married with two children, and having previous convictions for 13 counts of false pretences in 1998, which attracted a sentence of probation for two years.

His Honour the learned sentencing Judge ordered that in respect to the Commonwealth offences, the applicant serve a term of two years' imprisonment in respect of each offence - those sentences to be served concurrently - and in respect of the State offences, five years' imprisonment on each count, also to be served concurrently.  He did, however, order that the sentence for the State offences be served cumulatively on the Commonwealth offences, resulting in a total term of imprisonment of seven years for all the offences to which the applicant pleaded guilty. 

His Honour made no order for release on recognisance in respect of the Commonwealth offences, but made a recommendation for parole after serving two and a half years of the combined sentences.

Rather than recite the details of the offences and the way in which they were committed, I will ask the Court Reporting Bureau to incorporate into their transcript of these observations the whole of paragraph 9 of the applicant's written outlines.  The circumstances of the offences are as follows:

(A)Commonwealth Offences:

(i)1 x Forge and 1 x Utter

On 29 January 1996, the applicant applied to the Department of Social Security for Job Search Allowance.  The applicant was required to provide a "Separation Certificate" from his former employer, certifying he was no longer employed.  The applicant fabricated that document, and on the basis of that document the applicant commenced receiving job search allowance.

(ii)43 x Imposition and 2 x Attempted Imposition

On 38 occasions between 29 January 1996 and 2 March 1998, the applicant submitted a false job search/Newstart allowance claim form.  He was for the most part earning a substantial income from other sources.  He was overpaid social security benefits totalling $15,107.23.

On 2 occasions (14 February 1997 and 19 May 1997) the applicant lodged employment declarations with the Australian Tax Office containing false details which frustrated the cross-checking of data between ATO and DSS.

For the five financial years between 1992/93 and 1996/97, the applicant claimed a refund for tax instalment deductions to which he was not entitled.  The applicant claimed a total of $89,712.96 but only received $43,456.99.

(iii)7 x Opening and 6 x Operating a false bank account

The applicant either opened bank accounts or obtained a line of credit with a financial institution in the false name of Peter Manning.  He then conducted transactions on each account which left the account with an unauthorised debit balance:-

The total net amount of money dishonestly received by the applicant under the Commonwealth Charges was $142,071.50.

(B)State Offences:

The State offences occurred between May 1995 and August 1999.  The applicant's conduct primarily involved him in:-

(i)Opening bank accounts or obtaining credit cards (occasionally in false names), then drawing a cheque on the bank account in favour of the credit facility, the cheque would subsequently be dishonoured, but cash withdrawals would already have been advanced, and purchases credited to the account.

(ii)Using a Credit card to purchase goods beyond the credit limit.

(iii)Drawing cheques on closed or insufficiently funded bank accounts for the payment of goods, which were subsequently dishonoured, or deposited into another bank account, on which cheques would be drawn but subsequently dishonoured.

In total, there were 16 State offences involving a net benefit of $138,152.00.

There is a combined total of 76 Commonwealth and State offences, involving a combined net benefit to the applicant of variously estimated at some $275,000 to $280,223.50.

The applicant was arrested on the Commonwealth offences on 18 March 1998.  Consequently

 . Counts 9, 10 & 11 on Indictment 528/99

 . Counts 2 & 3 on Indictment 334/99

 . Count 1 on Indictment 528A/99

 . Count 74 & 75 on Indictment 97/99

 were committed on bail.

The applicant's explanation for this extended course of fraudulent conduct was that he developed cashflow and taxation problems in his business as a builder, and that he primarily committed the offences in an attempt to continue to carry on the business.

The sentencing Judge in referring to these matters went on to say that there were several considerations which led him to impose the sentences that he did, in particular, the head sentence was intended to reflect the total criminality of the applicant's behaviour, that the applicant had a conviction for offences of dishonesty on a previous occasion even if some considerable time before, that he had pleaded guilty, and that the Judge took into account both personal and general deterrence in arriving at the extent of the sentences he imposed.

The problem before us has come down to this, that in the course of imposing those sentences, a number of what may be described as blemishes or technical errors in the structuring of the sentences emerged.  As a result, it becomes necessary for this Court to exercise afresh the sentencing discretion in this case.  I should perhaps say that the errors were ones for which the Judge was not himself responsible because he asked counsel to provide him with a form of sentencing calendar or document on which he could act, and it would appear that some of the errors or oversights arose in that way.  Sentencing on a combination of Federal and State offences is a notoriously difficult task. 

Among the errors that must be mentioned are, first, that s.19AJ of the Crimes Act 1914 prevents a Court from fixing a single non-parole period in respect of both Federal and State offences.  The sentence imposed here contravened that requirement in as much as the recommendation for parole applied, or purported to apply, to the whole of the cumulative sentence of seven years that was produced in this case.  The practical result seems to be that, since the parole recommendation is capable of operating only on the State sentences, the applicant could, on one view of it, end up serving the full two years on the Commonwealth sentences and gaining the benefit of parole only in respect of the State sentences, with the result that he might serve as much as four and a half years instead of the two and a half that was evidently intended by the Judge to be served by the applicant before he became eligible for parole.

The second error or blemish is that pursuant to s.19(1) of the Crimes Act, the State and Federal sentences can be imposed either concurrently or cumulatively.  However, in the case of Commonwealth sentences that are less than three years in duration, the Judge was required, pursuant to s.19AC, to make a recognisance release order unless he exercises his discretion under s.19AC(4) not to do so.  In this instance, he did exercise his discretion to that effect; but the Crimes Act also requires that he give reasons for his decision not to make a recognisance release order, and that was not done in this instance.

The third matter is that his Honour made the sentences cumulative when it would, on the view I take, have been more appropriate to make the sentences concurrent.  In saying that I am referring to the series of State offences that were made cumulative on the Federal offences, when they were all really part of a single form criminal enterprise.  In a sense, it is partly a matter of chance that some of the offences fell to be charged under a Federal Act and some under a State Act, and there appears to be no sound reason for making the two sets of sentences cumulative in the way that was done here.

In arriving at the head sentence of seven years, the learned sentencing Judge followed the decision of this Court in Cheers, where a sentence of imprisonment for seven years, imposed in the court below, was not disturbed on an application to this Court for leave to appeal.  The difference between that case and the present is, however, in my opinion, that here we are exercising a sentencing discretion afresh. 

To my mind, a cumulative sentence of seven years for these offences is rather more than might be expected, having regard to the lengths of sentences that are commonly imposed for offences of this general kind in cases, for example, of employees who have misappropriated sums of very much larger amounts of over half a million dollars or more.  Here the amount was by no means small.  As I have said it was some $275,000 to $280,000; but, when the level of sentences in those somewhat more serious cases is considered, I think that a cumulative or effective head sentence of seven years was and is to be regarded as at the high end of the range.

In the circumstances, I would impose a sentence of six years in respect of each of the four State offences of misappropriation with circumstances of aggravation.  It is convenient for me now to say what the result of the application is before making further comments on some matters that are involved in the re-sentencing in this Court.  I propose that the following orders be made:

1. Set aside the sentences on all offences.

2. On each of the Federal sentences, order that the applicant be imprisoned for two years, to be served concurrently, such sentences to commence on 14 March 2000.

3. On each of the four State offences of misappropriation with circumstances of aggravation, that is counts 1, 2 and 4 on Indictment No 613 of 1999, and count 1 of Indictment No 641 of 1999, order that the applicant be imprisoned for six years, and on each of the other State offences that he be imprisoned for two years to be served concurrently and also to commence on 14 March 2000.

4. Order that the sentences for all Federal and State offences be served concurrently.

5. In respect of the sentences on the State offences, order that the applicant be eligible to be considered for parole after serving a total of two and a half years of those sentences.

In relation to the sentences as proposed, three further comments are called for.  First of all, the applicant's plea of guilty has been taken into account by making the sentences for the Federal and State offences concurrent instead of cumulative as was done in the sentencing court below.

Secondly, although a sentence of six years on the State offences involves an increase above the five years imposed below, no sentencing principle is thereby infringed because the impact of the previous order that they be served cumulatively itself produced an effective seven year head sentence.  See on this The Queen v. Shepherd CA No 332 of 1992.

Finally, under s.19AC(4) of the Crimes Act it is necessary to say why, although the Federal sentences imposed are less than two years, no recognisance release order is made in this case.  The reasons are, or include, the following:

1. the number of offences involved is 60 in the case of the Federal offences, and there were also 16 State offences of dishonesty, all committed in a systematic way and over a five year period.

2. the use of forgery in the case of one or more of the Federal offences made them, or some of them, even more difficult to detect than they otherwise would be in circumstances like these.

3. large sums of money were obtained by the applicant, totalling, as I have said more than once, some $275,000 or more, with no prospect of recovery or repayment, and in circumstances that suggest that they were not motivated by dire financial hardship of the kind sometimes encountered in relation to offences of this nature.  

In addition I have already mentioned, and I mention again here, that several of the offences, both Federal and State, were committed while the applicant was on bail awaiting trial or sentence, which makes the nature of the offences, taken as a whole, much more serious than might otherwise have been the case.

Those are the orders and sentences that I consider should be imposed. 

DAVIES JA:  I agree.

THOMAS JA:  I agree.

McPHERSON JA:  That will be the order of the Court.