R v Clarke[2001] QCA 152

COURT OF APPEAL

WILLIAMS JA

WHITE J

HOLMES J

CA No 3 of 2001

THE QUEEN

v.

DONALD EDWARD GEORGE CLARKE Applicant

BRISBANE

DATE 20/04/2001

JUDGMENT

WHITE J:  The applicant for leave to appeal against sentence pleaded guilty to seven counts of misappropriation with a circumstance of aggravation and seven counts of making available a prescribed interest contrary to section 1064, as it was then in force, of the Corporations Law, on 13 October 2000.

The dates of the offences were between 18 July 1991 and 31 May 1994.  The applicant was sentenced on 11 December 2000 to nine years' imprisonment with a recommendation for parole eligibility after three years for the misappropriation offences and three years' imprisonment for each of the Corporations Law offences all to be served concurrently.

The applicant submits that the sentence is generally manifestly excessive and further that greater credit should have been given to the applicant for his plea of guilty and poor health resulting in a reduction of the head sentence and of the recommendation for release on parole.

A particularly aggravating feature of this case was that on 21 August 1992 the applicant had been sentenced to a term of imprisonment of two years for 17 counts of falsifying documents as the director of a company.  A further 53 offences for dishonesty were taken into account on sentence. 

The applicant was eligible for parole after five months.  In that case, there would appear to have been a loss of approximately $165,000.  He was said, by the sentencing Judge in that case, to have been propping up a business out of some misguided sense of assistance to another but nonetheless was prepared to risk the money and assets of others to do so.

It appeared that the defendant was released on day release shortly after being incarcerated and continued to control his business interests with the help of his daughter.  She became director of the company through which the business was conducted in his place.  It was this business activity which involved him in committing the subject offences.

The daughter was sentenced to 18 months' imprisonment with parole eligibility after five months for her part in the misappropriation charges and lesser terms in respect of the Corporations Law offences.  Parity was raised below but not pursued here. 

Keradale Proprietary Limited of which the applicant and his wife were directors until the applicant's conviction in 1992, carried on a debt factoring business which solicited funds for investment from the public by newspaper advertisements and through word of mouth.  The prescribed interest was a right to participate in the common enterprise operated by Keradale for the factoring of debts and other limited purposes specified in written agreements from which investors were led to expect that they would receive interest.

The seven misappropriation counts related to moneys obtained from investors which was used by the applicant in a way which was contrary to the loan agreement between Keradale and the investor.  Each count alleged a circumstance of aggravation that the property misappropriated was to the value of more than $5,000.

The seven misappropriation counts related to seven groups of investors most of whom were husband and wife and most of whom had entrusted their life savings with the applicant, as he well knew.  The total amounts that were loaned were $1,188,000.  The general deficiency was $551,851.

The victim's statements show the extent to which their lives have been devastated by the loss of their savings and the consequent security for their old age.  After committal a forensic accountant analysed the financial records of Keradale to establish how the investor's funds were used and were spent on items which were not covered by the purposes of the loan agreements.  These included the administration costs of the company, payment of interest to investors, repayment of investor's loans, payments to the applicant, his daughter and related entities, payment to an employee and other payments not related to specific purposes.

The learned sentencing Judge took into account the duration of the offending, the amount involved, the systematic betrayal of the investors, the impact on the investors of their loss, the lack of cooperation in the investigations of the offences, the applicant's criminal history and that he embarked on these offences whilst on leave from prison for prior dishonesty offences.

In mitigation a number of medical reports were placed before his Honour.  The applicant, a man aged almost 60 at sentence, had both hips replaced in 1999 and 2000 respectively.  As the report from Mrs Coles, an occupational therapist demonstrated, this has meant certain limitations in his mobility and for his greater comfort and convenience a number of aids had been procured.  He had a number of other ailments and was on a significant medication regime.

The ill health of an offender is a factor which will tend to mitigate punishment when it appears that it will impose a greater burden than might otherwise be felt by other offenders or where there is a serious risk that the imprisonment will have a gravely adverse effect on health.

As to which - see Bentham 111 Australian Criminal Reports 302 - a decision of this Court of 24 February 2000.  That there may be discomfort to the applicant more than if he were in his own home with the assistance of his wife and friends as described in Mrs Coles' report is undoubted.

The applicant's health problems were not overlooked by the learned sentencing Judge but there was, in my view,  no particular need to reduce the sentence on that ground consistently with Bentham.  The plea of guilty was rightly recognised as a considerable saving to the state and the difficulty which such white colour crime presents for a jury and this was reflected in a recommendation for parole eligibility after three years.  That is, 18 months earlier than the statutory eligibility scheme.

The question then is whether the head sentence of nine years was manifestly excessive.  The applicant contends for seven years with a recommendation after two.  Green CA number 426 of 1995, a decision of 30 January 1996, was a case closely comparable to this.  It was referred to below.

In that case the applicant had pleaded guilty to 12 counts of misappropriation and two counts of false promises.  He was sentenced to a head sentence of nine years on the misappropriation charges with a parole recommendation after four years.  The loss was $483,735. 

That applicant had previous offences for dishonesty in 1990 being 12 offences for which he received a term of imprisonment of three years.  Many of his victims had lost their life savings.  He was a gambler and he was aged 48.

In the applicant's outline of submissions a number of other cases are referred to but I think it unnecessary to deal with them in any detail.  Although nine years might well be thought to be at the top of the range which is said both before us today and also before the learned sentencing Judge to be seven to nine years, in very careful sentencing remarks his Honour below drew attention to the applicant's continuing attitude of disobedience to the law and the nature of the offending behaviour which required strong deterrence to protect the public.

I would not consider the sentence, including the recommendation, manifestly excessive and would refuse the application.

WILLIAMS JA:  I agree.

HOLMES J:  I agree.

WILLIAMS JA:  The order of the Court is application refused.

-----