R v Low[2001] QCA 67

COURT OF APPEAL

McMURDO P

WILLIAMS JA

WILSON J

CA No 225 of 2000

THE QUEEN

v.

FRANK RICHARD LOW

BRISBANE

DATE 01/03/2001

JUDGMENT

THE PRESIDENT: The applicant was convicted in the District Court at Brisbane on 10 August 2000 of three counts of dishonestly obtaining property with a circumstance of aggravation and eight counts of passing a valueless cheque.

He was sentenced to an effective overall term of three and a half years' imprisonment with a recommendation that he be considered for parole after serving 15 months' imprisonment.

The applicant was 50 years old at the time of sentence and 47 or 48 at the time of the offences. He had a relevant criminal history. In 1978 he was convicted and fined $150 in the Redfern Court of Petty Sessions for charges of forgery and uttering. The next day he was convicted and fined $75 and ordered to pay $300 compensation for embezzlement in Kempsey Court of Petty Sessions.

More significantly, on 29 January 1993 he was sentenced to two years' imprisonment with a recommendation for parole after serving four months together with a recommendation that whilst in prison and on parole he continue to receive treatment and counselling for his gambling problem and financial management.

The last mentioned offences involved the dishonest appropriation of $14,000 from his employer. Material was tendered from psychiatrist, Dr Mulholland, which indicated the applicant had a problem managing money for which he was then getting professional assistance.

The circumstances of these offences are as follows. The first complainant, an acquaintance of the applicant, agreed to invest $6,000 with him to facilitate a venture to export shipping containers. The complainant was to receive $1,800 profit categorised as an interest payment on the $6,000 investment.

The complainant paid the $6,000 in early December 1997 and received $1,800 profit. He then invested a further $3,000 of which he was to receive a further profit of $2,700 in a second venture relating to the importation and sale of second-hand tyres for motor vehicles.

The complainant then agreed to invest $17,500 with a guaranteed return of $5,000 in a scheme for retreading and selling second-hand tyres. As the complainant had not been paid the $2,700 profit on the second venture he advanced only $14,800.

Later in 1998 the complainant entered into a fourth agreement to invest $7,000. The $5,000 profit from the third venture was taken into account so that only $2,000 was invested for a promised return of $3,500. The complainant by then had provided $25,800 to the applicant.

The applicant later repaid $3,000. After being pressed for repayment he forwarded a further $10,300. The complainant was returned, in total, $15,100 and was out of pocket $10,700. 

In September 1998 a second complainant agreed to invest money with the applicant to export scrap metal to China. This complainant invested $48,000 with profits to be split 60/40 between the complainant and the applicant. 

The complainant expected a return of about $10,800 on this investment. This complainant also entered into a second venture to purchase and sell second-hand tyres giving the applicant $10,000 for an expected profit of $4,000. The complainant, on the expectation of receiving this amount, entered into a separate business arrangement which he was unable to complete and suffered a $5,000 penalty which the applicant agreed to pay. The complainant pressed the applicant for repayment and the applicant issued cheques which were subsequently dishonoured. Only $3,000 was repaid and $55,000 remains outstanding. 

The applicant employed a similar mode of extracting money from a third acquaintance who invested, in total, $34,000 with a guaranteed return of $10,200 on an import, export business involving scrap metal to China. This complainant pressed for the repayment of the money when deadlines were not met and the applicant issued cheques which were subsequently dishonoured. The third complainant recovered $3,500 but $30,500 remains outstanding. The total amount dishonestly obtained was $117,800 of which $102,200 remains outstanding.

When the police interviewed the applicant he was voluntarily receiving treatment for a gambling problem at the Salvation Army's Moonyah rehabilitation centre. He refused to say whether the investment opportunities ever, in fact, existed but admitted using the money to pay bills and debts to other creditors. He made ready admissions to the police and pleaded guilty at an early stage after a full hand up committal. 

The applicant completed a 32 week rehabilitation program at the Moonyah Rehabilitation Centre. Very favourable references were tendered from the manager, the program director, the production manager, the counsellor and a receptionist.

The applicant's counsel submitted at sentence that a fully suspended sentence or a very early recommendation for parole was warranted. The prosecution submitted that a sentence of four to five years' imprisonment with a slightly earlier than normal recommendation for parole was appropriate.

The applicant today submits the learned sentencing Judge did not give enough weight to the applicant's efforts at and prospects of reform and stresses that the applicant on the prior occasion did not receive the recommended treatment in prison. 

The learned sentencing Judge specifically referred to the steps taken by the applicant at rehabilitation. 

The applicant also relies upon this Court's decision in R v. Gladkowski [2000] QCA 352, 1 September 2000 but that case is not apposite. It involved a substantial informer's discount a factor not present in this case. The Court there would otherwise have imposed a sentence of three years and three months with a non-parole period of 13 months, a sentence not very different to that imposed in this case.

Although more money was involved in the overall scheme in Gladkowski, Gladkowski received less money than this applicant and it does not seem he had any prior convictions. 

The applicant's prior criminal history is a significant factor weighing against the applicant. At his sentence in 1993 for similar offences of dishonesty he claimed to be successfully rehabilitating but then re-offended, in this most serious way, defrauding acquaintances of over $100,000. This does put into question, despite the optimistic references, his real prospects of rehabilitation.

He was a mature man at the time of sentence with a criminal history for like offences; a substantial sum of money was involved. The applicant pleaded guilty and was cooperative with the authorities. In the circumstances, the sentence imposed is not manifestly excessive and adequately recognised the mitigating factors in this case. I would refuse the application for leave to appeal against sentence.

WILLIAMS JA: If the mitigating factors are put to one side I am of the view that the offences committed by the applicant, considered in the light of his criminal history, called for a head sentence in the range of four to five years.

In my view, the sentence imposed more than adequately reflected the mitigating factors, including the steps taken by the applicant to rehabilitate himself from his gambling addiction. I agree that the application should be refused.

WILSON J: I agree that the application should be refused.

THE PRESIDENT: That is the order of the Court.

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