R v IA[2004] QCA 222

SUPREME COURT OF QUEENSLAND

[1]  DAVIES JA:  I agree with the reasons for judgment of Jerrard JA and with the order he proposes.

[2]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Jerrard JA and there is nothing I wish to add thereto.  I agree that the application should be dismissed.

[3]  JERRARD JA:  On 4 March 2004 Mr IA pleaded guilty in the Brisbane District Court to an indictment charging him with nine counts of fraud, 14 counts of attempted fraud and six counts of uttering.  Each of the fraud and attempted fraud counts were in respect of an amount greater than $5,000.00.  The offences committed by Mr IA resulted in a loss to the ANZ Bank calculated at $1,595,103.07 at the date of sentence.  Mr IA was sentenced in proceedings relevantly conducted according to s 13A of the Penalties and Sentences Act 1992, reflecting his past and future intended assistance in the prosecution of other co-offenders; he was sentenced to five years imprisonment for the nine offences of fraud, three years imprisonment for each offence of attempted fraud, and two years imprisonment for each offence of uttering.  All sentences are to be served concurrently, and the learned sentencing judged ordered that the five year term be suspended after Mr IA had served two years of that sentence, such suspension to be for a period of five years.  The learned judge specified pursuant to s 13A that but for Mr IA’s assistance to the investigating and prosecuting authorities, the sentence imposed would have been one of seven years imprisonment.  Mr IA seeks leave from this court to appeal against the severity of the effective sentence imposed, arguing that the five year term should be suspended after he has served 18 months of it.

[4] His principal argument is that his sentence is the same as that imposed upon a co-offender, M, who had pleaded guilty to offences resulting in a total loss to the ANZ Bank of $2,997,000.00.  Ms M worked as a finance broker and was responsible for processing and transmitting applications for finance to two subsidiaries of that Bank, through which the losses were suffered.  The frauds were committed with respect to land in Queensland and New South Wales.  Mr IA lived in Sydney at the time and Ms M in Brisbane.  They were part of a larger group of people who had defrauded the ANZ Bank of that $2.9 million, by persuading it to lend money for the purchase of real property at prices that were fraudulently inflated above the actual contract sum or the assumed value of the land.  In the majority of cases the contracts for purchase were signed in the name of fictitious purchasers, and the purchasers (whether real or fictitious) provided a contract to the ANZ Bank, when applying to that Bank for finance, which stated a settlement figure that was actually significantly in excess of that commonly assumed value. 

[5] The fraudulent conduct involved the creation of false documentation to provide an apparent financial background for the purchasers.  In consequence of the frauds some 20 separate transactions for acquiring real property actually settled.  These resulted in significant outlays as loans by the ANZ Bank.  Ms M was involved in all of the transactions which settled.  In addition, there were a number of other attempted frauds on foot when the Bank became aware of these schemes.  In some of the transactions the necessary payments to the Bank were made and the properties ultimately sold and the debt to the Bank discharged; in a large number of others the action the Bank took to recover the property and sell it resulted in a sale considerably less than the amount lent by the Bank.

[6] Mr IA played the role of an organiser in nine of the completed transactions and in some of the uncompleted ones.  He was described as a “section 7 offender”[1] on sentence by the Crown, and attachment A (at AR 10-28), in which a short summary of the fraudulent undertaking is provided, described Mr IA and his then partner meeting Ms M in early 1999 in Sydney.  That meeting resulted in the commission of the first offence in which Mr IA assumed the name “A”, in the purchase purportedly by A of a property owned by Ms M.  The purchase was at an inflated sale price, and the approval of the application for finance submitted through Ms M resulted in excess funds over and above those needed to settle the property being available to the notional purchaser.

[7] Following that there were further applications involving the purchase of properties owned by entities connected to Ms M, and later from other vendors, who agreed to enter into contracts for inflated purchase prices.  In most cases those other vendors entered into deeds of variation, agreeing at settlement to accept a figure lower than the purported sale price on the contract of sale.  Those deeds of variation were not made known to the mortgagee.  The identities of the purchasers and the supporting documentation were created by Mr IA’s partner, and by other persons.  A number of the transactions were done without the knowledge of Mr IA.  The fraudulent behaviour involved in all transactions occurred between late May and late December 1999.

[8] Ms M pleaded guilty to various counts on two separate indictments.  On the first indictment involving her conduct in 1999 with the ANZ Bank, she pleaded guilty to a total of 52 charges.  20 being for fraud involving a sum greater than $5,000.00, 19 were for attempted fraud of sums greater than $5,000.00, 12 were counts of uttering and there was one count of uttering with a circumstance of aggravation.  The second indictment was for one count of attempted fraud and two of forgery.  That second indictment was in respect of conduct committed by her in 2001 whilst on bail in respect of the matters charged in the first indictment.  That conduct involved the forgery of a power of attorney purportedly authorising the sale of a property owned by another person, which fraud was foiled only by chance when the owner found out the sale was due to be completed and settlement was stopped.  Neither the owner of the property nor the proposed purchaser lost any money.

[9] After her arrest, admission to bail and then being charged in respect of her second lot of offending behaviour, she provided considerable assistance to the prosecuting authority.  Additionally, although she certainly stood to gain significantly from the fraudulent conduct generally, it was submitted on her behalf at her sentence that she ultimately personally received nothing.  Discovery of the fraud had also resulted in the destruction of her own family network and considerable trauma in the lives of her children.

[10]  In the sentencing proceedings involving her, conducted on 17 September 2003, the Crown informed the learned sentencing judge (who was the same judge who sentenced Mr IA) that Ms M had voluntarily participated in lengthy interviews with the police for the purposes of preparing an extensive statement, which had been completed.  The Crown submitted that while she was a very central player or cog, it was conceded that she had been approached by others to carry out the scheme.  The Crown informed the learned judge that it was expected Ms M would give evidence of considerable assistance in the prosecution of two of the three prime movers of the scheme, who were expected to be two of approximately five other co-accused who would be going to trial.

[11]  The prosecution suggested that the appropriate sentence in her case, taking her past and expected assistance into account, was a head sentence of five years suspended after two.  Since she had already served 762 days in custody after her second arrest in 2001, the order the learned judge made which suspended her sentence of five years after serving 762 days, resulted in her immediate release.

[12]  Mr IA had also provided a statement, after his arrest and committal for trial, strengthening the prosecution case against five of the (by then) six people whose names remained on the indictment at the time he was sentenced in March 2004.  The evidence he was expected to give was described at his sentence as important and significantly bolstering the Crown case against one of those co-accused, and of assistance against four named others.  In his case the Crown suggested a five year sentence, suspended after he had served two and a half years.  This was despite Mr IA not being charged with as many offences as Ms M had been, and despite her having pleaded guilty to offences resulting in a total loss almost twice that caused by the offences in which Mr IA was involved.  The Crown submitted to the learned judge that both Ms M and Mr IA were close to but not at the pinnacle of the comparative culpability of the offenders involved, but that Mr IA’s plea had come quite late and probably as the result of or as a consequence of Ms M’s plea, and from the provision of her assistance to the prosecution.  The Crown also submitted that when the fraud had been discovered, Mr IA had made himself scarce for at least two years.  Extensive inquiries and considerable use of police resources had been unable to locate him.  One result of that was the necessity for the prosecution to conduct a second committal hearing, specifically for Mr IA and another co-offender.

[13]  The contention advanced to the learned judge on Mr IA’s behalf was that he was a hardworking man who had maintained his family and been a useful member of society, that the benefit to the Crown of the corroboration his evidence would provide to Ms M’s could not be understated, and that he had been involved in fewer offences and caused considerably less loss than had Ms M.  Her evidence had been less important in the prosecution against him than it was against others.  Mr IA’s counsel also urged on the judge that Mr IA’s residence in Sydney meant he was “in the thick of it”, and thus able to give valuable assistance to the prosecution.  That submission reflected the Crown submission that, because Mr IA had been “closer to the action” in Sydney than Ms M had in Brisbane, Mr IA could be more helpful about Sydney events than she could be.  That submission suggested that Mr IA was at least as significant an offender as she was, if not more so.

[14]  Mr IA had completed part of a law degree, had experience as a real estate agent, and held an auctioneer’s licence.  His knowledge and skills would have been helpful to the conspirators.  He had been placed third in the New South Wales year 12 examinations, which suggests he is a highly intelligent person, contrary to a submission made on his behalf to this court.

[15]  The learned sentencing judge expressed the view during the s 13A portion of the proceedings involving Mr IA that the appropriate sentence was one of five years imprisonment suspended after serving two years. The judge observed that while Ms M had come forward at an earlier stage indicating she would co-operate with the prosecution than Mr IA had, her offences had involved a much larger sum.   The judge had been told Ms M received no ultimate financial benefit, and was not told Mr IA received any.  Obviously enough, both intended to benefit.

[16]  The submission on the applicant’s behalf to this court is that the learned sentencing judge erred in failing to place sufficient weight on Mr IA’s involvement in those lesser number of offences, and likewise on the fact his conduct cost less overall to the ANZ Bank than hers did; and erred in placing too much weight on Ms M having come forward to assist the prosecution at an earlier stage than Mr IA did.  Those submissions point to the fact that Ms M’s assistance came only after she had been refused bail following her re-offending, in which conduct she had apparently engaged for the purpose of obtaining funds to escape the jurisdiction and flee to Italy.  This applicant also submits that Ms M’s subsequent re-offending placed her at risk of a cumulative sentence, and provided a significant incentive for assistance, and in fact her evidence did not much implicate Mr IA.

[17]  As to that last submission I observe that her statement does directly implicate Mr IA in the commission of at least the first offence committed by her (and him), and by inference in all those other offences in which Mr Annas was the purported purchaser.  Regarding the other submissions, the learned sentencing judge expressly considered all those matters raised in argument here, and in the exercise of a difficult sentencing discretion imposed the same sentences on both.  I do not think that the result shows that the learned judge necessarily erred.  Both offenders took part in very significant fraud, with Ms M being much more involved than Mr IA, but her assistance to the prosecution of all offenders came much earlier than his did.  She re-offended significantly on bail, whereas he avoided prosecution by concealing his whereabouts.  His conduct in that regard helped to increase the cost of the prosecution, and it seems unchallenged that her assistance helped him make the decision both to plead guilty and to offer assistance.  In those circumstances the learned judge was entitled to treat them alike.

[18]  I do not consider that the result could leave Mr IA with any justifiable sense of grievance at the sentence imposed on him, whether by comparison with Ms M or otherwise.  Counsel for the Crown referred the court to a number of sentences imposed in other matters where there have been pleas of guilty to very large scale fraud, and those demonstrate that the overall sentence imposed here was a quite lenient one.  Examples of such sentences include that of R v Webber [2000] QCA 316, where that offender received about $600,000.00 of an amount of just over $1,000,000.00 obtained by creating insurance policies in fictitious names and making fictitious claims on those policies.  The offenders were employees of the insurance companies involved.  Mr Webber, the principal offender, pleaded guilty, after a lengthy committal hearing, but then provided substantial co-operation in prosecuting co-offenders.  This court thought it appropriate to reduce the head sentence from one of nine years to one of seven years, with parole recommended after he had served three years, in recognition of that co-operation.  The learned sentencing judge in that matter had failed to record pursuant to s 13A(7) of the Penalties and Sentences Act 1992 the sentence that would have been imposed but for that co-operation, which sentence this court thought should have otherwise been nine years imprisonment.  I respectfully observe that the seven years imposed after co-operation in R v Webber demonstrates that the sentence imposed here is certainly at the low end of the available range.

[19]  Likewise in a matter of R v Taylor [1994] QCA 574, that offender entered a plea of guilty.  He had obtained by dishonesty an amount of approximately $650,000.00, and had thereafter co-operated with the police to a substantial extent.  A sentence of seven years imprisonment was upheld by this court, which did add a recommendation that he be considered for release on parole after serving two and a half years.  That offender was not described as rendering the assistance which would be relevant to proceedings under s 13A.  His offences cost his victim about one-third of what Mr IA’s did.

[20]  In a matter of R v Corrigan [1994] 2 Qd R 415 that offender was involved in offending behaviour over three and a half years, and resulting in the theft of $1,200,000.00, committed when he was the chief executive and financial controller for the B & W Cabs group of companies.  He committed in excess of 100 offences of dishonesty, consisting of drawing cheques to one or other of the companies in that group made payable to himself, his wife, or a company with which they were associated.  The identity of the payee was concealed by placing false particulars on the cheque butts.  His plea of guilty saved the expense of a long trial, and his co-operation with the police was described as possibly having assisted them in further investigations.  The majority decision of this court was that the provision of s 13 of the Penalties and Sentences Act 1992, requiring that a guilty plea be taken into account by a court imposing sentence, required in that case more than simply recommending release on parole earlier than would have otherwise applied, and this court by order imposed maximum terms of eight years imprisonment, with release on parole continuing to be recommended after Mr Corrigan had served four years.  Those orders reduced the head sentence from one of 10 years originally imposed.

[21]  That sentence could have justified an eight year sentence in this matter, absent the s 13A considerations, and Mr IA has nothing at all to complain about regarding the head sentence of five years after the s 13A matters were considered.  The further benefit both he and Ms M received in having the bulk of that five year sentence then suspended reflected the submission of the Crown in Ms M’s case, resulting in her immediate discharge.  She does appear to have had a number of family matters personal to her and justifying that further degree of leniency.  In Mr IA’s case that further leniency appears to have resulted from the sentencing judge’s view that they should receive the same overall result.  That result does not give him any legitimate grounds for a sense of grievance.

[22]  I would dismiss his application.