SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  On 10 November 2005 Barry Stephens pleaded guilty to a count on an indictment charging that on 25 May 2002 at Brisbane he attempted to obtain dishonestly a sum of money from NRMA Insurance Ltd, and that the intended yield to him from the dishonesty was $23,000.  On 11 November 2005 he was sentenced to 12 months imprisonment, wholly suspended for an operational period of three years, and fined $20,000, that fine to be paid on or before 11 November 2006, in default of six months imprisonment.  He has applied for leave to appeal against his sentence, contending that he should not have been fined at all.

[2] Mr Stephens was 65 at the time of the offence and 68 when sentenced.  He is married with now adult children, and his wife to whom he has been married since age 19 was described to the learned sentencing judge as suffering from ill health, specified as arthritis and spinal problems.  Mr Stephens has no prior convictions, and as at the date of his sentence was a recipient of an aged person’s pension.

[3] He had been self-employed in the motor vehicle retailing industry throughout nearly all of his working life, apart from a three year period where he ran a small cut price store.  The circumstances of his offence were that he had arranged in March 2002 to insure a vehicle with the NRMA, which he purchased under a false name on 26 March 2002 for $12,000.  A month later he amended the policy to add that vehicle to it, attempting to insure it for $35,000.  Eventually he and the NRMA agreed on a value of $28,000.  On 24 May 2002, a month later, he reported the vehicle as stolen.  The NRMA did not pay out on the claim, and in March 2003 the registration label of the vehicle was found in his office.  The Crown submitted on the sentence that the vehicle had never in fact been stolen at all, and that was not contradicted by any submissions made by counsel on behalf of Mr Stephens to the learned sentencing judge.

[4] The Crown also submitted there had been no co-operation with investigators, in that Mr Stephens made no admission of what he had done, and his plea of guilty was entered after a trial had started, on the second day.  The Crown submitted that in the circumstances a denunciatory sentence was required to deter other potential perpetrators of civil fraud, and that the maximum sentence was 10 years imprisonment.  The latter submission overlooked the fact that Mr Stephens had only been convicted of attempted fraud, and the maximum penalty was accordingly five years imprisonment.[1] There is no particular reason to consider the experienced sentencing judge was misled by the submission into imposing a sentence higher than what the judge would have imposed had the maximum been correctly described as five years.

[5] The Crown submitted that in the circumstances in which no real loss had been suffered, a substantial fine could be an appropriate sentence.  The Crown then referred to a statement to the police by Mr Stephens, that he had approximately $200,000 in a bank account. 

[6] On Mr Stephen’s behalf it was submitted that while he had some money in the bank (and the amount the Crown specified was not challenged by counsel), a fine in the order of perhaps $2,000 was appropriate.  Mr Stephens was not wealthy and had to live on his capital and the pension for the rest of his life.

[7] The learned sentencing judge explicitly referred to Mr Stephen’s age of 68, lack of prior convictions, good prior work record, plea of guilty (albeit at a late stage after a trial had commenced), and the fact that no financial loss had been suffered.  The learned judge accepted that a fine was appropriate, and that any fine imposed must be more than a mere token, and should contain a component of denunciation for offences of fraud. The learned judge correctly stated that it must make clear to others who would be minded to commit similar offences that the penalty to be imposed would not be trivial.

[8] Mr Stephens argued in a written submission, prepared by a different counsel, that no fine should have been imposed at all.  The Director defended the fine imposed, and submitted that although Mr Stephens had ultimately been unsuccessful in his attempts at fraud, he had done all that he could to defraud his insurer, and that his motivation appeared to be greed rather than need.  That is very true, but the fine imposed is one-tenth of Mr Stephen’s assets held in his name.  The learned sentencing judge was informed that Mr Stephen’s wife holds a taxi license in her name worth $280,000, and an unencumbered house worth the same.  The Crown’s position on the sentence was that Mr Stephens had informed the investigators that those were held in his wife’s name because of a recommendation to that effect by Mr Stephen’s accountant.  The learned judge sentenced Mr Stephens on the basis that those were not Mr Stephen’s assets and available to him, and on the limited information put before the learned judge, that was correct.

[9] Mr Stephens appeared for himself on the hearing of the appeal.  The arguments he made included the assertion that he was in fact not guilty of the offence at all, because the vehicle had really been stolen from him in Sydney.  Further, it was commonplace enough for a vehicle insurer to insist on insuring, at its retail value, a vehicle purchased by a car dealer like himself at its wholesale value.  Despite those submissions, which criticised his conviction, Mr Stephens did not apply to set it aside.  His oral submissions acknowledge that his counsel at his trial had evinced a lack of confidence in the outcome of the trial, and that so had Mr Stephens, who candidly told this Court that he did not want to risk the jury’s verdict.  He also told this Court that his counsel at the trial had advised that, on a plea of guilty, Mr Stephens could expect a fine in the order of about $3,000.  Mr Stephens also informed the Court that, while he had $200,000 in an account at the time police interviewed him, he also had quite significant debts, and that the prosecution had been aware of at least one of those, which had been in the order of $22,000.

[10]  That information, not given on oath, may well have been accurate.  Its beneficial effect for Mr Stephens was offset by his acknowledgement to this Court that while he and his wife had effected what Mr Stephens called “a legal separation” 10 years ago, they had continued to live together in the same residence.  He lives there now, and he did not suggest he had any reason to anticipate he would ever have to find accommodation elsewhere than the house held in her name.  He also acknowledged that the income from the taxi, for which his wife holds the license, is applied to the joint purposes of their household.

[11]  It follows that while those other assets are not, strictly speaking, under the beneficial control of Mr Stephens, his life is structured and enjoyed as if they were.  Despite that, his age, the fact that a fine diminishes his capital resources, that he lives on a pension and is not otherwise described now as being in employment, and the fact that he got no benefit from his attempted fraud, persuades me that the size of the fine imposed substantially exceeded what was necessary to achieve a significant deterrent effect.  Accordingly, I would vary the sentence by reducing the ordered fine to $10,000, but would not interfere with the sentence of six months imprisonment in default of non-payment, nor (in light of what this Court was told about debt) with the 12 months allowed for payment.

[12]  FRYBERG J:  The applicant was unrepresented on the hearing of the application, but it is unclear why. He orally made a number of allegations of fact during his submissions. They were not included in the written submissions prepared by counsel and filed on his behalf. They related to matters about which fresh evidence would not have been permitted. They should be ignored.

[13]  The applicant received no benefit because of the offence, though not for want of trying. The insurance company which was the target of his intended fraud sustained no substantial loss, although that was, in the words of the applicant’s counsel at sentencing, due to “purely good luck and not to good management”. By the time of his sentencing his house, which was unencumbered and was estimated to be worth $280,000 and a taxi licence estimated to be worth $280,000 in 2002 had been placed in his wife’s name on the recommendation of his accountant. The sentencing judge made no finding, nor was any finding possible on the material before him, about whether that transaction was voidable under s 228 of the Property Law Act 1974. The applicant had about $200,000 in a cash account. It was not suggested he had any substantial debts. His assets did not prevent his receiving what his counsel described as the “old age pension”.

[14]  These matters are relevant because s 48 of the Penalties and Sentences Act 1992 requires the Court, in fixing the amount of a fine, to take into account, as far as practicable, any damage to a person’s property because of the offence, the value of any benefit received by the offender because of the offence, the financial circumstances of the offender and the nature of the burden that payment of the fine will be on the offender.

[15]  Having regard to these matters, the fine of $20,000 imposed in the District Court was not manifestly excessive.

[16]  DOUGLAS J:  I have had the advantage of reading the reasons for judgment of Jerrard JA and Fryberg J. Mr Stephens’ age, lack of prior convictions, the limited assets established to have been owned by him and his status as a pensioner, coupled with the lack of any benefit to him from his attempted fraud, persuade me, in common with Jerrard JA, that the fine imposed of $20,000 substantially exceeded what was necessary to achieve a significant deterrent effect and, in that context, was manifestly excessive.

[17]  One may be legitimately suspicious about what assets are available to him beyond those established at the sentencing hearing but, on the evidence available to the learned sentencing judge, the sum available to him was $200,000.  A fine of 10 per cent of that amount after the end of his working life when he was living on a pension is, in my view, excessive.  I agree with Jerrard JA that it should be reduced to $10,000 which is still a very significant burden properly punishing seriously criminal conduct.  I also agree with the order proposed by his Honour.