SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA: I agree with the reasons for judgment of Jones J and with the order proposed.

[2]  JONES J:  The applicant, James Harold Tarbuck, seeks leave to appeal against the sentences imposed on him in the District Court of Queensland in respect of his conviction for two offences of dishonestly obtaining property with circumstances of aggravation.  The convictions followed a 13 day long trial.  He was in each case, sentenced to concurrent terms of three years imprisonment.

[3] The conduct giving rise to the offences involved the placement of advertisements in newspapers offering loans at low interest rates to ex-bankrupts and other persons with bad credit ratings.  Contact by interested persons was made through a toll free telephone number which was answered by a person using a false name.  Thereafter a loan application form and other documents were sent to the potential customer.  When the application was returned the loan application was quickly approved subject to the receipt of a deposit amounting to 10% of the loan. The deposit was directed to be made to a nominated bank account.  The telephone and facsimile numbers, the post box address and the bank accounts had been established using false names. 

[4] The persons who paid the deposits never received the loan funds and their deposits were never refunded.  The scheme was undertaken in pursuit of an unlawful common purpose with other persons. The total amount involved in both offences was $78,000 which had been dishonestly obtained from 37 complainants.

[5] The learned primary judge described the operation in the following terms:-

“It was a well planned, totally and flagrantly dishonest scheme.  False names were used to insert the newspaper advertisements, payment for those advertisements was tendered in the form of forged bank deposit slips, the advertisement offered conditions and terms which could never really be met but which would appeal to the desperate and gullible…They were despicable offences directed at persons who often did not have the funds to even personally pay the deposit required.” (Record book at p. 975)

[6] The applicant’s involvement was on a daily basis and extended over a period of some months. Other features noted by the learned primary judge were the lack of any intention to attempt to arrange the loans and the lack of any remorse by the applicant for his conduct.

[7] The applicant was 32 years of age at the time of these events.  He is now 37 years.  He has no previous convictions, is married and has four children.  He provided personal references which attested to his ability and reliability as a house painter and of his dedication to his family.

[8] His Honour’s attention was drawn to cases said to identify comparable assessments of penalties.  The cases referred to below included R v Brady; Brindley and Shale [2005] QCA 135 and R v Singh [2005] QCA 403 and R v Rigney-Hopkins [2005] QCA 275.  The latter two have been referred to again by the applicant.

[9]  R v Singh concerned convictions after trial on one offence of fraud and one offence of attempted fraud. The fraud related to the passing of eight cheques for a total amount of $43,500. The offender was 53 years of age at the time of commission of the offences and 56 at trial. He had no previous convictions and had made a “solid commitment” to his community. He was sentenced to 2 years imprisonment in respect of the fraud offence.

[10] R v Rigney-Hopkins concerned a conviction after trial of defrauding a Canadian citizen who had sought over the internet assistance with investing funds. The offender dishonestly obtained $60,000 from this person. He was only 18 years of age at the time of this offence and 19 when sentenced to 18 months imprisonment which was to be suspended after 4 months of the sentence for an operational period of 2 years. The sentence was not the subject of appeal and does not provide any guidance to this Court as to what typically is an appropriate range for the offending of the kind engaged in by the applicant. Also the offender’s age in that case makes it less significant in comparison with the present case.

[11]  I should mention that in the case of Brady and Ors the Court of Appeal dismissed applications for leave against persons who after pleas of guilty were given head sentences of 4 ½ years, 3 years and 1 ½ years respectively for their varying levels of involvement in a scheme of issuing false roadworthy certificates. This activity resulted in their receiving $123,000 in a 9 month period. The sentences were partially suspended to take account of varying factors but most particularly their pleas of guilty.

[12]  The respondent has referred additionally to a decision of the Court of Appeal in R v Robinson; ex parte A-G (Qld) [2004] QCA 169 which concerned the defrauding of a credit union by a servant for the amount of $33,000 involving 101 transactions.  The penalty imposed on appeal was 2 ½ years imprisonment to be suspended after six months.  This penalty however was applied in circumstances of an early plea of guilty, the prospect of some restitution, evidence of psychological problems and an obligation on the part of the offender to care for an elderly and ailing mother.

[13]  The offence of fraud has many faces and has widely varying impacts on its victims. Little point is served by a minute comparison of different types of fraudulent offending save to establish the broad parameters in which the sentencing might properly fall.

[14]  The thrust of the application is that the learned primary judge erred in placing the sentence in too high a range and further in not ordering an early suspension of the penalty (the suggestion was this should occur after four months).  The prosecution contended for a sentence of 4 years imprisonment. The applicant’s counsel submitted for a head sentence of 2 to 3 years suspended after 4-6 months. Such a suspension of penalty is entirely unwarranted in the circumstances of a contested hearing unless there were significant special features. The applicant argued before this Court that the level of his criminality should be assessed on the basis that he received approximately one third of the amount dishonestly obtained. The applicant was however well aware of the total nature of the operation and lent his support to the scheme. His claim that his involvement in the scheme was minimal is not consistent with the evidence.

[15]  Having regard to the sentences imposed in the cases referred to and to fraud cases generally I am satisfied that the penalty here was well within range.  The appellant’s decision to put the Crown to proof involving a 13 day long trial, his lack of remorse and his apparent inability or unwillingness to make restitution means there is little scope for mitigation of the kind that he contends for.  Moreover there is a clear need to deter conduct of this kind, targeted as it was against vulnerable people.

[16]  In my view, he has shown no basis upon which it can be suggested that the learned primary judge’s discretion has miscarried and his application should therefore be refused.

[17]  ATKINSON J:  I agree with the order proposed by Jones J and with his reasons.