R v GAC[2007] QCA 410

SUPREME COURT OF QUEENSLAND

McMURDO J:  The applicant was convicted on his pleas of guilty of three counts of fraud exceeding $5000 in value and five counts of passing valueless cheques. 

Upon two of the fraud counts, he was sentenced to six years' imprisonment, on the other fraud count, a term of three years and upon each of the other counts a term of 12 months. 

The period of 514 days between 23 April 2006 and 19 September 2007 was declared as time already served under the sentences.  A parole eligibility date was fixed at 25 February 2008, that being approximately 22 months from the commencement of his imprisonment.

He applies for leave to appeal on the ground that the result was manifestly excessive.  He does not quarrel with the head sentence of six years, but says that an earlier parole eligibility date should have been set.

It is submitted that he should be released immediately.  That could be done only by varying the sentence of six years to five years and suspending the sentence forthwith.  Practically speaking, a variation of the parole eligibility date to, for example, today, would not have him released today, or even within a short time from today.

The applicant was born in 1972.  He committed these offences between 31 March 2004 and 17 May 2006.  He was 34 when sentenced.  He has a criminal history for offences of dishonesty. 

In 1998 he was convicted of three offences of wilful false promise in order to undergo three years' probation and perform community service.

In March 1999, he was convicted of stealing and sentenced to six months which was wholly suspended for 18 months.

In May 1999, in New South Wales, he was convicted of two offences of fraudulent misappropriation and sentenced to 16 months' imprisonment with a non-parole period of 12 months.

In August 2002, he was imprisoned for 12 months for breaching the 1998 orders and the suspended sentence imposed in March 1999.

The present matters involved his defrauding in total 25 people in various amounts totalling $345,967.   The first of the fraud counts involved the one complainant who was defrauded of $150,000 over a period of almost two years. 

This complainant was a 66 year old man living alone and to whom the applicant represented himself to be a veterinary surgeon for "big horse racing identities."  He persuaded the complainant to give him money, supposedly for buying and betting on racehorses and greyhounds at especially good prices.

On the second fraud count, he defrauded 17 people of various sums, totalling $151,871.  He told them he was a successful gambler with contacts in the racing industry and he convinced them to give him money supposedly to bet on their behalf.

The third count involved another seven complainants who were defrauded of, in total, $25,670.  The valueless cheques had a total amount of $18,426.

The learned sentencing Judge said that the applicant had deceived, "by and large unsophisticated people who could ill afford to lose their money that they lost and in some cases it was literally their life savings."  He found that the purpose of the offending was to fund the applicant's gambling addiction.  None of the money remains and there has been no restitution.

The learned sentencing Judge was referred to and cited in his remarks, The Queen v. Bailey, The Queen v. Alexander and The Queen v. Gregory.  He accepted the prosecution's submission that the appropriate head sentence for counts 1 and 2 was six years' imprisonment having regard to the applicant's criminal history.

The prosecution further submitted that the parole eligibility date should be set at one-third of that six year sentence. 

The applicant's counsel submitted that the appropriate range for the head sentence was four to six years and that there should be a head sentence of five years to be immediately suspended.

His Honour decided that a partial suspension was not appropriate, but that a parole eligibility date should be fixed, but he was persuaded to set that date earlier than one-third, or 24 months, but instead of about 22 months because of this circumstance.

The prosecution tendered a letter from the Australian Crime Commission which demonstrated that the applicant had provided substantial assistance through the provision of information as to serious criminal activity.  The letter said that this information was expected to be productive in the investigation and prosecution of a number of people, the information was credible and that much of it had been verified.  Further it said that this had exposed the applicant to significant danger.

In essence the applicant's complaint is that this cooperation and its consequent danger to the applicant had not been sufficiently recognised in the sentence.  It seems that the sentencing Judge accelerated the parole eligibility date by two months for this factor and said, "I am persuaded that I should give recognition for your cooperation and assistance and it seems to me that the appropriate way to do that is to set a parole eligibility date a little earlier than one-third, which I would normally have considered appropriate.”

In referring to that one-third, his Honour was indicating that this discounting would allow for in particular the applicant's pleas of guilty.

His Honour was understandably reluctant to say much about the content of the letter.  What he did say was that it indicated that the applicant had "assisted significantly" which was "obviously something for which the community as a whole is grateful."

In my view, the allowance of two months for the matters disclosed by the letter was an error.  Although the applicant was not sentenced pursuant to Section 13A of the Penalties & Sentences Act, the content of the letter fairly placed the applicant in the category of a substantial informer, as discussed by this Court in The Queen v. Gladkowski where the Court said this:

"In these circumstances the applicant is entitled to a substantial informer's discount for his extensive cooperation which takes into account the risk of instantive retributive violence against him whilst incarcerated.  The major point on this application is the extent to which effect should be given to this important factor.  It is well recognised that cooperation of this kind, particularly when society benefits from it and places the informer in a position of danger calls for a very substantial discount.  Discounts of one-third or even one half of a sentence that would otherwise be appropriate are not uncommon, according to the value and risk of the assistance rendered."

More recently in The Queen v. Ikin, Justice Keane with whom Justices Williams and Mullins agreed, said that,

"It is established that the informer's discount may range between 20 per cent and 50 per cent."

But added, citing Gladkowski:

"but the Court must 'ensure that the reduction does not result in a sentence that is an affront to community standards."

The applicant has now served nearly 19 months of a six year period.  I do not think that had an eligibility date been fixed at a date which was 18 months from the commencement of the period, that it would have resulted in an affront to community standards.

According to the evidence in that letter, the applicant's assistance has been substantial and will be productive and it has placed him in great danger.

The prosecution argument now is that upon the basis of, in particular, The Queen v. Cheers, a head sentence of seven and a half years could have been imposed, so that all of the mitigating factors including the information provided to the Commission are effectively reflected in a relatively low head sentence, coupled with the eligibility date as it was set.

It may be accepted that six years was not at the highest point in the relevant range, although there were some circumstances in The Queen v. Cheers, such as some of the offences occurring whilst the applicant was on bail, which are not present here.  But nor do I think that a head sentence of six years was at the low end of the range.  It was the head sentence proposed by the prosecution to the sentencing Judge and it is consistent with the authorities which are there cited.

The position remains in essence that insufficient allowance was given for the applicant's cooperation and the danger associated with it.  However I am not persuaded to make the order sought by the applicant, as the sentencing Judge felt it would be inappropriate in his case to partially suspend his sentence, with the result that he would be released unsupervised.

The variation in the parole eligibility date, however, might have some benefit for the applicant.

I would grant leave to appeal and vary the order by substituting 23 October 2007, being 18 months from the commencement of the period as the parole eligibility date.

WILLIAMS JA:  I agree.

HOLMES JA:  I agree.

WILLIAMS JA:  The order of the Court will be:

Grant leave to appeal;
Allow the appeal to the extent of substituting 23 October 2007 as the parole eligibility date in lieu of 25 February 2008.