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R v Smith[2021] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2021] QCA 116

PARTIES:

R

v

SMITH, Pauline Mary

(applicant)

FILE NO/S:

CA No 258 of 2020

DC No 221 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 12 November 2020 (Coker DCJ)

DELIVERED ON:

28 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2021

JUDGES:

Morrison and McMurdo JJA and Bradley J

ORDERS:

  1. Application to adduce further evidence refused.
  2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered into a five-year lease for a new vehicle – where the applicant sold the leased vehicle without obtaining the lessor’s consent – where the applicant forged bank statements purporting to show funds repaying the outstanding amount under the lease – where the applicant was sentenced for one count of fraud to three years’ imprisonment suspended after serving nine months and for one count of attempting to pervert the course of justice to two years’ imprisonment suspended after serving nine months – whether the sentence was manifestly excessive

Human Rights Act 2019 (Qld), s 29

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

R v Valery, unreported, Coker DCJ, DC No 1775 of 2020, 13 November 2020, distinguished

COUNSEL:

The applicant appeared on her own behalf

D Nardone for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  Ms Smith seeks leave to appeal from a sentence imposed upon her on 12 November 2020 in the District Court.  She entered a plea of guilty on 10 July 2020 to one count of fraud to the value of $30,000 or more, and one count of attempting to pervert the course of justice.  The sentences, to be served concurrently, were:
    1. (a)
      Count 1 – Fraud – 3 years’ imprisonment, suspended after serving nine months, with an operational period of five years; and
    2. (b)
      Count 2 – attempting to pervert the course of justice – 2 years’ imprisonment, suspended after nine months, with an operational period of five years.

Circumstances of the offending conduct

  1. [2]
    An agreed statement of facts was tendered to the sentencing judge.[1]  What follows is taken from that agreed statement.
  2. [3]
    By way of overview, the count of fraud involved Ms Smith selling a car for $46,000, when at the time it was being leased from Toyota Finance Australia Limited.  It was still subject to the lease at the time of the sale and, as a consequence, Ms Smith was prohibited from selling or assigning the car without Toyota Finance’s consent.  She acted dishonestly because she did not obtain that consent, and falsely represented to the buyers that she was lawfully entitled to sell the car.
  3. [4]
    Again by way of overview, on the second count, police interviewed Ms Smith about the fraudulent sale.  She falsely claimed that before she completed the sale, she had paid the amount to terminate the lease by way of a bank cheque.  To verify her claim, she presented the police with a forged bank statement purporting to show the funds being transferred from her bank account to Toyota Finance.  The police accepted her version of events and she was then released without charge.
  4. [5]
    The more detailed background to the offending follows.  I will later deal with several challenges to the agreed schedule of facts, raised by Ms Smith before this Court.
  5. [6]
    On 28 June 2013 Ms Smith entered into a five-year lease agreement with Toyota Finance, in relation to a new SUV.  The agreement provided that the car belonged to Toyota Finance, but Ms Smith was permitted to use it.  She was not permitted to sell it or otherwise to permanently part with it, without the prior written consent of Toyota Finance.
  6. [7]
    The value of the lease was $94,650.82, including on-road costs.  Under the lease:
    1. (a)
      Ms Smith’s employer was to pay a monthly lease payment of $1,742.03 directly from her salary; and
    2. (b)
      Ms Smith was obliged to make the lease repayments if her employer failed to do so.
  7. [8]
    In March 2015 Ms Smith, having ceased her employment, reached an agreement with Toyota Finance to continue with the lease in her personal capacity.  Consequently, she was personally responsible for making the lease repayments.
  8. [9]
    On 28 March 2017, Toyota Finance issued a default notice to Ms Smith, after she failed to pay two lease repayments totalling $3,484.06.  At this time the total amount still owing on the lease was $50,246.70.
  9. [10]
    On 30 March 2017, Mr Stevenson responded to an online advertisement for the sale of Ms Smith’s leased car.  The advertised price was $49,500.  The ad did not mention the fact that the car was leased.  Initially Ms Smith’s husband told Mr Stevenson that it was subject to finance.  They verbally agreed for Mr Stevenson to buy the car for $46,000.
  10. [11]
    On 6 April 2017, Mr Stevenson test drove the car with Ms Smith.  Ms Smith confirmed the price of $46,000.  She told him that she was selling the car in order to acquire a smaller car through her employer.  She did not tell him that the car was still subject to finance.  She had not approached Toyota Finance about the early termination of the lease, nor to seek their consent to the sale.
  11. [12]
    On 7 April 2017, Mr Stevenson electronically transferred $46,000 into a bank account jointly held by Ms Smith and her husband.
  12. [13]
    On 10 April 2017, $3,484.06 was electronically transferred from Ms Smith’s bank account to Toyota Finance.  This was to be the final repayment that she made under the lease.  Two days later, Toyota Finance indicated to Ms Smith that the sum payable upon the early termination of the lease was $49,326.40.
  13. [14]
    Ms Candotti, Mr Stevenson’s wife, liaised with Ms Smith to obtain possession of the car.  On 10 April she learned from Ms Smith that the car was “under finance”.  Ms Smith said she was “waiting to hear back” from Toyota Finance.  Ms Candotti asked why the transfer of the car must be delayed when Mr Stevenson had already made payment.  Ms Smith assured Ms Candotti that she was “happy to sign the car over” and that she was “just providing the advices from the leasing company” to enable her to have “all the correct documentation … at handover”.
  14. [15]
    Ms Candotti flew from Sydney to Brisbane and collected the car from Ms Smith on 19 April 2017.  When they met Ms Smith told Ms Candotti that “everything was in order”.  Ms Smith facilitated the transfer of the registration of the car.  She did not reveal to Ms Candotti that $49,326.40 remained owing under the lease.
  15. [16]
    In the nine-month period following the $3,484.06 payment to Toyota Finance on 10 April 2017, the remainder of the $46,000 payment was entirely disbursed from Ms Smith’s bank account on personal expenses, such as telephone bills, credit card repayments, school fees, gym membership fees and golf club membership fees.  There were no further payments to Toyota Finance.
  16. [17]
    In October 2017, Mr Stevenson was informed by an agent of Toyota Finance that the car was liable to repossession because of default under the lease.  When Ms Candotti contacted Ms Smith about this, Ms Smith repeatedly lied that she had paid out the lease.  On 23 October 2017, she lied to Ms Candotti by stating that “the issue has been resolved with the bank” and Toyota Finance.
  17. [18]
    Count 2 concerned Ms Smith’s attempt to pervert the course of justice.
  18. [19]
    On 23 November 2017, Mr Stevenson and Ms Candotti reported Ms Smith to the police, after Toyota Finance confirmed to them that Ms Smith had not paid out the lease.
  19. [20]
    On 4 January 2018 Ms Smith participated in an interview with police.  She said:
    1. (a)
      when Mr Stevenson test drove the car on 6 April 2017, she told him that the car “was leased”; she told him that she would be “paying that out with the sale of the vehicle”; Mr Stevenson agreed to proceed on that understanding;
    2. (b)
      Ms Smith handed over the car to Ms Candotti without “receiving the clearance” from Toyota Finance; though she did not “follow it up”, she had paid the outstanding amount on the lease “with a bank cheque” in favour of Toyota Finance; the cheque was drawn from her Westpac Bank account; she delivered the cheque herself to an NAB branch at Toowong on a work day; this occurred before the completion of the sale of the car;
    3. (c)
      while telling her version of events to the police, Ms Smith presented a one-page computer generated document that she claimed was a copy of her bank statement; she claimed that it showed that “the money going into the account [from Mr Stevenson] and … the money coming out of the account for … the bank cheque”; the document purported to be the first page of a three-page “account summary” of transactions from 6 March 2017 to 5 May 2017; the entries listed on the document included a deposit of $46,000 from Mr Stevenson on 7 April 2017, and a transfer of $39,484.06 to Toyota Finance on 10 April 2017; and
    4. (d)
      at the end of the interview the police accepted Ms Smith had paid the outstanding amount to Toyota Finance; she was released without charge.
  20. [21]
    In March 2018 Westpac Bank provided the police with authenticated records for Ms Smith’s bank account.  Those records confirmed that the only payment made from the account to Toyota Finance on 10 April 2017 was in the sum of $3,484.06, and that no bank cheque had been drawn in favour of Toyota Finance, as claimed by Ms Smith.
  21. [22]
    On 13 April 2018 police attended Ms Smith’s place of work and issued her with a notice to appear in relation to the matter.  She was granted bail on her first appearance.

Other matters put at the sentencing

  1. [23]
    At the sentencing hearing Counsel for Ms Smith added various matters concerning her history and circumstances, without objection.  They included the following:
    1. (a)
      Ms Smith had two children, aged 18 and 15;
    2. (b)
      after she completed high school, she obtained qualifications in management and worked in retail banking for 15 years eventually becoming a regional manager, for WorkCover as a manager, and for private firms in managerial roles;
    3. (c)
      at the time of purchasing the car which was leased from Toyota Finance, she was receiving a wage of $150,000 per annum; when her employment ceased in early 2015, her family attempted to live off the money they received from the sale of their house, together with her husband’s income, but their savings were quickly depleted; life became difficult and the family’s living arrangements were unsettled;
    4. (d)
      they advertised the vehicle for sale, to alleviate some of the financial stress;
    5. (e)
      the purchasers were advised that the car had been subject to finance; on 10 April a text was sent from Ms Candotti to Ms Smith enquiring whether she had heard back from the leasing company; Ms Smith did not seek to hide the fact that the vehicle was subject to a lease arrangement;
    6. (f)
      the vehicle was handed over because Ms Candotti had flown to Brisbane and Ms Smith was too embarrassed about inconveniencing her because the leasing arrangements had not been attended to; she intended to pay out Toyota Finance but the family had a significant number of outstanding debts which made life difficult, and those debts took over;
    7. (g)
      the funds were spent on fees, many of which were being demanded by the creditors, and some of which were the subject of a final notice;
    8. (h)
      as a result of the financial position Ms Smith “wasn’t particularly well mentally because of that financial pressure”;
    9. (i)
      in order to pay debts Ms Smith and her husband borrowed from his mother, and eventually the family could only find accommodation through the assistance of Ms Smith’s brother; and
    10. (j)
      in May 2017, shortly after the sale of the vehicle, Ms Smith obtained work at the University of Queensland as an accounts manager; however that employment ceased in May 2020 because of the criminal proceedings.

The competing submissions as to sentence

  1. [24]
    In the course of submissions at the sentencing hearing the prosecutor contended that if the count of fraud was being dealt with in isolation, a sentence of two to two and a-half years was warranted.  Once the attempt to pervert the course of justice was factored in, it was contended that a sentence of three years and up to four years was warranted as the head sentence.
  2. [25]
    Counsel for Ms Smith accepted that a period of actual custody was within range but submitted that the sentence should not include such a component.  Counsel accepted the range submitted by the prosecutor and in the end contended that the sentence should be three years on count 1, wholly suspended for five years, with probation ordered on count 2.

Approach of the sentencing judge

  1. [26]
    The learned sentencing judge noted that Ms Smith had entered an early plea of guilty, which was a clear indication of remorse.  His Honour said that the factor which troubled him was the offence of attempting to pervert the course of justice.  That was characterised as offending which “strikes at the very heart of our society and the administration of justice”.
  2. [27]
    Factors taken into account by the learned sentencing judge included the following:
    1. (a)
      his Honour accepted that the evidence showed that Ms Smith acknowledged the car was subject to a lease, but “also very clearly indicated to the complainants that upon payment of the moneys that you received as a result of their purchase of this vehicle, the lease would be released and they would receive clear title to the vehicle”;
    2. (b)
      the offending caused a significant degree of concern and difficulties for the complainants (Mr Stevenson and Ms Candotti), but also for Toyota Finance;
    3. (c)
      more concerning was the attempt to pervert the course of justice, which involved deceiving the police who were conducting proper enquiries;
    4. (d)
      the forged bank statement involved falsifying the amount recorded as having been paid by the insertion of an extra digit in the number; that delayed the proper enquiry into the matter, and increased the aggravation felt by the complainants;
    5. (e)
      Ms Smith was 51 to 52 at the time of the offending, and 55 at the sentencing; she was obviously a woman with very particular and specific abilities; her work history showed a clear aptitude to conduct herself in an appropriate and proper way;
    6. (f)
      there had been a breakdown in Ms Smith’s relationship with her former partner, and within the wider family, and an escalation in the financial distress that she has experienced; his Honour accepted that on a general level the stressors felt by Ms Smith as a result of the circumstances she found herself in led to her decisions;
    7. (g)
      there were a number of things favourable to Ms Smith, including the fact that she had no criminal history;
    8. (h)
      the victim impact statement from the complainants revealed their psychological, emotional, financial suffering, and other hardships experienced by them;
    9. (i)
      the offending here was serious, particularly in respect of the attempt to pervert the course of justice; and
    10. (j)
      there was a very real prospect of Ms Smith being a contributing member of society in the future, and she was “not beyond rehabilitation by any stretch of the imagination.”
  3. [28]
    Ultimately, the learned sentencing judge regarded the need for deterrence, both personal and general as a factor which loomed large.  Having considered the various comparable cases put forward by both sides, his Honour concluded that there was no reasonable alternative but for a term of imprisonment to be imposed.  Having noted the submission made by Ms Smith’s Counsel his Honour said:[2]

“I do not necessarily agree entirely with that particular submission made in relation to this matter. I say that in the sense that whilst your circumstances are, no doubt, dire and difficult for you, there are always alternatives to criminal activities and to causing hurt and distress to others, particularly members of our community as well as to the financial structures of our community. I am not, therefore, of the view that any penalty should not actually include a period of actual incarceration. However, I am of the view that there needs to be some amelioration in relation to it to reflect your circumstances and the difficulties you have found yourself in.

I do not also think that it is necessarily required that I should make an order with regard to some form of supervision being provided into the future. I make that comment particularly in light of the fact that I noted before that I consider that you are an excellent candidate for rehabilitation and, no doubt, have taken appropriate steps in that regard already on your own behalf, noting, as I do, that there’s no suggestion of any further offending in the three and a-half years or so since this offending originally occurred.”

  1. [29]
    On that basis sentences were imposed which, most relevantly to Ms Smith’s application to challenge the sentence, included a period to be served of nine months.

Challenge to the statement of facts

  1. [30]
    In the course of her submissions before this Court Ms Smith sought to challenge a number of statements in the agreed schedule of facts.  As will appear, I do not consider that challenge to be determinative.  The first thing to note is that a challenge to an agreed statement of facts is difficult to reconcile with the entry of a plea of guilty.
  2. [31]
    Ms Smith contended that she was lawfully entitled to sell the car “as it was in my name, and I didn’t require the lessor’s consent”.  This refers to paragraph 1 of the overview in the schedule of facts.[3]  That challenge should be rejected.  Ms Smith did not challenge paragraph 3 of the agreed schedule which includes two pertinent facts:
    1. (i)
      the car belonged to Toyota Finance; and
    2. (ii)
      she was not permitted to sell it, or otherwise permanently part with it from her possession, without the prior written consent of Toyota Finance.
  3. [32]
    As to paragraph 7 of the schedule, Ms Smith referred to the agreed fact that the original advertisement for the car did not mention the fact that the car was leased.  Her point was that she did not believe it was a requirement to do so when an ad was placed for a car.  That is of no moment in light of the admitted fraud, which was to sell the car without seeking or obtaining the lessor’s consent, and without paying out the lessor.
  4. [33]
    Ms Smith disputed part of paragraph 8 of the agreed schedule of facts.[4]  In particular, she referred to the statement that when she accompanied Mr Stevenson on the test drive, she did not tell him that the car was still subject to finance.  Ms Smith contested that now, saying that she did explain to him that the car was still subject to finance.  She did not disagree with the balance of paragraph 8, which includes the fact that she had not approached Toyota Finance about the early termination of the lease, nor to seek their consent to the sale.
  5. [34]
    Ms Smith challenged paragraph 12 of the agreed schedule of facts.[5]  When pressed as to the extent of the challenge, it transpired that it was to qualify the fact that she had facilitated the transfer of the registration of the car, which she said was from her personal registration plates to normal generic registration plates, done at the request of Ms Candotti.  Further, there was a qualification on the last sentence of paragraph 12, which stated that Ms Smith did not reveal to Ms Candotti that $49,326.40 remained owing on the lease.  It transpired that the extent of her dispute was that she “may not have said the actual amount but I did say there was the amount still outstanding”.
  6. [35]
    Ms Smith made the point that the changeover of registration plates on her car was under the control of Ms Candotti, who took it upon herself to continue to use the Queensland generic plates so that the vehicle remained in Ms Smith’s name.  So far as Ms Smith was aware, the car registration was not changed until July 2018, 15 months after it was collected.
  7. [36]
    In truth, the extent of the dispute can be put to one side.  First, a statement of facts was tendered as an agreed statement by the legal representative for Ms Smith at the time.  The logical inference to draw is that she gave instructions to do so.  Secondly, a subsequent challenge to an agreed schedule of facts cannot easily be reconciled with the entry of a plea of guilty.  Thirdly, in terms of the count of fraud, Ms Smith’s challenge to the fact makes no material difference.  There is no challenge to the fact that the vehicle was under lease, and she was not permitted to sell it without the prior written consent of the lessor, nor to part with possession on a permanent basis without that consent.[6]  Nor was there any challenge to the fact that Ms Smith did not obtain the lessor’s consent.  The extent of the challenge went to whether she had falsely represented that she was lawfully entitled to sell, Ms Smith maintaining that she was entitled to do so because the car was in her name.  That submission should be rejected.  The car was leased from Toyota Finance, and belonged to Toyota Finance.  It may have been registered in Ms Smith’s name, but she was not entitled to sell it or permanently part with possession of it, without the lessor’s consent.  She did not seek the lessor’s consent, nor did she obtain it.  She did that, knowing that the lease had not been paid out and that the money that was intended to do so was used for other family debts.
  8. [37]
    The essence of the fraud was that she permanently parted with possession of the car at a time when she knew: (i) that the lease had not been paid out, and (ii) she had not sought the lessor’s consent, nor obtained it.  Ultimately Ms Smith did not dispute that part of paragraph 12 of the agreed statement of facts which records her having told Ms Candotti that “everything was in order”.  Given that Mr Stevenson and Ms Candotti had transferred $46,000 (the agreed price for the car) to Ms Smith’s account, handing over possession to Ms Candotti, and facilitating a change in registration plates plainly signified that the lessor’s interest had been satisfied.

Contentions as to the sentence

  1. [38]
    The sole ground of proposed appeal against the sentence is that the sentence is, in all the circumstances, manifestly excessive.  To succeed on such an application, it is not enough to show that the sentence imposed was different from, or even markedly different from, other examples of sentences revealed in other cases.  Rather, it is necessary to demonstrate that there must have been a misapplication of principle or that the sentence imposed is “unreasonable or plainly unjust”.[7]  There is long-standing authority that sentencing judges are to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.[8]  Cases that are said to be comparable do not mark with precision the outer bounds of a sentencing judge’s discretion in imposing a sentence in another case.[9]  At best they stand as yardsticks.
  2. [39]
    Ms Smith’s written outline advanced several contentions in support of her submission that this sentence was manifestly excessive.  Ultimately this focussed upon the period to be served in actual custody, it being contended that the sentence should have been wholly suspended or that probation should have been ordered.  I will deal with each of the grounds advanced in sequence.

Failure to consider the Penalties and Sentences Act

  1. [40]
    It was urged that the sentencing judge failed to take into account s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld).  That section provides that a court must have regard to the principles that a sentence of imprisonment should only be imposed as a last resort, and that a sentence which allows an offender to stay in the community is preferable.
  2. [41]
    This contention should be rejected.  The sentencing remarks by his Honour show that the submissions made on behalf of Ms Smith were given careful attention.  The submissions included that any sentence should be immediately suspended in respect of count 1, and probation ordered in respect of count 2.[10]  In support of that approach reliance was placed upon Ms Smith’s good work history and the aggravated financial circumstances in which she found herself at the time.  Those financial circumstances were said to be so severe that they caused mental anguish, and as a consequence her actions were an exception to her character otherwise.  In that respect her personal and financial difficulties were such that, it was contended, general and specific deterrence would not apply so heavily.  As it was put:[11]

“To suggest that general deterrence requires a period of time in custody in these circumstances, would perhaps ignore the unique financial disadvantage that the defendant was in at the particular time.”

  1. [42]
    Having noted the various features in favour of Ms Smith, particularly the absence of any previous criminal history, her good work history in positions of responsibility, and the very real prospects of rehabilitation, his Honour nonetheless concluded that a period of imprisonment had to be imposed.  Though his Honour did not specifically mention s 9(2)(a) of the Penalties and Sentences Act, the very matter that he was dealing with meant those issues were being addressed.
  2. [43]
    Further, the sentences reveal that amelioration was applied.  The head sentence on count 1 was three years imprisonment, but the time to be served was nine months.  That was one quarter of the total period, and therefore less than the one-third that is often applied on a plea of guilty.

The comparable cases

  1. [44]
    At the heart of this contention was Ms Smith’s reference to a sentence imposed in R v Valery[12] by the same sentencing judge in November 2020.  The sentencing remarks reveal that: (i) the fraud involved just over $32,000 being taken from an employer, in 78 separate instances over five years; (ii) when discovered, there was an immediate admission of guilt and an apology, and immediate repayment of the total taken as well as an extra $1,000; (iii) the offending was explained in part by the fact that her younger son had special needs or needed additional care; and (iv) the sentencing judge accepted there was genuine remorse.
  2. [45]
    Having summarised the various factors the sentencing judge in Valery said, “I am of the view that this is perhaps one of those rare occasions where, whilst a penalty of imprisonment is imposed, it should be immediately suspended.”
  3. [46]
    Ms Smith contended that the antecedents in each case was similar, and that her case was “even rarer” than that in Valery.  In that respect she referred to the fact that her inability to repay Toyota Finance was due to her financial hardship.
  4. [47]
    This contention should be rejected.  The use of the word “rare” in Valery was merely a recognition of the fact that for such serious fraud offences a suspended sentence does not necessarily follow.  In Valery the offender apologised, admitted guilt, and repaid the money in full, as well as an additional sum of $1,000.  By contrast, Ms Smith’s fraud involved a greater amount (about $49,000), no repayment of any of the sum, and a determined attempt to pervert the course of justice by lying to the police and pretending that the finance company had been paid out.  The cases are so different that the sentence imposed in Valery is not persuasive.

The circumstances were such that deterrence was a secondary concern

  1. [48]
    Ms Smith’s contention was that the overall circumstances in which she found herself, that is with a deteriorating financial situation and the family failing, were sufficiently rare that deterrence should have been a secondary concern.
  2. [49]
    This contention should be rejected.  Knowing that the car was the subject of the lease to Toyota Finance, and knowing that she had neither sought nor obtained consent from the financier, Ms Smith took $46,000 from the buyer, and permanently parted with possession of the vehicle.  Only a little over $3,000 was paid to the finance company, and that was to reflect the next few payments under the lease.  Then, when the police commenced to investigate, Ms Smith forged a bank statement in order to deceive the police into thinking that she had presented a bank cheque which paid out Toyota Finance.  Those circumstances are such that deterrence was a justified concern for the sentencing judge.

Failure to give reasons

  1. [50]
    Ms Smith contended that in some unspecified way the sentencing judge had not given sufficient reasons.  There is nothing in this point.  His Honour explained in some detail why he was imposing the sentence he did.

Failure to take account of various matters

  1. [51]
    Ms Smith submitted that there were aspects of the matter not taken into account, or not given any or any sufficient weight.  These included: (i) the mitigating effect of the plea of guilty; (ii) the basis for a custodial sentence when the case was a borderline one; (iii) the nature of a suspended sentence; (iv) rehabilitation; (v) that alternatives to incarceration should be considered.
  2. [52]
    All of these contentions can be put to one side.  Counsel for Ms Smith fairly raised these matters, and they were dealt with in the course of the sentencing remarks.  The sentencing judge spent some time explaining how he had grappled with the imposition of actual custody, eventually considering that it was a case that called for such a sentence.

The Human Rights Act point

  1. [53]
    Ms Smith’s outline included a contention requesting that this Court “review whether the offence of fraud has been made out by the Crown, particularly in light of the Human Rights Act 2019 (Qld) s 29”.  Section 29(8) of the Human Rights Act provides that a person must not be imprisoned only because of the person’s inability to perform a contractual obligation.  Ms Smith’s contention seems to be based on the proposition that her imprisonment for fraud was because of her inability to complete the contractual obligations with Toyota Finance by paying out the loan.
  2. [54]
    This contention should be rejected.  Section 29(8) of the Human Rights Act is directed at prohibiting detention for debt.  It was modelled on Article 11 of the International Covenant on Civil and Political Rights.[13]  However, Article 11 was not intended to apply to criminal offences relating to civil debts.  Section 29(8) is directed at the mere inability to perform a contractual obligation.  That is not the case here.  Ms Smith knew that she had to obtain the consent of the lessor to any sale of the vehicle, and to her parting with possession of it.  She accepted $46,000 for the car and parted with possession of it, without having sought or obtained the lessor’s consent.  Then, having made three payments in compliance with the repayments due under the lease, nothing further was paid notwithstanding that she retained over $40,000 of the purchase price.  That was expended on family debts.
  3. [55]
    In those circumstances Ms Smith was not imprisoned “only because of [her] inability to perform a contractual obligation”.

Application to adduce further evidence

  1. [56]
    Ms Smith sought to adduce evidence before the court which, it was contended, went to show:
    1. (a)
      that she had instructed Mr Stevenson to pay a $1,000 deposit into her bank account, explaining that the vehicle was subject to a lease; further, she understood that Mr Stevenson would pay the balance direct to Toyota Finance;
    2. (b)
      Ms Candotti collected the car without changing the registration, and Ms Smith did not sign vehicle transfer documents;
    3. (c)
      Ms Smith was unable to get payout details from Toyota Finance due to the Easter break at the time; and
    4. (d)
      she continued to service the lease in anticipation of the transfer of ownership of the car.
  2. [57]
    There is no necessity to canvass the details of the evidence sought to be advanced in support of those contentions.  None of that evidence disturbs the underlying facts which were the subject of the agreed schedule tendered at the sentencing.  Ms Smith took the $46,000, knowing it was payment for the car, and knowing that she had neither sought nor obtained the consent of Toyota Finance to the sale of the car, or to her relinquishing possession of it.  Delays in registration and difficulties in obtaining payout details from Toyota Finance are immaterial to the substance of the fraud, and wholly irrelevant to the count of attempting to pervert the course of justice.
  3. [58]
    One category of evidence sought to be advanced concerns Ms Smith’s condition of shingles and fibromyalgia, from which she continues to suffer while in custody.  In response to her affidavit the respondent adduced evidence from the Corrections Service.  That was to the effect that Ms Smith’s fibromyalgia was a known condition, she had been seen by medical practitioners and offered medication, but declined it.  In those circumstances, the additional evidence would not have had any determinative effect on the sentencing process.
  4. [59]
    Ms Smith contended that her medical records were not put forward at the sentencing hearing.  That may be so, but there is nothing in them that would operate to deny the imposition of actual custody as an option.
  5. [60]
    Ms Smith’s submissions otherwise were that incarceration was not a particularly pleasant experience.  That may be so, but it has no impact upon the sentences imposed.  Not only was that not submitted on her behalf at the sentencing hearing, what was said did not rise to such a level that it would compel a non-custodial sentence.
  6. [61]
    The application for leave to adduce further evidence should be refused.

Conclusion

  1. [62]
    For the reasons given above, Ms Smith has not demonstrated that the sentence imposed on her is manifestly excessive.  It was within the proper exercise of sentencing discretion to impose a period of actual custody.  The fraud alone could have called for that notwithstanding the absence of prior criminal history, good history and mitigating circumstances.  However, as the sentencing judge recognised, the attempt to pervert the course of justice took matters to a different level.  That involved not just lying to police but fabricating a bank statement to pretend that money had been paid to the lessor when it had not.  That conduct hampered the investigation and prolonged the aggravation of those who had been damaged by the fraud.
  2. [63]
    The combination of the two offences justified a period in actual custody.  Once the head sentence was set at three years, a nine-month period was one quarter of that time, and factored in, as the sentencing judge said, a degree of amelioration for mitigating circumstances.  It may be that nine months could be seen as at the higher end of discretion, but it cannot be said to be beyond it.
  3. [64]
    The application for leave to appeal against sentence should be refused.
  4. [65]
    I propose the following orders:
  1. Application to adduce further evidence refused.
  2. Application for leave to appeal against sentence refused.
  1. [66]
    McMURDO JA:  I agree with Morrison JA.
  2. [67]
    BRADLEY J:  I agree with Morrison JA.

Footnotes

[1]  Exhibit 1, Appeal Book (AB) 35.

[2]  AB 32 lines 23-38.

[3]  AB 35.

[4]  AB 36.

[5]  AB 36.

[6]  Paragraph 3 of the agreed schedule, AB 35.

[7] R v Tout [2012] QCA 296 at [8].

[8] Markarian v The Queen (2005) 228 CLR 357 at 371.

[9] Barbaro v The Queen (2014) 253 CLR 58 at 74; Hili v The Queen (2010) 242 CLR 520 at 537.

[10]  AB 23 lines 9-24.

[11]  AB 23 lines 33-35.

[12] R v Valery, unreported, Coker DCJ, DC No 1775 of 2020, 13 November 2020.

[13]  Explanatory notes, Human Rights Bill 2019 (Qld) 24.

Close

Editorial Notes

  • Published Case Name:

    R v Smith

  • Shortened Case Name:

    R v Smith

  • MNC:

    [2021] QCA 116

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Bradley J

  • Date:

    28 May 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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