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R v Gliddon[2021] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gliddon [2021] QCA 248

PARTIES:

R

v

GLIDDON, Anthony Michael

(applicant)

FILE NO/S:

CA No 177 of 2021

DC No 330 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – [2021] QDC 137 (Smith DCJA)

DELIVERED ON:

19 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2021

JUDGES:

Sofronoff P and Bond JA and Henry J

ORDERS:

  1. Leave to appeal sentence granted.
  2. Appeal allowed.
  3. The sentence imposed in the District Court is quashed and in substitution therefor it is ordered:
  1. the applicant is fined $5,000;
  2. if the fine is not paid by 31 March 2022 the applicant is to be imprisoned for a period of three months;
  3. no conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant repaired and sold caravans which had previously been registered as roadworthy vehicles but had been written off due to damage – where the applicant disclosed this to prospective purchasers – where the applicant believed registration of the repaired vehicles was allowed because of the rules in Queensland – where the sentencing judge accepted the Chief Executive had the discretion to authorise registration of previously written off vehicles – where the applicant was initially charged with various serious offences – where over four years later the indictment before the District Court was discontinued and the applicant pleaded guilty to a new indictment charging him with a single count of fraud – where the charge was premised upon the allegedly inducing consequences of the applicant’s manner of completion of 73 Vehicle Registration Application forms – where the benefit of the fraud to the applicant was only that the caravans were registered somewhat more quickly than they otherwise would have been – where the applicant was sentenced to 15 months imprisonment wholly suspended for an operational period of two years – where the applicant is 69 years old and in poor health, has no relevant criminal history, had already borne the pressure and expense of having to defend himself, pleaded guilty at an early stage and had not offended further since this offence – whether the sentence was manifestly excessive in the circumstances

Criminal Code Act 1899 (Qld), s 194, s 408C, s 568(3) Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 26(5), s 62

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 12(2), s 12(3), s 182A

Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld), s 17

Transport Operations (Road Use Management) Act 1995 (Qld), s 52(2)

Gould v Vaggelas (1984) 157 CLR 215; [1985] HCA 75, cited

Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545; [1999] FCA 357, cited

Hawker de Havilland Aerospace Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 804, cited

R v Moxon [2015] QCA 65, cited

R v Singleton; R v Singleton [2019] QCA 302, cited

Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd (1993) 41 FCR 229; [1993] FCA 99, cited

Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27, cited

COUNSEL:

B J Power for the applicant

D Nardone for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of Henry J and with the orders proposed by his Honour.
  2. [2]
    BOND JA:  I agree with the reasons for judgment of Henry J and with the orders proposed by his Honour.
  3. [3]
    HENRY J:  From time to time in the criminal jurisdiction cases are resolved pragmatically by serious charges being discontinued and the defendant pleading guilty to a lesser charge.  In some such cases the character of the residual alleged criminality is elusive.  This is such a case.

Background

  1. [4]
    The applicant made money by repairing and selling caravans which had previously been registered as roadworthy vehicles but had been written off due to defects, such as hail or water damage.  The applicant would explain to prospective purchasers that he had purchased the caravans as write-offs.  When some purchasers questioned him about the process of having the vehicles registered as, in effect, home-made vehicles, he explained it could be done that way because of the rules in Queensland.
  2. [5]
    The legality of his enterprise came under suspicion.  A search warrant was executed on his premises on 5 December 2016.[1] By 1 March 2017 he had been charged with various serious offences including fraud against the purchasers of the caravans.  There followed a committal proceeding with cross-examination, pre-trial hearings and a District Court trial which aborted on its second day.  On 29 June 2021, over four years after the commencement of that ill-fated prosecution, the indictment before the District Court was discontinued and the applicant pleaded guilty to a new indictment charging him with a single count of fraud.[2]
  3. [6]
    This new charge alleged that between 12 August 2013 and 26 November 2016 the applicant “dishonestly induced the Department of Transport and Main Roads to authorise the registration of vehicles that the Department of Transport and Main Roads was entitled to abstain from doing”.[3]
  4. [7]
    The charge was premised upon the allegedly inducing consequences of the applicant’s manner of completion of the Vehicle Registration Application forms for the caravans he repaired and sold.  Specifically, the inducing act was failing to answer “yes” to the question in the form’s question 11, “Was the vehicle previously registered?”.  The prosecution case was that if question 11 was answered truthfully, with the answer “yes”, that would have provoked the Department to check the previous registration and thus discover the vehicle had been written off.  This in turn would allegedly have caused the Department to abstain from registration, at least pending further inquiry as to whether the vehicle had been restored to a safe state.
  5. [8]
    This process of reasoning in support of the charge seems to have been accepted by the applicant’s counsel, who emphasised in mitigation that the applicant believed written-off vehicles could be registered.  Whether they could be was the subject of much attention at first instance, with the learned sentencing judge ultimately concluding the Chief Executive did have the discretion to authorise registration of previously written off vehicles, per s 17 Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld).[4]
  6. [9]
    The learned sentencing judge was satisfied the applicant believed the vehicles could be registered,[5] but concluded:

“Although I have accepted there may have been an honest belief as to the state of the law on the part of the defendant, the fact is the defendant deliberately and fraudulently ticked the wrong box to question 11 or failed to make a disclosure as to previous registration.

This clearly enough interfered with the exercise of the discretion of the transport department under Regulation 17.”[6]

  1. [10]
    In reasoning to the conclusion a sentence of imprisonment was warranted his Honour also noted the relevance of general deterrence, the large number of forms which had been incorrectly filled out and the fact that as a motor dealer the applicant knew it was wrong to incorrectly fill out the forms.
  2. [11]
    The applicant was sentenced to 15 months imprisonment wholly suspended for an operational period of two years.  He seeks leave to appeal the sentence on the ground it was manifestly excessive.  If he is granted leave and his appeal succeeds, he contends his sentence should be a fine of $5,000 with no conviction recorded.
  3. [12]
    The starting point in considering whether the sentence was excessive is identifying the level of criminality.

What was the level of criminality?

  1. [13]
    The offence charged is provided for by s 408C Criminal Code Act 1899 (Qld) (the Criminal Code) as follows:

408C  Fraud

(1)  A person who dishonestly –

  1. (f)
    induces any person to do any act which the person is lawfully entitled to abstain from doing;

commits the crime of fraud.

Maximum penalty – 5 years imprisonment.” (emphasis added)

  1. [14]
    The relevant act allegedly repeatedly induced here was the authorisation by the Department of Transport and Main Roads (the Department) of the registration of a vehicle, that being an act the Department was entitled to abstain from doing.[7] The repeated acts of authorisation were allegedly induced by the answer to question 11 of the Vehicle Registration Application forms submitted to the Department.  It is not apparent who submitted the forms but it seems common ground that the applicant completed the forms, on behalf of the purchasers, intending that they would be submitted to the Department.
  2. [15]
    The prosecution alleged:

“The defendant completed the Vehicle Registration Application in respect of each caravan.  The Vehicle Registration Application made an enquiry of the defendant whether that caravan had ever been previously registered and, if so, requiring that the previous registration details be provided.  Despite knowing the provenance of the caravans as having been previously registered and written off … the defendant failed to disclose that information to the Department.”[8]

The allegation that the applicant “failed to disclose” information does not rest neatly with the nature of the application form and the charge’s element, in effect, that the form’s content had to have had an inducing effect.

  1. [16]
    The relevant content of the Vehicle Registration Application form was said to be the response to its question 11.  Question 11 was connected with question 12, in the event of a “no” answer.  Those two questions took the following form:[9]

R v Gliddon [2021] QCA 248

  1. [17]
    A total of 73 Vehicle Registration Application forms were submitted.  The applicant crossed the “no” box for question 11 in 55 of the forms and did not cross the “no” or “yes” box in the other 18.
  2. [18]
    The crossing of the “no” box in question 11, in conjunction with the signing of a declaration at the end of the form to the effect the information and statements given in it were true and correct, could arguably give rise to:
    1. (a)
      the offence of false declaration contrary to s 194 Criminal Code, a misdemeanour punishable with a maximum three years imprisonment; or
    2. (b)
      the offence of making a false statement to a transport official contrary to s 52(2) Transport Operations (Road Use Management) Act 1995 (Qld), a simple offence attracting a maximum penalty of 60 penalty units.

What gave rise to the more serious offence of fraud is more difficult to discern.

  1. [19]
    It must be born in mind the charged offence involves an element of inducement.  Filling out a form dishonestly is not enough; it must have induced the Department to authorise registration.
  2. [20]
    It will not be an obstacle to proof of such inducement that there may have been more than one influence which caused the representee to act as it did.[10] Further, it is uncontroversial that a false representation which is objectively likely to induce representee to act as alleged may support a circumstantial inference that the representee was induced to so act.[11] However, as Ryan J observed in Hawker de Havilland Aerospace Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[12] “inducing is different from holding out an inducement to a person which may or may not have an operative effect on his or her mind.”  The mere possibility a false representation might have induced a course of action by a representee is not enough, for it will not alone provide the level of certainty necessary to support the inference of inducement.[13]
  3. [21]
    In the present case the applicant’s plea of guilty represents an acceptance that his manner of completion of the forms did induce the Department to register the caravans rather than abstain from registering them.  But how it did so is critical to assessing the level of criminality.
  4. [22]
    The applicant failed to endorse any answer to question 11 in 18 of the 73 registration forms.  In those 18 instances there existed no information in the application form about the vehicles’ registration history which was logically capable of inducing the Department to act one way or the other.  It is not readily apparent how the applicant’s manner of completing those 18 forms could have had the inducing effect necessary to constitute the offence of fraud.
  5. [23]
    Further, whether a false answer of “no” to question 11 could have had the necessary inducing effect would turn upon the response to question 12.  That is because, as can be seen above, the form requires, in the event of a “no” answer to question 11, that the declarant, “Go to 12”.  Two examples of Vehicle Registration Application forms completed by the applicant were exhibited.[14] In each of those the “no” answer was marked in response to question 11 but question 12 was left unanswered, with neither the “no” nor “yes” box having been marked.  In the absence of any information to the contrary, on the basis of these examples the applicant’s criminality fell to be assessed on the basis that in those instances when the applicant answered “no” to question 11 he did not complete question 12.
  6. [24]
    Because the application form required an answer to question 12 in the event of a “no” answer to question 11, it is difficult to understand how, if question 12 remained unanswered, the wrong answer to question 11 could have induced the Department to authorise registration.  To the contrary, assuming the Department was not careless in performing its functions, it would be expected that, because the form’s chain of response in connection with question 11 was incomplete, the Department would not proceed to authorise registration without making further enquiry of the declarant.
  7. [25]
    When these deficiencies in information before the court below were addressed by the parties before this court, the element of inducement was reconciled with the known facts on a novel legal basis.  That basis was that the Department, being careless in the exercise of its own function in properly scrutinising the application forms, was induced by the applicant’s dishonest answers to question 11 into registering the caravans forthwith, rather than delaying registration until it had properly scrutinised the caravans’ pedigree.  It was accepted that once that scrutiny would have occurred the Chief Executive would have exercised the discretion to register the caravans, notwithstanding their previously having been written off, because the repairs to them had in fact rendered them safe.  It follows the benefit of the fraud to the applicant was only that the caravans he was selling were registered somewhat more quickly than they otherwise would have been.
  1. [26]
    The upshot of the parties’ strained pathway to a viable explanation before this court of how the element of inducement was present is that the offence involved a much lower level of criminality than seems to have been appreciated below.
  2. [27]
    The respondent maintained the offending was serious, highlighting that the applicant’s customers suffered some detriment in that the Department for a time cancelled registrations it had granted.  However, the applicant does not concede that he was causally responsible for that and the learned sentencing judge did not make any finding to the effect the applicant bore indirect responsibility for that consequence of the Department’s decision making.  There was insufficient information before the court below for this court to reach a properly informed conclusion on the point.
  3. [28]
    The respondent also sought to characterise the consequence of the offence as undermining the system of registration.  It is of course important that the public complete Vehicle Registration Application forms truthfully and that, when they do not, the ensuing sentence gives weight to deterrence.  The difficulty for the respondent here is that the undermining consequence it so emphasises is no different in gravity than the undermining consequence of the conduct if it had been charged as offences of making a false declaration or making a false statement, which are less serious offences than fraud.  Charging the offence as fraud did not uplift the comparable gravity of that consequence.

Consideration

  1. [29]
    It turns out that this was a comparably much less serious fraud than most.  It was materially less serious than any of the past fraud sentences referred to in the parties’ submissions.[15]
  2. [30]
    Fraud remains within that category of offence to which the principle in s 9(2)(a) Penalties and Sentences Act 1992 (Qld) applies, namely that “a sentence of imprisonment should only be imposed as a last resort”.
  3. [31]
    The sentence of imprisonment imposed below was no less a sentence of imprisonment by reason of its suspension.  Having regard to the level of criminality involved and the applicant’s absence of any relevant criminal history a sentence of imprisonment was not warranted.  That such a sentence was imposed demonstrates there must have been error.  In fairness to the learned sentencing judge, that error appears to have largely been a product of the parties’ failure, amidst their obviously pragmatic resolution of this unfortunate saga, to properly identify a legal foundation for liability.
  4. [32]
    It falls to this court to re-sentence the applicant.  Once it is accepted that a noncustodial sentence is apt, a substantial fine presents as the most appropriate form of punishment here.  The offending was of course prolonged and there were many registration forms involved, but other considerations are also relevant in arriving at an appropriate quantum of fine.
  5. [33]
    Personal deterrence would ordinarily be a significant consideration, in that the offending was persistent and the applicant has been in, and apparently aspires to continue to be in, the business of repairing vehicles in order that they may registered to his customers.  However, the applicant has already borne the pressure and expense of having to defend himself, in a no costs jurisdiction, against more serious charges for more than four years before they were dropped.  That process, in itself an indirect punishing consequence of his foray into wrongful completion of registration forms, will already have had a strong deterrent effect against him again being tempted to fill out a registration form incorrectly or incompletely.  Personal deterrence is not a significant consideration in the circumstances.
  6. [34]
    It was submitted that because the applicant became a licensed motor dealer during the offending period, that made the continuation of his offending more serious than it otherwise would have been.  The detail of why that would be so went unexplained.  For instance, it was not suggested the applicant’s status as a motor dealer made the wrongful completion of registration forms by him less likely to be detected than forms wrongly completed by any other declarant.  Nonetheless it may be accepted it is more than ordinarily important that registration forms are filled out correctly by those who are in business as motor dealers because of the frequency with which they complete such forms.  The desirability of a sentence tending to deter such persons from dishonest completion of such forms is self-evident.
  7. [35]
    However, the weight to be attributed to the claims of general deterrence here is materially tempered by the novel circumstances of the offending and by circumstances personal to the applicant.  They are collectively circumstances which reduce the utility of this case as a vehicle for general deterrence and support the imposition of a smaller fine than may otherwise be appropriate for such prolonged and repetitive offending.
  8. [36]
    The novel circumstances of the offending include the following:
    1. (a)
      The defendant disclosed to his prospective purchasers that he had purchased the caravans as write-offs.
    2. (b)
      The evidence of three departmental inspectors at the committal proceedings revealed the view of some departmental decision makers, in response to the inspectors’ queries, was that the applicant could register written-off but repaired caravans.
    3. (c)
      The plea of guilty was entered on the basis that the applicant believed he was lawfully entitled to register written-off but repaired caravans in Queensland, as long as they were certified safe by accredited inspectors.
    4. (d)
      The repaired caravans were in fact safe.
    5. (e)
      The element of inducement, as ultimately articulated in this court, suggests that the application forms’ inducing effect was not the only or determinative reason why the Department decided to proceed with the registrations.
    6. (f)
      The extent of the benefit derived by the applicant was that the caravans he was selling were registered somewhat more quickly than they otherwise would have been.
  9. [37]
    Considerations personal to the applicant strongly support moderation in sentence. The applicant is 69, is in very poor health, has a minor and dated criminal history and faced no allegations of further misconduct in the more than five years since the alleged offending.  Further, his plea of guilty was indicated at a constructively early time.
  1. [38]
    Weighing all the circumstances of the case the just sentence is a fine of $5,000.  While the applicant sought such a fine, implicitly representing it would be paid, it is appropriate in preserving the deterrent effect of that sentence and safeguarding its fulfilment, to impose a default period of imprisonment, per s 182A Penalties and Sentences Act, in the event of non-payment.
  2. [39]
    The applicant submits a conviction should not be recorded.  This invokes consideration of all the circumstances of the case pursuant to s 12(2) Penalties and Sentences Act.  Further to the circumstances already discussed, which include the novel circumstances of the offending and the absence of relevant criminal history, the recording of a conviction will impact the applicant’s economic wellbeing.  That is because the recording of a conviction would have the result, pursuant to s 62 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), that the applicant’s motor dealer’s licence would be cancelled and, pursuant to s 21, that he would not be eligible to hold such a licence for the next five years.[16] This would be a disproportionately harsh outcome for a man already at a significant income earning disadvantage by reason of advancing age and ill health, particularly bearing in mind nearly five years has already passed since the prolonged prosecution of the applicant commenced.  A conviction should not be recorded.
  3. [40]
    I would order:
    1. Leave to appeal sentence granted.
    2. Appeal allowed.
    3. The sentence imposed in the District Court is quashed and in substitution therefor it is ordered:
      1. (a)
        the applicant is fined $5,000;
      2. (b)
        if the fine is not paid by 31 March 2022 the applicant is to be imprisoned for a period of three months;
      3. (c)
        no conviction is recorded.

Footnotes

[1] AR p 50.

[2] AR p 6.

[3] AR p 4.

[4] Which expired on 31 August 2021 and has been replaced by a new regulation.

[5] Reasons [72].

[6] Reasons [99] – [100].

[7] In this case repeated acts of the same fraud were alleged in support of a single charge, as is permitted by s 568(3) Criminal Code.

[8] AR p 49.

[9] There was a slight but irrelevant variation as between the question content in the two forms.

[10] Royall v The Queen (1991) 172 CLR 378, 387, 411-412, 423, 441; Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd (1993) 41 FCR 229, 234.

[11] Gould v Vaggelas (1985) 157 CLR 215, 236; Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545, 556.

[12] [2005] FCA 804.

[13] Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd (1993) 41 FCR 229, 235; Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545, 556.

[14] AR pp 52-56.

[15] R v Singleton; R v Singleton [2019] QCA 302; R v Moxon [2015] QCA 65.

[16] Also see s 12(3) Penalties and Sentences Act 1992 (Qld) and 26(5) Motor Dealers and Chattel Auctioneers Act 2014 (Qld).

Close

Editorial Notes

  • Published Case Name:

    R v Gliddon

  • Shortened Case Name:

    R v Gliddon

  • MNC:

    [2021] QCA 248

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Bond JA, Henry J

  • Date:

    19 Nov 2021

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QDC 13712 Jul 2021Date of sentence; pleaded guilty to one count of fraud; motor dealer dishonestly induced department of transport to register caravans by manner of completion of application forms; sentenced to 15 months’ imprisonment wholly suspended for 2 years (Smith DCJA).
Appeal Determined (QCA)[2021] QCA 24819 Nov 2021Leave to appeal sentence granted, appeal allowed; offence involved much lower level of criminality than appreciated below and was a comparably much less serious fraud than most; offender resentenced to $5,000 fine with default period of imprisonment in event of non-payment with no conviction recorded: Henry J (Sofronoff P and Bond JA agreeing).

Appeal Status

Appeal Determined (QCA)

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