R v Whatmore[2022] QCA 127

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Flanagan J.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Flanagan J and with the orders proposed by his Honour.
3. [3]
   FLANAGAN J:  The applicant seeks leave to appeal against his sentence imposed in the District Court at Brisbane on 8 March 2021.  The applicant was sentenced for one count of dishonestly obtaining property from another as an employee to a value greater than $30,000 and one count of uttering forged documents.  He was sentenced to 10 years imprisonment for the count of dishonestly obtaining property and a concurrent sentence of three years for the uttering count.  The learned trial judge fixed the applicant’s parole eligibility date at 7 March 2024, which was three years from the date of sentence, being slightly less than one-third.
4. [4]
   The application for leave to appeal identifies only one ground, namely that the sentence is manifestly excessive.  The applicant’s written submissions, however, identify an additional five grounds of appeal, namely that the learned sentencing judge:

1. did not have and was not given all the relevant information to assist his Honour in making an informed decision on sentencing;

2. erred by not giving enough weight to the level of remorse;

3. erred by overlooking the character and culture of the complainant company and their own actions of collusion and conspiracy to manipulate the narrative and pervert the course of justice to their benefit;

4. erred by giving too much weight to the victim impact statement of Mr Miller and not to the validity of his statement and overlooked his own actions of dishonesty in committing fraud, uttering, breaching employment law and the Fair Work Act 2009 (Cth);

5. erred by not giving any weight to the extra‑curial punishment already suffered by the applicant and insufficient weight to the applicant’s character and not giving enough weight or consideration to the character references which covered a diverse cross-section including employers, employees, subcontractors, ex-wife and current partner.

5. [5]
   These five grounds of appeal are additional to the ground that the sentence is manifestly excessive.  No objection was taken by the respondent to the applicant pursuing all six grounds.
6. [6]
   The applicant has also filed two applications for leave to adduce evidence.  The evidence consists of a transcript of proceedings of a s 590AA application heard before Judge Sheridan on 23 July 2020 and a claim and statement of claim received by the applicant on 26 November 2021 after he had been sentenced.

Statement of facts

7. [7]
   The sentencing of the applicant proceeded on the basis of an agreed statement of facts which was tendered.
8. [8]
   The applicant commenced employment with the Advance National Service Pty Ltd (ANS) on 10 February 2009 as the Regional Operations Manager – Cleaning Division.  The applicant reported directly to the Chief Operating Officer, Mr Miller.
9. [9]
   ANS is a national company with various divisions, including cleaning and environmental services.  It obtains contracts and employs subcontractors to complete the work required.  The subcontractors submit invoices and are subsequently paid by ANS.
10. [10]
    Part of the applicant’s role was to engage new subcontractors to work for ANS.  In setting up new subcontractors the applicant was required to complete a number of documents including forms entitled “Subcontractor Action Form” and “Subcontractor File Information Form”.  Once a subcontractor had been approved its details were entered into ANS’s computer system by the accounts payable department.  These details included payment information and the subcontractor’s ABN which was taken from the forms provided by the applicant.
11. [11]
    The applicant’s employment responsibilities included authorising payment of subcontractor invoices.
12. [12]
    The applicant operated two fraudulent schemes against ANS that resulted in money being dishonestly paid into one or more of his bank accounts.  The first related to fictitious subcontractors named Bryant, in which the applicant would claim for work carried out by the Bryants in circumstances where they were not legitimate subcontractors to ANS.  The statement of facts referred to this as the Bryant offending.  The second scheme related to two legitimate subcontractors, Mr Ahmed and Mr Amir Balagafsheh.  The applicant would inflate the invoices sent in by these two subcontractors and amend the BSB and account numbers on the invoices so that the money was paid into his account.  The applicant would then pay the amount of the legitimate invoices submitted by Mr Ahmed and Mr Balagafsheh and retain the difference.  The statement of facts referred to this as the Ahmed and Amir offending.
13. [13]
    As to the Bryant offending, the Bryants had been involved in a different company with the applicant in 2007.  At some time prior to 11 April 2011 the applicant created new subcontractors for ANS in the names of the Bryants.  These were false subcontractor agreements dated 13 September 2012 and 25 November 2013.  Between 11 April 2011 and 23 January 2017 the applicant created 232 false invoices from Jessie M Bryant Window Cleaning, J M Bryant and T A Bryant.  These invoices were paid by 214 deposits into the defendant’s account and totalled $2,194,338.78.  These monies were obtained dishonestly and the applicant was not entitled to receive this money.
14. [14]
    As to the Ahmed offending, a subcontractor agreement was entered into with ANS by Ms Taha on behalf of Mr Ahmed on 29 September 2013.  Ms Taha was Mr Ahmed’s partner and bookkeeper.  Mr Ahmed was contracted to clean a number of childcare centres in New South Wales.  Ms Taha had completed a Subcontractor File Information Form that contained correct information, however, later it was discovered that a second such form had been fraudulently completed by the applicant and included the applicant’s bank account details and a false email address.  At the end of each fortnight Mr Ahmed would invoice ANS for the services provided.  Ms Taha would generate an invoice which was emailed directly to the applicant.  After receiving this invoice the applicant, instead of following the correct procedure, emailed the invoice to an external email account controlled by him.  He would then make changes to the invoice that increased the amount of the invoice.  He also changed the bank details.  After manipulating the invoice, the applicant would forward the invoice to accounts payable, with authorisation to pay the invoice.  Accounts payable processed the altered invoice, unknowingly paying it into the applicant’s bank account.  After receiving the payment the applicant would pay Mr Ahmed the amount of the original invoice, retaining the difference in his bank account.  This occurred on 84 occasions between 21 October 2013 and 22 January 2017, resulting in the defendant fraudulently obtaining $1,850,589.80 by manipulating the invoices received by Mr Ahmed.  On a further 18 occasions the applicant created fraudulent invoices, allegedly for work completed by Mr Ahmed at childcare centres in Victoria, which Mr Ahmed did not clean.  These invoices totalled $378,895.30.
15. [15]
    The total amount of money dishonestly obtained by the applicant in relation to the manipulated invoices of Mr Ahmed was $2,328,563.17, of which $1,277,020.60 was transferred to Mr Ahmed for payment of his legitimate invoices.  The applicant dishonestly obtained $1,051,542.57 from ANS in relation to this fraudulent scheme.
16. [16]
    As to the Amir offending, statements were obtained from a Bendigo Bank account held in the applicant’s name.  This account was opened on 10 November 2016.  The account showed three deposits made by ANS.  The first was for $15,154.43 made on 1 February 2017, which was prior to ANS terminating the applicant’s employment in mid-February 2017.  The two remaining deposits of $4,763 made on 1 March 2017 and $7,198.95 made on 15 March 2017 both post-date the applicant’s termination.  The total of the three payments was $27,116.38.  These payments were obtained by the applicant through forged documents.  Mr Balagafsheh had, however, carried out cleaning work for ANS and rendered two invoices, one for $4,763 and one for $7,198.95 on 1 March 2017 and 15 March 2017 respectively.  In honouring the contract ANS had with Mr Balagafsheh, ANS paid him the amount of $16,461.95 that he was entitled to but had been paid to the applicant.  This fraudulent activity caused a loss to ANS of $27,116.38.
17. [17]
    The fraud was carried out by the applicant over a period of approximately six years.  The total amount dishonestly obtained during the indicted period was $4,550,018.33.  The Crown accepted that a number of the amounts were paid to legitimate subcontractors, however the applicant made a net gain from his offending in the amount of approximately $1.2 million.
18. [18]
    As to the uttering count, to enable the applicant to dishonestly obtain the money into his account he uttered false invoices by email to his employer authorising payment.  The obtaining of the money into his account could only have been facilitated by his uttering of these false invoices.
19. [19]
    The offending only came to light when Mr Miller was attending a subcontractor’s function in Sydney and was approached by Ms Taha, who enquired if more contracts could be allocated to Mr Ahmed.  Mr Miller was surprised to hear this as he was aware that large amounts of money were paid by ANS to Mr Ahmed.  An internal investigation was commenced and ANS employed a lawyer and a forensic accountant to undertake a forensic analysis of the company records.  As a result of those findings the applicant’s employment was terminated in mid-February 2017.

The sentencing remarks

20. [20]
    The learned sentencing judge had regard to the following matters:

    1. (a)
       The maximum sentence for the count of dishonestly obtaining property was 12 years but had been increased to 20 years effective from 9 December 2016.  The bulk of the applicant’s offending had, however, occurred prior to the increase in the maximum penalty;
    2. (b)
       The fraud represented “a breathtaking dishonesty over a substantial period of time” of approximately six years;
    3. (c)
       While the offending may not have been the most serious level of offending in this category, it was a very serious example;
    4. (d)
       The fraud caused a significant level of distress both financial and personal to the applicant’s employer but also to the applicant himself and his family;
    5. (e)
       The applicant’s pleas of guilty were timely and resulted in a two week complicated fraud trial being avoided;
    6. (f)
       The pleas of guilty demonstrated some level of remorse but there was “a limited level of remorse”;
    7. (g)
       The applicant’s assets were subject to a freezing order made on 15 February 2017;
    8. (h)
       The applicant’s fraud had significant effects on Mr Miller and other staff, including hundreds of after hours work and Mr Miller feeling “completely betrayed”.  ANS also incurred substantial financial costs;
    9. (i)
       The applicant had an irrelevant criminal history;
    10. (j)
        The applicant had an excellent work history;
    11. (k)
        After the fraud was discovered the applicant was able to secure employment and the references spoke highly of him;
    12. (l)
        The quantum of the fraud was $4.55 million and the gain to the applicant was $1.2 million;
    13. (m)
        There were 337 altered invoices;
    14. (n)
        The fraud constituted “a blatant and appalling breach of trust”;
    15. (o)
        The fraud, whilst being of moderate sophistication, was very effective;
    16. (p)
        Mitigating features, including the applicant’s marriage breakdown, his “catastrophic” financial circumstances, the effect of the freezing order and his health situation;
    17. (q)
        The decisions of this Court in R v Lovell [2012] QCA 43, R v Heiser, Cook & Attorney-General of Queensland [1997] QCA 14, R v Webber [2000] QCA 316 and R v Gadaloff [1999] QCA 286;
    18. (r)
        The need for both general and personal deterrence noting however, that it was unlikely there was any need for personal deterrence in the applicant’s case.
21. [21]
    In arriving at the sentence his Honour had read and considered a detailed 15 page written submission of the applicant’s counsel.  The applicant at the time of the offending was 38 to 44 years of age and 48 years of age at the time of sentence.  The Crown submitted for a sentence of up to 12 years imprisonment, with the applicant’s counsel seeking a sentence of six to eight years with a parole eligibility date set at less than one third.  His Honour while imposing a head sentence at 10 years did fix the parole eligibility date at less than one third observing:

“… I have recognised the value of some of the matters in mitigation that have been placed  before me comprehensively by Mr Minnery … and as best as possible, given you credit for that mitigation in the parole eligibility date.”^[1]

The applications for leave to adduce evidence

22. [22]
    In considering the application for leave to adduce the transcript of the s 590AA application it is necessary to briefly outline some of the history of the proceedings.  The original indictment presented in April 2018 did not include the Amir offending.  The matter was originally set down for a contested sentence on 22 August 2019.  On that day the applicant’s plea was vacated and the matter was listed for mention to obtain a trial date.  On 29 May 2020 a s 590AA application was filed seeking a Basha hearing which was heard on 23 July 2020.  The three witnesses who were crossed‑examined on that occasion were Mr Miller, Mr Putland, the Financial Controller and Mr Thomas, the National Operations Manager.  The s 590AA hearing was therefore conducted in the context that the matter had been set down for trial.
23. [23]
    The matter was listed for trial to commence on 8 March 2021.  However, on 24 February 2021 the applicant was arrested by police and charged with the Amir offending.  The applicant requested an ex officio indictment in relation to those allegations.  The new indictment was presented on 1 March 2021 to which the applicant entered pleas of guilty and the sentence proceeded on 8 March 2021.
24. [24]
    The applicant asserts in his statutory declaration in support of the application for leave to adduce the transcript of the s 590AA application as evidence, that had the transcript been before the learned sentencing judge his Honour would have been assisted in making “an informed decision on sentencing”.  The relevance of the transcript is further explained by the applicant in his written submissions as showing that ANS and its senior management misled the prosecution and therefore the Court.
25. [25]
    By the claim and statement of claim ANS seeks damages in the amount of $596,188.98 from the applicant for breach of contract, breach of fiduciary duty and/or as restitution for unjust enrichment.  Paragraphs 9 to 17 of the statement of claim plead allegations generally consistent with the Ahmed offending.  Paragraphs 18 to 20 plead allegations generally consistent with the Amir offending.  The statement of claim does not plead any allegations concerning the Bryant offending.  In his statutory declaration in support of his application for leave to adduce the statement of claim as evidence, the applicant alleges that if it was before the sentencing judge it would have affected the outcome “and would have added additional weight to mitigation and the lack of credibility, dishonest culture and poor character of the management of the complainant company whose information the prosecution was relying upon”.  The statement of claim does not, however, make any allegations relevant to the conduct of ANS or any of its employees apart from the applicant.  The applicant also refers to the amount claimed in the statement of claim as being approximately half the net gain to him of $1,200,000 alleged by the Crown.
26. [26]
    In R v Verrall [2015] QCA 72 at [3]–[5] Carmody CJ considered the judicial discretion to admit new evidence:

“New evidence is admissible in an application for leave to appeal against sentence if it demonstrates that some other sentence is warranted by law.

However, whether admission is granted is a question of discretion.  The competing discretionary factors are wide ranging and their weight will depend on the circumstances of the case.

Evidence available but deliberately withheld from the sentencing judge will generally not be received by an appellate court unless failure to do so would cause serious or gross injustice.  Parties should not be entitled to rely on their own negligence, inattentiveness or tactical choices to effectively secure a re-sentencing on a whole new basis.  Otherwise, the courts would experience a multiplication of proceedings, and the appellate jurisdiction would quickly become a forum for testing alternative case theories not advanced during the original sentencing determination.”

27. [27]
    The evidence sought to be adduced by the applicant does not show that some other sentence is warranted by law.  At sentence the applicant was represented by counsel.  The sentence proceeded on the basis of an agreed statement of facts which identified that the total amount dishonestly obtained by the applicant during the indicted period was $4,550,018.33 of which the applicant made a net gain of approximately $1,200,000.  That was the agreed position as between the Crown and the applicant at the time of sentencing and expressly accepted by the applicant’s counsel in his written submissions.^[2]
28. [28]
    Counsel for the applicant at sentence was the same counsel who appeared on the s 590AA application.  It follows that the evidence adduced at that hearing was known both to the applicant and his legal representatives at the time of the sentence.  As to the statement of claim, it refers only to the circumstances of the Ahmed and Amir offending.  In those circumstances the amount of ANS’s civil claim against the applicant is irrelevant in light of the agreed basis upon which the applicant was sentenced.
29. [29]
    The applications for leave to adduce evidence should be refused.

Grounds 1, 3 and 4

30. [30]
    These three grounds of appeal may be dealt with together as they proceed on the basis that the applicant is successful in being granted leave to adduce evidence.  For the reasons stated above these applications should be refused.  The evidence sought to be adduced is not only irrelevant, it is inconsistent with the agreed statement of facts.  The evidence does not show that some other sentence is warranted at law.

Grounds 2 and 5

31. [31]
    These grounds assert that the learned sentencing judge erred by failing to give sufficient weight to the applicant’s level of remorse and his character references and no weight to his extra-curial punishment.  Part of ground 4 also asserts that his Honour gave too much weight to the victim impact statement of Mr Miller.
32. [32]
    These grounds fail on a number of basis.  First, it was a matter for the learned sentencing judge as to what weight was ascribed to these considerations.  An assertion that the learned sentencing judge failed to give sufficient weight or too much weight to one of these considerations does not establish error in the exercise of the sentencing discretion.  Secondly, a consideration of the sentencing proceedings shows that his Honour took each of these matters into consideration.  As to the question of remorse, the Crown relied on the Amir offending as demonstrating that the applicant did not have “a shred of remorse”.^[3]  In its outline of submissions the Crown made specific reference to the applicant’s lack of remorse.^[4]  Counsel for the applicant however, submitted in writing that the applicant’s timely plea of guilty was indicative of his remorse.^[5]  The sentencing remarks reflect that his Honour did not accept the Crown’s submission that there was no remorse but rather accepted that the pleas of guilty demonstrated some level of remorse.  As to the considerations of extra-curial punishment and the applicant’s character references, these were the subject of extensive written and oral submissions by counsel for the applicant.^[6]  As well as the 15 pages of written submissions, the references and freezing order were also tendered in the course of the sentencing proceedings and considered by the learned sentencing judge.  His Honour in his sentencing remarks made specific reference to both the personal and financial distress the applicant and his family had suffered, as well as referring to the effects of the freezing order and other mitigating features including the references, which his Honour considered spoke highly of the applicant.^[7]  Thirdly, his Honour specifically took all these mitigating features into account in fixing a parole eligibility date at less than one-third.
33. [33]
    It was also appropriate for his Honour to have regard to Mr Miller’s victim impact statement.  Section 9(2)(e) of the Penalties and Sentences Act 1992 (Qld) requires a court in sentencing an offender to have regard to any loss caused by the offender.

Is the sentence otherwise manifestly excessive?

34. [34]
    As stated in [20](q) above, the Court had regard to four comparable decisions in arriving at the head sentence of 10 years.  The applicant who was self‑represented before this Court, in addition to R v Lovell, relied on four additional comparatives in submitting that the sentence is manifestly excessive and should have been four‑and‑a‑half years rather than 10 years.  Those decisions include R v Daswani [2005] QCA 167, R v O'Carrigan [2013] QCA 327, R v Kawada [2004] QCA 274 and R v Morehu-Barlow [2014] QCA 4.
35. [35]
    The difficulty with the applicant suggesting appellable error by reference to four additional comparatives, to which the learned sentencing judge was not referred, is that as observed by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [58]:

“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.  Intervention is warranted only where the difference is such, that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

36. [36]
    To similar effect is the observation of Fraser JA in R v Goodwin; Ex parte Attorney‑General (Qld) [2014] QCA 345 at [5]:

“Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence.”

37. [37]
    In cases of fraud Boddice J, with whom Fraser and Mullins JJA agreed observed in R v Dick [2022] QCA 59 at [13]:

“… there is no sliding scale having regard solely to the amount of money the subject of the fraud.  Relevant factors include not only the amount of money, but also any sophistication in the carrying out of the fraud, the time period over which the fraud was committed, whether the offender was in a position of trust and whether there has been any restitution or offer of restitution.  Such aggravating features are to be considered in the context of mitigating features, such as cooperation and the offender’s personal circumstances.”

38. [38]
    The fraud in the present case was described by the learned sentencing judge as constituting “a breathtaking dishonesty over a substantial period of time” for approximately six years.  Whilst not the most serious level of offending, it was described by his Honour as a very serious example.  His Honour described the fraud as constituting “a blatant and appalling breach of trust”.  While of moderate sophistication it was a very effective fraud.  It was only uncovered by accident.  His Honour took into account the applicant’s timely plea of guilty and all other mitigating factors.  This was reflected in his Honour fixing a parole eligibility date at less than one-third.  His Honour at arriving at the sentence of 10 years had regard to the comparable authorities to which he was referred.  In the above circumstances, the sentence imposed was not manifestly excessive.

Disposition

39. [39]
    The applications for leave to adduce evidence should be refused.  The application for leave to appeal should be refused.