R v Pabina[2022] QCA 181

[2022] QCA 181

DALTON JA

JACKSON J

CROW J

CA No 151 of 2022

DC No 428 of 2022

THE KING

v

PABINA, Zbigniew Jerzy Applicant

BRISBANE

TUESDAY, 20 SEPTEMBER 2022

JUDGMENT

DALTON JA:  I will ask Justice Jackson to deliver the first judgment in this matter.

JACKSON J:  This is an application for leave to appeal against sentence.^[1]  On 12 July 2022, the applicant was convicted in the District Court at Southport of an offence of fraud by dishonestly inducing the Queensland Building and Construction Commission, which I will call QBCC, to maintain a licence.^[2]  He was sentenced to a period of two years’ imprisonment, suspended after four months for an operational period of two years.

The sole ground of the proposed appeal is that a comparison between the sentence of the applicant and the sentence of a co-accused, Jessica Nair, engenders a justifiable sense of grievance on the part of the applicant because of a lack of parity.  Ms Nair was sentenced on the same day as the applicant upon five counts of fraud of dishonestly inducing persons to deliver bank credits to N1 Homes Proprietary Limited, which I will call the company, where the property was of the value of $30,000 or greater.^[3]  She was sentenced to five years’ imprisonment, wholly suspended for an operational period of five years.

The offences of both the applicant and Ms Nair arose out of the affairs of the company, which carried on business as a licensed builder for residential construction.  Matthew Nair, Ms Nair’s husband, was the principal offender.  The company made claims for payment under a number of residential building contracts and falsely represented that work had been completed to stages that entitled it to payment.  In all, there were nine complainants who were defrauded in the total amount of $1,015,150.

Between 20 November 2014 and 13 August 2015, Ms Nair’s offences related to five of those complainants, with a total amount of $562,700.

Ms Nair’s offences consisted of sending photographs or making other representations to clients to obtain payment that falsely represented or indicated completed stages of the work.  Ms Nair, together with Mr Nair, benefitted financially from her fraud.  The moneys paid by the complainants to the company’s bank accounts were used by them personally to live a “high level of lifestyle”.  Ms Nair was sentenced on the basis that her knowledge of the fraud was limited to the period between April 2015 and August 2015.

At the time of the present offending, Ms Nair was 25 years of age with no prior criminal history.  However, also at that time, she was on bail for other offences.  On 17 January 2020, she was sentenced to five years’ imprisonment for one of the earlier offences, suspended after 12 months.  It was an offence of dishonestly inducing delivery of property of a value of over $30,000 on various dates.  There were also lesser sentences for other similar offences, also suspended after 12 months.  The relevant offending was on dates between 9 June 2011 and 3 September 2014.

As the sentencing judge remarked, on the present offences, it was unfortunate that all Ms Nair’s related offending was not dealt with together.  However, it was not, and at the time of the sentences this Court is concerned with, she had served the 12 month period of actual imprisonment for the earlier offences.

At the times of all relevant offences, Ms Nair had been in a domestically abusive relationship with Mr Nair, having met him when she was aged 18 or 19.  He was eight years older.  He subjected her to physical, mental and sexual abuse during their marriage.  She suffered from bulimia and PTSD.

Ms Nair had cooperated with authorities and given a statement as to Mr Nair’s involvement in the prior offending.  She had also agreed to give a further statement against him for the present offending, although one had not been required, in the event.

From May 2014, the applicant was the sole registered shareholder of the company.

On 13 November 2014, the applicant caused the company’s lawyers to send a letter to the QBCC, stating that Mr Nair was not an influential person in a position to control or influence the company, was only employed as a project manager, and had resigned and was no longer involved with the company.

On 16 February 2015, the applicant and Mr and Mrs Nair entered into an agreement in writing providing that the applicant must assign 51 per cent of the shares in the company to Mr Nair at any time upon request, or 50 per cent to Ms Nair upon Mr Nair’s death.  That arrangement was designed to hide the fact that Mr Nair had an interest in the company.  That was because Mr Nair was an excluded individual under the Queensland Building and Construction Commission Act 1991 (Qld), with the consequence that his interest would make the company an excluded company, unable to hold the necessary licence.^[4]

On 18 February 2015, the applicant falsely signed a statutory declaration that Mr Nair was not involved in the company, knowing that it was untrue and that Mr Nair was an excluded individual.  The declaration was produced to the QBCC and the sentence proceeded on the basis that had it not been provided to the QBCC, the QBCC would have cancelled the company’s building licence.

At the time of his offending, the applicant was aged 46 or 47.  He had no criminal history, he was married with five children, of whom the three youngest were still at home.  He had a good work history in manufacturing and selling jewellery, mediation and in business.

The applicant did not personally benefit from the frauds.  He did not withdraw funds from the company for himself.  He invested an additional $77,000 of his own money into the company, which was lost.  After its collapse, he was sued personally for constructions cost.  That claim was settled for $145,000.  The applicant experienced financial loss and negative publicity, which resulted in difficulties in obtaining and retaining ongoing employment.  He was made bankrupt.  The psychological toll resulted in a nervous breakdown.

Putting the principle of parity to one side, the applicant does not submit that the sentence imposed upon him was manifestly excessive.  Rather, he submits that an examination of all the components of the applicant’s sentence, compared to that of Ms Nair, their circumstances and the part each played in the offending overall, discloses an unjustified disparity between the sentences in one respect, namely, that it was not ordered that his sentence be wholly suspended.

If a Court sentences an offender five years’ imprisonment or less, it may order that the term of imprisonment be suspended,^[5] if the Court is satisfied that it is appropriate to do so,^[6] and may suspend the whole or a part of the term.^[7]

In support of his application for leave to appeal, the applicant submits the following comparison between matters relevant to his sentence and that of Ms Nair should be made.

First, whilst the applicant was not in an abusive relationship with Mr Nair, he was taken advantage of by Mr Nair and was also under Mr Nair’s control.

Second, whilst Ms Nair served 12 months of actual imprisonment upon the prior sentences, that custody was referrable to those prior offences, not her present sentences, whereas the applicant had never offended before the present sentence.

Third, whilst Ms Nair had suffered an abusive relationship with Mr Nair, the psychological and financial consequences for the applicant were more severe than those for Ms Nair, despite his lesser involvement in the frauds comprised in the relevant offending.

Fourth, whilst Ms Nair had lived off the profits from the frauds, the applicant had not benefited, and attempted to prevent adverse consequences by sinking his own money into the venture.

Fifth, whilst the maximum penalty for Ms Nair’s offences was 12 years, the maximum penalty for the applicant’s offence was five years.

Sixth, whilst delay and rehabilitation were significant for Ms Nair’s sentences, the delay in rehabilitation of the applicant were at least as significant as those for Ms Nair.

And last, the consequence of an actual term of imprisonment for the applicant was his exposure to deportation that did not apply to Ms Nair.

The critical fact of the proposed appeal is the order that Ms Nair’s sentence of five years’ imprisonment is wholly suspended.

On that question, the learned sentencing judge reasoned that had Ms Nair’s prior offending, which was dealt with on 17 January 2020, and the present offences, which were dealt with on 12 July 2022, all been dealt with together, they would have resulted in a sentence greater than five years, and a period of actual imprisonment longer than 12 months.

From that point, the judge reasoned that there were other features of relevance to the determination of Ms Nair’s sentence being delayed, which was not in and of itself particularly important, and demonstrated rehabilitation, which was of significance.  Added to those factors and the fact that Ms Nair had already spent 12 months in custody, his Honour reasoned that, to require her to return to custody after she had served that period of actual imprisonment, re-established herself in the community, and demonstrated a determination to be a decent, upright and contributing member of society, with sole parental responsibility or her two young children, worked against an order that she serve a further period of actual imprisonment.

The judge found that there were features that resulted in Ms Nair ultimately serving a sentence that might be considered less than would otherwise be the case, having regard to the sentencing considerations of general and personal deterrence, the imposition of just punishment, and a sentence which denounces the community’s views of such unlawful conduct.  His Honour found that Ms Nair’s rehabilitation was very significant and, in the particular and “rather unique” circumstances, was the predominant consideration, so that the appropriate sentences were of five years’ imprisonment, wholly suspended for the operational period of the sentences.

As to the order that the applicant serve an actual period of imprisonment, the learned sentencing judge recognised the factors relied upon by the applicant in the summary of comparable circumstances I have set out.  Those factors included the delay in the matter being brought before the Court, and the applicant had not committed further offences, and had embarked, upon some degree, of successful rehabilitation and was an unlikely reoffender in the future.

The applicant’s counsel submitted to the judge that it was appropriate to order a sentence of two to three years imprisonment, wholly suspended.  The judge noted the prosecutor’s submission for a sentence of three years’ imprisonment suspended after 12 months, and the reference by the prosecutor to a number of comparable decisions.

His Honour reasoned that, accepting that the applicant was remorseful and taking the relevant matters into account, a sentence that resulted in no actual imprisonment would fail to give appropriate consideration to the sentencing considerations of general and personal deterrence, just punishment, and community denunciation.  The applicant’s rehabilitation was a relevant consideration but was not the only consideration.  In his Honour’s view, given the nature of the fraud, a head sentence of two years’ imprisonment was the appropriate order, suspended after a period considerably less than the usual one-third but with actual imprisonment to properly recognise those sentencing considerations.

The relevant starting point is that the applicant does not contend that, absent an order wholly suspending Ms Nair’s sentences of five years imprisonment, the parity principle would be engaged.  The obvious point to be made is that, although the applicant’s sentence and Ms Nair’s sentences arose from the same set of circumstances overall, whereby Mr Nair caused fraudulent representation to be made by both the applicant and Ms Nair in support of his scheme of defrauding clients of the company, their respective offending and personal circumstances otherwise differed, as did the sentences that were imposed.

The effect of the suspended sentences imposed for Ms Nair’s offences is that she is exposed to a five year period of imprisonment for a period of five years if she were to offend again in a way that exposed her to a sentence of imprisonment.  In comparison, after serving the ordered four month period of actual imprisonment, the applicant will be exposed to a further 20 month period of imprisonment for a 20 month period from that time.

The clear meaning of the sentences viewed in this way is that Ms Nair’s offending was more serious than the applicant’s offending, reflecting both the greater maximum penalty and the number of her offences.  There is no prima facie application of the principle of parity at this level of analysis.

An important difference between the circumstances of the sentences was that, in Ms Nair’s case, unlike the applicant, considerations of totality arose as between the sentences for the present offending and those imposed for the earlier offences that were still operating in relation to Ms Nair.  This difference was reflected in the submissions made by both the prosecutor and Ms Nair’s counsel, and the sentencing remarks of the judge.

Totality was reflected in Ms Nair’s sentences for the present offences being imposed concurrently with the sentences for the earlier offences, and in the judge’s conclusion to wholly suspend the sentences for the present offences where, looking at the course of similar offending overall, she had served a period of actual imprisonment.  Another important difference is that Ms Nair was aged 24 or younger at the times of her prior offending and 25 for the present offending, whereas the applicant was a more mature man with business experience.

These differences between the sentences imposed on Ms Nair and the applicant raise a real question about the point of departure from which the applicant’s comparison of Ms Nair’s circumstances and his circumstances proceeds, leading to the ultimate submission of lack of parity.  Once that is recognised, there is a diminishing return in seeking to pile up on one side or the other further arguments about which of Ms Nair’s and the applicant’s offending was worse.

For that reason, it is also unhelpful to attempt to analyse whether the applicant was more culpable because his conduct engaged or enabled Mr Nair to engage in all the frauds in question for the company; or whether the seriousness of Ms Nair’s offending is lesser because her conduct related to only about half of the frauds in value, the submission made by the prosecution or respondent.

Equally, while both Ms Nair and the applicant may be said to have shown significant remorse, and neither had engaged in further offending, and both had taken significant steps that measure as rehabilitation in this context, it is unhelpful to analyse or to attempt to analyse whether those factors were better demonstrated in one case or the other.

What then, in the two sets of circumstances could give traction to the applicant’s sense of grievance that would make it justified and indicate error on the part of the judge, such as to warrant interference by this Court and sentencing discretion under the principles of restraint that inform the grant of leave to appeal against sentence?

In the result, it must be that the applicant is entitled to maintain that the components of two sentences that are susceptible of relevant comparison include any periods of suspension of the sentences being the whole or part of the period of the relevant periods of imprisonment.  By analogy, it may be accepted that there can be a comparison for parity of non-parole periods of different sentences where there is nothing to suggest that one offender should be treated more favourably than the other.  See: Postiglione v The Queen (1997) 189 CLR 295, 302.  But to put the proposition that way reveals the difficulties faced by the applicant, where the circumstances of the two sentences in the present case already identified revealed the difference, but not a marked disparity.

In my view, it is not necessary to go further in the present case to conclude that the application should not succeed, having regard to the factors relied upon, other than the applicant’s exposure to deportation at the end of his period of actual imprisonment.

Because a sentence of imprisonment of more than 12 months was imposed, and only part of the term was suspended, the applicant is exposed to deportation by the Minister for Immigration.  The relevant section provides that the Minister must cancel the applicant’s visa,^[8] but that decision might be reversed on review.^[9]

As to that factor, the relevant principles are not in doubt.  The Court cannot speculate as to the likelihood of deportation, and a sentencing judge is right not to take into account any hardship that might ensue from deportation by way of mitigation of sentence.^[10]

In the present case, there was no arguable error in the learned sentencing judge failing to order that the applicant’s sentence of two years’ imprisonment be wholly suspended because of the applicant’s exposure to deportation.  For those reasons, I would dismiss the application for leave to appeal.

DALTON JA:  I agree.

CROW J:  I agree.