R v Subloo[2023] QCA 101

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  At the conclusion of the hearing of this application for leave to appeal, we ordered that leave to appeal be refused.  These are our reasons for refusing leave to appeal.
2. [2]
   The applicant was convicted, on his plea of guilty, of one count of fraud by dishonestly gaining a pecuniary benefit for himself of a value of $30,000 or more, committed between 26 January 2009 and 5 August 2009.  That is an offence against s 408C(1)(d) of the Criminal Code (Qld), for which the maximum penalty at the relevant time was 12 years’ imprisonment.  He was also convicted on pleas of guilty of two other fraud offences committed between late 2015 and mid-2016.  The maximum penalty for these offences is 5 years’ imprisonment.
3. [3]
   The applicant was sentenced to 4 years 6 months’ imprisonment on the first offence, which the trial judge regarded as the appropriate sentence for the whole of his criminality.  He received two concurrent sentences of 15 months’ imprisonment for the other two fraud offences.  All sentences were suspended for an operational period of 5 years after the applicant had served 15 months’ imprisonment.
4. [4]
   The applicant sought leave to appeal against his sentence for the first offence on the ground that it was manifestly excessive.
5. [5]
   The circumstances of the first fraud offence were as follows.  The applicant controlled a company which operated a waste management business in Innisfail.  In 2009, the business, which had been established by his grandparents and had about 150 employees, was experiencing financial difficulty.  The business was the subject of a burglary in January 2009 in which some equipment was stolen.  The applicant instructed an employee to hide some of the remaining equipment for the purposes of inflating an insurance claim.  He told police that CCTV cameras at the company premises were not working.  The applicant then made an insurance claim in respect of the burglary.  The claim in respect of the hidden equipment inflated the total insurance payment by $142,000, which was the value of the pecuniary benefit fraudulently obtained by the applicant.  The items of equipment remained hidden at various locations until the office manager of the business reported the matter to police in early 2016, after voluntary administrators were appointed to the company operating the business.  The employee who had hidden the equipment at the applicant’s direction was interviewed by police and admitted his role in the offending.
6. [6]
   The offending in 2015 and 2016 involved the applicant, as president of the Innisfail District Junior Rugby League Association, requesting the treasurer of the association to pay him amounts of $8,000 and $5000 in cash.  The cash amounts were requested on the basis that they were required to make payments associated with an upcoming rugby league competition, but the money was not used for that purpose.  The offending came to light after the applicant resigned as president of the association in early 2016.
7. [7]
   The applicant was 38–39 years old at the time of the first fraud offence, 45–46 years old at the time of the offences committed in 2015–2016, and 52 years old at the time of sentence.  He had no material criminal history.  The offences were committed when the applicant found himself unable to sustain the company which he had inherited.  He did not live extravagantly, and did not smoke, drink, or gamble.  The proceeds of the offences went to trying to keep the company afloat.  The applicant retained family support from his wife and sons.  The applicant was not charged until 2020, and since 2015 had been a law-abiding citizen who demonstrated rehabilitation.  While there was no early admission of guilt to police, he pleaded guilty to the offences quickly once negotiations about the facts had been completed.
8. [8]
   In imposing the sentences referred to above, the sentencing judge, after referring to the relevant sentencing purposes, observed:

“The submissions about what the appropriate penalty should be range from four years by your counsel to five to six years by the Crown, and I have had the benefit of reading over the lunchtime the cases that are relied on.  Ultimately, my conclusion is that four years is too low, but five years is unnecessary.  Four and a-half years seems to me to be the appropriate sentence for the whole of your criminality, and that is the sentence I will fix on the insurance fraud, with shorter sentences concurrent for the other charges.  It is terrible for you, and for your family, that you found yourself in the position of committing such fraud, and that you are bankrupt, and that no doubt in the Innisfail community you are in disgrace.”

9. [9]
   The applicant does not point to any express error evidenced in the sentencing judge’s remarks.  The success of his appeal therefore depended on this court inferring material error from an outcome of the sentencing discretion which is unreasonable or plainly unjust.^[1]
10. [10]
    The applicant does not challenge the type of sentence imposed.  Rather, he contends that the head sentence for the fraud offence and the period to be served before suspension is manifestly excessive as to length.  The applicant submits that a sentence of 4 years’ imprisonment, to be suspended after serving 12 months, should be substituted.
11. [11]
    A problem facing the applicant’s appeal, which appears to us to be insurmountable, is the very small difference between the sentence imposed and that which the applicant says is appropriate.  It is well established that sentencing is not a process that leads to a single correct answer, and that the discretion which the law commits to sentencing judges is of vital importance to the administration of justice.^[2]  Appellate intervention on the ground of manifest excess is not warranted unless, having regard to all of the relevant sentencing factors, the appellate court is driven to conclude that there must have been some misapplication of principle.^[3]
12. [12]
    The absence of a substantial difference between the sentence which the appellate court regards as appropriate, and that imposed by the sentencing court, is inconsistent with a characterisation of the result at first instance as unreasonable or plainly unjust (as opposed to simply reflecting a different exercise of the sentencing discretion on a proper application of the principles).
13. [13]
    In support of his argument, the applicant refers to three decisions of this court in which sentences of 4–5 years’ imprisonment were upheld or imposed for fraud offences.^[4]  These cases have a number of similar and distinguishing features to the present.  Having regard to those similarities and differences, the sentences imposed in those cases are broadly consistent with the sentence imposed by the sentencing judge in the present case.  In any event, reference to such a limited sample of older cases is of little utility in establishing the range of sentences commonly imposed for this kind of offending.  Further, while past cases may provide a yardstick by which a sentencing court can attempt to achieve consistency in sentencing, the range of sentences in past cases does not fix the boundaries within which future sentences may be passed.^[5]
14. [14]
    The applicant submits that the first fraud offence did not involve a breach of a position of trust (such as that of an accountant trusted with client’s money); and did not involve multiple transactions.  Further, the applicant had good antecedents and had achieved rehabilitation, indicating that personal deterrence was of reduced significance.  While these matters may be accepted, the seriousness of the applicant’s offending was aggravated by the persistent conduct in making and negotiating the insurance claim, and maintaining the concealment of the equipment which was the subject of that claim.  It was also significant that the applicant involved one of his employees in the offending.  General deterrence is a significant sentencing consideration in cases of insurance fraud.  The sentence imposed for the fraud offence was also expressed to reflect the overall criminality involved in all three fraud offences.  In all the circumstances, the sentence imposed by the sentencing judge was not unreasonable or plainly unjust.
15. [15]
    In substance, the applicant’s argument did not go beyond contending that this court might consider a slightly shorter sentence than that imposed by the sentencing judge.  As the applicant did not establish that the sentencing judge erred in the exercise of the discretion which the law reposed in the sentencing court, leave to appeal was refused.