R v Graham[2023] QCA 125

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Kelly J.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Kelly J and with the order proposed by his Honour.
3. [3]
   KELLY J:  On 4 November 2022, the applicant pleaded guilty to three counts of fraud.  He was sentenced to 100 hours of community service to be completed within 6 months and ordered to pay restitution in the sum of $5,144.97, the full amount of his ill-gotten gains.  Convictions were recorded.  He applies for leave to appeal against sentence on the ground that the primary judge made a specific error by failing to have regard to the matters contained in s 12(2)(c) of the Penalties and Sentences Act 1992 (Qld) (“the Act”).^[1]
4. [4]
   The relevant statutory provisions may be conveniently outlined as follows.  Section 12(1) of the Act confers a discretion upon a sentencing judge to record or not to record a conviction.  Section 12(2)(c) provides that in the exercise of that discretion, the court “must have regard to all circumstances of the case” including, relevantly, the impact that recording a conviction will have on the offender’s economic or social wellbeing or chances of finding employment.  The purpose of recording an offender’s conviction is to make the fact of the conviction known to those who have a legitimate interest in knowing about it.^[2]  Section 12(3)(a) provides for the consequence of not recording a conviction, namely that “a conviction without recording the conviction is taken not to be a conviction for any purpose”.
5. [5]
   In R v ZB^[3], Sofronoff P relevantly observed:

1. “[9]
   The decision not to record a conviction … denies the community the benefit of the information that would otherwise be available when it might be relevant to an assessment of the offender’s character. The renunciation of these benefits conferred by the recording of a conviction is not for nothing. The benefit is foregone because a sentencing judge has decided that, in the circumstances of the case, it is to the greater benefit of the community to afford the offender the privilege of non-disclosure. Incidentally the offender also enjoys the personal benefit of this privilege but that is not the point of making the order.

1. [10]
   A sentencing judge must consider the potential benefits and detriments to the community of adopting either course. That is what the opposing factors stated in s 12(2) of the Penalties and Sentences Act require. … [A]s is implied by the factors that are in s 12(2)(b) and (c), the offender’s subjective identified circumstances so far as they relate to the offender’s future prospects are also significant matters. They raise for consideration whether the promise of future rehabilitation calls for and justifies affording the offender the advantages that flow from not recording a conviction. To put it another way, the question is whether the community will be better served by not placing the obstacles created by a recorded conviction in the path of the offender towards rehabilitation. The issue is not one of tenderness to the offender.”

6. [6]
   The applicant was sentenced by reference to an agreed statement of facts.  He had provided project management services to a design and construction company (“LEDA”).  He had done so as a contractor, not as an employee.  He was paid by LEDA, $800 per day.  He would issue a monthly tax invoice to LEDA through a company, Highview Design and Construction Pty Ltd (“Highview”), of which he was the sole director and shareholder.  In addition to remuneration for his services, LEDA would reimburse the amounts of invoices paid to Highview’s subcontractors.  The reimbursement would occur by the applicant submitting the subcontractor’s invoices to LEDA for payment.
7. [7]
   The offending conduct involved three separate episodes when the appellant forged invoices from subcontractors to claim inflated reimbursement amounts.  The conduct occurred over an extended period between in or about April 2017 and in or about April 2018.  The total financial detriment caused to LEDA, and the corresponding gain to the applicant, totalled $5,144.97.  In the context of a later, unrelated insurance matter involving the applicant, LEDA happened to become aware of the forged invoices and the overpayments.  In October 2019, a police investigation commenced.  In January 2021, the applicant was charged.
8. [8]
   The applicant was 55 to 57 years of age at the time of the offending.  At the time of his sentencing, he was 61 years of age and had been in the construction industry for a lengthy period.  He was married with two adult children, who he continued to financially support.  He was the sole income earner for the family.  The applicant sought to explain his offending on the basis that he was attempting to recoup losses he had incurred when providing the project management services to LEDA.  He explained the losses as having occurred in circumstances where LEDA had made decisions which meant that subcontractors were no longer required, leaving the applicant to bear the cost of having retained the subcontractors.
9. [9]
   At the sentencing hearing, the applicant entered a timely plea of guilty.  He had no relevant criminal history.  His counsel submitted that the recording of a conviction would be extremely harsh upon him because it might disentitle him from continuing to remain a director of Highview and he would be required to report the matter to the Queensland Building Construction Commission.  He stood to lose his licence as a registered builder in circumstances where Highview was presently constructing 14 units and a house and had employed or engaged more than 25 contractors.
10. [10]
    The Crown accepted that the quantum of the fraud was small but characterised the offending as “protracted, well-planned and somewhat sophisticated”.^[4]  The Crown emphasised that the object of the applicant’s offending was to “misuse the trust placed in him by [LEDA] and defraud [LEDA] on multiple occasions over a period of 16 months”.^[5]
11. [11]
    The primary judge noted that there were “serious aspects to [the applicant’s offending] notwithstanding the quantum overall involved, and the equivalent profit to [the applicant]”.^[6]  The primary judge was conscious of the fact that the applicant was the sole income earner for the family^[7] and a person of otherwise good character.^[8]
12. [12]
    This court’s authority to intervene with the applicant’s sentence is dependent upon the demonstration of relevant error.  The specific error for which the applicant contends is that the primary judge “did not take … into account at all”^[9] the matters contained in s 12(2)(c) of the Act.  Those matters were “the impact that recording a conviction [would] have on the offender’s … economic or social wellbeing… or … chances of finding employment.”^[10]
13. [13]
    In considering the merits of that contention, the starting point is the sentencing remarks.^[11]  The sentencing remarks relevantly include the following passage:

“Your counsel has also made submissions going to the potential consequences to you from your being convicted of this offending, and in particular if a conviction were to be recorded. That is related to your being a director of your company and also a holder of a relevant building licence, and also current projects that you are undertaking which, if it were to transpire that you were no longer able to continue operating under your building licence would, for example, necessitate the engagement of other head contractors, and may have some impact on subcontractors otherwise working on those projects, although it is perhaps difficult to articulate that with any further clarity. Certainly I accept that a loss of your building licence would have some further punitive effect upon you. I will return to that issue of the consequences of recording a conviction and submissions made by your counsel in that regard further in these remarks.”^[12]

14. [14]
    The primary judge later returned to this issue in the following passage:

“As I have already indicated, in the course of written and oral submissions, your counsel had addressed the Court in relation to the discretion which exists in section 12 of [the Act] as concerns the recording of a conviction. In determining whether or not to record a conviction, a Court must have regard to all the circumstances of a case, including the nature of the offending, the offender’s character and age, and the impact that a recording of a conviction will have on the offender’s economic or social wellbeing, or chances of finding employment. The position, as framed, is that it is accepted that the recording of a conviction would have consequences to you in terms of the legislative regime under the Corporations Act and The Queensland Building and Construction Commission Act. The position is less clear as to the consequence if a conviction were not to be recorded. In any event, it is my view that in all the circumstances a conviction ought to be recorded. My reasoning for that … bears repeating for the purposes of these remarks. While there remains a need for a sentencing Court to balance the considerations prescribed by section 12, courts ought not to be seen to routinely impose sentences with the object of defeating the operation of such legislative provisions as referred to, which exist for the protection of the public; that is relating to directors of companies and licencing requirements, where the appropriate sentence would otherwise involve the recording of a conviction.”^[13]

15. [15]
    It is apparent from the sentencing remarks that the primary judge made specific reference to the requirement to have regard to the impact that the recording of a conviction would have on the applicant’s economic or social wellbeing or chances of finding employment.^[14]  Not only did the primary judge make reference to this requirement, her Honour considered the requirement by reference to the applicant’s personal circumstances.^[15]  That consideration extended to acknowledging the prospect that the applicant might no longer be able to operate under a building licence and the impact of that prospective state of affairs on his current work projects.  The primary judge recognised that recording convictions might have consequences for the applicant under the Corporations Act 2001 (Cth) and the Queensland Building and Construction Commission Act 1991 (Qld) but, as part of the exercise of the sentencing discretion, considered that it was nevertheless appropriate to record convictions, having regard to the offending and the need to protect the public interest.  In the circumstances, no specific error of the kind referred to in House v The King^[16] has been demonstrated.
16. [16]
    The application for leave to appeal against sentence must be refused.