R v Burman[2023] QCA 245

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On three separate occasions, in October 2021, July 2022 and August 2022, the appellant entered pleas of guilty to a range of Commonwealth offences of dishonesty and one State offence of fraud.  She was sentenced for all of these offences on 23 August 2022 to concurrent terms of imprisonment, the longest of which was five years (for each of the State offence^[1] and one of the Commonwealth offences of attempting to obtain a financial advantage by deception^[2]).  The appellant was required to serve one-third of that term (20 months) before being released to serve the balance in the community.  She was also ordered to make reparation to the Commonwealth of $197,924.91.
2. [2]
   Despite having pleaded guilty, the appellant seeks to appeal against her convictions.  She also applies for leave to appeal against the sentences imposed, on the ground of manifest excess.
3. [3]
   Strictly, the appellant requires leave to appeal against her convictions, having regard to s 668D(1)(a) and (b) of the Criminal Code.  However, the respondents have not taken issue with this as a matter of form.  That was a sensible approach, for if there was merit to the appellant’s arguments, the Court would certainly grant leave.
4. [4]
   For the following reasons, I would dismiss the appeal against conviction as I am not persuaded that there is any basis on which to set aside the appellant’s pleas of guilty.  I would also refuse leave to appeal against the sentences imposed.

Appeal against conviction

5. [5]
   In the notice of appeal the appellant articulates the ground on which she seeks to appeal as that “the conviction is unsafe and unsatisfactory”.  However, it is appropriate to deal with the appeal (or application for leave to appeal) on the ground that there was a miscarriage of justice (s 668E(1)).  The bases on which the appellant contends there has been a miscarriage of justice are:

   1. her barrister, Ms Cartledge, and the law firm that acted for her, Bell Dore Lawyers, were incompetent;
   2. the plea was not a free and voluntary confession;
   3. the plea was induced by threats and other pressures – from the appellant’s husband, Neville Burman;
   4. the plea was not attributable to a genuine consciousness of guilt; and
   5. she would not have made the plea if she was not going through the following circumstances – “domestic abuse, coercive control, not being of [sane] mind and being encouraged and forced to plead guilty”.^[3]
6. [6]
   The appellant bears the onus of establishing that a miscarriage of justice took place when the court below accepted and acted on her pleas of guilty.^[4]  Courts exercise great caution in determining applications on appeal, in effect, to set aside or withdraw a plea of guilty.^[5]  Indeed, in R v Carkeet [2009] 1 Qd R 190 at [24] Fraser JA (with whom Keane and Holmes JJA agreed) said that:

“When a person of full age and apparently sound mind and understanding enters a plea of guilty in open court in the exercise of a free choice, the circumstances in which that person might establish a miscarriage of justice resulting from the plea must be very rare indeed.”

7. [7]
   His Honour also endorsed observations made in a Western Australian case, Borsa v R [2003] WASCA 254 at [20], that to show a miscarriage of justice in such a case there must be a strong case and exceptional circumstances.^[6]
8. [8]
   In R v Wade [2012] 2 Qd R 31 at [51], after referring to a number of authorities,^[7] Muir JA summarised the position as follows:

“… before a court will go behind a guilty plea and entertain an appeal against conviction it must be satisfied that a miscarriage of justice has occurred.  A miscarriage of justice may be established in circumstances in which for example:  in pleading guilty, the accused did not appreciate the nature of the charges or did not intend to admit guilt; on the admitted facts, the accused would not, in law, have been liable to conviction of the subject offences; the plea was not made freely and voluntarily, such as where it was obtained by an improper inducement or threat or it is shown that the plea was ‘not really attributable to a genuine consciousness of guilt’.  And, of course, it will normally be impossible to show a miscarriage of justice unless an arguable case or triable issue is also established.”^[8]

9. [9]
   In the same case, Chesterman JA said (at [62]):

“It is no light thing, as the cases collected and discussed by Muir JA show, to set aside a conviction which follows a plea of guilty.  An appellant must demonstrate that the conviction, if allowed to stand, would constitute a miscarriage of justice.  That very general expression means, more particularly, that the appellant must show (i) that he is not, or that there is a distinct possibility that he is not, guilty as a matter of fact; and (ii) that his confession of guilt manifested in the plea is somehow vitiated so that it was not a true confession.”

10. [10]
    The appellant’s contention on this appeal is that her pleas of guilty – to all the offences she has been convicted of – were not free or voluntary, but were the product of coercion and pressure from her husband and also pressure from her lawyers.
11. [11]
    In order to deal with the appellant’s arguments on this appeal, it is necessary to understand the background, both in terms of the offences of which she has been convicted and the chronology of events leading up to the sentencing hearing on 23 August 2022.
12. [12]
    The earliest in time are the offences the subject of indictment 1878 of 2021, comprising three counts of obtaining financial advantage by deception (counts 1, 3 and 5) and three counts of attempting to obtain a financial advantage by deception (counts 2, 4 and 6).^[9]  These offences are said to have been committed in Melbourne on dates ranging from September 2008 to September 2012.  The offending involved, overall, lodging 72 business activity statements (BAS) with the Australian Taxation Office (ATO), and either actually obtaining or attempting to obtain a financial advantage, namely a GST refund.  The appellant lodged 49 BAS for a business entity bearing her name^[10] and which was controlled by her.  She succeeded in dishonestly obtaining GST refunds of $93,736 (counts 1 and 3) and attempted to dishonestly obtain $435,354 in GST refunds in respect of this entity (counts 2 and 4).  The other 23 BAS were lodged by the appellant in relation to an entity called “A Burman & C Owen”, which was also controlled by the appellant.  She succeeded in obtaining $82,393.28 (count 5) and attempted to obtain $66,242 (count 6).  The total amount actually obtained was $176,129.28; and the total amount attempted to be obtained was $501,596.^[11]
13. [13]
    The conduct involved in the Victorian offending was persistent and continued over a number of years, during which, according to the statement of facts, the appellant was the subject of multiple ATO reviews and audits from 2009 to 2013.  During these audits, the appellant was unable to produce any supporting documents to verify the amounts claimed in the BAS and unable to provide her Certificate IV to confirm her accreditation to become a mortgage broker as claimed.  She was evasive and provided a range of excuses, including that her computer had been hacked.^[12]
14. [14]
    The appellant was initially charged with these offences in Victoria.  She had indicated she would plead guilty to the charges whilst they were still pending in Victoria.^[13]  It was on that basis that they were transferred to Queensland, to be dealt with together with the other charges she was facing.  In June 2021, the appellant, by her then lawyers (Ide Lawyers) consented to proceed by registry committal in relation to these charges.  The appellant also indicated at that stage that she wished to enter pleas of guilty and be committed for sentence to the District Court at Brisbane, by signing an “acknowledgment of plea” to that effect.^[14]  Although at the hearing before this Court, the appellant said she could not recall signing that document, that she did so is supported by other material before the Court, including:

    1. An email from the appellant to her solicitor, Ms Nicholson, on 27 September 2021 (shortly after Bell Dore started to act for the appellant) in which the appellant said “I have already handled the Victorian stuff with ide lawyers, hopefully you will find the information within the files you would have received”.  This was in response to an email from Ms Nicholson which said, in relation to the Victorian charges:

“We are aware that they were brought to Queensland as there was some indication that you would be pleading guilty to the charges in the past, however these will likely need to return to Victoria if they are to be contested.”^[15]

It is reasonable to infer the “information” the appellant was referring to was the “acknowledgment of plea” document she had signed, included with the papers provided by Ide Lawyers to Bell Dore Lawyers.

2. The appellant also mentioned to her barrister, Ms Cartledge, that the Victorian charges were to be a plea, at teleconferences in April and October 2021.^[16]
3. The appellant again confirmed that she intended to plead guilty to the Victorian charges, at a conference with Ms Cartledge on 10 June 2022.^[17]

15. [15]
    The indictment was presented in Brisbane on 15 September 2021.  The appellant was still represented by Ide Lawyers at this time, but that firm was given leave to withdraw shortly after, and Bell Dore Lawyers commenced to act for the appellant.  At the time the indictment was presented, the court was informed (and made an order accordingly) that the charges the subject of this indictment were to be listed for mention at the conclusion of the trial then scheduled to commence on 25 October 2021 (which must be the trial of the charges the subject of indictment 1271 of 2020, next discussed).^[18]  On 24 June 2022, the charges were listed for sentence on 23 August 2022.  The appellant was arraigned on these charges at the start of the sentencing hearing on 23 August 2022, and entered pleas of guilty to all six charges.
16. [16]
    The next offences in time are those the subject of indictment 1271 of 2020 (renumbered as 476 of 2020).^[19]  The appellant was charged with one count of attempting to obtain a financial advantage by deception for her husband, Neville Burman (count 1) and another count of the same offence, but in relation to obtaining a financial advantage for her brother, Robert Owen (count 2) as well as seven counts of using a false document, two of which related to the tax returns of Robert Owen (counts 3 and 4) and the other five of which related to the tax returns of Neville Burman (counts 5 to 9).  The Crown ultimately did not proceed against the appellant on counts 2, 3 and 4 (the charges relating to her brother).  The offence the subject of count 1 was committed during the period from August 2014 to July 2016 and involved lodging income tax returns, or income tax return amendments, for Mr Burman that contained false information, with the intention that Mr Burman would receive a higher tax refund.  The Burmans succeeded in obtaining illegitimate tax refunds amounting to $21,795.63 and attempted to obtain another refund of $3,691.29, but it was cancelled before it was paid.  The appellant dealt with the ATO as the authorised contact person for her husband and, during audits, provided false PAYG certificates to substantiate Mr Burman’s false income tax returns.  The provision of these false documents to the ATO were the subject of the remaining five counts on the indictment, all of which were committed on 22 September 2015.
17. [17]
    According to the statement of facts in relation to these offences, in February 2017 the Australian Federal Police and the ATO executed a search warrant at the home of the appellant and Mr Burman, and a computer hard drive was seized.  The appellant participated in a record of interview on the same day.  Among other things, the appellant again claimed that her email account had been hacked.  In relation to the preparation of Mr Burman’s tax returns, she acknowledged that she had been responsible for providing the information to the tax agent and she “agreed with the suggestion that Mr Burman did not know much about his tax returns and that he left it up to her”.  She also said that “Mr Burman has a MyGov account but that he didn’t use it himself; rather, she would access it because ‘money stuff’ is too confusing for him”.^[20]
18. [18]
    This indictment was presented in Brisbane on 12 June 2020 and then transferred to the District Court at Beenleigh.  According to the endorsements on the indictment, the appellant initially appeared for herself when the matter was mentioned, but Ide Lawyers started to represent her from August 2020.  The matter was transferred back to Brisbane in January 2021 and subsequently listed for trial in the week commencing 25 October 2021.  Ide Lawyers withdrew from the matter in September 2021, and Bell Dore came onto the record for the appellant at that time.
19. [19]
    The appellant sent an email to Ms Nicholson on 27 September 2021, in relation to what she called the “trial charges”.  She told Ms Nicholson that she suffered from very bad depression and had tried to kill herself a few years ago.  She said “I am not dealing with any of this and it makes it harder with the fact I know who committed these crimes and who continually commits these fraud claims but still I am being punished for something I didn’t do”.  It is apparent from what she goes on to say in this email that the person she is referring to is her brother.  She also makes reference to having her email account hacked in the past.  The only reference in this email to Mr Burman is the statement by the appellant that “Neville Burman and I did the right thing going to an accountant but still they come after me”.^[21]  On 1 October 2021, the appellant sent an email to Ms Nicholson, apparently attaching screenshots of messages from her brother, Robert Owen, saying “he did all his things by himself”.^[22]
20. [20]
    At about this time, the appellant also had teleconferences with the barrister who had been briefed, Ms Cartledge, in relation to these “trial charges”.  Ms Cartledge says that, having reviewed the brief of evidence in relation to these “Queensland Commonwealth charges” she was of the view that the evidence against the appellant was strong.  It included telephone recordings with the appellant’s voice, emails from the appellant’s personal email address and money going into the appellant’s bank accounts.  When she outlined those things to the appellant, Ms Cartledge says the appellant said someone could have faked her voice on the recordings and hacked her email.  The appellant also told Ms Cartledge that her brother was responsible for the offending and that she did not want to plead guilty to his offending.^[23]
21. [21]
    That remained the appellant’s position – that she was not pleading to anything that involved her brother – and so preparations for a trial at the end of October continued.  Ms Cartledge’s evidence is that:

“18. I remember having multiple conferences with Ms Burman in October 2021 in the lead up to her trial.  I recall that my instructions were to deny that the person on the voice recordings were her and that Ms Burman wanted to put forward a case that her email had been hacked at the time.  I remember having reservations about running the case in this way due to the overwhelming evidence in contrast to this.  I remember talking with Ms Burman about how she would likely have to give evidence if she wanted to pursue that issue.  Ms Burman commented that someone was faking her voice on the phone calls to the tax office and hacking her email.  I recall the closer we got to the trial proceeding the more evasive Ms Burman was with her instructions and availability to conference.

19. Ultimately, the prosecution ended up offering a deal where if Ms Burman pleaded guilty, they would discontinue the offences where she was a party to her brother’s offending.  I remember conveying this to Ms Burman and saying words to the effect that we either contest it and it will run next week, or you enter a plea before the trial is due to run and we adjourn it off to get all your matters together.  I remember Ms Burman being happy that matter would be adjourned and commenting that it was fine because she was pleading to the Victorian matters anyway so may as well have them all dealt with together.

20. I remember being concerned that Ms Burman’s focus was the matter adjourning, so I made sure she was aware that it just meant a jail term would not start until the future, it does not mean it will be avoided and she repeated that she knew that.  I recall saying to her words to the effect, if you want me to run this, I will, however, my view is that the prospects of successfully defending it are low, so this is a sensible deal to take.  I specifically recall saying to Ms Burman, have a think about it all, Kirsty [Nicholson] will call you in a couple of days to confirm where you stand with all of this or if you have additional questions.

21. Ms Burman never showed any hesitation from this point, her sticking point was always her brother’s charges and she seemed genuinely happy to resolve the matter in that way…”

22. [22]
    Ms Nicholson made a file note of a teleconference that she participated in, with Ms Cartledge and the appellant, on 18 October 2021.^[24]  These notes include the following, which corroborates what Ms Cartledge says in her affidavit:

• that the appellant “felt uncomfortable pleading to stuff for brother”;
• the trial is listed for next week and is “likely to get on”;
• the prosecution have “offered [a] deal” – to “drop all offences in relation to brother & plead to the remaining”;
• “think we will struggle to avoid a conviction”;
• that the advice was “better option to take deal if can”;
• that Ms Cartledge (Sarah) said the appellant needed to “feel comfortable with decision – leave it with her until tomorrow”;
• if “plead not guilty – would be more” (the sentence) because “lose benefit for early POG [plea of guilty]”;
• “if POG then psych report” – “can help court – background, suicidal ideation; “will be useful – Sarah [Ms Cartledge]”;
• that the appellant is “thinking of taking the deal – will confirm in writing overnight”;
• “leave it with her – feel comfortable with”.

23. [23]
    At just after 5 pm on 18 October 2021, the appellant emailed Ms Nicholson, saying:

“Hello,

thank you for today, I have had a talk with the person I needed and have thought everything over.  I am ok to follow Sarah’s instruction and plead guilty, with no regret.

thank you”^[25]

24. [24]
    Ms Nicholson telephoned the appellant to confirm she had received the email, and her instructions, and then conveyed the instructions to Ms Cartledge.^[26]
25. [25]
    On the day of the arraignment, 22 October 2021, the appellant signed a document confirming her instructions to plead guilty to these charges.^[27]  The appellant was arraigned on counts 1 and 5-9 and entered pleas of guilty.  Consequently, the trial was delisted.  The matter was subsequently listed for sentence on 23 August 2022.
26. [26]
    Ms Cartledge attended the arraignment with the appellant and appeared for her on that day.  She says in her affidavit:

“22. … I recall meeting with Ms Burman outside of Court and having a general chat to her.  Ms Burman was in a happy frame of mind.  She talked to me about her youngest child as we had children around the same age.  Ms Burman showed no signs of any hesitation in proceeding with pleading guilty to these offences.

23. I recall after the arraignment, Ms Burman was pleasant, chatty and had no questions.  She appeared to fully understand and appreciate the significance of the plea, she was aware that she was going to serve time in jail for these offences.

24. At no stage during these discussions did she ever mention issues with Neville Burman.  At no stage did I meet Neville Burman, nor did I talk with him.  He was never part of our conferences.”

27. [27]
    After the arraignment, Ms Cartledge did not have any involvement in the appellant’s matters until about June 2022 when she was engaged again.^[28]  She met with the appellant on 10 June 2022 to discuss her instructions in relation to the remaining matters – a conference which is discussed further below.
28. [28]
    The appellant says, now, that “Ms Cartledge was pressuring me and instructing me to do things I didn’t want to do.  She instructed me to plead guilty…” and points to the wording in her email (set out at paragraph [23] above) as proof of this.^[29]  She further says she did not decide to plead guilty because of the offer to drop the charges concerning the brother – but rather because of the “abuse, threats, pressure and intimidation at the hands of” Mr Burman.
29. [29]
    There is no basis, on the evidence, for either of these assertions by the appellant.  In so far as pressure by the lawyer is concerned, the conference notes directly contradict the appellant’s assertion, as does the evidence of Ms Cartledge, just referred to, and of Ms Nicholson at [67] of her affidavit, where she says that “it was my observations in conferences I was involved in that Ms Cartledge:

1. i.
   Was honest in her advice to Ms Burman about her prospects at trial on the respective matters;
2. ii.
   Did not pressure Ms Burman to plead guilty; and
3. iii.
   Gave Ms Burman time to decide what she wished to do.  For example, in the conference on 18 October 2021, Ms Cartledge told Ms Burman on two occasions that we wanted her to feel comfortable with her decision and would leave it with her to think about until the following day…”

30. [30]
    It is the role of a legal adviser to advise their client.  On the evidence, Ms Cartledge discharged her role by advising the appellant as to the strength of the case against her in respect of the various charges, as to her options and the pros and cons of those options (including the potential for a benefit, in the sense of a lesser sentence, on a plea of guilty) and by making an informed recommendation about what was the best option for the appellant, whilst still leaving it for the appellant to decide how to proceed.^[30]  To so advise one’s client, as Ms Cartledge did, is not improper and does not constitute “pressuring” or “instructing”.
31. [31]
    In so far as the broader assertion of pressure from Mr Burman is concerned, I will return to that, after discussing the third indictment.
32. [32]
    The last of the offending is one count of fraud to the value of $100,000 or more, which is the subject of indictment 1506 of 2022.^[31]  The appellant was charged, with Mr Burman, with dishonestly inducing Crafe Loans Pty Ltd to deliver bank credits to a person.  This offence is said to have been committed between 15 December 2018 and 8 January 2019.  It involved the appellant and her husband dishonestly providing false information (forged RAMS home loan statements) in order to obtain a loan of $200,000.
33. [33]
    Ms Nicholson communicated with the appellant about this matter on 23 November 2021.^[32]  She noted that she had reviewed the primary evidence against the appellant in the brief and expressed the view that “there is a ‘prima facie’ case against you”.  She explained this further in the email, saying:

“Whilst Neville (your co-accused) appears to be listed on the relevant loan documents and the primary account holder for the RAMS Home Loan, it appears:-

1. The relevant persons involved in preparing the loan have indicated that they primarily liaised with you about the loan documentation and that the telephone number provided was held in your name;

2. That you provided the ‘Finance Assessment Form’ which indicated a home loan balance of $161,000 or thereabouts;

3. That you had access to the relevant RAMS Home Loan account and provided the incorrect home loan account statements;

4. That the actual balance of the home loan was not as indicated on the ‘Finance Assessment Form’ or subsequent loan account statements that were sent through to KATSOULIS (and subsequently passed on to Crafe Loans);

5. That you were an account holder of the Bank West bank accounts in which the loan funds were placed.”

34. [34]
    Ms Nicholson advised that it would be best to proceed by way of a registry committal, and said that in doing so the appellant had two options:

    1. to “enter a guilty plea at this stage if you intend on pleading guilty to derive the most benefit from an early plea of guilty”; or
    2. to “have the matter committed to the Brisbane District Court for trial”,

and sought her instructions.

35. [35]
    The appellant responded on the same day to say she was “fine with a registry committal but I’m not putting in any plea right now”.
36. [36]
    The appellant ultimately signed instructions to proceed by way of a registry committal on 16 December 2021.^[33]
37. [37]
    In the period from October 2021 there was also phone contact and email correspondence between Ms Nicholson and the appellant in relation to issues with her Legal Aid funding, and the need for the appellant to provide supporting documentation to Legal Aid.  The appellant’s grant of funding was ultimately cancelled in February 2022 and Bell Dore was given leave to withdraw.^[34]
38. [38]
    The indictment was presented to the District Court at Beenleigh in March 2022.
39. [39]
    The appellant’s Legal Aid funding was reinstated in March 2022, and Bell Dore were retained once again.
40. [40]
    A conference took place between the appellant and Ms Cartledge on 10 June 2022, in order to confirm the appellant’s instructions.  Ms Nicholson was unable to attend this conference, but a clerk attended and took detailed notes.^[35]  It is relevant to keep in mind that, at this time:

    1. the appellant had already indicated an intention to plead guilty to the Victorian (Commonwealth) charges (that is, the six counts the subject of indictment 1878 of 2021); and
    2. the appellant had been arraigned and pleaded guilty to the (remaining) six Queensland (Commonwealth) charges (indictment 1271 of 2020).
41. [41]
    In relation to the Victorian charges, the notes of the conference record the appellant “said the position is not going to change – indicated she is going to plead guilty”.
42. [42]
    In relation to what are referred to as the “Beenleigh charges” (which is the one count of fraud, the subject of indictment 1506 of 2022^[36]), the notes of the conference record that “SC” (Ms Cartledge) asked “at the outset what do you want to do” and that the appellant replied “plead guilty … because I am probably going to go to jail anyways so might as well do it”.
43. [43]
    The notes also record that:

“AB said there has always been a lot of mental and emotional abuse … not physical

• AB said It has more come to light recently, she has begun talking to more people, she was always under the impression that violence and abuse is physical … she used to get things like I want to get a motorbike get me the money …
• AB said ‘That was before even I got married… and then I had kids and thought I didn’t want to leave [for them]’”

and that Ms Cartledge “noted that … the above information regarding emotional abuse could be of significance at sentence, however for today’s purposes the focus is on what to do with these matters and how to progress them”.  As Ms Cartledge explained, the purpose of this conference was to find out whether the appellant wished to contest the charge, or plead guilty to it.

44. [44]
    In the context of discussing the Beenleigh charge (the fraud charge), the notes record the appellant asking “if I wanted to fight the Beenleigh one I could?”, and Ms Cartledge responding “Yes, but it is not a guaranteed win”, going on to note that the trial would run at the same time as the trial of the charge against Neville, and whilst the case against Neville may be stronger, the appellant was clearly implicated as involved in the offending and “jury’s [sic] are unpredictable”.  The appellant is recorded asking if she could avoid jail time, and Ms Cartledge responded that “she is definitely going to spend some time in jail as the money is too high, it is just about how much time, the extent”.
45. [45]
    The appellant also asked “if Neville and her can complete their sentence at different times so that someone is out for the kids”.  Ms Cartledge answered “not specifically”, explaining that it would depend on what stage the matters were at (for example, if the appellant pleaded guilty, and Mr Burman went to trial).  Ms Cartledge also explained that the appellant was “probably looking at a significant time [in prison]… [and that] he [Neville] will get less than you as he only has the Beenleigh charge”.
46. [46]
    Ultimately, the appellant said to Ms Cartledge that she wanted to plead guilty to the Beenleigh charge and “bring them all together to run them concurrently”, saying it “makes more sense so that they can all be sentenced together”.  The notes record that someone said (I infer Ms Cartledge) “smart decision as it’s not worth the risk” – that is, the risk of a longer sentence.
47. [47]
    The discussion then turned to timing of the arrangements and any sentence date – to allow the appellant time to get her affairs in order and get other materials together, including in relation to medical and relevant psychological issues as well as information about how imprisonment may affect the appellant’s children, with the appellant expressing particular concern about her 15 year old daughter’s mental health.  The notes record a query whether funding could be obtained for a pre-sentence report from a psychologist.  Ms Cartledge is recorded as saying it is “unlikely Neville will get on until next year … so it may work out that you get out before his matters finalise”.
48. [48]
    The conference then turned to a discussion about what penalty the appellant might expect.  Ms Cartledge advised that the prosecution had mentioned a head sentence of around 4 to 5 years, and that if the appellant pleaded guilty, she would only serve one-third of that time.  She said “now that I have firm instructions this is a plea of guilty I can ask the prosecution what cases they will rely on… and its all based on the actual amounts involved”.  The appellant is recorded saying something about community service – that because of her “kids and stuff” she could not do “millions of hours of community service, or anything else to keep me out”.  Ms Cartledge explains that a community based order would not be a possible outcome – telling the appellant “people go to prison for much less”.
49. [49]
    Ms Cartledge returned to the topic of information that would help to, in effect, mitigate the sentence.  The appellant is recorded as saying:

“I was raised fine, it’s the situations following … went into labour at 26 weeks with her first daughter as [the daughter’s father (not Neville)] threw a toy car at me.”

and that:

“I was almost going to take the kids and get a new house because Neville lives in his truck, but stays at the house to spend it with kids or when it is getting fixed and he isn’t nice (emotional/mental violence) … (don’t want court to think Neville is incapable of looking after the kids).”

50. [50]
    In response to that last comment (not wanting the court to think that Neville is incapable of looking after the kids) the notes record Ms Cartledge responded that “this court is less about that, this is more about the circumstances affecting you”.  She also said that the sooner the appellant gets sentenced the better, because then she would likely be out before Neville’s matter finalises.  The appellant is recorded saying “I am already going to jail anyways, what is a little more time”.
51. [51]
    In her oral evidence before this Court, when cross-examined by the appellant, Ms Cartledge reiterated that she did not make any submissions about the appellant’s domestic relationship to the sentencing judge, because of the appellant’s instructions not to.  Although the appellant put to Ms Cartledge that “there is no evidence” that she told Ms Cartledge that, in fact there is, in the notes of the conference on 10 June.  And the evidence also comes from Ms Cartledge herself, whose credibility was not called into question, despite disparaging remarks made by the appellant.
52. [52]
    From Ms Cartledge’s evidence, it seems the context of the second passage set out at paragraph [49] above was not to do with domestic violence.  Ms Cartledge says in her affidavit:

“30. I have a recollection of Ms Burman telling me that she either had to move out of her home or that she nearly had to move out of home to assist her in getting legal aid because of Neville’s income.  She had some frustrations surrounding that.  This was the only time I recall being told about Ms Burman either moving out of home or not living at home.  I do recall Ms Burman telling me that Neville Burman was rarely ever at the house due to his work as an interstate truck driver.”

53. [53]
    Ms Cartledge also says, in relation to this conference:

“31. At no stage did Ms Burman make any references to regretting pleading guilty to her other offences, or wanting to change her plea, she spoke openly about getting sentenced for both the Victorian matters and the Queensland Commonwealth matters.

32. I have read the file note by Bell Dore Lawyers on 10 June 2022 and it appears to largely reflect my recollection of the conference.  I also remember some context around portions of the conference as follows: -

1. My usual practice when I conference someone about new matters is at the outset to ask whether they know what they wanted to do with the charges or would they prefer me to take them through their options.  I do this so that I know what frame of mind they are in before jumping into information about the case.  I did the same thing with Ms Burman at this conference.

2. Ms Burman immediately stated that these matters were another plea.  I was unsurprised by this comment and knew Ms Burman was quite familiar by that stage with the court process, her options and the impact of pleading guilty.  I was also aware that she had been advised that she was going to be serving a period of imprisonment for her other matters.

3. I recall Ms Burman made a comment to me about Neville’s lawyer saying that there was more evidence against her than him in this case and I said to her she has her own lawyers, and we were the only ones who should be advising her.  I recall that she said she knew, and she hadn’t spoken to his lawyer but that he was confident that he’s going to be alright and get away with it.  Ms Burman also commented something to the effect that he’ll probably try and blame her.  I recall at that point saying to her that my view was the evidence against him was stronger in this case than her and if she wanted to challenge it, we could talk about that.

4. This was the first occasion that Ms Burman ever brought up emotional abuse.  I recall specifically asking Ms Burman about this and to provide me with some details about what she meant.  She said to me that Neville didn’t engage with the children at home, she commented that he had no idea about any of their schedules and would complain about how she cooked or how she dressed.  She made a comment about Neville doing what he wanted and gave an example of buying a motorbike (or wanting to buy a motorbike) and she would have to deal with the financial impact of that at home.  I remember thinking this could be a relevant matter to what the money from the fraud was used for, for example if it was used to fund day to day life due to Neville’s spending or matters of that nature.  I returned to this issue at a later conference.

5. I told Ms Burman that those matters are potentially relevant to matters on a plea.  I then redirected the conversation back to the Beenleigh charges and what she was wanting to do with them as this conference was not a sentence/mitigation conference, and we would be able to discuss those matters at a separate date.

6. I recall stating multiple times that the Beenleigh charges were the weakest against her out of all of them and we could run them if she wanted.  However, the case overall against Ms Burman was still strong, particularly as it was Ms Burman’s email that was used to get the loan and she was the person involved in communication with the complainant at the outset.

7. Ms Burman never stated anything to the effect that Neville Burman made her commit the offences, or that Neville Burman was making her plead guilty.  She made disparaging comments about Neville Burman, that he thinks he can get away with things like this and how he’ll probably ‘throw her under the bus’.  I recall her tone of voice when talking about Neville was that she was annoyed by him.  I recall being unsurprised by this given she had told me her and Neville were separated.

8. I recall also stating to her that she also had two sets of other offences for which she was to be sentenced and the potential for part of a penalty in the Beenleigh matters could be subsumed by the other matters.

9. I remember being asked by Ms Burman the logistics of how a trial would run and confirming that the trial between her and Neville Burman would be run at the same time.  At no stage did Ms Burman indicate any concern with this, other than additional commentary about how he thinks he’s smart and would probably try to blame her.  I recall stating to her if he’s going to trial did she want to as well to see how it all goes and the talk again returned to Neville fighting the charges because he’s not smart and doesn’t understand how it all works.  I do recall reminding her that if she goes to trial and loses, she does lose the benefit of an earlier release than if she pleads.  I recall she commented something along the lines of no, no, no, I was just curious how it would run together.  She then turned her focus to the logistics of how the matter would join up with her other sentence.

10. I recall discussing the overall amounts with Ms Burman and commenting that completed frauds are usually treated more seriously than attempts, however given the large amounts involved here for the attempts, it is serious.

11. Ms Burman’s key concerns at that point in time were her own mental health and her children’s wellbeing when she gets sentenced.  I recall we spent considerable time discussing these matters.

12. I recall Ms Burman raising issues about Neville Burman not being kind but then asking me not to raise those things as she didn’t want the court to think he couldn’t take care of the kids.  I remember reinforcing that this Court is not a family or custody court but is interested in how things have impacted her.  I recall asking her several times for specifics and it returned to discussion about how Neville didn’t understand or appreciate how to run the household and the kids’ schedules.  Ms Burman also wanted me to speak with Neville’s lawyer to see if I can arrange for them to serve jail time at different times so that the kids always had a parent around.  I confirmed this is not able to be done, however, as she was pleading guilty to her matters, she would be getting a sentence date soon and he was still at committal stage and contesting them, so it was unlikely his matters would be finalised for some time, so it could naturally work out that way.  I recall Ms Burman was pleased with this and wanting her sentence to start soon so that her time would be served by the time Neville was sentenced.

14. Discussion turned to obtaining as much material as possible prior to sentence to assist in mitigation.  I recall wanting a psychological report to further explore her mental health matters and allegations of emotional abuse.”^[37]

54. [54]
    On this appeal, the appellant submits that when she tried to tell her lawyers about the abuse she was experiencing, she was “brushed off” and “shut down” by Ms Cartledge.  She emphasises the part of the conference notes set out at paragraph [43] above as proof of this.  The appellant asserts, it seems, that but for this, she would have told her lawyers that her husband was threatening and intimidating her to plead guilty.  She also asserts, now, that the prospect of going to trial with Mr Burman, and having to be in court with him, was so terrifying to her that she would plead guilty to avoid that.
55. [55]
    The evidence does not support the criticism that the appellant was “shut down” from speaking about emotional abuse.  At the time this was first raised, Ms Cartledge explained that it was something that may be relevant, by way of mitigation, on the sentence, but first Ms Cartledge needed to discuss with the appellant how she wished to deal with the charge.  I accept Ms Cartledge’s evidence that she returned to the topic, to seek further details of the emotional abuse the appellant had mentioned, and as to what she was told by the appellant (set out in paragraph [53] above).  The evidence overall of what took place at the 10 June 2022 conference is completely inconsistent with what the appellant now asserts was motivating her at the time.  That evidence demonstrates the appellant taking a pragmatic approach to the charge the subject of indictment 1506 of 2022, on the basis that she was “going to go to jail anyways”, for the other Commonwealth offences and it made sense to be sentenced for all the offences together; that it was made clear she had a choice, and could fight the “Beenleigh charge” if she wanted to, but that she was clearly implicated in the offending and so “it is not a guaranteed win”; that the appellant was concerned about her children having one parent – either herself or Mr Burman – around to look after them and, in that regard, there was a benefit to her matters proceeding sooner rather than later (because she might be out before Mr Burman’s matter was finalised).  On the evidence, the appellant was more than capable of engaging with her lawyers and speaking up for herself.  Ms Nicholson said she at no time had any concerns about the appellant’s capacity to provide instructions.  Ms Cartledge said that even in light of the information the appellant conveyed about emotional abuse, she had no concerns at all, in giving advice to the appellant about how best to deal with the charges, that the appellant may have felt overborne.
56. [56]
    A few days later, on 13 June 2022, Ms Nicholson sent a follow up email to the appellant, confirming that the appellant wished to plead guilty to all offences and have them dealt with in Brisbane at a sentence in August 2022.  That was followed up again on 16 June 2022, with the provision of “plea of guilty instructions” for the appellant to sign, for both the Victorian matters and the “Beenleigh charge”.^[38]
57. [57]
    The appellant signed those documents, electronically, on 20 June 2022.^[39]  Although in her evidence to this Court the appellant said she could not recall signing those documents, and denied she had the “app” required to do so, the automatically generated “final audit report” for each document records that it was sent to her email address, viewed and “e-signed” by her.  I find that she did electronically sign the instructions.
58. [58]
    In any event, the appellant signed a physical copy of the guilty plea instructions for both indictment 1878 of 2021 (the Victorian charges) and the Beenleigh indictment when she went to court for the arraignment on 25 July 2022.^[40]  Although Ms Nicholson has only been able to locate, and exhibit, the signed instructions in relation to indictment 1878 of 2021, in all the circumstances I accept Ms Nicholson’s evidence that the appellant also signed instructions in relation to the fraud charge the subject of indictment 1506 of 2022.  This is reiterated in Ms Nicholson’s notes of a further conference with counsel on 23 August 2022 (that the appellant “has already signed instructions on all matters”).^[41]
59. [59]
    On 25 July 2022 the appellant appeared in the District Court at Beenleigh, was arraigned and pleaded guilty to the one count on indictment 1506 of 2022.  The matter was listed for sentence on the already allocated date of 23 August 2022.
60. [60]
    Ms Cartledge appeared on the arraignment.  She recalls meeting with the appellant outside court prior to the arraignment.  Ms Cartledge says “Ms Burman was in a pleasant mood; she was chatty… She had no questions about the process”.^[42]  After the arraignment, Ms Cartledge and Ms Nicholson spoke with the appellant about “the importance of opening up to the psychologist to get as much information as possible in the report that will help her”.^[43]
61. [61]
    Ms Cartledge also said:

“Ms Burman never wanted to discuss details of the offending.  I did not find this unusual given the nature of the offending.  I remember stating the phrase how people plead guilty for all different reasons.  I remember Ms Burman asking me not to discuss the offences in court.  I do recall stating to her in a conference that it can be useful to discuss the offences if there was a reason behind them, for example if the money was used for an addiction or to put food on the table then these are important matters to share because they can provide more assistance to the court about why such offences were committed.  I have a recollection of reminding her about a comment she made in a previous conference about how if Neville went out and bought something that she would just have to deal with the financial impact and asked if that meant she had difficulties with essentials, groceries or day to day life for the household and the kids.  She did say if she spent it on anything it would have been for that.  At this point Ms Burman again said she didn’t want me to talk about it and again said she didn’t want me to say anything about her domestic relationship.  I was content to respect this request as the instructions she had given me regarding her domestic relationship with Neville Burman were not to the extent that I believed they would have provided mitigation on sentence, additionally, they would be before the Court as they were contained within the psychological report.”^[44]

62. [62]
    Ms Nicholson also recalls that on 22 August 2022 (the day before the sentence), the appellant was asked for reasons about the offending (that is the so-called Beenleigh charge – the one count of fraud) – “what money was used for” – to put to the court at her sentencing and that “she said she didn’t do it so she couldn’t provide reasons”.  Ms Nicholson said the appellant gave instructions not to speak about the reasons for committing the offences, and confirmed she still wished to proceed with the sentence.^[45]
63. [63]
    An appointment was made for the appellant to be assessed by a psychologist, Dr Yoxall.  This assessment took place, by videoconference, on 12 August 2022.  Dr Yoxall provided a report dated 22 August 2022, which was tendered at the sentencing hearing.^[46]  In relation to the appellant’s “current personal circumstances”, Dr Yoxall noted they were “unstable”, as “[s]he is living in a rental home … with her estranged husband, Neville (sleeping in separate bedrooms) and their four children, aged 15, 13, 12 and 4 years old respectively”.  The report noted the appellant also has a 23 year old daughter, from a previous relationship, who lives independently with her partner.  The appellant told Dr Yoxall that her parents are now in their eighties and that her father had recently been diagnosed with stage 4 skin cancer and was “currently” (that is, at the time of the assessment) in hospital, following a fall.
64. [64]
    Dr Yoxall recorded that:

“Ms Burman noted that her estranged husband, Mr Neville Burman is also facing criminal charges relating to his involvement in the same matters that have led to Ms Burman’s charges.  Although Ms Burman is separated from her husband, and does not consider that he has made adequate preparations for care of the children if she is incarcerated, Ms Burman is more fearful that their periods of incarceration will overlap, leaving the children without either parent.  She said that the only option if this were to occur, would be that her mother would temporarily relocate to Queensland to care for the four children.  Ms Burman noted that this would be challenging given her father’s health concerns at the current time.”

65. [65]
    Dr Yoxall recorded the appellant’s account of her offending, as follows:

“Ms Burman said that the offending between 2008 and 2012 occurred in the context of her completing income tax returns for her brother’s business (Robert Owen); and a business in her name.  The offending between 2014 and 2016 related to her lodgment of her husband’s income tax returns and amendments (Neville Burman) for the financial years ending 2014, 2015 and 2016.  She said that she is pleading guilty on the basis of the agreed Statement of Facts.”

66. [66]
    Later in the report, Dr Yoxall recorded that it was not clear what dynamic risk factors impacted upon the appellant at the time of the offending “because she does not wish to discuss various details of the offending”.  She also noted that the appellant’s “relationships with both her husband and brother have substantially deteriorated since being charged”.
67. [67]
    The appellant told Dr Yoxall that she had experienced a significant deterioration in her mental health since the last police raid on her home in 2017, which had led to her experiencing significant anxiety.  The appellant also told Dr Yoxall that in 2017 she had attempted suicide and had been referred to a psychologist.
68. [68]
    The appellant told Dr Yoxall that, after the raids, she and her husband sold their home and moved to her husband’s investment property.  They contracted a builder to complete a renovation at that property.  Dr Yoxall referred to the further offending which occurred between December 2018 and January 2019, relating to “the obtainment of a loan by fraudulent means”, and notes that the stated purpose of this loan was home renovation.
69. [69]
    Dr Yoxall went on to record that the appellant said she and her husband had to move from the investment property because the builder they contracted “failed to do the job” and that “made the house uninhabitable”.  As a result they moved to rental accommodation, where they continued to live together, even though they had then separated, because of the extreme rental shortage.
70. [70]
    Dr Yoxall recorded that:

“Ms Burman said that her marriage has been deteriorating over time since 2021 but has become increasingly challenging.  She said that her husband has not provided her with any emotional or practical support.  She said that this is distressing to her as she has previously supported him emotionally and practically when he faced charges, convictions and incarceration for unrelated offending.

…

Ms Burman said that her husband has perpetrated emotional and psychological abuse upon her, but not physical or financial abuse.  She said that he makes ‘nasty’ comments to her which undermine her confidence, and wellbeing.  She said that he refuses to engage with the children and rarely talks to them.  She noted that he regularly forgets the childrens’ birthdays.  She said that all organization and management of all activities of daily living for the children and the family group as a whole (including financial management, shopping, cooking, care for the home, school, medical and healthcare, transport, etc.) are all managed by her.  She noted ‘Neville doesn’t know the first thing about most things that happen at home … I do it all’.”

71. [71]
    The appellant told Dr Yoxall that her mood was low, and that she had intermittent thoughts of self-harm.  She conveyed her significant concerns about the impact of her impending imprisonment and therefore absence on each of her children, noting in particular the mental health challenges of her 15 year old daughter.
72. [72]
    Dr Yoxall expressed the view that:

“Being raided by police, and being charged with criminal offences has caused significant stress which has negatively impacted her mental health.  Her mental health has decompensation [sic] since 2017 to the point that she now meets criteria for Major Depressive Disorder with anxiety and suicidal ideation.  This stressful experience and the fear of prison are both strong deterrents to future offending.”

73. [73]
    Notably, the appellant did not say anything to Dr Yoxall about the matters she now alleges – including that she had been, or was being forced or coerced by her husband to plead guilty to the offences.  The description the appellant gave to Dr Yoxall, of the nature of the emotional abuse she experienced, is consistent with what Ms Cartledge recalls being told – that Mr Burman made nasty comments that undermined her; did not engage with the children; and did not understand or appreciate how to run the household, leaving it all to the appellant to manage.
74. [74]
    On 23 August 2022, the appellant met with Ms Cartledge and Ms Nicholson outside court prior to the sentence.  Ms Cartledge recalls that the appellant’s mood was low and she was “quite short” with Ms Cartledge and Ms Nicholson.  Ms Cartledge said she was not concerned by this, “given she was about to be sentenced to a term of imprisonment and it suggested to me that she was well aware of this”.^[47]  Ms Cartledge says she reiterated to the appellant that the focus of her submissions would be “on the bottom of the range regarding how much time she will serve”, focussing on her mental health, her children, the age of the youngest and the mental health concerns of her teenage daughter.  Ms Cartledge says the appellant made a comment that “Neville will just have to step up and learn the household”.
75. [75]
    Ms Nicholson took the appellant through her instructions, asking her to sign the written instructions again.  Ms Cartledge says she recalls the appellant was annoyed about this, and “said something to the effect that she didn’t know why she had to sign them again because she already had (electronically)”.  Nevertheless, the appellant signed her instructions to plead guilty.^[48]  Ms Nicholson’s notes of this conference record that she provided the consolidated written instructions (to plead guilty, to all the charges), with the three statements of facts attached, and asked the appellant to read them through and then sign them.  The appellant said she did not want to read them.  Ms Nicholson took the appellant through the guilty plea instructions document before she signed it.  She recalls the appellant “being dismissive and blasé, stating on a number of occasions that she ‘didn’t care’”.^[49]
76. [76]
    The “instructions – plea of guilty” that the appellant signed on 23 August 2022 included the following:

“8. I have been told by my legal representatives that:-

1. By pleading guilty, it is likely that I will receive a head sentence of approximately four (4) to five (5) years imprisonment, with a possibility that I have to serve a lengthy period of time in actual custody (generally being one third of the head sentence);

2. If I were to plead not guilty and proceed to trial (though I understand I have already entered pleas to some of the above charges and this may not be possible now), my legal representatives think:-

1. That there is a risk that I could be convicted of most of the offences;

2. That there are prospects of succeeding at trial for the State Beenleigh offence

3. If I plead guilty or continue with my plea of guilty, the Court will take this into account in determining the sentence that will be imposed on me;

4. If I were to go to trial and be convicted, I could receive a higher head sentence with a possibility that I serve half of the sentence in actual custody.

9. I wish to avoid any outcome which could see me serve half of any head sentence in actual custody.”

77. [77]
    That is consistent with the evidence from Ms Nicholson and Ms Cartledge, about the advice that was given to the appellant and her instructions.
78. [78]
    In addition to the material already referred to above, the appellant has sought to place other additional evidence before this Court, for the purposes of her appeal.^[50]  It was all received, without objection from the respondents.  For completeness, it is noted that the Court also received additional written submissions from the appellant, at the end of the hearing, which meant that she was relieved from making oral submissions.^[51]  The respondents relied upon their written submissions, filed prior to the commencement of the hearing, without further oral submissions.
79. [79]
    The additional evidence includes an application the appellant made on 1 August 2023 (so, almost one year after her sentence commenced) for a protection order under the Domestic and Family Violence Protection Act, naming Neville Burman as the respondent.^[52]  The application states the reasons that she is seeking the order as:

“Neville Burman continues to brain wash the children and is sending them to Victoria without consent to a man (his father) whom is also abusive and has threatened me and my 24 year old daughter.  This man was out of the kids lives for 3 years after threatening to rip my face off. as well as physically pushing my son Dylan into his 15 month (at the time) brother hurting both.  I was only made aware of the move on Sunday and don’t agree.  Also Mr Neville Burman is threatening to neck himself.”

80. [80]
    The grounds for the protection order are articulated as follows:

“Coercive control, mental, emotional, financial and sometimes physical abuse.

Not allowing more than one friend at a time, turning or trying to turn my children against me.  Threatening and pressuring me to take his criminal charges (which I did, because I was to scared of what would happen if I didn’t).  When I would go out with my friend if I was allowed I would ask if I looked okay he would laugh and go just fuck off.  I was told that the internet, alcohol and smokes were the main priority for the house but yelled at if the rent got behind.  Even whilst I am in jail he continues the abuse on me and the children.  He has made the kids block me on their phones and only allows them to visit in the school holidays.  His now sending them to Victoria without my permission or consent.  I would get in trouble if I cooked chicken as he didn’t like it.  He would tell me I was a horrible cook, talk to me like I was a child and treat me and the children terribly.  He didn’t give the kids warnings would just walk up and hit them across the head.  Would hit me in the arm when I was driving.”

81. [81]
    A seven page handwritten document attached to the application contains further examples of the behaviour complained of.
82. [82]
    It must be acknowledged that for a person in the appellant’s position to be in prison and away from her children is incredibly difficult.  Her sense of powerlessness in relation to the care of her children is understandable.  However, in terms of the present appeal:

    1. This information, if it was true, was within the appellant’s knowledge – she could have provided it prior to sentence.  She did not.
    2. What she did tell the lawyers, and Dr Yoxall, about her relationship with her husband and the nature of his emotional abuse, is inconsistent with what she now asserts, in terms of pressure from him to plead guilty to the charges.
    3. The appellant expressly instructed her lawyers not to say anything to the sentencing court about her domestic relationship, in particular Mr Burman’s ability to look after the children, and they respected her instructions.
    4. In fact, she asked if she and Mr Burman could serve their sentences at different times, so that the children would have one of their parents at all times.
    5. The appellant’s concerns about the care of her children, now, are not matters that support her attempt to overturn the convictions nor to appeal against the sentences imposed.
83. [83]
    Another item of evidence the appellant sought to rely on is a letter from the Department of Child Safety.  The letter is undated, but appears to have been received by the appellant in early September 2023.^[53]  The letter records that Child Safety recently assessed information about the appellant’s four (named) children, being “worries … in regard to allegations of neglect of basic care needs and inadequate supervision while in the care of their father”.  The letter advises that the outcome of the assessment was “unsubstantiated – child not in need of protection”.  The letter also records that, during the course of the investigation, three of the children relocated interstate.  This, also, is not evidence that assists the appellant in relation to either setting aside the convictions, or in relation to the sentences imposed.
84. [84]
    The third body of evidence sought to be relied on by the appellant relates to her contention that her “legal team” were incompetent and failed to properly represent her.  The appellant, in her material on this appeal, alleges that her solicitor and barrister told her to plead guilty and due to the state of her mental health, the domestic abuse, and “my dad dying of cancer”, she “reluctantly did what they said as I was not in the right frame of mind to fight or even make a decision like that”.^[54]
85. [85]
    Ms Cartledge says:

“Ms Burman entered pleas of guilty with me on three separate occasions over a period of approximately 10 months.  At no stage did Ms Burman ever convey to me any hesitation or regret in pleading guilty to any of the offences.”

86. [86]
    Ms Nicholson says:

“b. I never told Ms Burman to plead guilty, nor did I ever witness Ms Cartledge tell Ms Burman to plead guilty.  I do not accept that Ms Burman was ever told how to plead.

c. Ms Burman instructed us that she wished to plead guilty to all matters on several occasions.

d. I do not accept that Ms Burman was not in the right ‘frame of mind’ to provide instructions.  Throughout representing Ms Burman, I never held concerns regarding Ms Burman’s capacity to provide our office with instructions.

e. Ms Burman did not disclose any information which would have indicated that she was pleading guilty due to ‘domestic abuse’ at any stage that she provided instructions to us or entered her pleas of guilty on the record.”^[55]

87. [87]
    As already addressed, I do not accept the appellant’s assertion that either Ms Nicholson or Ms Cartledge “told” her to plead guilty.  They properly advised her.
88. [88]
    It is important to note that the appellant does not contend that she told either Ms Nicholson or Ms Cartledge any of the things she now asserts, in terms of Mr Burman pressuring her to plead guilty.  Her claim of “incompetence” is on the basis, it seems, that Ms Cartledge “shut her down” when she tried to raise emotional abuse and failed to make submissions to the sentencing court about her domestic situation.  For the reasons already discussed, I reject the appellant’s assertions in this regard also.  As to the former, she was not “shut down”, and could have raised such matters with her lawyers, and certainly with the psychologist, if they were true.  As to the latter, that was on the basis of the appellant’s instructions.  The allegations of incompetence are completely without foundation.
89. [89]
    It remains to address whether, apart from blaming her lawyers, the appellant has demonstrated there has been a miscarriage of justice by the court below acting on her pleas of guilty.
90. [90]
    In the notice of appeal, the appellant does not make any distinction between the convictions of offences on the three separate indictments.  In her “conviction speech”,^[56] however, she says that indictment 1271 of 2020, “is of importance as this was the indictment I was first pressured and threatened on by my estranged husband Mr Neville Burman”.  In contrast, in her oral evidence on the appeal, the appellant asserted that she also pleaded guilty to the Victorian charges “because Mr Burman wouldn’t allow me to plead not guilty because all of the charges had to be fought in Victoria”.
91. [91]
    The available evidence does not support the appellant’s contention that she was pressured or intimidated by Mr Burman into pleading guilty to any of the offences.  The appellant had many opportunities to raise this if it was in fact happening – including when she spoke to the psychologist, Dr Yoxall.  Without expressing any view about the domestic relationship between the appellant and her husband, which may well have been an unpleasant one, the suggestion that she was threatened or intimidated into pleading guilty to criminal charges against her, in respect of which the evidence was described, by her own counsel, as strong, finds no support in the evidence before the court.
92. [92]
    The appellant’s material on this appeal is replete with assertions by her that she only  came to realise the impact of her husband’s coercive and controlling behaviour after going into prison and speaking to a counsellor and others.  As already noted above, her explanation for not disclosing what she says now to her lawyers is that she was “shut down” by them.  That is not accepted.  Whilst the appellant seems to say she did tell the psychologist about the domestic abuse, and the pressure her husband was placing on her in relation to the criminal charges, that is inconsistent with what appears in Dr Yoxall’s report and is not accepted.  With respect to the appellant, the only reasonable inference to be drawn from the material is that what she says now is a recent invention.
93. [93]
    In addition, although the appellant has said much, in the various written documents provided to this court, about her husband’s emotional abuse, she does not grapple in any way with the factual basis of the offences, beyond generalised statements that “I didn’t do it”.
94. [94]
    The Victorian offences (indictment 1878 of 2021) arise from the conduct of the appellant only, over a period of four years (2008 to 2012), lodging 72 BAS that contained false information in order to dishonestly obtain GST credits.  Mr Burman was not involved in this offending.  The facts set out in the detailed statement of facts relied upon at sentence,^[57] which was accepted by the appellant at that time, demonstrably support her criminal liability for the offences.
95. [95]
    The Queensland Commonwealth offences (indictment 1271 of 2020) involve both the appellant and Mr Burman.  However, as outlined in the statement of facts for these offences,^[58] which again was accepted by the appellant at the time she pleaded guilty, the appellant was directly involved, by dealing with the ATO as the authorised contact person for Mr Burman and by preparing and providing false PAYG certificates purporting to substantiate Mr Burman’s false tax returns.  This Court does not have before it the primary evidence underpinning these charges; but it does have the evidence from Ms Cartledge that the evidence against the appellant was considered to be “strong”.  That is reflected in the statement of facts which amply supports the appellant’s guilt of these offences.
96. [96]
    The State fraud offence (indictment 1506 of 2022) also involves Mr Burman – he was jointly charged with the appellant.  Whilst the appellant’s lawyers regarded this as the weakest of the cases against the appellant, there was a substantial evidentiary basis for the charge against the appellant, for the reasons outlined by Ms Nicholson in her email to the appellant set out at paragraph [33] above.  Those matters are reflected in the statement of facts for this offence which was also accepted by the appellant at the time she pleaded guilty.
97. [97]
    Although she seeks to distance herself from the offending the subject of indictment 1271 of 2020 (the false tax returns) and indictment 1506 of 2022 (the fraudulently obtained loan), on the basis that anything she did in those respects was under threats of abuse from her husband, the appellant faces a significant credibility problem given her protracted history of serious dishonesty and the failure to mention this at any earlier stage.  The appellant’s comments, when interviewed by the ATO auditors about the offending the subject of indictment 1271 of 2021 (set out at paragraph [17] above), are derisory of Mr Burman, providing no support for the notion that she was under any form of threat from him.  In addition, arguably the most serious of the offences are those the subject of indictment 1878 of 2021 (the Victorian charges), which have nothing to do with Mr Burman at all.  She had indicated her intention to plead guilty to those charges from an early stage, prior to their transfer to Queensland – which is before the time that her marriage started to deteriorate, according to what the appellant told Dr Yoxall.
98. [98]
    The appellant has not shown any, let alone an arguable, case that she is not guilty of the offences to which she pleaded guilty.
99. [99]
    It is apparent from the material that the appellant was advised, and I find understood, that there was a benefit to be had from pleading guilty to the criminal charges against her, which were likely to be proved, in the form of a more lenient sentence.  The overwhelming inference from all the material is that that was the reason she pleaded guilty.  Her pleas of guilty were made freely and voluntarily, on an informed basis and for rational reasons in her own interests, including her concerns for her children.
100. [100]
     I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

101. [101]
     The appellant seeks leave to appeal against the sentences imposed, on the ground that they are manifestly excessive in all the circumstances.
102. [102]
     The sentences imposed were as follows:

     1. On indictment 1878 of 2021 (Commonwealth tax fraud offences):
        1. (i)
           Count 1 (obtaining a financial advantage of $89,097) – 3 years;
        2. (ii)
           Count 2 (attempting to obtain a financial advantage of $262,600) – 5 years;
        3. (iii)
           Count 3 (obtaining a financial advantage of $4,639) – 1 year;
        1. (iv)
           Count 4 (attempting to obtain a financial advantage of $172,754) – 4 years;
        2. (v)
           Count 5 (obtaining a financial advantage of $82,393.28) – 3 years;
        3. (vi)
           Count 6 (attempting to obtain a financial advantage of $66,242) – 2 years;
        1. (vii)
           Non-parole period of 20 months;
        2. (viii)
           Order that reparation be made to the Commonwealth of $197,924.91 (covering all Commonwealth offences).
     2. Indictment 1271 of 2020 (renumbered as 476 of 2020) (also Commonwealth tax fraud offences):
        1. (i)
           Count 1 (attempting to obtain a financial advantage) – 1 year;
        2. (ii)
           Counts 5 to 9 (using false documents) – 6 months for each.
     3. Indictment 1506 of 2022 (State fraud offence) – 5 years, suspended after serving 20 months’ imprisonment, for an operational period of 5 years.
103. [103]
     The facts of the offending are addressed above, but in short summary:

     1. The offending the subject of indictment 1878 of 2021 spanned a period of four years, from September 2008 to September 2012, during which the appellant lodged 72 BAS and either actually obtained ($176,129.28) or attempted to obtain ($501,596) a significant amount of money.  During the four years, the appellant had a number of interactions with the ATO through reviews and audits, but persisted in her dishonest conduct.
     2. The offending the subject of indictment 1271 of 2020 spanned a period of almost two years, from 2014 to 2016 and again involved obtaining ($21,795.63) and attempting to obtain ($3,691.29) a financial advantage, by defrauding the tax office, using forged PAYG certificates.
     3. The offending the subject of indictment 1506 of 2022 involved one dishonest transaction, which if successful would have seen the appellant and Mr Burman fraudulently obtain a loan of $200,000.
104. [104]
     Relevantly, the maximum penalty for all of the Commonwealth offending is 10 years’ imprisonment.  The maximum penalty for the State offence is 20 years’ imprisonment.
105. [105]
     The appellant’s submission on the application for leave to appeal is put on two bases:

     1. first, that the sentencing judge failed to have due regard to the mitigating factors in her favour – namely, the domestic abuse she was experiencing, her father’s cancer, and her history of mental illness, including self-harming and previous suicide attempts; and
     2. secondly, that comparable cases support a lower penalty being imposed.
106. [106]
     As to the first, the sentencing judge had before him Dr Yoxall’s report, and took it into account.  That included the personal circumstances outlined in the report, the diagnosis of major depressive disorder with anxiety and suicidal ideation, that the appellant was the primary carer for her children and that her 15 year old daughter was suffering serious psychiatric issues.  His Honour expressly noted that the appellant’s mental health diagnosis and the vulnerability of that child, as well as her youngest child, were mitigatory features.  However, it was also noted that those features could not override the need for significant deterrent sentences.
107. [107]
     It is fair to say the sentencing judge did not expressly refer to the appellant’s father being unwell (although it is mentioned in Dr Yoxall’s report).  However, the information mentioned by Dr Yoxall about the appellant’s parents – based on the appellant’s reporting to her (set out at paragraph [63] above) would not have had an impact on the sentence properly to be imposed.
108. [108]
     Nor did the sentencing judge expressly refer to domestic abuse.  Again, the evidence of this which was before the court at first instance was limited to what is set out in Dr Yoxall’s report (discussed at paragraph [70] above).  The evidence, which I have accepted, is that the appellant instructed her barrister not to make submissions about her domestic relationship, because she did not want the court to form the view that Mr Burman could not look after the children.  In any event, what the appellant had told Ms Cartledge, about the emotional abuse, is consistent with what she told Dr Yoxall.  So even if Ms Cartledge had made a submission about it, the material before the court would effectively have been the same.  The kinds of things the appellant described to Dr Yoxall, and to Ms Cartledge, whilst no doubt upsetting for the appellant, would not have affected the sentences to be imposed.
109. [109]
     I am not persuaded that the exercise of the sentencing discretion below was affected by a failure to take into account the matters identified by the appellant.

110. [110]
     As to the second basis, to succeed on an application on this ground it is not enough to establish that the sentences imposed were different, or even markedly different, from sentences imposed in other matters.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.^[59]

111. [111]
     In arriving at the sentences to be imposed, the sentencing judge emphasised that the offending was serious, protracted and persistent, demonstrating entrenched dishonesty over an extended period of time and involving “very serious frauds”.  It was noted the appellant was a mature woman (45 at the time of sentence), with no relevant criminal history (only one dated entry for obstructing or hindering a Commonwealth public official).  But as against that, the appellant’s persistent offending over a number of years, despite interactions with the ATO which would have warned the appellant her offending was “coming to light” was properly described as concerning.
112. [112]
     The sentencing judge observed that “[o]bviously, there is a need for a significant deterrent head sentence as offences of this type, as far as the federal offences are concerned, are very concerning as they attack the revenue-raising activities of the Commonwealth, which are very important to the proper functioning of society”.
113. [113]
     The sentencing judge said he had been guided by R v Pinnuck [2014] QCA 189, in relation to the State offending; and had particular regard to Edwards v The Queen (2013) 92 ATR 147 and R v Massey [2015] QCA 254 in relation to the Commonwealth offending.  His Honour also said that he had “moderated the head sentences for both the state offending and the federal offending to acknowledge the mitigating features including your lack of criminal history and the vulnerabilities of you and your children”.
114. [114]
     It is apparent from the transcript of the sentencing hearing itself that the State prosecutor had been contending for a higher overall penalty (more like six years) to reflect the totality of criminal offending.  Whilst the Commonwealth prosecutor did not submit for a particular sentence, considering himself bound by Barbaro v The Queen,^[60] it is to be inferred from what was said that the Commonwealth also considered a higher overall penalty was warranted.  It is also apparent from the sentencing hearing that the sentencing judge was concerned to structure the sentence in order to give the appellant certainty in terms of her release date, because of the concerns raised about her mental health and her children in particular.  It was this, amongst other things, that persuaded the sentencing judge to impose no more than five years’ imprisonment (which enabled the penalty on the State offence to be suspended).
115. [115]
     The authorities referred to by the sentencing judge well support the sentences imposed.
116. [116]
     In R v Pinnuck [2014] QCA 189, the offender was convicted, having pleaded guilty, of two counts of fraud, which involved obtaining loans on the basis of forged guarantees.  He was slightly older than the appellant (57 at the time of the offences) and had a relevant criminal history for offences of dishonesty.  The total amount of finance obtained was almost $295,000.  The offender received no direct financial gain as a result of the offences, but he benefited indirectly in that without the finance, the company he worked for would not have been able to commence business and he would have lost his employment.  He was sentenced to five years’ imprisonment on both counts, to be suspended after 20 months.
117. [117]
     Looked at in isolation, that is, if the State offence (the subject of indictment 1506 of 2022) was the only offence the appellant was being sentenced for, Pinnuck might have supported a lower sentence for this offence alone (given the distinguishing features for the appellant – one count, slightly less money obtained and, importantly, no relevant criminal history).  As it happens, reflecting those distinguishing features, at the hearing below the State prosecutor submitted that, alone, this offending might appropriately attract a penalty of four years.^[61]
118. [118]
     But the court was not dealing with only the State offence – it was necessary to consider the appropriate, and just, punishment for all of the offending, across three separate indictments.  In those circumstances, increasing the penalty on this offence to five years was appropriate.^[62]
119. [119]
     In Edwards v The Queen (2013) 92 ATR 147, the offender was convicted, on his pleas of guilty, of four counts of the Commonwealth offence of dishonestly obtaining a financial benefit by deception.  The offending took place over one and a half years, and involved lodging 27 BAS with the ATO, in which the offender falsely claimed refunds for GST to which he was not entitled.  He claimed refunds of $540,898, of which he actually received $380,724, with the balance of $160,174 stopped before any payment was made.  He was sentenced to a total head sentence of 4 years and 3 months’ imprisonment, with a non-parole period of 2 years and 2 months.
120. [120]
     In contrast, in the present case, the appellant’s offending the subject of indictment 1878 of 2021 spanned four years (not one and a half) and involved dishonestly lodging 72 BAS (not 27).  Although the amount actually obtained was less ($176,129.28), the amount attempted to be obtained was more ($501,596).  Once again, when the other two indictments are also factored into account, imposing a sentence of five years’ imprisonment on the most serious of the counts on this indictment (attempting to obtain a financial advantage of $262,600) cannot be said to be excessive, in comparison with this decision.
121. [121]
     In R v Massey [2015] QCA 254, the offender was convicted, on his pleas of guilty, of 14 counts of obtaining financial advantage by deception as well as 11 counts of attempting to obtain financial advantage by deception.  On each of the obtaining counts he was sentenced to three and a half years’ imprisonment, to be released on recognizance after serving 14 months.  He was older (61-62 at the time of the offending and 67 at sentence) and had a “relatively minor” criminal history.  His offending spanned only six months and involved lodging 25 BAS claiming refunds, as a result of which he succeeded in dishonestly obtaining just over $141,000 and attempted to obtain another (approximately) $116,600.  Although there were more counts charged, it is apparent this is because each BAS was the subject of a separate count.  If that had occurred in the appellant’s case, she would have been charged with 72 counts.
122. [122]
     Otherwise, it is clear a higher penalty was justified in the appellant’s case, given the length of time over which the offending the subject of indictment 1878 of 2021 occurred, the greater level of activity and money actually obtained and attempted to be obtained, as well as the additional offending the subject of the other indictments.
123. [123]
     To those observations must be added the fact that the appellant received the benefit of a non-parole period of only 20 months.  That represents one-third of the (overall) five year sentence imposed.  Whilst that is a generally accepted approach, when sentencing for State offences, to reflect an offender’s cooperation through a plea of guilty;^[63] there is no similar generally accepted approach where Commonwealth offending is concerned – as Edwards v The Queen demonstrates.
124. [124]
     The appellant submits that the decision in R v Latemore [2019] QCA 55 supports her argument that the sentences imposed were manifestly excessive.  Mr Latemore was sentenced to two years and six months imprisonment, with recognizance release after four months, for each of six counts of obtaining, and two counts of attempting to obtain, a financial advantage by deception.  Importantly, in Latemore there was extensive evidence of the offender’s medical history, including of cognitive disability.  As a result of that history, which formed “an inextricable part of the offending” and significantly reduced his moral culpability.  That had a substantial mitigating effect on the appropriate sentence to be imposed.  The case is not comparable to the present for that reason.
125. [125]
     The appellant also submits that a community based order ought to have been made and that if her barrister, Ms Cartledge, had made a submission to that effect it would have been acted on by the sentencing judge.  That would not have been an appropriate penalty for the serious and persistent offending of which the appellant has been convicted.  A legal representative has a duty to their client, but also has an overriding duty to the court and to the administration of justice.  Making a submission that has no proper basis, and would in fact lead a judicial officer into error if acted upon, is not consistent with that duty.  Ms Cartledge was correct in advising the appellant a community based order was not a possibility and acted properly in making the submissions that she made before the sentencing judge.
126. [126]
     The sentences imposed were not manifestly excessive.  I would refuse the application.

Orders

127. [127]
     For those reasons, I would make the following orders:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against the sentences is refused.

128. [128]
     FLANAGAN JA:  I agree with the Chief Justice.
129. [129]
     BURNS J:  I also agree.