Green v Muckan
[2004] QDC 572
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- Green v Muckan[2004] QDC 572
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Green v Muckan[2004] QDC 572
Green v Muckan[2004] QDC 572
[2004] QDC 572
DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE ROBIN QC
Indictment No BD1561 of 2004
JAMES VICTOR MILLS GREENAppellant
and
MICHAEL JOHN MUCKAN (A.K.A SMALLWOOD)Respondent
BRISBANE
DATE 15/11/2004
ORDER
CATCHWORDS: | Appeal from magistrate to District Court - inadequacy of sentence - respondent using a false name obtained $7,000 grant to purchase a residential property under First Home Buyer Act 2000 - respondent contended that others put him up to it, and that he obtained no benefit - magistrate told whether compensation could be ordered was a "grey area", as the Act did not provide for it - appeal allowed to extent of ordering compensation under s 35 of Penalties and Sentences Act. |
HIS HONOUR: This is an appeal by the complainant asserting the inadequacy of a sentence imposed by a magistrate in Brisbane on the 31st of March this year. The complaint centres on the magistrate's declining to order pursuant to section 35 of the Penalties and Sentences Act that the respondent, Mr Muckan, pay compensation to the relevant State authority in the amount of $7,000 which was made available from public funds pursuant to the First Home Owner Grant Act 2000.
The Act contains in sections 47 and 48 provisions that enable the Commissioner to recover moneys paid as a grant in the circumstances indicated there, which I think would have covered the present ones. However, the matter comes to the Court. As I read the magistrate's reasons, what motivated him chiefly in declining to order compensation under section 35 of the Penalties and Sentences Act was that he regarded the area as a "grey" one. The complainant's representative seems to have given the magistrate the impression that there was more uncertainty about the situation than truly exists - flowing from the absence in the First Home Owner Grant Act of authority in the court to order repayment.
The other circumstance that motivated the magistrate was concern that the respondent's circumstances (which included his being an aboriginal man and doing work in the aboriginal community) might have found the compensation order crushing.
No complaint was made by Mr Rafter on the hearing of the appeal regarding the orders that the magistrate did make against Mr Muckan. The magistrate acted without recording a conviction in deference to Mr Muckan's previous good record and the circumstances; a $1,000 fine that was imposed, plus an order for $120 court filing fees and an order for professional costs of $1,000. Fifteen days' default imprisonment was attached to the fine.
The three offences punished by the fine imposed on Mr Muckan were:
- (A)Giving to the Commissioner of State Revenue a document containing information which he knew was false or misleading in a material particular contrary to section 42 of the First Home Owner Grant Act;
- (B)Failing to give written notice of non-compliance with the residence requirement, and to repay the amount of the grant contrary to section 22 of that Act, and;
- (C)Failing to attend before an authorised officer to answer questions and produce documents relevant to the investigation contrary to section 32 of the Act.
The false information which Mr Muckan supplied related to the surname which was used in the dealings. He adopted the name Smallwood. It is accepted that Mr Muckan would have been entitled to receive the $7,000 grant which was probably paid over to the lender financing acquisition of a residential property. In the circumstances the vice of use of the surname, Smallwood, without the further information being given that the name Muckan was the name by which the respondent was known, is that the way would be left clear for the respondent to obtain a further grant in his true name. The whole transaction has curious features. One need not be of a suspicious cast of mind to think that.
The contract price in respect of the subject property, which Mr Muckan has told me was "not fit for a dog to live in", was $160,000. It came between an earlier sale of the property and a subsequent sale by the mortgagee, both of which were $45,000 or less. The vendor's agent named in the Contract of Sale is Limestone Hill Pty Ltd trading as Walkers Real Estate. The Court is not in a position to say whether that agent benefited by receipt of commission. Also involved in the transaction was supposedly a solicitor of the name of Craig LeonardStevenson who appears to be the witnessing officer in the relevant transfer, Form 1 version 3.
...
HIS HONOUR: It would be just to clarify that the firm of Baker Johnson Lawyers whose name was mentioned a number of times before the magistrate played the part of lodging solicitors, which I take to mean that, perhaps as town agents, they dealt with the Land Titles Office in relevant ways. One of the documents before the magistrate at tab 6 in the book of documents indicates disbursement of credit facilities of $128,000 by Homeside Lending, only $950.78 of which went to Baker Johnson. C Stevenson, on the other hand, received $35,000, and T Reiken, the vendor in the contract, $47,749.22. That document, of course, may not tell the whole story; it is concerning to the Court, and no doubt would be to the community and the authorities that professional people might be involved in calculated fraud against the First Home Owner Grant Act.
It is obscure whether Mr Muckan received any benefit at all. He didn't reside in the property; he explains that on the basis that he suffered a broken leg, a misfortune, no doubt, but as the magistrate said, hardly an impressive justification for failure to move into the premises. It may be that the state of them as described by Mr Muckan has more to do with it. It may well be that he didn't receive any benefit from the rent which the tenant paid. The Court doesn't really know. It is certainly not shown that he did.
The failure of a person who participates (for example, by providing a false identity) in the obtaining of government benefits inappropriately to profit personally is not a reason for that person's escaping condign punishment - as a decision of the Court of Appeal which received some publicity last week indicates; that is, R v. Smith [2004] QCA 417. In my opinion, it is sound sentencing policy that a person who deliberately lends aid to fraudulent depredations against public resources may be ordered to make good the loss that is incurred by the public purse. That Mr Muckan did. I don't say that there can never be special circumstances. I can detect none here.
Therefore, the appeal should be allowed and the magistrate's order varied by the addition of an order under section 35 of the Penalties and Sentences Act that compensation be paid to the proper officer of the Magistrates Court, I suppose that is right for transmission to the Commissioner of State Revenue.
...
HIS HONOUR: I will allow four years to pay. It may prove to be an empty order, as the magistrate's understanding of Mr Muckan's financial circumstances may well have been accurate. Also, given that the authorities - and I agree with them in this - aren't pressing for the recording of a conviction in the circumstances, unlike the fine the compensation order is not backed up by default of imprisonment. On the other hand, it clarifies the matter, and I would think the authorities would have not the slightest difficulty in converting the compensation order into an enforceable civil judgment. You can seek extensions of time to pay that compensation, Mr Muckan. You don't have to see a judge, you can see an administrative person in the Court and it will be the Magistrates Court, won't it?
MR RAFTER: I would think so. He wouldn't have to come here. I was wondering whether there was any need to specify a time at all. Although the Court can specify that under section 36 it is not obligatory. He can take it up with the Office of State Revenue.
HIS HONOUR: Would you prefer a time wasn't specified?
MR RAFTER: Well, that would be our preference, simply delete that. He can take it up with us. The Office of State Revenue is willing to hear proposals for costs.
HIS HONOUR: Were you after costs?
MR RAFTER: I see this as something in the public interest in a way to establish a precedent, so I am not inclined to add to Mr Muckan's weights by requiring him to pay costs. The Office of State Revenue has listened to your Honour say that and we don't press costs.
HIS HONOUR: If there is an application in this case, I don't think I will order costs - which doesn't mean if there is no appeal similar to this I might not.
MR RAFTER: I understand that. There was a point of clarification of the grey area that the magistrate referred to, so that is why the case was brought. We don't press for costs, your Honour.
HIS HONOUR: It certainly looks as though Mr Muckan probably wasn't the major beneficiary of all of this.
MR RAFTER: That seems a distinct possibility, your Honour.
HIS HONOUR: Thanks, Mr Rafter.
MR MUCKAN: What am I paying?
HIS HONOUR: Well, you have got a $7,000 bill.
MR MUCKAN: What about the previous charges, the fines I had?
HIS HONOUR: Well, that remains.
MR MUCKAN: Okay.
HIS HONOUR: But you are going to get locked up if you don't pay the fine. That's nothing to do with this Court. You would want to take that particular seriously; not to say you shouldn't take the $7,000 particularly seriously. I don't know whether you can do anything about getting the people who really enriched themselves to put in for it.
MR MUCKAN: Well, to my understanding, sir, Mr Craig Stevenson has been under investigation from the law firm and they want to kick him out. He should be kicked out for doing dodgy deals, for setting people like me up. I never got any money out of this whatsoever. He is the one who should be paying it back, not me.
HIS HONOUR: I am inclined to agree with you, but I haven't got him in front of me, Mr Muckan.