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McIntosh v Commissioner of Police[2024] QDC 142

McIntosh v Commissioner of Police[2024] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:

McIntosh v Commissioner of Police [2024] QDC 142

PARTIES:

McINTOSH, Joshua Peter

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

BD1539/24

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders made 4 September 2024. Reasons for decision 10 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2024

JUDGES:

Smith AM DCJA

ORDER:

  1. The appeal is allowed.
  2. The decision of the magistrate is set aside.
  3. On each count a conviction is recorded.
  4. On each count the appellant is sentenced to 8 months imprisonment to be served concurrently with each other.
  5. I order the terms of imprisonment be suspended forthwith for an operational period of 12 months.
  6. Pursuant to section 159A(3B) of the Penalties and Sentences Act 1992 (Qld) I note that the appellant was held in pre-sentence custody for a period of 292 days from 17 November 2023 until 4 September 2024. I take this into account but do not declare this as time already served under the sentence.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – Where the appellant was sentenced to 4 years with a non-parole period of 2 years and 9 months in the New South Wales District Court for fraud offences involving in excess of $300,000 – where during the same period he committed similar offences in Queensland where the total quantum was $36,000 – whether the Magistrate sufficiently took into account the totality principle – whether sufficient reasons were given for the decision

Corrective Services Act 2006 (Qld) ss 206, 209, 211

Justices Act 1886 (Qld) ss 222, 223

Penalties and Sentences Act 1992 (Qld) ss 159A, 160B

AK v The State of Western of Australia [2008] HCA 8; (2008) 232 CLR 438, applied

Allesch v Maunz [2003] HCA 40; (2000) 203 CLR 172, applied

Mill v R [1988] HCA 70; (1988) 166 CLR 59, applied

R v Brutton [2024] QSC 24, cited

R v DAC [2023] QCA 53, applied

R v Fares [2012] QCA 13, considered

R v Ungvari [2010] QCA 134, applied

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied

COUNSEL:

Solicitors for the appellant

Ms K Overell for the respondent

SOLICITORS:

Gnech & Associates for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 4 September 2024, I allowed the appellant’s appeal against sentence and sentenced him to an effective term of eight months imprisonment fully suspended. I took into account 292 days pre-sentence custody he had served but did not declare it.
  2. [2]
    These are the reasons for the decision.

Background

  1. [3]
    The appellant appeals the sentences imposed upon him on 28 May 2024 in the Brisbane Magistrates Court. He pleaded guilty to nine counts of fraud and was sentenced to 12 months imprisonment on each offence. Although the Magistrate said to the contrary, the verdict and judgment records declaration of193 days of presentence custody. It was ordered he be immediately eligible for parole.
  2. [4]
    The appellant submits that the Magistrate erred in failing to suspend the sentence as she failed to apply the totality principle and the principle that the defendant will normally serve one third of head sentence when pleading guilty. An order is sought setting aside the present sentence and substituting a sentence of imprisonment suspended after serving the 193 days in pre-sentence custody.
  3. [5]
    In an amended notice of appeal, it is alleged that the sentence is manifestly excessive and the Magistrate erred in failing to give reasons as to why there should be a sentence of imprisonment.
  4. [6]
    This appeal is by way of rehearing.[1] It is necessary to consider the evidence given below to determine whether the decision the subject of the appeal was the result of some legal, factual or discretionary error.[2]

Proceedings below

Appellant’s antecedents

  1. [7]
    The appellant was born on 25 March 1969. As a result, as at the date of sentence he was 55 years of age.
  2. [8]
    He had criminal histories from Queensland, New South Wales and Victoria.
  3. [9]
    The appellant had numerous convictions for offences of dishonesty in all three states.
  4. [10]
    On 19 September 2016, he pleaded guilty in the Brisbane District Court to three counts of fraud, one count of attempted fraud, one count of unlawful use of a motor vehicle and failing to appear. He received three years imprisonment with a parole release date as at 18 January 2017.
  5. [11]
    The evidence revealed he was released on parole and he then committed further acts of fraud in May, June and July 2017. He was dealt with in the Southport Magistrates Court on 17 August 2017 and received 2 ½ years’ imprisonment concurrent with a parole eligibility date as at 16 April 2018.
  6. [12]
    The evidence reveals he was released on parole on 22 July 2019.
  7. [13]
    Whilst on parole he committed further counts of fraud in Queensland (some of the matters with which I am dealing). The dates of this offending was from 11 August 2019 until 2 December 2019. The total quantum of this fraud was $36,200.
  8. [14]
    His Queensland sentence expired on 18 September 2019.
  9. [15]
    After this he committed some further acts of fraud in Queensland.
  10. [16]
    He then committed a number of acts of dishonestly of obtaining a financial advantage in New South Wales between 20 December 2019 and 16 February 2021. The total quantum of these frauds exceeded $300,000.
  11. [17]
    On 14 December 2022 he received 4 years imprisonment with a non-parole period of 2 years and 9 months imprisonment for the New South Wales frauds. This was to commence from 17 February 2021 when he had been taken into custody.
  12. [18]
    At the end of the non-parole period (in about November 2023) the appellant was extradited to Queensland to face the Queensland charges. By the time he came before the magistrate he had been in pre-sentence custody on Queensland for 193 days i.e. 6 ½ months. But all up he had been in custody for 3 years 3 months and 11 days.    

Facts of the matter   

  1. [19]
    The matter came on for hearing in the Brisbane Magistrates Court on 28 May 2024.  
  2. [20]
    The facts of the case were tendered as Exhibit 1. As to Charge 1, the complainant was Brett Wilton. On 11 August 2019, he saw an advertisement on Gumtree for the sale of a 1971 Chevrolet. He contacted the seller who gave his name as Chris Stone. The complainant agreed to pay a holding deposit of $1,000. The money was paid. The sale did not eventuate. Police conducted bank checks and found that the appellant was the holder of the bank account and had received the $1,000.
  3. [21]
    As to Charge 2, the complainant was Luke Grimer. On 28 August 2019, he located an ad on a Just Cars website (justcars.com.au) advertising a 1971 HG Holden Monaro. The complainant contacted the seller who used the name of the first complainant and paid a holding deposit of $1,000. The complainant heard nothing further. Police conducted a check of the bank details and found the account belonged to the appellant.
  4. [22]
    As to Count 3, the complainant was Christoper Ward-Putty. On 30 August 2019, he located an advertisement on Just Cars for 1971 Holden Monaro. He contacted the seller, the name of the complainant and paid a $1,000 holding deposit. The transaction never eventuated. The bank account was owned by the appellant.
  5. [23]
    As to Charge 4, the complainant was Frank Van De Velde. On 29 October 2019, he located an ad on Just Cars for a ’64 Chevrolet. He paid a $5,000 holding deposit. The transaction never eventuated. The account belonged to the appellant.
  6. [24]
    As to Charge 5, that involved a complainant Demo Farrajata. On 8 October 2019, he located an ad on Just Cars for a 1964 Austin Healey vehicle. He paid a deposit of $5,000. The sale never eventuated. The bank account was held by the appellant.
  7. [25]
    As to Count 6, the complainant was Andrew Maszczak. On 22 October 2019, he located an ad on Gumtree selling a 1968 Pontiac Firebird. The seller used the name Andrew Taylor. He transferred $18,000 to the appellant. The transaction never eventuated.
  8. [26]
    As to Count 7, the complainant was Gemel Dean. On 5 November 2019, he located an ad on Gumtree selling a 1965 red Corvette. The complainant paid a $1,000 deposit. The seller used the name Jason Furner. The transaction never eventuated. The bank account was held by the appellant.
  9. [27]
    As to Count 8, the complainant was Andrew Pulglisey. On 19 November 2019, he located an ad on Just Cars  selling a 1964 Chevrolet. The accused the name Mark Howard. The complainant paid a deposit of $5,000. The transaction never eventuated. The bank account was owned by the appellant.
  10. [28]
    As to Count 9, the complainant was Thomas Lorbutt. On 2 December 2019, he located an ad on Gumtree selling a Porsche 911. The defendant used the name Stephen Forbes. The complainant paid $4,700. The transaction never eventuated. The appellant owned the bank account.
  11. [29]
    The total amount of compensation sought was $36,200.

Prosecution submissions

  1. [30]
    The prosecutor informed the court that there were nine different complainants and the total amount of compensation involved was $36,200. He had extensive similar previous convictions. Some of the offences in the present case were committed in breach of his parole order. The previous convictions on 19 September 2016 involved similar offending luring complainants to make deposits involving six different victims. The total amount involved was $51,201.
  2. [31]
    The prosecutor submitted for a sentence of three years imprisonment to serve one third with a parole eligibility date. Restitution was also sought.

Defence submissions

  1. [32]
    The defence tendered written submissions. It was the defence submission that the appellant be sentenced to 12-18 months fully suspended in  light of the pleas of guilty and the totality principle.    
  2. [33]
    The written submissions for the defendant also attached two character references and a letter of apology. It pointed that the appellant came from a family where his parents divorced when he was five and the children split between the parents. The stepfather was emotionally abusive.
  3. [34]
    The appellant finished year 11 at Clayton Technical School in Melbourne and then an auto technician apprenticeship. He held a bachelor’s degree in business and marketing from the Flinders University in Adelaide. He had a long and consistent work history. It was submitted the offences occurred four years ago. They occurred when he had a drug debt with a bikie group and was threatened. He owed close to $100,000 and was on the run and started the offending to pay back this debt.
  4. [35]
    It was pointed out he had been in custody for three years three months and 11 days. He had already done 193 days in pre-sentence custody in Queensland.
  5. [36]
    The defence referred to Mill v R.[3] The defence relied on R v Fares.[4]
  6. [37]
    It was ultimately submitted for a head sentence of between 9 to 12 months fully suspended for 18 months and an order for restitution.
  7. [38]
    In oral submissions the defence stressed the totality principle and submitted for a wholly suspended sentence. It was submitted this would take into account the totality principle and the amount of time that he had already served in custody for the offences. He was required to return to New South Wales on parole so there would be supervision there. It was pointed out that the amount involved in the New South Wales fraud was $380,000. It was submitted that there was capacity to pay restitution as he had a job opportunity in New South Wales and he had an apartment to return to and he had the support of his son.

Decision

  1. [39]
    It is difficult to work out when the Magistrate’s sentencing remarks commenced. They probably commenced during the defence submissions, but I am not sure.
  2. [40]
    The Magistrate in her decision “I am looking to give him an extra 12 months on today’s date taking into account the 194 days but setting his parole eligibility today.” She decided not to make a restitution order.
  3. [41]
    The VJR does not really reflect this as it states there is 12 months on each count to commence from November 2023 (i.e. the time was declared.)  Also the VJR reflected 193 days in pre-sentence custody not 194 days.

Appellant’s submissions

  1. [42]
    The appellant submits that the sentence was manifestly excessive and the Magistrate failed to state in court her reasons for the sentence. The Magistrate failed to properly impose a term of imprisonment which evidenced a reasonable application of the totality principle.
  2. [43]
    It is submitted that when one applies the totality principle here the head sentence should have been 12 to 18 months imprisonment suspended after the time served.
  3. [44]
    It was also submitted that there was an error in requiring the appellant to serve more than one third in light of the pleas of guilty.

Respondent’s submissions 

  1. [45]
    The respondent on the other hand submits that totality was a live issue during the submissions. It was submitted it was relevant that the appellant was on parole when he committed the offences and had a previous like history. It is submitted that the sentence was appropriately structured. It is submitted that the respondent was not a suitable candidate for a suspended sentence.

Discussion

  1. [46]
    I firstly turn to the issue of the reasons. As I noted above it is difficult to discern when the sentencing reasons commenced. They probably started in the course of defence submissions. I might say this is not desirable as it is difficult to ascertain how matters were taken into account as distinct from comments made during argument. As was said in AK v The State of Western Australia[5] exchanges between a judge and counsel do not form part of the reasons for decision.
  2. [47]
    It is best practice to hear the submissions from each party and then give the decision. The decision may refer briefly to each submission of each party and then state generally or briefly the reasons for the conclusions reached on the disputed issues.[6] 
  3. [48]
    Having said this the Magistrate was not unaware of the principle of totality as it was discussed in the sentencing submissions.
  4. [49]
    I now turn to whether the totality principle was sufficiently and appropriately applied in this case.
  5. [50]
    In Mill v R[7], the majority stated that the totality principle is a recognised principle in the sentencing process. The effect of the totality principle is to require a sentencer who has passed a series of sentences to review the aggregate sentence and consider whether the aggregate is just and appropriate. It must look at the totality of the criminal behaviour and ask itself what the appropriate sentence is for all of the offences.  Sometimes the sentence on the subsequent charges will fail to adequately reflect the seriousness of the crime but that is the preferred approach.[8]   
  6. [51]
    In this particular case, the appellant had already received four years imprisonment with a non-parole period of two years and nine months in New South Wales for similar offending committed during a roughly similar period. The total amount involved in that case was in excess of $300,000.
  7. [52]
    With respect to the Queensland matters, the total amount involved was about $36,000. He may have received more if sentenced at the one time but probably not much more.
  8. [53]
    There is no doubt the appellant had a very unenviable history and could be described as a “fraudster.”
  9. [54]
    Bearing in mind the case of R v Fares,[9] I would have thought that if the appellant had been sentenced to all matters in Queensland at the one time would have received a head sentence of between five and six years imprisonment with an eligibility date of up to two years, bearing in mind the pleas of guilty.
  10. [55]
    One of course cannot ignore the difference in New South Wales sentencing practices, but one cannot ignore the fact the appellant has now spent three years and eight months in actual custody. In Queensland this would be one third of a head sentence of in excess of 10 years.[10]
  11. [56]
    In all of the circumstances, I consider the sentence to be manifestly excessive, bearing in mind the fact an immediate eligibility date did not lead to his immediate release from custody.
  12. [57]
    I consider that the appellant has done more than sufficient time in actual custody.
  13. [58]
    In light of the fact he has spent more time in actual custody than would usually be warranted and in light of the fact there will be continued supervision on the New South Wales parole order, I consider the most appropriate course is to suspend the sentence.
  14. [59]
    I considered that eight months imprisonment taking into account the time served to be the appropriate course here. This equates to a head sentence of about 5 ½ years to serve 3 years and 11 months.
  15. [60]
    I decided to take into account the time served rather than declaring it, because the evidence revealed that if sentenced to any actual imprisonment there was potentially extra time the appellant was liable to serve[11] and of the possibility that only a parole eligibility date could be set if a fully suspended were not imposed.[12]  

Conclusion

  1. [61]
    As a result on 4 September 2024 I decided to make these orders:
  1. The appeal is allowed.
  2. The decision of the magistrate is set aside.
  3. On each count a conviction is recorded.
  4. On each count the appellant is sentenced to 8 months imprisonment to be served concurrently with each other.
  5. I order the terms of imprisonment be suspended forthwith for an operational period of 12 months.
  6. Pursuant to section 159A(3B) of the Penalties and Sentences Act 1992 (Qld) I note that the appellant was held in pre-sentence custody for a period of 292 days from 17 November 2023 until 4 September 2024. I take this into account but do not declare this as time already served under the sentence.   

Footnotes

[1]Section 223 of the Justices Act 1886 (Qld).

[2]Allesch v Maunz [2003] HCA 40; (2000) 203 CLR 172 at [23].

[3][1988] HCA 70; (1988) 166 CLR 59.

[4][2012] QCA 13.

[5][2008] HCA 8; (2008) 232 CLR 438 at [16].

[6]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at p 258.

[7][1988] HCA 70; (1988) 166 CLR 59 at pp 66.

[8][1988] HCA 70; (1988) 166 CLR 59 at pp 67.

[9][2012] QCA 13 at [55]-[58].

[10]Ordinarily the bottom of the sentence would be not more than 1/3rd of the head sentence after a plea of guilty- see R v Ungvari [2010] QCA 134 at [30] and R v DAC [2023] QCA 53 at [32].   

[11]Sections 206, 209 and 211 of the Corrective Services Act 2006 (Qld), although I expressed reservations as to this bearing in mind the decision of R v Brutton [2024] QSC 24.

[12]Section 160B(2) of the Penalties and Sentences Act 1992 (Qld) and Section 209 of the Corrective Services Act 2006 (Qld).

Close

Editorial Notes

  • Published Case Name:

    McIntosh v Commissioner of Police

  • Shortened Case Name:

    McIntosh v Commissioner of Police

  • MNC:

    [2024] QDC 142

  • Court:

    QDC

  • Judge(s):

    Smith AM DCJA

  • Date:

    04 Sep 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AK v The State of Western Australia [2008] HCA 8
2 citations
Jump To
Cite 1 - [2008] HCA 8
Cite 2 - [2008] HCA 8
AK v Western Australia (2008) 232 CLR 438
2 citations
Jump To
Cite 1 - (2008) 232 CLR 438
Cite 2 - (2008) 232 CLR 438
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Dhanhoa v R [2003] HCA 40
2 citations
Jump To
Cite 1 - [2003] HCA 40
Cite 2 - [2003] HCA 40
Mill v R (1988) 166 CLR 59
4 citations
Jump To
Cite 1 - (1988) 166 CLR 59
Cite 2 - (1988) 166 CLR 59
Cite 3 - (1988) 166 CLR 59
Cite 4 - (1988) 166 CLR 59
Mill v The Queen [1988] HCA 70
4 citations
Jump To
Cite 1 - [1988] HCA 70
Cite 2 - [1988] HCA 70
Cite 3 - [1988] HCA 70
Cite 4 - [1988] HCA 70
R v Brutton [2024] QSC 24
2 citations
Jump To
Cite 1 - [2024] QSC 24
Cite 2 - [2024] QSC 24
R v DAC [2023] QCA 53
2 citations
Jump To
Cite 1 - [2023] QCA 53
Cite 2 - [2023] QCA 53
R v Fares [2012] QCA 13
3 citations
Jump To
Cite 1 - [2012] QCA 13
Cite 2 - [2012] QCA 13
Cite 3 - [2012] QCA 13
R v Ungvari [2010] QCA 134
2 citations
Jump To
Cite 1 - [2010] QCA 134
Cite 2 - [2010] QCA 134
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
2 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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