Commissioner of Police v James [2013] QDC 54

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police v James [2013] QDC 54 PARTIES: COMMISSIONER OF POLICE (appellant) And ANTHONY WILLLIAM JAMES (respondent) FILE NO/S: 3095/12 DIVISION: Appellate PROCEEDING: Section 222 Appeal ORIGINATING COURT: Magistrates Court of Beenleigh DELIVERED ON: 22 March 2013 DELIVERED AT: Brisbane HEARING DATE: 11 March 2013 JUDGE: Reid DCJ ORDER: Appeal allowed. Plea of guilty set aside and the appellant discharged for all 15 offences of forgery under s 488(1)(a) of the Code and 15 offences of uttering registration documents under s 488(1)(b) of the Code. Sentence varied to term of two years imprisonment, to be wholly suspended with an operational period of three years for each of 59 charges of making a false statement under s 50 of the Criminal Code. CATCHWORDS: Forgery and uttering; s 488(1) – intent to defraud – no evidence of deception – setting aside guilty plea – false statement; s 501 – relevance of financial gain – inadequacy of sentence – relevance of past sentencing factors CASES REFERRED TO Peters v The Queen [1998] 192 CLR 493 Meissner v R [1995] 184 CLR 132 R v Law; Ex Parte Attorney General (1996) 2 Qd R 63 R v Ehrmann [2001] QCA 50 R v Black and Sutton [2004] QCA 369 COUNSEL: S Bain for the appellant J McNab for the respondent -- 1 of 13 -- 2 SOLICITORS: Office of Director of Public Prosecutions for the appellant Cobb Law Pty Ltd for the respondent Introduction [1] This is an appeal by the Commissioner of Police from a sentence of one year, wholly suspended, with an operational period of two years imposed by the Magistrates Court, Beenleigh on 9 July 2012. The respondent, who was the director of a funeral home business in southern Brisbane suburbs had pleaded guilty to 59 charges of making a false statement concerning a register of births deaths or marriages under s 501 of the Criminal Code, which carry a maximum sentence of three years imprisonment and, to 15 offences of forgery under s 488(1)(a) of the Code and 15 of uttering registration documents under s 488(1)(b) of the Code. The maximum penalties under these latter two sections were 3 years and 14 years imprisonment respectively. It is not apparent why the circumstances of aggravation, namely the fact that the uttering was of “registration documents”, did not apply also to the forgery. [2] It is also unclear from the sentence, but appears to be accepted, that the sentence imposed was in respect of each of the 89 offences, and that all sentences were to be served concurrently. S. 488(1) offences [3] During the hearing there was significant discussion about the fact that the maximum penalty was 14 years imprisonment for 15 of the offences. The police prosecution submitted that this indicated the attitude of parliament to the seriousness of offences -- 2 of 13 -- 3 involving falsification of public records. Whilst the significant maximum sentence is of some relevance, I have difficulty with the notion that such considerations were of critical importance in the sentence, because it seems to me that the falsification of the public records was not the matter of primary concern. The Magistrate found, with justification, that the forgery and uttering offences involved “were mistakes…and there was no advantage to you, so probably once again, along the lines of stupidity”. On the basis of submissions below I think she was entirely justified in coming to that conclusion. It does not seem that the forging and uttering offences were a necessary part of the respondent‟s concerning conduct about the place at which cremations took place to which I shall shortly refer. [4] Counsel for the respondent in the proceedings below submitted to the learned Magistrate that the forging and uttering arose merely because of difficulties in understanding hand writing in the appropriate forms. Rather than have the documents re-executed, the appellant forged signatures and then re-lodged the documents, in order to save time and the inconvenience of having them executed once again. [5] In the appellant‟s written outline of submissions in respect of these 30 charges, it is said that, “…[A]ll forgery and uttering offences had an element of an „intent to defraud‟. Whatever the precise definition of „intent to defraud‟ may be, an essential aspect is the use of at least deceit if not actual dishonesty – the brief historical analysis of the term in Peters v The Queen [1998] 192 CLR 493 in the joint judgment of Toohey and Gaudron JJ at [20] – [22] is instructive in this regard. That is, one cannot intend to defraud without a conscious decision to cause some form of detriment to another.” -- 3 of 13 -- 4 [6] The explanation given for committing the forging and uttering offences appears to have been accepted by the police prosecutor below. That explanation did not of itself indicate that there was any form of detriment. How then can it be said that the forgery and uttering were “with intent to defraud”. Counsel for the Crown submitted that consistent with Meissner v R [1995] 184 CLR 132 at 157 the entry of the plea of guilty is prima facie acceptance of all constituent elements of the offence. That is true, but the difficulty here is that even on the Crown case it is not clear what the “intent to defraud” could be. [7] Courts have been somewhat reluctant to define terms such as “to defraud” or “deceit”. In Peters v The Queen (supra) Toohey and Gaudron JJ, in a joint judgment, attributed this reluctance to “human ingenuity in advising dishonest schemes”. Their Honours then indicated that to defraud means to bring about a result by dishonest means and does not necessarily involve deception. They did indicate however that it involves an element of dishonesty over and above the use of dishonest means. In the circumstances of this case it is difficult to discern what the “intent to defraud” was. Whilst, generally a party should be kept to their plea for the reasons discussed in Meissner v R (supra) I think the decision of crown itself to point to any bases for the element of fraud inherent in a charge under s. 488m (1) of the code means that the plea to those 15 forgery charges and 15 charges of uttering registration documents ought to be set aside. The respondent should be discharged in respect of each of those 30 matters. That leaves for consideration, the question of the 59 charges of making a false statement under s 50 of the Code. -- 4 of 13 -- 5 Facts of offending [8] The respondent entered into written agreements declared as “family agreements” relating to each of the 59 separate cremations. The agreements provided for cremation locally in south east Queensland, usually at either Mt Gravatt or Logan Crematoriums. Documentation, which forms the basis for the charge of making a false statement, was completed by the defendant and submitted to the authorities to show that had in fact occurred. [9] In reality, over an 18 month period from December 2009 to May 2011, the respondent would place four coffins in a motor vehicle and transport them to Rockhampton where cremation took place much more cheaply – at a cost of about $250. There was some confusion below about the profit that the respondent gained from those actions. It was submitted by the police prosecutor that the gain to the respondent in performing the cremations in Rockhampton was some $30,426. Counsel for the respondent objected to such statements, but did so on the basis that the gain was not relevant. He did not object to the actual quantification itself. In the end, the matter was not clearly resolved before the learned Magistrate. I shall return to that issue. [10] As a result of a person becoming aware of the defendants conduct, complaints were made. An audit of his business was undertaken by the appropriate government department. As a consequence the extent of his conduct was ascertained. It was accepted for the purpose of sentence, that he‟d been cooperative with police, even to the extent that he had demonstrated to police how four coffins could be loaded into -- 5 of 13 -- 6 his car, and he entered an early guilty plea. It was further accepted that he had suffered from significant exposure in the media and consequent embarrassment. Approach of Magistrate [11] In her sentence the learned Magistrate indicated that she took into account the defendant‟s early plea, his good personal references and the fact he had no prior criminal history. She also said that because the offence was not prevalent, there was no “necessity for a general deterrence”. [12] She said; “I do not think I could really put into words how terrible (the appellant‟s conduct) would be for a family member or a loved one, and you being a funeral director you certainly should have realised that”. I have no doubt that she was correct in so concluding. Curiously however, the learned Magistrate then said; 1. That she did not “fully accept” the submission that the respondent had gained over $30,000 through his deceitfulness; 2. That the offences were actually offences of making false statements and forgery and uttering. She said that whilst the respondent did gain some money “as a result of charging more than it cost you” that was “a general business decision”. 3. That the “concern is what you put on those documents and that‟s what you‟ve been charged with”. She later said “the actual offence is falsifying -- 6 of 13 -- 7 the place of crematorium (sic) and that‟s how I intend to treat it. There‟s no consequence as I said of putting in an incorrect crematorium.” 4. That “it amounts to a stupid mistake” and “you‟re not charged with fraud”. She did say however that she took into account the affect on the victims and that warranted a head sentence of imprisonment, albeit at one wholly suspended. The Appeal [13] The appellant submits that the sentence is manifestly inadequate and points out what are submitted to be a number of errors in the learned Magistrate‟s reasons. The respondents counsel‟s submissions were that he did not disagree with the appellant‟s counsel‟s factual summary of the matter but submitted that there was no error in the learned Magistrate‟s reasons or in her sentence. [14] In particular, in his written outline, the respondent‟s counsel submits: “8.1 It is not in contention that the Respondent gained money as a result of charging more for the coffins and cremations. As the learned Magistrate correctly stated it was a general business decision. It was a commercial business practise. 8.2 The money gained, in short does not have any bearing on the charges in question as such. 8.3 In fact, the prosecution conceded as much in his submissions after objection was made by the Respondent‟s Counsel. 8.4 In any event, there was nothing placed before the Court as to “wholesale” or “trade” cost or price and sale price of the services. It was only submitted during preliminary argument by the Respondent‟s Counsel that the wholesale price of a coffin was $60 but charged $300. In short there was nothing before the Court as to any profit. 8.5 There was nothing placed before the Court as to the issue of motivation for the conduct. 8.6 Once again there is nothing to suggest or infer that the respondent gained $30,000 profit through deceitfulness.” -- 7 of 13 -- 8 [15] In my view, those submissions are not accurate. I do not accept that the statement in 8.3 is correct. In support of that contention the respondent‟s counsel referred to page 9 line 51 of the transcript of the sentencing hearing. Perusal of the transcript show‟s that all the prosecutor there did was to indicate that he was not seeking restitution. It is clear from his overall submissions however, that he was saying that the money gained, namely $30426, did have a significant bearing on the charges in question and was the motivation for the respondent‟s conduct. That issue appeared to be the major contest on the hearing. Counsel then appearing for the respondent submitted that financial gain to the respondent was not relevant, a view adopted by the Magistrate. [16] I do not accept that that is so. I have read the submissions made to the Court. It was not disputed that the gain to the respondent was over $30,000 from having the bodies cremated in Rockhampton rather than in Logan or Mt Gravatt as he had agreed to do so. The fact that the appellant did not seek restitution, is in my view not relevant to the question whether “the money does not have any bearing on the charges”. In my view it is entirely inappropriate to compare the respondents conduct with the fact that he had charged $300 for a coffin which he‟d himself acquired at a cost of $60. That involved no representation to his clients about the cost to him of the coffin. By contrast, the gain to the respondent in respect of the matter before the Court arose specifically because he failed to honour the agreement that he had reached about the place of cremation. In my view it was quite wrong of the Magistrate to compare the respondent‟s conduct with a “general business decision.” [17] Although it is obviously true that the respondent was charged with offences of falsifying documents, it is in my view clear that the Magistrate was entitled, to and -- 8 of 13 -- 9 should, have had regard to the motivation behind the respondent‟s conduct. It was unrealistic and in my view clearly wrong to have categorised the matter as falsification of documents following a “general business decision”. [18] In my view, the learned Magistrate was in significant error with respect to each of the matters referred to in sub paragraphs numbered 1, 2, and 4 of [12] above. [19] The learned Magistrate‟s approach ignored the gravamen of the defendant‟s conduct. It was designed to secure for himself a financial advantage. The completion of the documents the subject of the charge was a central part of that conduct. It enabled him to continue the practice and to avoid detection. It was quite wrong to equate it with a general business decision. It was a decision which involved the deceit of family members with whom he had contracted, for his personal gain and as the learned Magistrate recognised, was likely to cause great emotional pain to his victims. [20] Because of the uncertainty of the position in respect of the financial gain to the respondent from his conduct I gave the parties leave to call further evidence in respect of that matter. I did so because when the prosecution in the Magistrates Court had sought to introduce the evidence of that gain, the learned Magistrate had resisted his doing so because of her erroneous view, induced by the respondent‟s counsel‟s submission, that financial gain was not relevant to the charge. The respondent‟s counsel had not challenged the question as opposed to the relevance of the gain and in response to the appellant‟s written submission, in which it was said, that “the difference between the quoted cost and that actually incurred across the 59 -- 9 of 13 -- 10 transactions resulted in a gain of $30,426”, the respondent‟s submission indicated he adopted such submission. [21] Ultimately, rather than call evidence, the parties indicated to me that it was agreed that the sum of $30,426 was the difference between the cost of carrying out the cremations at the place that had been agreed, and the cost of carrying them out in Rockhampton. No doubt there would have been some cost involved in transporting the bodies to Rockhampton, a distance of a little over 600 kilometres. The respondent‟s counsel submitted to me that the profit was minimal, because of the need for two people to carry out the journey. It‟s not clear to me why that would have been necessary. It seems to me that a journey of no more then about seven hours would have been required and that that was certainly within the capacity of one driver. I am, in the circumstances, unable to form a precise concluded view about the ultimate financial benefit to the plaintiff. It seems to me that from the gross profit of $30,426, the remaining profit would have been significant and was certainly sufficient to have induced him to engage in the conduct in the deceitful way that he did. Conclusion [22] In the circumstances I find that the learned Magistrate was in error in approaching the sentence in the way that she did. I am, in that circumstance required to consider the appropriate sentence afresh. [23] The respondent was in a position where family members, having contracted with him, reposed their trust in him to perform the cremations as he had agreed. The making of the false statements was part of his deception which was motivated by a -- 10 of 13 -- 11 desire for personal financial gain. R v Ehrmann [2001] QCA 50 and R v Black and Sutton [2004] QCA 369 were said by the parties to be somewhat relevant to sentence but agreed that there was no sentence directly comparable. So too sentences for stealing as a servant might be said to have some relevance because of the breach of trust involved in such cases. [24] In my view the learned Magistrate‟s sentence was inadequate. No doubt this inadequacy was because of what I believe were her fundamental errors in determining that the issue of financial gain, which was the motivation for the respondents conduct, was largely irrelevant to the sentencing process. [25] In my view the learned Magistrate ought to have imposed a sentence of two years imprisonment and the respondent ought to have been required to serve six months actual imprisonment. [26] The respondent has however been subject to the suspended sentence since the 9th July 2012, a period of about 8 months and so has served a 1/3rd of his sentence. That is a clearly relevant mitigating feature (see R v Law ex parte Attorney-General (1996) 2 Qd R 63). It is also important, in my view, that in November 2012, after the sentence had been imposed, the respondent entered into an undertaking with the Commissioner for Fair Trading pursuant to s 218 of the Australian Consumer Law (Queensland). A copy of that undertaking was tendered on the appeal. Pursuant to that undertaking, the respondent and his company, Elysian Field Funerals Pty Ltd undertook: 1. They would not represent that cremations are conducted at any locations other than the true and correct locations where cremations were conducted; -- 11 of 13 -- 12 2. They would not represent anything to another person that was not, in fact, correct; 3. Within one month of the undertaking, they would at their own expense: (i) Assign an individual to attend to all day to day administrative duties, including the checking and lodgement of all business related documents; and (ii) Advise the delegate of the name of the assigned individual; and (iii) Develop a compliant handling procedure for recording, storing and responding to complaints; and (iv) Provide the delegate with an outline of the compliant handling system; 4. Within two months of the undertaking they would at their own expense introduce a compliance program to ensure that all future representations made to consumers are not false or misleading; 5. If requested by the delegate would provide at their own expense copies of any other documents or information in respect of matters relating to the compliance program; 6. Agree to be subjected to compliance checks to be conducted by a representative of the delegate at the delegate‟s discretion. [27] In my view, by entering into that undertaking and significantly altering their business practice in the way the undertaking required, it can be seen that the respondent has done much to ensure that the risk of him offending in the future is obviated. In my view the undertaking and the business consequences for the respondent and his company are a further relevant mitigating feature which must -- 12 of 13 -- 13 now be taken into account in determining what sentence is appropriate, albeit that one of two years suspended after six months might originally have been appropriate. [28] In my view, in the whole of these circumstances, it is now not appropriate to require the respondent to serve any period of actual imprisonment. [29] I would allow the appeal and substitute a sentence of two years imprisonment but order that the term be wholly suspended with an operational period of three years. [30] I will hear argument as to costs. -- 13 of 13 --