SUPREME COURT OF QUEENSLAND CITATION: R v Bingham [2004] QCA 166 PARTIES: R v BINGHAM, Rhett Adrian (applicant/appellant) FILE NO/S: CA No 76 of 2004 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED EX TEMPORE ON: DELIVERED AT: Court of Appeal Appeal against Sentence District Court at Ipswich 18 May 2004 Brisbane HEARING DATE: 18 May 2004 JUDGES: ORDERS: CATCHWORDS: Williams and Jerrard JJA, Atkinson J Separate reasons for judgment of each member of the court; Jerrard JA and Atkinson J concurring as to the orders made, Williams JA dissenting. 1. Leave to appeal granted 2. Appeal allowed only to the extent of suspending the 18 months sentence after serving 6 months with an operational period of 3 years CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS where applicant convicted on a plea of guilty to one count of fraud and one count of attempted fraud whether sufficient weight given to ameliorating and mitigating factors no dishonest receipt of credit card, partner s ill health, applicant s heroin addiction and rehabilitation, applicant s remorse Bindon v Meyer [1995] QCA 540, CA No 288 of 1995, 5 October 1995, considered R v Ford [1996] QCA 358, CA No 287 of 1996, 10 September 1996, considered R v Murdoch, ex parte A-G (Qld) [1998] QCA 81, CA No 387 of 1997, 6 March 1998, considered R v Riesenweber, ex parte A-G (Qld) [1996] QCA 504, CA
COUNSEL: SOLICITORS: No 430 of 1996, 15 November 1996, considered S M Ryan for the Applicant/Appellant P F Rutledge for the Respondent Legal Aid Queensland for the Applicant/Appellant Director of Public Prosecutions (Queensland) for the respondent WILLIAMS JA: I'll ask Justice Atkinson to deliver the first judgment. ATKINSON J: The applicant, Rhett Adrian Bingham, was convicted on his own plea of guilty on 5 March 2004 on one count of fraud and one count of attempted fraud. He was sentenced to 18 months imprisonment to be suspended after he had served 9 months with an operative period of four years. He seeks leave to appeal against that sentence on the grounds that it is manifestly excessive. The circumstances of the offences were that in September 2002 a Westpac Banking Corporation Gold Mastercard with a credit limit of $10,000 and the pin required to operate it, were mistakenly sent to the applicant's address, 11 Limestone Street Ipswich, rather than the address given by the bank's customer, 111 Limestone Street Ipswich. After holding on to it for a week, the applicant succumbed to temptation and from 12 September to 4 October 2002 he used the card to make 20 withdrawals of $500 each from automatic teller machines. On 9 October 2002 the applicant attempted another withdrawal but the card had been reported missing and the machine retained the card. 2
The applicant was born on 10 July 1962 and was 40 when the offences were committed and 41 at the time of sentence. He had a long standing heroin addiction and had been on the methadone programme at the date of sentence for some 10 years. He had been a patient of the psychiatrist, Dr Freed, since 13 March 1989. During that period he and his partner had two children. She developed health problems in August 2001 which required a hysterectomy followed by six week's chemotherapy. The applicant told Dr Freed that his thinking was not clear when he received the Mastercard in the mail and he was very concerned about his partner's health problems. Dr Freed said that the applicant was a person who reacted strongly to irritations and upsetting events. By the time he came to be sentenced, the applicant had become a patient at the Ipswich Clinic of the Alcohol, Tobacco and Other Drugs Service. He had attended his appointments as requested by the clinic and decreased his dose of methadone over the previous few weeks without problem. The majority of the moneys he obtained from use of the Mastercard were used to fund his addiction to heroin and part of it was to assist his partner who went on a trip. The applicant's criminal history dated back to 1981 when he was aged 19. He had a number of relatively minor traffic and drug convictions in 1981 and 1982. In 1984 and 1986 he was 3
convicted of break and entering offences and for the latter of those he was sentenced to four months imprisonment. In 1989 he was again convicted of offences relating to house breaking and dangerous drugs and was again sentenced to periods of imprisonment. In 1991 he was convicted of drug offences, including the more serious offence of supply, and was convicted and sentenced to 12 months imprisonment. In 1996 he was convicted of wilful damage, break and enter as well as a serious assault on a police officer. On that occasion his periods of imprisonment were wholly suspended. He had not offended after that date apart from minor street offences which occurred on 30 June and 22 August 2002. The learned sentencing Judge quite properly took into account the circumstances in which he received the card because of the bank's mistake, the amount of money which was taken by him using the card, his plea of guilty, that there was no prospect of restitution, that he was using heroin at the time, the way in which the money was spent, that he struggled with drug addiction during his life, his partner's health problems and his considerable criminal history. The learned sentencing Judge was not referred to any comparable cases but those to which this Court has been referred tend to suggest that the head sentence was within range. 4
In Bindon v Meyer, unreported Court of Appeal No. 288 of 1995, 5 October 1995, a sentence of 12 months imprisonment suspended after three months was not interfered with. In that case the offender had committed 41 offences of false pretences and one of receiving. He received a stolen Mastercard and used it to obtain various sorts of goods, gaining a sum of about $1,600 from it. He was not apprehended until nine years later. He had a number of offences of dishonesty, drug offences and driving offences. An order for restitution was also made. The Court of Appeal observed that the penalty imposed was not very heavy. He too had difficulty with alcohol and drugs and had been a heroin addict. In R v Ford, Court of Appeal No. 287 of 1996, 10 September 1996, a sentence of imprisonment for two years imposed on a guilty plea in relation to 19 charges of false pretences was upheld. Those offences took place over an eight month period by a man of 33 who had a considerably higher criminal history. He received goods to the value of $5,300 and none of the money was recovered. No recommendation for parole was made. In R v Riesenweber, ex parte Attorney General of Queensland, Court of Appeal No. 430 of 1996, 15 November 1996, the appellant had pleaded guilty to misappropriation of $40,000 as an employee. She was sentenced to three years imprisonment wholly suspended for a period of four years. That sentence was upheld on appeal. She was a dentist's receptionist and her dishonesty continued over many years. She started to take 5
the money when her husband lost his job and the money had been wholly repaid by means of raising a loan on her family home. A week before the trial she was injured by severely breaking her right ankle. It was this disability which persuaded the sentencing Judge to wholly suspend the sentence rather than requiring her to serve a period of six months of it. She was a 43 year old mother of three who was genuinely remorseful. This offence was committed, initially at least, out of need. The Court considered that she had been fortunate in being given a wholly suspended sentence but as it was an Attorney General's appeal, it was not satisfied that it was an improper exercise of the sentencing discretion. In R v Murdoch, ex parte Attorney General, Court of Appeal No. 387 of 1997, 6 March 1998, the offender pleaded guilty to 92 offences of dishonesty, including obtaining and using other people's credit cards and stolen cheques. She offended persistently whilst on bail and obtained $16,500 of property. She was 35 years old with a substantial criminal history, including many convictions for offences of dishonesty. She had served 197 days in presentence custody and was sentenced to a further 12 months imprisonment to be served by way of intensive corrections order for the forging and uttering offences and three years imprisonment wholly suspended for an operational period of three years for the other offences. That sentence was upheld on an Attorney's appeal. 6
The principal factors which induced the sentencing Judge not to impose a sentence requiring a term to be spent actually in prison included her heroin addiction, the circumstances in which she became addicted to heroin, the relationship of that addiction to the commission of the offences, her fight against the addiction and her prospects of success in overcoming it. In addition, she had spent a considerable presentence period in custody. She committed offences in 1985 to 1988 and had subsequently attended rehabilitation and obtained employment and was drug free until she suffered further personal tragedies. The prospect of further relapse was said to be negligible. She had served the equivalent, the sentencing Judge said, of an 11 or 12 month sentence at the time she came to be sentenced. It is apparent from the review of these authorities that a term of imprisonment is well within range for offences of this type committed by a person with the appellant's criminal history and that the head sentence imposed was within range. However, an order suspending the sentence after half of it had been served failed, in my view, to give effect to the many ameliorating and mitigating factors of this case: such as the circumstances in which the credit card and pin number came to him there was no dishonesty involved in his receipt of it; the effect on him of his partner's serious ill health; the appellant's continuing efforts to overcome his heroin addiction and to reduce his reliance on methadone; and his plea of guilty and apparent remorse. 7
To suspend the sentence after only half of it had been served is, in my view, manifestly excessive. It is therefore appropriate to allow the application for leave to appeal against sentence and to allow the appeal only to the extent of varying the order that his sentence be suspended after he has served nine months with an operational period of four years and instead order that his sentence of imprisonment be suspended after he has served six months with an operational period of three years. WILLIAMS JA: I'll ask Justice Jerrard to deliver the next judgment. JERRARD JA: I agree with Justice Atkinson that the head sentence of 18 months imprisonment is well within the appropriate range in this matter when compared to the sentences approved by this Court and referred to by her Honour. I also agree that there was an inadequate allowance for the many matters in mitigation of penalty in this matter and that the sentence originally imposed resulted in a manifestly excessive one. Accordingly, I agree with the order that her Honour proposes. WILLIAMS JA: The essential facts relevant to this application have been set out in the reasons for judgment of Justice Atkinson. 8
The degree of criminality attaching to the applicant's conduct is to be measured by his use of the credit card and the amount of money dishonestly obtained. The evidence establishes that the card was used on 20 occasions between 12 September and 4 October 2002 to obtain a total of $10,000. The applicant is not in a position to make restitution of any of that sum. Given his criminal history, the offences are, in my view, serious. In those circumstances an 18 month head sentence is moderate and to an extent reflects mitigating factors. Suspending the sentence after nine months, in my view, gives significant recognition to all relevant mitigating factors. I am not persuaded that the sentence in fact imposed was manifestly excessive and I would dismiss the application. The order of the Court will therefore be, grant leave to appeal, allow the appeal and vary the sentence to the extent of suspending the sentence of 18 months imprisonment after six months with an operational period of three years. ----- 9