Kelly v Quinn

[1996] QCA 536

[1996] QCA 536

COURT OF APPEAL

FITZGERALD P McPHERSON JA MOYNIHAN J

CA No 456 of 1996
M A KELLY
v.

JOHN ARNOLD QUINN Applicant

BRISBANE
..DATE 03/12/96
031296 T8/JAP/6 M/T COA 300/96
McPHERSON JA: The applicant applies for leave to appeal against
sentences imposed in the Magistrates Court at Gladstone for
seven charges of false pretences to which he pleaded guilty and
also one charge of breach of bail.

The seven false pretences offences were committed between 28 July 1995 and 20 September 1995 in the Kingaroy area, and the offence of breaching bail was committed or, at any rate, the conviction was recorded on about 14 March 1996. That particular offence, that is the breach of bail, attracted a sentence of imprisonment for one month, which was cumulative upon the other sentences imposed.

The effective sentence on the other seven false pretence charges was a term of imprisonment for nine months, suspended after four months for an operative period of two years. Compensation orders were made with the addition of further terms of imprisonment in default of payment. All the sentences apart from the sentence in respect of the breach of bail were to be concurrent.

All the false pretence offences were committed in Kingaroy and involved passing valueless cheques to various suppliers of goods. The amounts in question varied from about $49.00 at the lowest end to some $990.00 in the case of a chain saw that was obtained by this method.

The applicant is a married man, aged 38 years and he has a not inconsiderable record of convictions for or in respect of offences of a somewhat similar kind. He was convicted in 1988 031296 T8/JAP/6 M/T COA 300/96

of the offence of obtaining of benefit by deception and sentenced to community service for a period of some two hundred hours. That was in the Magistrates Court at Young.

In Bathurst in 1993 he was convicted of passing three valueless cheques.

When one looks at those matters it is a little difficult to see how the sentence imposed in this case of nine months, suspended after four, can be regarded as excessive. It can with some force be argued that the addition of the default penalties, which may result in a further period of imprisonment, is capable of placing the overall sentence at a level which might be thought to be excessive; but it is possible for application to be made for extension of the time within which payment of the compensation is to be made in order to enable the applicant to comply with the requirements of the compensation order without going back to prison.

An affidavit was put before us containing further instructions of the applicant. It demonstrates that on the occasion when he was convicted in Bathurst in 1993 he had overdrawn an account, and the bank had not honoured the cheques which he had drawn, although at the time he thought he was in a position to draw on the account.

That appears to be an argument that goes to his plea of guilty on that occasion and, indeed, he says that he pleaded guilty to the offence on legal advice. So far as concerns the 1988 offences and convictions in the Young Local Court, he paid 031296 T8/JAP/6 M/T COA 300/96

restitution of amounts of $7,248 and $4,183 respectively.

It does appear, therefore, that he was a person who, when put to the task, has in the past succeeded in paying restitution ordered. Viewed in that way it does not seem that, taken with the prospect of an extension of time within which to pay the compensation ordered, he is likely to be involved in serving a longer term than would be appropriate for the offences he has committed and been sentenced for in this case.

When, after saying all that, one reverts to the circumstance that he committed seven false pretence offences within a comparatively short period of about two months or more in Kingaroy, and that he was given an effective sentence of only four months, it seems to me that he is not in a position to complain that he has been dealt with harshly. I would therefore refuse the application for leave to appeal.

THE PRESIDENT: Yes, I agree.

MOYNIHAN J: I agree.

THE PRESIDENT: The order of the Court is application refused.

-----