R v Cheers - [1997] QCA 329

COURT OF APPEAL

[1997] QCA 329

MACROSSAN CJ McPHERSON JA de JERSEY J

CA No 214 of 1997
THE QUEEN
v.

LESLIE MATTHEW CHEERS

Applicant

BRISBANE
..DATE 26/08/97
260897 T17/HMH8 M/T COA19/97
de JERSEY J: The applicant is a 54-year-old man who has sought
leave to appeal against an effective sentence for offences of
dishonesty of seven years with parole recommended after two and
a half years. He pleaded guilty to the charges which explains
in part the parole recommendation. The head sentence is partly
referable to his prior criminal history, convictions for other
dishonesty which had led to three years probation and, of
course, to the circumstances of the particular offences.

The charges were spread over two indictments. The first contained a count of misappropriation with a circumstance of aggravation for which he was imprisoned for six years, seven counts of false pretences each of which attracted three years imprisonment, 11 counts of forgery with a circumstance of aggravation for which he imprisoned for seven years, and another seven counts of uttering with a circumstance of aggravation which attracted seven years.

A second indictment presented ex officio charged 31 counts of passing valueless cheques for which he was imprisoned for two years and eight counts of false pretences for which terms of three years were imposed. All of the sentences were to be served concurrently with an overall recommendation for release after two-and-a-half years.

The offences arose in these circumstances. The applicant in August 1992 approached one Wilson with a proposal to build 28 units. Mr Wilson was to provide the finance and the applicant to act as site supervisor. They were to share the profits equally after Mr Wilson recovered his $500,000 outlay for the 260897 T17/HMH8 M/T COA19/97

purchase of the land.

The building commenced in March 1993 and Mr Wilson was the authorised signatory for cheques to pay for services and materials. The applicant provided certified copies of invoices and, acting on that certification, Mr Wilson would provide him with a cheque for payment for the invoice on the basis that he would then pass the cheque on to the provider of the goods and services.

As an example of what happened, on 17 March 1993 Mr Wilson was given a photocopy of an invoice from Why Wait Plumbing for $7,954.30 and wrote out a cheque for that amount. The invoice was false, no materials had been provided. The applicant went to his solicitor's office with the cheque which had a forged endorsement for the applicant's company. The applicant asked the solicitor to clear the cheque through his trust account because he said he did not have a banking account. The cheque was cleared and the applicant received a bank cheque.

On 8 April 1993 the applicant gave Mr Wilson an invoice from M L M Cartage for $2,342.50 and received a cheque from him in return. That invoice in fact related to work done at another site in which the applicant had an interest. Using…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cheers

Details

AGLC: R v Cheers [1997] QCA 329
Case: [1997] QCA 329
Decision Date: 26/08/1997

CaseChat Overview and Summary

In the matter of R v Cheers, the applicant, Leslie Matthew Cheers, appealed against the sentence imposed by the lower court, which was seven years imprisonment with parole recommended after two and a half years. Cheers had pleaded guilty to a series of offences including misappropriation, false pretences, forgery, uttering, and passing valueless cheques, which had resulted in a substantial financial loss to his victims. The Court of Appeal needed to determine whether the sentence was manifestly excessive. The primary consideration for the sentence was the severity and systematic nature of the offences, the applicant's prior criminal history, and the circumstances of the offences, including the fact that some of the crimes were committed while the applicant was on bail.

The Court of Appeal held that the sentence of seven years with parole consideration after two and a half years was not manifestly excessive. The court found that the applicant's conduct was deliberate and systematic, involving 65 separate transactions over nearly two years. The court compared the case to previous cases where similar sentences were imposed, noting that the circumstances were roughly comparable. The court also highlighted that the applicant had not demonstrated any realistic prospect of making restitution, which was a factor considered by the lower court in sentencing. The vagueness of any potential for future restitution was noted as insufficient to warrant a reduction in the sentence. The Court of Appeal unanimously refused the application for leave to appeal.

Orders