R v Ching

[1992] QCA 392

COURT OF APPEAL [1992] QCA 392

DAVIES JA PINCUS JA de JERSEY J

CA No 269 of 1992

THE QUEEN

v.

WILLIAM GEORGE CHING	Respondent
ATTORNEY-GENERAL OF QUEENSLAND	Appellant
BRISBANE ..DATE 21/10/92

JUDGMENT
de JERSEY J: This is an appeal by the Attorney-General. The
respondent was convicted by a jury in the District Court on
charges of false pretences, the dishonest misappropriation of
property with a circumstance of aggravation and the dishonest
misappropriation of property. The learned Judge imposed a
community service order to the extent of 240 hours which is
the maximum.

The circumstances giving rise to the offences were these: the respondent was the director of a company which operated a real estate business at the Gold Coast. It leased furniture which was situated in its offices. The respondent had been involved in arranging those leases. By January 1991 there was a dispute between the directors of the company and the respondent wanted to raise money to buy out the others. He therefore set about making an application for a loan on behalf of the company and part of the security put up for that or, rather, part of the basis for that application was the furniture leased by the company.

The other directors apparently were unaware of what was being done. The respondent provided a statutory declaration in support of the loan application and a list of the company's property. That led to the provision of $59 920 to the company by the finance company. The respondent opened a bank account in its name and deposited that cheque into it. On the same day he withdrew $50 000 and deposited that amount in his personal account. Of that total of almost $60 000 the respondent used $17 000 to repay himself moneys which he had previously apparently lent to the company or provided on its behalf and he used the rest to repay some company debts.

The learned Judge, when sentencing the respondent, referred to a number of important features including the respondent's previous good record and favourable references. He was 52 years old and had no prior criminal history. He also said, "I would add that the offence still seems inexplicable to me and to have certain technical aspects about it although it emerged from what was said on sentence that your victim may be facing a substantial loss."

His Honour's reference to the offence being inexplicable probably refers to a submission made that it was out of character. It is difficult, however, to understand what he meant by his description of its having certain technical aspects about it. Neither counsel before us was able to offer any particularly helpful explanation of what His Honour might have had in mind in that regard, and to my mind it seems, with respect, an inaccurate description of what has occurred.

Counsel for the Attorney relied before us in particular on these features, that the offence has represented a deliberate fraud on a financial institution, that the respondent showed no remorse, that no restitution had been paid and that, in a sense, the way the respondent utilised the money led to some benefit to himself. To my mind all of those matters are relevant here.

We were referred to a number of previous decisions which suggest that a custodial term would have been appropriate. In particular, I mention Robertson, No 345 of 1985; Schaffer, No 152 of 1990; Andrew, No 150 of 1981; White, No 153 of 1980, and Bolton, No 318 of 1981. Mention was also made of The Queen against Bell (1982) Qd R 216. The learned Judge was referred to Bell's case, which is distinguished in a number of respects to which he indeed did refer. Notably, there had been complete restitution there and the applicant, having been struck off the roll of solicitors for his crimes, in effect, had successfully rehabilitated himself prior to being dealt with. That case, to my mind, is in a special category because of those features.

This was obviously a very serious case of fraud and, in my
opinion, save in exceptional cases fraud of this magnitude
should lead to imprisonment. I would set aside the community
service order which was imposed and order that the respondent
be imprisoned on each count for a period of 2 years.
He has carried out 52 hours of the 240 hour community service
which he was ordered to carry out. That should be recognised
in my opinion, in a recommendation with relation to early
release on parole.

Mr Rafter who appeared for the respondent would, I think, submit that other features of the case themselves warrant an early recommendation, such as the previous good character of the respondent. That factor is relevant in that regard, obviously. Taking account of that but in particular the 52 hours of the community service order which have been carried out, I would recommend that the respondent be eligible for parole after he has served 9 months of that term. In light of the respondent's being at liberty at the moment there should be a warrant issued for his arrest.

PINCUS JA: I agree.

DAVIES JA: I agree.

PINCUS JA: Orders will be as indicated in the reasons of Mr
Justice de Jersey.
Mr Byrne, do we need to say anything more specific about the
warrant?
MR BYRNE: No, unless my learned friend has some application
that it lie in the Registry.
MR RAFTER: Yes. I was going to ask could it lie in the
Registry for a short period of time in case he wishes to -----
PINCUS JA: How long?
MR RAFTER: Seven days.
PINCUS JA: Yes. Well, that will be the order.