R v De Carteret

[1997] QCA 301

COURT OF APPEAL

[1997] QCA 301

DAVIES JA
McPHERSON JA
WILLIAMS J

CA No 232 of 1997

THE QUEEN

v.

STEPHEN DE CARTERET  Applicant

BRISBANE

..DATE 16/07/97

JUDGMENT

DAVIES JA: The applicant was convicted in the District Court on 23 May last of five offences of misappropriation. A further 10 offences of the same kind were taken into account in imposing sentence pursuant to section 189 of the Penalties and Sentences Act. 

The applicant was sentenced to six months' imprisonment, that term being wholly suspended for a period of two years and he was ordered to pay $2,198.23 compensation within nine months in default of which he would serve six months' imprisonment.  The applicant seeks leave to appeal against that sentence.

At the time of his conviction, which was on his own plea of guilty, and his sentence, the applicant was 31 years of age having been born on 6 September 1965.  However, the offences occurred between 18 July and 6 August 1991.

The circumstances of their occurrence are briefly as follows.  The applicant's bank incorrectly credited to his account $2,571.20.  He observed this and realised it was a mistake.  Nevertheless, knowing the money was not his, he withdrew $2,526.33 over the following three weeks by means of an automatic teller machine.  On 7 August 1991 he signed an acknowledgment of debt to the bank admitting that he withdrew the money knowing that it was not rightfully his.  He agreed to repay the debt and made four repayments totalling about $300.  Thereafter he ceased to make any repayments.

The lapse of time between his ceasing to make repayment to the bank and his prosecution for these offences is not fully explained but it is accepted that he made a timely plea of guilty.

Prior to the commission of the offences the applicant had no criminal history.  However, on 25 October 1995 he unlawfully took shop goods away and on 9 November 1995 he was convicted for this offence and fined $200.  That fine was later converted to 31 hours of community service.  However, according to a report from the Community Corrections Officer, the applicant failed to show any indications that he would comply with the obligations of that order.

He attended a community service induction program for two hours for which he received credit.  Thereafter, he attended only once for a five-hour period and this was only after two warning letters and a lapse of five months.  Not surprisingly, the officer reached the view that the applicant was unsuitable for further community-based orders.

The applicant made an offer of restitution of the money and, on the day of his sentence, brought $200 to Court for that purpose.  However, when one has regard to his previous failure to pay, his unwillingness to perform community service and the fact that he was unemployed at the time of sentence, the likelihood of his complying with a restitution offer involving more than $2,000 is, in my view, very slight.

In view of the fact that, at the time of the commission of these offences, the applicant had no prior convictions and was still a relatively young man of just 26, it is likely that, had he been sentenced soon after the commission of these offences, the sentence may well have been of a non-custodial kind involving probation or community service or both.

However, by the time he came to be sentenced, he had not only committed another offence involving dishonesty but had, on the evidence before the learned sentencing judge, demonstrated his unfitness for community-based orders.  In those circumstances, the learned sentencing judge had little option, in my view, but to impose a sentence of the kind which he did.  I do not think the sentence was manifestly excessive and I would refuse the application.

McPHERSON JA:  I agree.

WILLIAMS J:  I agree.

DAVIES JA:  The application is refused.

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