R v Ford

[1993] QCA 455

IN THE COURT OF APPEAL [1993] QCA 455

SUPREME COURT OF QUEENSLAND

C A No. 338 of 1993

Brisbane

[Re: Ford]

T H E Q U E E N

v.

GREGORY ALLEN FORD

(Applicant)

The President
Mr Justice Davies

Mr Justice Mackenzie

Judgment delivered 12/11/1993

JUDGMENT OF THE COURT

APPEAL AGAINST CONVICTION DISMISSED

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:  CRIMINAL LAW - Sentence - Applicant pleaded guilty to offences of misappropriation, false pretences, stealing and obtaining credit by false pretences - Effective sentence 2 years - Whether shorter non-parole period should have been prescribed.

Counsel: Applicant in person

Mr P Callaghan for Respondent

Solicitors:	Director of Prosecutions for Respondent
Hearing Date:	3 November 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No. 338 of 1993

Brisbane
Before The President

Mr Justice Davies
Mr Justice Mackenzie

[Re: Ford]

T H E Q U E E N
v.
GREGORY ALLEN FORD

(Applicant)

JUDGMENT OF THE COURT

Judgment delivered 12/11/1993 includes an appeal against conviction but the applicant informed the Court that he was appealing against sentence only. Accordingly the appeal against conviction is formally dismissed.
This is an appeal against sentences imposed in the
The applicant was convicted on his plea of guilty of 19 offences of false pretences, 11 offences of misappropriation of property, one of stealing and one of obtaining credit by false pretences. With the exception of one offence of false pretences which was committed in 1990 the others were committed between February and July 1992.

The majority of the offences involved obtaining items of equipment by passing valueless cheques and pawning the property obtained at various pawnbroking businesses on the Gold Coast. When the applicant was interviewed by the police on 23rd July, 1992 a search of his unit located a number of receipts and some property. He helped police recover some other items that he had disposed of. The value of property recovered was $6,374. Those items comprised almost all the pieces of equipment that had been obtained by false pretences. Other items such as plasterboard to the value of almost $4,000, perishable items and cash obtained by the commission of the offences were not recovered. They amounted in value to almost $6,600.

The reason advanced for commission of the offences was that the applicant had been evicted from the place where he was living, was sleeping in the back of his car and was using the property that he obtained to get cash for living expenses. The applicant has a number of previous convictions for offences of dishonesty. Amongst them are three charges of imposition in 1984, eight charges of obtaining property by deception in 1987, 21 similar offences in 1988, two charges of theft by deception in 1989 and 35 charges of false pretences in 1991. He was sentenced to imprisonment for four months for the 1988 offences but that sentence was suspended. In respect of the 1989 and 1991 offences community based orders were made.

In respect of the 1991 offences the applicant was later dealt with for breach of the probation and community service orders and fined $50 on each of the 35 charges. The applicant said that there had been a breakdown between him and his Community Correctional Officer over a change of address. The Magistrate must have been satisfied that the breach had been established to deal with the matter in the way in which he did. The District Court Judge who sentenced the applicant for the latest series of offences imposed a sentence of two years' imprisonment on each of the charges of misappropriation, to be served concurrently, and concurrent sentences of 12 months imprisonment on each charge of false pretences. The applicant submits that this is manifestly excessive. In sentencing him the District Court Judge took into account his bad criminal record, the seriousness and number of the offences, the amount of money and property involved and the value of the property unrecovered. He took into account the plea of guilty and that the community based orders previously imposed had not been successful in deterring him from committing further offences.

The appellant relied on five matters:-

1.   That he had assisted the police in locating property obtained by the commission of the offences.

2.    That an offer to pay restitution, which had been made in the District Court, stood.

3.    That he had a business to go to if released.

4.    That he was unlikely to re-offend because he had lost his domestic relationship and his home and was at risk of losing his business. Further, the period he had spent in prison had taught him a lesson.

5.    That the only reason for the breach of the community based orders was the disagreement between his community Correctional Officer and him.

It is true he assisted the police in locating some of the property. The offer of restitution in respect of the remainder, which the applicant said he could pay if given 12 months to do so, was made in the District Court but it appeared that his capacity to pay depended on the completion of certain work undertaken by his business. He had no present capacity to pay at that time and he conceded to us that that was still the case.

The business was a handyman business which he appears to have started while on bail. He recruited a team of people to do mowing and other forms of gardening and other odd jobs. He told us that prior to his going to prison the business had been heavily booked, but that it would fail if he remained in prison.

He also told us, and showed us a letter to like effect from his mother who was in Court, that he needed to be out of prison to assist her. She was in poor financial circumstances and had suffered an injury to her arm some time ago in an accident which made it difficult for her to do ordinary domestic tasks, such as housework and shopping. He told us that he had experienced prison for the first time and that experience had made him quite firm in his resolve not to offend again.
For a person with the criminal history of the applicant an effective sentence of two years' imprisonment, which, in the absence of a specific order, would entitle a prisoner to apply for parole after 12 months, is within the proper range. The only question, it seems to us, is whether a shorter non-parole period should have been prescribed in view of the matters to which reference has been made.

We have come to the conclusion that an effective two year sentence without a reduction in the period which he will have to spend before becoming eligible to apply for parole is not manifestly excessive. Accordingly the application for leave to appeal against sentence is dismissed.