R v Hoelscher

[1997] QCA 168

COURT OF APPEAL

[1997] QCA 168

FITZGERALD P McPHERSON JA de JERSEY J

CA No 43 of 1997
THE QUEEN
v.

WAYNE JAMES HOELSCHER	Applicant
BRISBANE ..DATE 29/05/97 290597 T14/BP M/T COA111/97

de JERSEY J: The applicant is a 45-year-old man who pleaded guilty on an ex officio indictment to three counts of forgery and three counts of uttering. He was sentenced to two and a half years imprisonment on 31 January 1997 on each count to be served concurrently.

The learned Judge fixed 30 November 1997 as the new date for eligibility for parole. When the sentencing occurred, the applicant was subject to a parole date of 30 April 1997 in respect of other offences. The Judge may therefore be taken as having envisaged that he should serve at least seven months of the two and a half year sentences he imposed.

That degree of favouring was to reflect the applicant's personal circumstances which were these. He commenced a relationship with a woman after release from a two year prison sentence which had been imposed in late 1991 and helped that woman through considerable personal difficulties involving drug addiction and prostitution and the management of schizophrenia. That relationship produced two children and the applicant had helped that family cope with considerable difficulty.

These offences arose in the following circumstances. He tried to obtain a credit rating for the purposes of applying for a housing loan, but was unsuccessful, so he used the name of his father in applying for credit from AGC and used a false driver's licence number.

290597 T14/BP M/T COA111/97
He obtained $6144 to purchase a car in May 1995 and then in
June, extended that loan to $9891 so that he could trade in that
car on a better one. In early April he obtained $1000 to
purchase a mobile telephone and some credit. Until March 1996
he maintained the loan repayments until the fraud was
discovered. The car was then repossessed and sold at a loss to
AGC put at $2782 and of the second loan, $680 remained
outstanding.

In light especially of the applicant's prior criminal history, the sentence of two and a half years in prison were amply justified and he does not dispute that. He had been in prison on 12 separate occasions including terms of 18 months and a term of some years for similar offences.

There was a series of false pretences and uttering offences committed in 1988 of which His Honour was aware. There were also offences of stealing and receiving, many of imposition, attempted false pretences and uttering and I might say many other offences of a different character.

The learned Judge pointed out that the applicant was a persistent and determined offender and that this called for a deterrent penalty, while on the other hand he pointed out that there were savings from the ex officio plea and the Judge accommodated the applicant's personal circumstances by the early parole recommendation.

The applicant before us has relied on his personal circumstances and the circumstances in which he came to be sentenced for 290597 T15/RB28 M/T COA111/97

driving offences as warranting our interfering with the recommendation with relation to parole to the extent of recommending eligibility for parole after six months from the date of sentencing, that is 31 January 1997, which would involve bringing forward the date of eligibility for parole by some three or four months.

In my view, the Court would not be warranted in making that sort of refinement to the sentence which has been imposed including the recommendation, even if there were adequate reason disclosed for a view that the Judge had been harsh in setting a recommendation to expire on 30 November 1997.

In my view, the Judge properly took account of all of the circumstances, especially the applicant's extensive criminal history for comparable offences and was entitled and reasonable in the approach he took to the matter. In my view manifest excess has not been demonstrated in any respect and I would refuse the application.

THE PRESIDENT: I agree.

McPHERSON JA: I also agree.

THE PRESIDENT: The application is refused.

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