R v Hoelscher Summary

COURT OF APPEAL [1992] QCA 073

MACROSSAN CJ
DAVIES JA

WILLIAMS J

CA No 296 OF 1991

THE QUEEN
v.
WAYNE JAMES HOELSCHER

BRISBANE

... DATE 30/3/92

JUDGMENT against sentences imposed in respect of offences committed in October of 1988. There were four offences altogether two of uttering and two of false pretences. Custodial terms of two years were imposed concurrent in each case. The schemes behind the offences were described by His Honour fairly, in my view, as being quite sophisticated.

JUDGMENT

In essence, false documents were used to open cheque accounts and those accounts and other extant false accounts we are told were used to obtain a total of some $29,000 in cheques from a credit union and those cheques were then used to obtain travellers cheques from another organisation. A significant portion of those cheques were encashed. We are informed by the written submission placed before us that some recovery was made, but the loss suffered by the ultimate issuer of the cheques was of the order of $12,900.

The applicant was 39 years of age when he was sentenced and he had a previous criminal history which was extensive. It spanned the years 1971 to 1991 and counsel appearing for the Crown before us said that it showed behaviour which was conspicuous for the perseverance involved; that is, criminal behaviour. There are a large number, perhaps I should not strictly say large, but there are a number of offences of dishonesty involved, including some of false pretences.

There were sentences for false pretences in 1981, when terms of imprisonment were imposed. In February of 1981, a term of 18 months' imprisonment was ordered to be served. In 1986, a term of four months' imprisonment was ordered in respect of his conviction on 25 charges of imposition. The more recent history shows that in February of 1987, the applicant was convicted of driving while unlicensed and was sentenced to an eight months custodial term.

Having in mind the elaborate planning which was involved in the commission of these offences and the calculated implementation of the scheme behind it and the need for an effective deterrent and the previous dishonesty exhibited by the applicant, in my view it should not be concluded that the terms imposed were excessive. I say this, even though it is true that the learned sentencing Judge had to deal with a case where guilty pleas were entered and where eight months had already been spent in custody by the applicant awaiting sentence. Even taking those matters into consideration it is still not possible to conclude, in my view, that the sentences imposed were excessive and I would dismiss the application.

DAVIES JA: I agree.

WILLIAMS J: I agree. I would merely add that the principal submission advanced by Mr Griffin for the applicant on the question of sentence was that the applicant, through his counsel before the sentencing Judge, made an offer to assist the authorities with the prosecution of other persons said to have been involved in the commission of the offence. That point loses much of its force when it is realised that the offences in question were committed in October 1988 and the applicant stood for sentence in October 1991. It would appear that he had been arrested shortly after the commission of the offence but had then absconded on bail and warrants were issued for his apprehension.

It was obvious after the execution of those warrants that he stood for sentence in October 1991. Against that background there is little substance in his belated offer to assist the authorities with the prosecution of other persons involved in the scheme. I would refuse the application.

THE CHIEF JUSTICE: The application is refused.

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In the case of R v Hoelscher, the appellant sought to appeal against the sentences imposed by the trial judge for offences of uttering and false pretences. The Court of Appeal, consisting of Macrossan CJ, Davies JA, and Williams J, was tasked with determining whether the sentences were excessive given the nature of the offences and the appellant's criminal history. The appellant, Wayne James Hoelscher, had been involved in a sophisticated scheme to open cheque accounts using false documents, which resulted in the fraudulent acquisition of approximately $29,000 from a credit union. The appellant's criminal history was extensive, spanning several decades and including multiple convictions for dishonesty offences. The trial judge had imposed concurrent custodial terms of two years for each offence, taking into account the appellant's guilty pleas and the time already spent in custody awaiting sentencing.

The central legal issue before the Court of Appeal was whether the sentences imposed by the trial judge were excessive. The appellant argued that his offer to assist in the prosecution of other individuals involved in the scheme should have been considered as a mitigating factor. The Court of Appeal considered the appellant's extensive criminal history, the sophistication of the offending, and the need for effective deterrence in determining the appropriate sentence. The Court found that the appellant's offer to assist in the prosecution, made after a significant delay and following periods of absconding and evasion of justice, had little weight as a mitigating factor.

The Court of Appeal held that the sentences imposed were not excessive. Macrossan CJ noted that despite the appellant's guilty pleas and time spent on remand, the elaborate planning and execution of the offending warranted a significant custodial sentence. The judges agreed that the appellant's persistent criminal behaviour and the substantial losses caused by his actions justified the two-year concurrent terms of imprisonment. The Court also noted that the appellant's belated offer of assistance in prosecuting others had little impact on the sentencing considerations.

In conclusion, the Court of Appeal dismissed the appellant's application against his sentences. The judges were of the opinion that the sentences imposed were appropriate given the nature of the offending and the appellant's criminal history. The Court refused the appeal and upheld the sentences as imposed by the trial judge.

R v Hoelscher

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