R v Kovacs

[1996] QCA 539

COURT OF APPEAL

[1996] QCA 539

DAVIES JA
MOYNIHAN J
HELMAN J

CA No 492 of 1996

THE QUEEN

v.

ERVIN KOVACS

BRISBANE

..DATE 06/12/96

JUDGMENT

DAVIES JA:  The applicant was sentenced in the District Court on 1 November last on six counts of stealing, three of false pretences and one of attempted false pretences.  He was sentenced to 18 months' imprisonment in respect of the stealing offences, two years' imprisonment in respect of the false pretences offences and one year's imprisonment in respect of the attempted false pretences.  The learned sentencing Judge recommended that the applicant be eligible for parole after serving eight months of the effective term of two years.  The relevant offences occurred between January 1995 and January 1996.  At that time the applicant had no prior convictions.  He is 40 years of age, having been born on 18 August 1956. 

The false pretences were part of a scheme which involved a female person contacting stores by telephone and ordering goods by providing credit card details.  In this way, quantities of expensive cosmetics and perfumes were ordered from David Jones and collected by the applicant.  The total value of them was over $3,000, about $1,000 of which was recovered.  The woman also ordered a watch for $1,500 from Wallace Bishop, and again the applicant collected it.  The attempted false pretences charge involved the woman ordering three mobile telephones from Myer and the applicant was intended to be involved in the delivery of them.  In fact, what was delivered was something quite different and he was then followed.  He attempted to elude the police but was ultimately apprehended. 

He initially told the police a false story about all of these goods and about some property found by the police in his home.  It is that property which is the subject of the stealing charges.  It consisted of a British passport, a Commonwealth Bank passbook, a Mitsubishi Visa card, an NEC mobile telephone, an Ansett Golden Wing Diners Club card and a wallet and contents.  The applicant was a taxi driver and many of those goods had been left in his taxi.  All of the goods the subject of the stealing charges were recovered.

The applicant's course of conduct, as I have described it, was deliberate planned dishonesty over a period of time.  He pleaded guilty and that, together with his prior unblemished record, stand in his favour.  It also appears that he was not the prime mover of the scheme, although he was a willing party to it and derived financial reward from it. 

The applicant submits that the sentences imposed should be suspended after he served 36 days, presumably because of the matters in his favour to which I have referred, and also in reliance on some cases to which I will refer in a moment.  He also has proposed to this Court a compensation order totalling a little over $2,500 and through his counsel, Mr Rafter, tells us that that money is now available.  No such offer, or indeed an offer which could be seen as a genuine offer, was made below.

In my view, neither of the cases cited to us support the applicant's contention.  He relies on Ford, CA number 338 of 1993, judgment delivered 12 October 1993.  That case involved a plea of guilty to 19 offences of false pretences, 11 of misappropriation of property, one of stealing and one of obtaining credit by false pretences.  The applicant there had a number of previous convictions for offences of dishonesty and had previously been sentenced by a suspended sentence of four months.  The appeal in that case, which was dismissed, was against a sentence of two years' imprisonment on each of the charges of misappropriation and 12 months' on each of the charges of false pretences.  No details were given of the circumstances of the offences. 

In sentencing him, the learned sentencing Judge had taken into account his criminal record, the seriousness and number of offences, and the amount of money involved and property recovered.  There was an offer to pay restitution in that case.  In summary, the case appears to be more serious than this, but the refusal of the application by this Court does not, as Mr Rafter readily acknowledges, indicate that this Court thought that the sentences in that case was at the outer limits of a sound sentencing discretion. 

The respondent referred us to Baker, CA number 90 of 1996, judgment delivered 23 April 1996, which involved a plea of guilty to four counts of stealing and one of false pretences.  Sums of money totalling about $10,000 were involved.  The applicant was a state manager of a transport company and his offences were committed in that capacity.  Like the applicant here, he had a prior unblemished record.  But that case, in my view, is different from this in that his conduct was described as a burst of dishonesty which indicated that it was rather spontaneous in what otherwise was an unblemished record in his capacity as manager of the transport company.  He had been experiencing a difficult personal situation which resulted in him drinking heavily.  It was, in that respect, unlike this case where, as I have already said, the applicant embarked on a deliberate and planned course of dishonesty.  Baker was sentenced to two years' imprisonment with a recommendation for parole after four months.  There was also a promise of restitution in that case which had been partly performed and the application, as I indicated to this Court, was refused.

The cases I have just referred to and also the cases referred to by this Court in Baker show, in my view, that the sentence imposed here, though at the high end of the range, was not outside the range of a sound discretionary judgment, and I would therefore refuse the application.

MOYNIHAN J:  I agree.

HELMAN J:  I agree.

DAVIES JA:  The application is refused.

-----