R v Pearce

[1999] QCA 508

99.508

COURT OF APPEAL
de JERSEY CJ
DAVIES JA

PINCUS JA

Indictment No 282 of 1999
THE QUEEN
v.

GAVIN RUSSELL PEARCE

BRISBANE
..DATE 03/12/99
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THE CHIEF JUSTICE: The applicant pleaded guilty to two
counts of passing valueless cheques, one of fraud and one of
stealing. He had committed the fraud and the stealing while
subject to a suspended term of imprisonment which had been
imposed on the 18 December 1996. He was then sentenced to
12 months' imprisonment, suspended after five months for
four years.
The charges then before the Court were multiple counts of
fraud, stealing and receiving property worthy more than
$20,000. He committed the subsequent fraud on the
4 November 1997, and the stealing on the 20 January 1998.
By the time he came to be sentenced for the instant offences
he had made restitution in respect of them in the amount of
$850. $1,512 remained outstanding, although restitution in
that regard was offered.

The learned sentencing Judge was informed of the applicant's drug problems. He was a 37 year old man. By the time of sentencing, he claimed to have stopped using drugs and was then receiving regular psychological counselling. He had also established a jewellery business in which he had invested substantial sums of money. He was presented to the learned Judge as an offender who was coping much better with his problems.

In the context of Section 147 of the Penalties and Sentences Act, the Judge considered, however, that it was not unjust to require the applicant to serve the balance of the 031299 T9/RRD8 M/T COA 301/99

suspended sentence, six and a half months, and there is no challenge to that today. He was also sentenced cumulatively for the instant offences, to the extent of 12 months' imprisonment with a recommendation, however, for eligibility for parole after eight months from the date of sentencing. In the result, he will be eligible for parole after serving the balance of the suspended sentence, that is six and a half months, and only one and a half months of the 12 month terms additionally imposed.

In support of the contention that activating the whole of the balance of the suspended sentence was unjust, as developed in the applicant's written material, he pointed to his personal circumstances, especially his efforts at rehabilitation, including establishing the business, and characterised the instant offences as opportunistic and desperate.

But properly examined, those offences involved calculated deceit and a substantial amount of property, worth more than $2,000. Count 1 involved his using a valueless cheque to purchase power tools valued at $775. Count 2 was similar; the passing of a cheque to obtain tools valued at $932. In each case he knew there were no funds in the relevant bank account. He diverted his social security cheques into another bank account. He sold the property in both instances in a hotel for money to buy drugs.

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As to count 3, he had been issued with a replacement welfare
cheque for $353 after complaining that his had not arrived
in the mail. He immediately cashed that replacement cheque
at the bank. A few days later he cashed the original
cheque, for which the replacement had been issued. He told
the police "If they want to keep sending me cheques, I keep
cashing them in." As to count 4, the applicant entered a
pawn shop with his girlfriend. While she distracted staff,
he secreted three miniature television sets, valued at $100
each, and later sold them at a hotel.

Another important feature is the applicant's past criminal history. He has an extensive criminal history, spanning 23 years in five States and Territories. His offences include an extensive range of property offences, including robbery, burglary, fraud, unlawful use of a motor vehicle, theft and receiving, offences of violence, weapons charges, drug offences including trafficking, and general street offences.

He has previously been in prison.

Notwithstanding the submissions made on the applicant's behalf, I could not conclude that the learned Judge erred in activating the suspended sentence, or in the orders he made.

As the initial analysis of the effect of the orders indicates, he has, on one view, been treated generously, no doubt reflecting the Judge's wish to acknowledge the applicant's reasonable efforts at rehabilitation. I would refuse the application.

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DAVIES JA: I agree.

PINCUS JA: I agree.

THE CHIEF JUSTICE: The application is refused.

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