R v Reischl - [2000] QCA 215

[2000] QCA 215

COURT OF APPEAL

McMURDO P
WHITE J
DUTNEY J

CA No 81 of 2000

THE QUEEN

ROBERT REISCHL Applicant

BRISBANE

..DATE 01/06/2000

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty in the Southport District Court on 8 March 2000 to three counts of fraud with a circumstance of aggravation, two counts of misappropriation with a circumstance of aggravation and five counts of stealing as an agent property valued in excess of $5,000. The charges were contained in three indictments.

The applicant was sentenced to five years imprisonment in respect of the two counts of misappropriation and to seven years imprisonment in respect of all other counts concurrent with each other but necessarily cumulative on a six week sentence then being served for breach of bail. See section 33 Bail Act 1980. He was also given a recommendation for release on parole after two and a half years.

The applicant was aged 48 at sentence. He had prior convictions in 1990 for bigamy for which he was placed on a bond for three years and for passing a valueless cheque for which he was fined $500.

The applicant was a self-employed marine broker who sold boats on a consignment basis through his own business Hope Harbour Marine, Hope Island. He commenced his business in 1994. It was originally run legitimately and successfully but in the 18 month period prior to and during the commission of these offences the applicant was in financial difficulties caused, he claimed, by a nearby development, Harbour Cove Marine Resort, which restricted access to his business. Additionally during his period his de facto became pregnant and he claimed he had a stroke. This left the applicant unable to participate as actively in his business which consequently floundered.

I will deal with the offences chronologically. The two counts of aggravated misappropriation charged on a single indictment occurred as follows: The applicant arranged the sale of a 52 foot yacht for $150,000 of which the applicant was to receive $7,500 and his client $142,500. The purchaser paid in three stages and the applicant had received the full amount by the settlement date of 3 July 1997. Despite pressure from the complainant he did not pass on the sale price to him. He eventually handed the complainant his own business cheque for $142,500 which was not honoured. On 28 July the applicant admitted to the complainant that he had been lying and did not have the money but promised to pay in time. The applicant used the money to prop up his business by paying debts. By the time of the committal hearing $47,500 had been repaid with $95,000 outstanding.

The second count of misappropriation occurred as follows. The applicant sold a 34 foot cruiser for $100,000. The complainant insisted the vessel not be removed from the marina until the cheque for its sale had been cleared. The applicant without authority allowed the vessel to be taken by the purchaser and used the purchaser's cheque for $110,000…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Reischl

Details

AGLC: R v Reischl [2000] QCA 215
Case: [2000] QCA 215
Decision Date: 01/06/2000

CaseChat Overview and Summary

In the Court of Appeal in Queensland, the matter of the Queen versus Robert Reischl was heard and determined. The applicant, Robert Reischl, had pleaded guilty to multiple charges of fraud, misappropriation, and theft as an agent, all with aggravating circumstances. These charges were related to his actions as a marine broker who had sold boats on a consignment basis. The court found that Reischl had committed these offences over an 18-month period, during which time he had been in financial difficulties and had used the proceeds from the sales to prop up his failing business. The primary legal issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive. The applicant's counsel argued that the recommendation for parole eligibility after two and a half years did not truly reflect the mitigating factors present in the case. However, the Court found that the sentence imposed was within the appropriate range for the offences committed and that the parole recommendation was a proper reflection of the mitigating factors. The Court of Appeal ultimately refused the application for leave to appeal against the sentence, finding that the sentence was not manifestly excessive and that the parole recommendation was an appropriate reflection of the mitigating factors. The Court also noted that the applicant's arguments, if accepted, could have a wide-ranging effect on sentencing in Queensland.

Orders