R v Reti

[1992] QCA 283

COURT OF APPEAL [1992] QCA 283

MACROSSAN CJ McPHERSON JA AMBROSE J

CA No 189 of 1992

THE QUEEN

v.

ATTILA RETI	Applicant
BRISBANE ..DATE 18/08/92
JUDGMENT

180892
THE CHIEF JUSTICE: We are left with an appeal against the sentences imposed in this case.
The applicant was charged with 57 offences. Analysed, there were 30 offences of stealing; 25 of
obtaining property by false pretences; and there were 2 attempted false pretences charges also.

On 16 June 1992 he was convicted on his plea of guilty and sentences to 9 months’ imprisonment on each of the 57 charges; that is, those sentences were all concurrent.

There was a degree of determination and deviousness involved in the plan behind the 57 charges. There was a recurring pattern in a period between December 1990 and March of 1991. The applicant would steal items of merchandise; that is, take them from the stores, which were branches of Myers in and around Brisbane in most cases, if not every case. He would simply take the chosen items, put them in a bag, and leave the store without paying for them. After particular thefts occurred, the applicant would then some short time later take the items to another branch of the same chain and claim a cash refund, giving one excuse or another for returning the items. He completed the store’s return vouchers, on each occasion using false names and addresses. The total amount obtained by this scheme was something over $1,600.

It seems to me that when one looks at the persistence involved in the scheme and, as the Crown
urges, its essential deviousness and planning, the number of offences and the period over which
they occurred, it cannot be said that the penalty of 9 months imprisonment imposed was
excessive.
The applicant was a 35 year old, and he had some previous convictions, including for offences of
dishonesty. He had not been sentenced to imprisonment before, but he had been placed on
probation. On the same day, that is, 16 June, when, on his plea of guilty he was dealt with for
these 57 offences, he was dealt with for two other matters. On 12 June 1992 he stole a bottle of
wine at the Gold Coast. The second additional matter that he was dealt with for on 16 June was a
breach of the Bail Act in failing to appear in accordance with his undertaking. He had been
placed on bail on 18 March for these 57 offences, or for most of them, and he did not appear in
accordance with his obligation on 9 May 1991. For that failure to appear he was, on 16 June
1992, sentenced to 3 months imprisonment to be served cumulatively. The applicant tells us that
the reason why he did not appear in May of 1991 in accordance with his obligation was that he
went away to Hungary because his parents in that country had been involved in a car accident.
He did not notify the authorities that he intended to leave and go to Hungary because he feared
that he would not be permitted to go or that his passport would be taken possession of. He says
that he was absent between May and November of 1991 in the course of that visit.

On his return to this country he did not tender himself or offer any explanation, and the authorities caught up with him over the 57 charges as a result of his stealing the bottle of wine on the Gold Coast on 12 June 1992. He pleaded guilty to the charge of breaching the Bail Act before the same Magistrate who dealt with him for the 57 offences. He was represented on that occasion, but he is unable to confirm whether or not his explanation for being absent in May of 1991 when he should have been present to answer his charges was given to the Magistrate.

Once a term of imprisonment is imposed for a breach of the Bail Act of the kind we are concerned with, then under s. 33.4(a)(i) of the Act, that penalty has to be served cumulatively, and that is what occurred in this case.

The applicant’s objection to the cumulative sentence in respect of the Bail Act breach really involved his saying that he should not have been subjected to any additional penalty, or not one as severe as this anyhow, in addition to the penalty which was to be imposed for the 57 offences.

It seems to me that this proposition cannot be accepted in the broad form in which it was advanced. It certainly makes matters worse if one does not appear in response to one’s bail obligation, and, indeed, that is no doubt why the Statute provides as it does.

The Magistrate also on 16 June 1992, in dealing with the applicant for stealing the bottle of wine, imposed a term of imprisonment of 3 months which again he made cumulative. It is true that this offence occurred well away from the period covered by the earlier stealing and false pretence charges, but it is of a relatively trivial matter. Since, on 16 June, the Magistrate, having resolved on the penalties appropriate for the other matters, and being disposed to sentence the applicant to 9 months with a further 3 months cumulative for the breach of the Bail Act, that would have been a sufficient penalty, in my opinion, to impose upon the applicant. Indeed, counsel appearing the for the Crown on the appeal accepted that he could not maintain that the part of the Magistrate’s order which ordered 3 months for the stealing should be cumulative.

In all the circumstances, then, I would favour giving leave to appeal and allowing the appeal against sentence so far only as it relates to the 3 months cumulative term imposed in respect of the theft of the bottle of wine on 12 June 1992. In lieu of that penalty, I would favour ordering that a penalty of 3 months be imposed; that is, leaving the penalty of 3 months, but ordering that it be concurrent with the 9 months effective penalties for the 57 charges to which I have referred. The result would be an effective term of 12 months imprisonment in lieu of the 15 which the Magistrate ordered. In other respects I would not interfere with the penalties imposed below.

McPHERSON J: I agree.

AMBROSE J: Yes, I agree also.

THE CHIEF JUSTICE: That will be the order of the Court. It has been reduced to a total, in effect, of 12 months from the 15 months.

PRISONER: Yes, I understand.

THE CHIEF JUSTICE: It is being left at 9 months for the 57 charges plus three months for breach of the Bail Act failure to appear, a total of 12.

PRISONER: Yes, I understand that. Thank you very much, Your Honour.

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