R v Slack & Attorney-General of Queensland

[1996] QCA 440

[1996] QCA 440

COURT OF APPEAL

FITZGERALD P
DAVIES JA
AMBROSE J

CA No 247 of 1996

THE QUEEN

v.

TERRENCE MICHAEL SLACK  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

DATE 24/10/96

JUDGMENT

THE PRESIDENT:  Justice Davies will deliver the first judgment.

DAVIES JA:  The respondent was convicted after a trial in the District Court on 13 May this year on 26 counts of obtaining property by false pretences between 15 September and 13 December 1993.  He was sentenced to two years' imprisonment suspended after four months, the operational period of the suspension being three years.  The Attorney appeals against that sentence.

The respondent's period of actual imprisonment has now expired and he is once gain at liberty.  The circumstances of the offences are as follows.  At the relevant time the respondent operated a plant nursery.  Over the period to which I have just referred he obtained over $22,000 worth of stock from a variety of other nurseries by passing valueless cheques.

Cheques were postdated and the respondent knew that they would not be met on presentation.  The respondent told the police when interviewed, and gave evidence at trial, that he thought that a silent partner would inject $20,000 into the business and that substantially in consequence of that, at the time of passing each cheque, he reasonably believed that there would be funds to meet it when presented.

His story was obviously disbelieved by the jury and, it appears from his sentencing remarks, by the learned sentencing Judge.  That is not surprising.  There was no evidence on this question apart from the respondent's.  In particular, the silent partner did not ever materialise nor was his absence explained.

The learned sentencing Judge would also have noted that the explanation which the respondent gave to his psychiatrist at the relevant circumstances seemed to be inconsistent with the evidence which he gave in Court.

The fact that the respondent persisted in this false explanation to the point of giving evidence at his trial shows also that he was prepared to continue to be glib and dishonest and to show no remorse for his offences.  The respondent is a mature man of 34.  He has some other convictions for dishonesty, the most important being a series of offences in late 1982 and early 1983 which bear some similarity to those, the subject of this appeal.

The Attorney does not submit that the sentence of two years' imprisonment was inadequate.  However, he submits that the order for suspension of the sentence, after serving four months, makes the sentence as a whole manifestly inadequate.  The authorities referred to in the written outlines of both counsel show, in my view, that the sentence of two years' imprisonment was appropriate for the seriousness of the sentences in this case.

It is not clear why the learned sentencing Judge decided to suspend part of the sentence which he imposed.  Despite the fact that the respondent appeared quite depressed when interviewed by the psychiatrist, that is not evidence of remorse and as I have already said the evidence is to the contrary.

There was no offer of restitution and it is perhaps unlikely that the respondent would have been in a position to make such an offer.  Moreover, notwithstanding the fact that the respondent does not have a substantial criminal record the existence of the previous similar offences in 1982 and 1983 for which he was given probation of 18 months means that he can obtain no credit in his sentence for prior good character.

Indeed, I am unable to see any redeeming features justifying the suspension order which the learned sentencing Judge made.  It is true that the respondent is now, once again, at large having served the period of actual imprisonment required to be served under the sentence and that consequently the result of a successful appeal will be that the respondent will have to be, once gain, returned to prison.  This is an important factor in Attorney's appeals.

Nevertheless, in my view, the order for suspension of the sentence in the absence of any factors justifying such an order make the sentence so erroneous as to justify that course.  I would therefore allow the appeal and substitute in lieu of the sentence imposed a sentence of two years' imprisonment.  I would, if necessary, order that a warrant issue for the respondent's arrest.

THE PRESIDENT:  I agree.

AMBROSE J:  I agree.

THE PRESIDENT:  Are you asking for a warrant, Mrs Clare?

MRS CLARE:  Yes, I am.

THE PRESIDENT:  Are you asking for it to lie in the Registry, Mrs Richards?

MRS RICHARDS:  Yes, Your Honour.  Could it lie for a week?

THE PRESIDENT:  The order of the Court is appeal allowed, sentence below set aside and in lieu a sentence of imprisonment for two years substituted.  Order that a warrant issue for the arrest of the respondent but that the warrant lie in the Registry for one week from today.

-----