R v Smith

[2009] QCA 204

[2009] QCA 204

COURT OF APPEAL

de JERSEY CJ
MUIR JA
CHESTERMAN JA

CA No 139 of 2009
DC No 168 of 2008

THE QUEEN

v

PETER RICHARD SMITH  Applicant

BRISBANE

DATE 17/07/2009

JUDGMENT

THE CHIEF JUSTICE:  On the 12th of December 2008, the applicant pleaded guilty in the District Court to one count of fraud and seven in relation to the fraudulent passing of cheques.

He was sentenced to four years six months' imprisonment, to be suspended after the serving of 18 months for a period of four years and six months.

He did not apply for leave to appeal against sentence within time and, on the 31st of May 2009, applied for the requisite extension of time.

In his written application, he offered this reason for not applying within time:  "I had been working on my appeal at Brisbane Correctional Centre and was then sent to Westbrook Correctional Centre, then moved to Numinbah Correctional Centre and had lost my papers concerning the appeal application.  I have been wanting for legal help but received no help by anyone.  I have finished the application.  That leaves me weeks over the required time.  Also we have had many public holidays between this time as well."
Orally here today by way of video link, Mr Smith explained that he had wished to look at the position of appealing but had not been able to within time.  He was unaware, he says, of the actual time limitation.

That is all rather unsatisfactory, particularly having regard to the amount of time which did elapse between the sentencing and the filing of the application but it is a case where we might look briefly at the circumstances which led to the sentence.

The applicant and one, Spedding, were directors of a company involved in the purchase and development of land.  The signatures of both directors were required on cheques.  Over a period of approximately seven months, the applicant fraudulently drew seven cheques, applying his own signature and forging that of Spedding on four occasions and, in the other three cases, presenting cheques which bore his signature only.  By these means he dishonestly obtained $184,000.  When the fraud was uncovered, the applicant subsequently declined to be interviewed by the police.  He did, however, ultimately, plead guilty.

At the time of the offending, the applicant was 50 years of age with no prior criminal history.  The learned sentencing Judge described it as a "quite unsophisticated fraud that inevitably would be discovered", while adding that "it's still fraud of a significant magnitude."

The applicant seeks to contend that the sentence is excessive.  Of course, the relevant test is whether it's manifestly excessive and he relies in particular on the absence of any prior criminal history, his early plea of guilty, his cooperation and his remorse.

The sentence was, however, plainly within range for fraud of this magnitude and, in these circumstances, the application for an extension of time should be refused.

MUIR JA:  I agree.

CHESTERMAN JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.