Ferrus v Qld Police [2006] QCA 57

Court of Appeal (Qld)|2006-03-09|Before: Williams and Keane JJA and McMurdo JSeparate reasons for judgment of, each member of the Court, each concurring as to the order made

KEANE J: On 24 November 2004 the applicant pleaded guilty in the Magistrate Court on a charge of fraud. He was sentenced on 17 February 2005. A conviction was recorded and the applicant was sentenced to four months imprisonment suspended forthwith with an operational period of 18 months. He was also ordered to pay $8,422.80 compensation within nine months and in default of payment to serve six months imprisonment.

The case for the prosecution was that in August 2003, the applicant offered two cameras for sale on the "eBay" internet site. The complainant agreed to buy the cameras for a total of $9,245. The complainant paid the price into the applicant's bank account in reliance on the applicant's promise to send the cameras to the complainant. The applicant did not send the cameras and the complainant made a number of unsuccessful attempts to contact the applicant.

The applicant was interviewed by police on the 24th of January 2004. In that interview he admitted that he had agreed to sell the cameras but said that he did not send them to the complainant because he did not have them. He admitted that he had received the complainant's money and said that he had spent it on living expenses. He said that he was sorry and offered to reimburse the complainant. By the time the applicant came to be sentenced, more than a year later, he had paid back only $822.20 leaving an outstanding balance of $8,422.80. It appears that he has since paid another $1,000 by way of compensation.

The applicant appealed to the District Court against the severity of the sentence imposed by the learned Magistrate. The applicant contended that the sentence, which involved the recording of a conviction, was an excessive punishment because of its consequences for his prospects of employment. His appeal was dismissed on the 21st July 2005. The applicant now seeks leave from that decision to this Court pursuant to

The applicant had been convicted in October 2000 of an offence of cheating in contravention of the Crimes Act 1914 (Cth). He was fined $250 and on that occasion no conviction was recorded.

Both the learned Magistrate and the learned District Court Judge referred to the matters raised in mitigation by the applicant. Important, in this regard, were the circumstances that the money from which he intended to repay the complainant had been lost or stolen. That, at the time of the offence, the applicant had lost his employment and was suffering from depression. That, at the time of sentencing the applicant was still taking medication for depression. That the proceeds of the fraud were used to meet expenses including child support payments. That he intended to establish a business and the recording of a conviction would "limit" his prospects of obtaining the licence necessary to operate the business. That he shares responsibility to raising his two young children and that he cooperated fully with the police, making full admissions as to his responsibility for the offence.

The learned District Court judge referred to s 12 of the Penalties and Sentences Act 1992 which deals with the discretion of a sentencing court as to whether a conviction should be recorded, and to the decision of this Court in R v Breeze [1997] QCA 10, which discusses the considerations relevant to the proper exercise of that discretion. The learned District Court judge took the view that the recording of a conviction was not an excessive penalty having regard to the nature of the offence, the loss inflicted on the victim of the fraud, the need for deterrence, the applicant's prior conviction for dishonesty and the absence of evidence that the recording of a conviction will have any actual adverse impact on the applicant's "economic or social well-being" or his "chances of finding employment".

The applicant has identified no specific error of law in the reasons of the learned District Court judge. Having regard to the applicant's previous offence of dishonesty, and the

cold-blooded dishonesty involved in the fraud of present concern, a decision not to record a conviction could have been criticised as excessively lenient had he been given a term of probation. By virtue of s 152 of the Penalties and Sentences Act 1992 (Qld) the recording of a conviction was required by law upon the imposition of a term of imprisonment.

In any event, I am satisfied that it is not reasonably arguable that the recording of the conviction was an excessive punishment having regard to the matters referred to by the learned District Court judge.

The applicant requires leave to appeal to this Court. It is well established that the requirement of leave to appeal is intended to limit the extent to which litigants who have already received two full hearings within the judicial system may make further claims on that system. The requirement of leave enables cases with no evident prospect of success to be stopped without the further expenditure of judicial resources and the resources of the parties.

On the basis that the applicant has no reasonable prospect of success on appeal, I would dismiss his application for leave to appeal.

WILLIAMS J: The order of the Court is that leave to appeal is refused. Thank you for your submissions this morning Mr Ferrus. We will now terminate the video link with Cairns.

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