R v Powell [1995] QCA 583

Court of Appeal (Qld)|1995-10-04|Before: MacRossan CJ, Davies JA, MacKenzie J

THE CHIEF JUSTICE: The Court is concerned with an application for leave to appeal against sentence which results from a conviction on the applicant's plea to one count of misappropriation with a circumstance of aggravation and six counts of false pretences. The misappropriation occurred between the end of November 1994 and a date towards the end of December of that same year. The false pretences offences occurred between early January and the end of January of this year.

The applicant was sentenced in June of this year. He was a 32 year old at sentence. The sentences imposed were a custodial term of four years in respect of the misappropriation and concurrent terms of 12 months in respect of the false pretences charges. A recommendation was made for consideration for parole after 18 months, and the sentencing Judge declared that a time already spent in custody amounting to a total of 114 days should be taken into account as time already served.

It is very relevant to state that the applicant had not long before the commission of the present offences been convicted on a number of false pretences charges. There were 18 of them, and he was convicted and sentenced on 21 September 1994. On that occasion, he was fined only in the sum of $1,000 and an order was made for payment of compensation in respect of the sums that had been involved. We see that what happened in those prior cases was that the applicant had approached a supermarket firm for permission to operate his personal cheque account within their stores, and he received permission. However, at about the time, the bank account was closed for lack of funds. Notwithstanding the closure of the account, the applicant purchased goods from the supermarket concerned with which he had the arrangement. When eventually questioned, although he claimed that he didn't know that his cheque account had been closed, he did admit that he knew there were insufficient funds to cover the cheques he had drawn. The excuse he offered was that he was trying to provide food for his family. Those prior convictions are most relevant in terms of what the Court is concerned with in the present application.

The misappropriation with which we must concern ourselves happened in this way: the applicant deposited in his own account bank cheques from accounts which had been opened by his wife in her maiden name. The applicant managed to obtain possession of her cheque books and drew substantial amounts from the relevant accounts of his wife and paid those cheques into his own account and then made withdrawals for his own use from that account. Over 21 days, he withdrew from his wife's account a total of $72,000 and, from the funds thus transferred to his own account, he withdrew a total of $42,775. The accounts that his wife had from which the funds came, as it turned out, were very fruitful sources because, due to the way the bank had managed things, the applicant's wife's accounts had actually been closed but the account number or numbers which she had previously had been transferred to another customer of the bank; so that the amounts drawn by the applicant actually came out of the third party accounts and continued to do so until discovery of the error caused the scheme of misappropriation to cease.

The applicant was not particularly helpful to begin with when contacted by his bank. He gave various excuses to explain his conduct which were not accurate. At first he said that a cheque which was referred to was one drawn from wages. Later on he said that some repayment would be made by him, but claimed to be insulted by the bank's slur on his integrity and declared that he would pay it in an amount and at a rate of his own choosing. Eventually, however, he gave himself up to the police, admitted wrongdoing and declared that he was prepared to be sentenced. The explanation for his conduct was one which the Court hears from time to time, namely a gambling addiction.

The false pretences charges with which we are concerned arise out of the applicant's passing six valueless cheques which were used to purchase groceries and other consumer goods. The consumer goods which were obtained in this fashion were pawned to provide funds for the applicant. The applicant when questioned by the police about these matters said he knew that there were not funds there and indicated that he hoped to recoup his position by wins at gambling.

The total amount of money involved in all of the offences with which we are concerned is some $52,500. There is no possibility of any restitution. The loss took place over a period of two months and, as already indicated, the seriousness is contributed to very much by the previous convictions to which I have already referred. The applicant did plead guilty - a matter which was taken account of by the sentencing Judge. The Judge ordered that the applicant be sentenced in respect of the misappropriation to imprisonment for a period of four years and directed that that sentence and the others which he imposed with it concurrently commence at the expiration of the sentence which the applicant was serving in respect of the prior offences. Although he had been fined for those offences, the fine had not been paid and the default period which had been ordered in that event had commenced to run.

It seems from what we have been told that the effect of deferring all of the present sentences - that is, by making them cumulative - did not effect a very significant delay in the date from which as a matter of calculation the cumulative period might be expected to run; so that no significant disadvantage has occurred to the applicant as a result of the order that the sentence in its substantial aspect be cumulative.

The question, really, is whether the sentence of four years - which is the significant one; the other ones were ordered to be served concurrently, being for lesser periods - was unduly severe in the circumstances. We have been referred to other decisions of this Court which it is not necessary to delay and deal with in any detail. The special circumstances of this case which must be taken into account in considering the appropriateness of the sentence are the prior history and the character of that prior history.

In view of the applicant's determined conduct and the significant amount of money involved and the fact of his, on the face of it, contemptuous disregard for the sentences which had been so recently imposed, I am unable to conclude that the substantial sentence imposed here is manifestly excessive, and I would refuse the application.

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