The Queen v Cheers[1997] QCA 329

COURT OF APPEAL

MACROSSAN CJ

McPHERSON JA

de JERSEY J

CA No 214 of 1997 

THE QUEEN 

v. 

LESLIE MATTHEW CHEERSApplicant

BRISBANE

DATE 26/08/97

JUDGMENT

de JERSEY J:  The applicant is a 54-year-old man who has sought leave to appeal against an effective sentence for offences of dishonesty of seven years with parole recommended after two and a half years.  He pleaded guilty to the charges which explains in part the parole recommendation.  The head sentence is partly referable to his prior criminal history, convictions for other dishonesty which had led to three years probation and, of course, to the circumstances of the particular offences. 

The charges were spread over two indictments.  The first contained a count of misappropriation with a circumstance of aggravation for which he was imprisoned for six years, seven counts of false pretences each of which attracted three years imprisonment, 11 counts of forgery with a circumstance of aggravation for which he imprisoned for seven years, and another seven counts of uttering with a circumstance of aggravation which attracted seven years.

A second indictment presented ex officio charged 31 counts of passing valueless cheques for which he was imprisoned for two years and eight counts of false pretences for which terms of three years were imposed.  All of the sentences were to be served concurrently with an overall recommendation for release after two-and-a-half years.

The offences arose in these circumstances.  The applicant in August 1992 approached one Wilson with a proposal to build 28 units.  Mr Wilson was to provide the finance and the applicant to act as site supervisor.  They were to share the profits equally after Mr Wilson recovered his $500,000 outlay for the purchase of the land. 

The building commenced in March 1993 and Mr Wilson was the authorised signatory for cheques to pay for services and materials.  The applicant provided certified copies of invoices and, acting on that certification, Mr Wilson would provide him with a cheque for payment for the invoice on the basis that he would then pass the cheque on to the provider of the goods and services.

As an example of what happened, on 17 March 1993 Mr Wilson was given a photocopy of an invoice from Why Wait Plumbing for $7,954.30 and wrote out a cheque for that amount.  The invoice was false, no materials had been provided.  The applicant went to his solicitor's office with the cheque which had a forged endorsement for the applicant's company.  The applicant asked the solicitor to clear the cheque through his trust account because he said he did not have a banking account.  The cheque was cleared and the applicant received a bank cheque.

On 8 April 1993 the applicant gave Mr Wilson an invoice from M L M Cartage for $2,342.50 and received a cheque from him in return.  That invoice in fact related to work done at another site in which the applicant had an interest.  Using the same procedure, he obtained a bank cheque from the solicitor.  This was the general pattern relating to these offences, although there were variants.  In the end, $41,790.78 was lost to the victims of these offences of dishonesty.

The second indictment related to a period August 1992 to May 1994 during which the applicant conducted 39 transactions on cheque accounts with six different financial institutions.  The cheques were used to obtain goods and services which he used in his building enterprises or for goods and services used in fish and chips shops he conducted or to pay debts relating to his building enterprises. None of the cheques was met on presentation and the suppliers have never been paid.  The total amount outstanding in respect of that indictment is $131,535.59 so that the aggregate loss is $173,326.37.

There are two other features which bear mention relating to the applicant.  The first is that he was an undischarged bankrupt throughout these periods.  The second is that the offences committed after 1 September 1993 in respect of the second indictment occurred while he was on bail. 

He pleaded guilty, although the plea in relation to the first indictment came only on the morning set for the trial.  The sentencing was thereafter adjourned twice in the hope that some restitution could be arranged.  It was first adjourned on 17 October 1996 until 17 April 1997, and then later from 17 April 1997 to 2 May 1997.  Neither adjournment produced any financial relief for the victims so that that total amount remains outstanding.

Counsel for the Crown properly points out that the offences were serious and that they involved a deliberate and systematic course of dishonest conduct for almost two years involving 65 separate transactions.  In all of these circumstances, a sentence of seven years with consideration for parole recommended after two-and-a-half could not be described as manifestly excessive.  The two cases to which we have been referred, Taylor, CA406 of 1994, and Keogh, CA408 of 1994, in each of which the ultimate sentence imposed was the same as here, provide ample support for the sentence which was imposed here, the circumstances of those particular cases being roughly comparable.

The applicant sought an adjournment of the hearing of this application and the circumstances which led the Court to decline to adjourn will appear sufficiently from the transcript of what has preceded this judgment this morning.  When asked to argue the merits of his application, he referred only to a future possibility of restitution.  The vagueness of that, accepting for argument's sake its relevance, is of course reminiscent of the vagueness apparently of prospects of restitution when raised before the learned sentencing Judge on the occasions which led to the adjournment of the sentencing process from 17 October 1996 ultimately to 2 May 1997.  I would refuse the application.

THE CHIEF JUSTICE:  I agree.

McPHERSON JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.