The Queen v Pearce[1999] QCA 287

COURT OF APPEAL

de JERSEY CJ

BYRNE J

WHITE J

CA No 54 of 1999

THE QUEEN

v.

CHRISTOPHER JOHN PEARCE AKA McMILLAN

BRISBANE

DATE 27/07/99

JUDGMENT

WHITE J:  The applicant for leave to appeal against sentence was convicted on his own pleas of guilty on 16 February this year of 14 indictable offences committed between 30 July 1997 and 2 September 1998 and two summary offences.

The indictable offences were six counts of fraud with a circumstance of aggravation, one count of wilful damage to property, four counts of fraud and three counts of attempted fraud.  The two summary offences concerned possession of property; motor vehicles believed to be tainted.  The applicant was aged between 41 and 42 years at the time of committing these offences.  He does have an extensive criminal history.

A number of those offences are driving offences associated with the excessive consumption of alcohol.  However, there are included offences for dishonesty including theft and false pretences.  These present offences are by far the most serious that he has committed.  Today, the applicant who appears on his own behalf submits that all of his current criminal activity was due to his alcohol and gambling addiction which he is now addressing in prison.

In 1997 he was convicted of stealing and given a six month term of imprisonment wholly suspended for two years.  These offences were committed during the operational period of the suspended sentence.  The applicant's course of criminal conduct in respect of these offences began by the use of false documentation to obtain finance for the purchase of motor vehicles.

This conduct constitutes counts 1, 2 and 9 on the indictment.  He obtained accommodation for which he was unable to pay and damaged one of the rooms in a hotel. This conduct constitutes counts 4, 5, 8 and 3 on the indictment.  He bought or attempted to buy goods using cheques which were not met on presentation.  These offences constituted counts 6 and 7 on the indictment.

He obtained a credit card using false identification and obtained goods using it.  He made no repayments on the card and this constitutes count 10.  The conduct giving rise to count 11 was an attempted purchase of some $180,000-odd worth of cigarettes with a cheque which was not met on presentation.  He also purchases jewellery with a false cheque and this constituted count 12. 

Counts 13 and 14 related to the deposited cheques which were then drawn on by the applicant but which were not met when presented.  The learned sentencing Judge imposed terms of imprisonment of three years and six months in respect of counts 1, 2, 6, 7, 9, 10, 12, 13 and 14.  Twelve months' imprisonment in respect of counts 3, 4, 5 and 8 and a term of one and a half years' imprisonment in respect of count 11.  All of those sentences were to be served concurrently.

The learned sentencing Judge imposed sentences of six months' on the two summary charges also to be served concurrently for punishment for the indictable offences. The applicant does not seek leave to appeal from the sentences imposed on the summary offences.

The breach of the suspended sentence was activated and His Honour ordered that the whole of that suspended sentence be served concurrently with the other sentences.  Eligibility for parole was fixed for 15 June 2000 which was effectively the halfway mark of the sentences that were imposed.  155 days spent in presentence custody were declared to be time served in respect of all of the sentences.

The concern of the applicant is that the recommendation for parole disadvantages him.  He seeks an earlier recommendation of 16 months which he understood was, in fact, to be made by the learned sentencing Judge but it is clear from His Honour's remarks that he was initially of the mind to make an earlier recommendation to take account of the matters such as the pleas of guilty but then decided against that course.

The learned sentencing Judge was of the opinion that deterrence was an important aspect in this case both to deter others and the applicant from further engaging in this kind of dishonest conduct.  The amount of money or value involved was in the vicinity of $400,000, however, vehicles and goods were recovered.  The actual loss of $61,000.

An aggravating feature of these offences was not only were they committed whilst the applicant was subject to a suspended sentence but counts 7 to 14 were committed whilst he was on bail in respect of the earlier charges.

The learned sentencing Judge doubted the applicant's plea of guilty was dictated by motives of contrition and remorse against the background of the facts of the offences and that he had shown contempt for the law by breaching the terms of his suspended sentence and bail conditions.

The applicant contends that what was not sufficiently put before His Honour was that he was driven by his addiction to alcohol and gambling to carry out these other frauds so shortly after the suspended sentence was imposed upon him but it is clear that his counsel did draw to the Court's attention that he was suffering from alcohol addiction and that he was seeking treatment for it within the prison system.

Notwithstanding that those were the driving forces behind him nonetheless they were still premeditated frauds over a long period of time and I think it cannot be said that the learned sentencing Judge overlooked a factor which was significant in fixing the sentence.

The learned sentencing Judge gave the applicant credit for pleading guilty and also for assisting the police in their investigations with respect to several of the matters which would not have been solved had the applicant not cooperated with them.

The experienced counsel who appeared on behalf of the applicant below conceded that the range contended for by the prosecutor of three to five years was appropriate and I do not discern that the applicant here quarrelled with that range; it is only with the recommendation.

I find it difficult to see any basis upon which the learned sentencing Judge fell into error in imposing and structuring the sentences in the way in which he did.  He took account of matters favourable to the applicant by reducing what would otherwise have been a head sentence.  He could easily have imposed a sentence of some four and a half years consistently with the range.

He also took into account maters favourable to the applicant by making the activated suspended sentence concurrent with the other sentences.  These were serious offences of fraud which occurred over a long period of time with the aggravating features that some were committed whilst on bail and all while serving a suspended term of imprisonment.

In my view, there is nothing that can be pointed to in the exercise of His Honour's discretion which shows that the sentences were manifestly excessive.  In my view, the sentences were appropriate including the parole recommendation.  I would dismiss the application for leave to appeal against sentence.

THE CHIEF JUSTICE:  I agree.

BYRNE J:  I agree

THE CHIEF JUSTICE:  The application is refused.