R v Reischl[2000] QCA 215

THE PRESIDENT:  The applicant pleaded guilty in the Southport District Court on 8 March 2000 to three counts of fraud with a circumstance of aggravation, two counts of misappropriation with a circumstance of aggravation and five counts of stealing as an agent property valued in excess of $5,000.  The charges were contained in three indictments.

The applicant was sentenced to five years imprisonment in respect of the two counts of misappropriation and to seven years imprisonment in respect of all other counts concurrent with each other but necessarily cumulative on a six week sentence then being served for breach of bail.  See section 33 Bail Act 1980.  He was also given a recommendation for release on parole after two and a half years.

The applicant was aged 48 at sentence.  He had prior convictions in 1990 for bigamy for which he was placed on a bond for three years and for passing a valueless cheque for which he was fined $500. 

The applicant was a self-employed marine broker who sold boats on a consignment basis through his own business Hope Harbour Marine, Hope Island.  He commenced his business in 1994.  It was originally run legitimately and successfully but in the 18 month period prior to and during the commission of these offences the applicant was in financial difficulties caused, he claimed, by a nearby development, Harbour Cove Marine Resort, which restricted access to his business.  Additionally during his period his de facto became pregnant and he claimed he had a stroke.  This left the applicant unable to participate as actively in his business which consequently floundered. 

I will deal with the offences chronologically.  The two counts of aggravated misappropriation charged on a single indictment occurred as follows:  The applicant arranged the sale of a 52 foot yacht for $150,000 of which the applicant was to receive $7,500 and his client $142,500.  The purchaser paid in three stages and the applicant had received the full amount by the settlement date of 3 July 1997.  Despite pressure from the complainant he did not pass on the sale price to him.  He eventually handed the complainant his own business cheque for $142,500 which was not honoured.  On 28 July the applicant admitted to the complainant that he had been lying and did not have the money but promised to pay in time.  The applicant used the money to prop up his business by paying debts.  By the time of the committal hearing $47,500 had been repaid with $95,000 outstanding.

The second count of misappropriation occurred as follows. The applicant sold a 34 foot cruiser for $100,000.  The complainant insisted the vessel not be removed from the marina until the cheque for its sale had been cleared.  The applicant without authority allowed the vessel to be taken by the purchaser and used the purchaser's cheque for $110,000 to pay his own business debts.  The applicant was on bail for these offences, (for which he was sentenced to five years imprisonment), when he committed the remaining offences.

The offences on the six count indictment occurred as follows:  Count 1 related to the sale of a Maskply boat for $60,000 in January 1998.  The applicant again failed to account to the original owner for his share of the $57,500 sale price.  The same modus operandi was repeated in respect of count 2 when the applicant sold a runabout for $50,000 and failed to account to the owner for his $46,000.

Count 3 was committed in a similar way when the applicant failed to account to the owner for $15,700 received from the sale of a boat.  Count 4 involved the sale of a Markline Cruiser for $15,000 again with a failure to account to the owner for any part of the sale price.  Count 5 involved the sale of a Cabin Cruiser for $115,000 with the applicant again failing to account to the owner for any part of the sale price he received.  Count 6 involved the sale of a $65,000 vessel to a Mr Myer.  Before Mr Myer took possession the applicant again sold the vessel to Mr Brooke for $65,000.  Mr Myer sailed his boat to the Philippines and Mr Brooke lost his $65,000.

The final two count indictment related to a Sports Cruiser which the owner requested the applicant to sell for $50,000.  The applicant sold it for only $22,000 without the owner's consent.  The $22,000 received by the applicant was dissipated in his business.  The boat was eventually returned to the owner. 

The charges on the first indictment were the subject of a full committal hearing; the remaining charges were committed by way of a full hand-up brief.  The total gain to the applicant was $596,700 of which $431 remains recovered.  The applicant was bankrupt at sentence and the complainants had no prospect of further compensation. 

The committals for these offences took place in 1998.  The matters were placed on the trial list and there were several adjournments because of claims that the applicant was ill and that there was a prospect of repayment in full to the complainants.  The matter was finally listed for sentence on 26 August 1999 when the applicant again claimed to be ill.  He was pronounced fit by a government medical officer and then absconded.  He was at large until a bench warrant was executed on 14 February 2000.

The applicant was born in Austria and has been in a de facto relationship for 11 years.  He has a two year old child from that relationship and two children aged 25 and 13 from a previous marriage.  His barrister at sentence submitted his health was poor.  He had a stroke three years ago which caused regular internal bleeding; asthma; haemorrhoids; he takes large doses of antibiotics; he suffers from anxiety and anxiety attacks, stress and insomnia.  No independent evidence was given or tendered as to these matters.  The applicant as has been noted used the money to prop up his business and always intended to repay it.  The money was not used in an extravagant lifestyle.  He was fully cooperative with the police investigators and made admissions. 

He expressed remorse at sentence and to at least the first complainant.  As the learned sentencing Judge pointed out, one difficulty in respect of that submission is the applicant then went on to commit further offences in respect of other complainants.  The applicant has lost his business, friends and reputation and since committing these offences has had difficulty earning enough to provide for his family.

The applicant's counsel on this appeal Mr Devereaux argued that the sentence imposed was manifestly excessive.  The comparable cases demonstrate that this sentence, which includes the recommendation for parole after two and a half years, was properly within range.  See for example Taylor CA 406 of 1994, Cheers CA 214 of 1997 and Porter and McQuire CA 280 and 308 of 1999.  In Baunach CA 88 of 1999 this Court noted on an Attorney's appeal that the term of imprisonment of six years imposed there was at the low end of any appropriate range and substituted for a non parole period of one year that of two years. 

The applicant further submits here that a sentence of five years imprisonment with no parole recommendation should have been imposed rather than the sentence of seven years imprisonment with a recommendation for parole after two and a half years because the recommendation for early parole given by the Court to recognising mitigating factors including a plea of guilty and other forms of cooperation may not be followed by the parole authorities.  He submits the present parole system can no longer give an expectation of release in accordance with the sentencing Judge's recommendation.

In support of that submission Mr Devereaux relies on Williams v. Queensland Community Corrections Board [2000] QCA 75.  In that case this Court found that the QCCB in not following the sentencing Judge's recommendation had failed to give any or any proper weight to the application of the public policy principle of encouraging members of the community to cooperate in the apprehension and conviction of offenders even at the risk of personal violence to themselves.

It does not follow from Williams that the QCCB will not follow the sentencing Judge's recommendation in this case in due course.  Were the QCCB to fail to consider appropriate matters in any future parole application brought by the applicant his remedies may lie in judicial review. 

The applicant seeks to rely on a copy of chapter 8 of the report of the Criminal Justice Commission on prison numbers in Queensland which demonstrates a reduction in a number of parole decisions following the dismissal of the parole board in 1997 and a tightening of criteria and a decline in the use of early release practices by Corrections.  This material was not before the sentencing Judge.  Indeed it was not submitted at sentence that a parole recommendation should not be given or that the applicant might not get the benefit of any parole recommendation. 

In any case, this information sought to be relied on by Mr Devereaux does not suggest that the QCCB will not act on the parole recommendation given in this case.  Anecdotally it would seem to be that the applicant is in a class of prisoners likely to receive timely parole.  Whilst sentencing judges may prefer to impose a lesser head sentence rather than give a parole recommendation, the matters referred to by Mr Devereaux on this appeal do not make the sentence imposed, which was clearly within the appropriate range, wrong in principle or manifestly excessive. 

Mr Devereaux's argument if accepted would have a wide ranging effect on sentencing in Queensland.  There is no evidence before this Court to support the argument advanced that the Judge's recommendations in this case will not be acted upon by the QCCB. 

The applicant was a mature man who committed serious offences over an 18 month period involving almost $600,000, most of which remains unrecovered.  Although not a member of one of the recognised professions, as a marine broker he was in a position of trust with responsibility for expensive chattels and large amounts of money.  Eight of the offences occurred whilst he was on bail for similar offences.  He did not have an extensive criminal history but nor did he come before the Court with an unblemished record.  He was cooperative with the police and pleaded guilty although not at the first opportunity.  The parole recommendation given properly reflects the mitigating factors in this case.  It is a proper sentence in all the circumstances.  I would refuse the application for leave to appeal against sentence.

WHITE J:  The submission made by Mr Devereaux that a recommendation for eligibility for application for release on parole earlier than provided for in section 166 of the Corrective Services Act does not in effect reduce the severity of the sentence is reflected in principles enunciated by the High Court in Lowe v. The Queen (1984) 154 CLR 606.  Mason J observed at page 615:

 "The joint judgment of Barwick CJ, Menzies Stephens and Mason JJ [in Power v. The Queen 1974 131 CLR 623] points out however that while the object of the specification of a non parole period is to provide for the mitigation of the punishment of the offender in favour of his rehabilitation there remains in truth only one sentence which cannot be altered by the paroling authority.  The consequence is that although the recommendation of the non parole period may operate in some circumstances to reduce the period of time which the applicant would spend in prison it leaves the sentence unaffected as a judicial assessment of the gravity of the offence which he committed".

Accordingly Mr Devereaux submits that the mitigatory factors are not truly represented in the sentences imposed.  Whatever approach might be taken to sentencing in respect of mitigating factors I agree with the President that the sentences here imposed were within range for this applicant.  There may be a need to consider the proper role of an early recommendation in sentencing where a term of imprisonment is imposed.  These matters were not raised below, neither is there any material before this Court or leave sought to adduce fresh evidence about the fate of early recommendations for parole.  This application in my view is not therefore a suitable vehicle for examining this submission.  I agree with the order proposed by the President.

DUTNEY J:  I agree with the proposed order and with the reasons of each of the other members of the Court.  This is not in my view an appropriate vehicle to consider the value of a recommendation or to suit general guidelines for the use of early parole recommendations in sentencing.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.

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