Allan, C.G. v The Queen

[1991] FCA 145

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JUDGMENT No. 1451 .?! ..,.- 1.; l

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
AUSTRALIAN CAPITAL TERRITORY	1
) No. ACT G 64 of 1990
DISTRICT REGISTRY	1
GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHERYL GAY ALLAN

Appellant

AND: THE OUEEN

Respondent

ORDER

JUDGES MAKING ORDER :	Neaves, Wilcox and Miles J.
DATE OF ORDER	11 April 1991
WHERE MADE	Canberra

!l

PRlNClPAL

The Court orders that the appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.	,
i ~ 5
. ,

RECEIVED

15 APR 1991

FEDERAL COURT OF

AUSTRALIA

NOT FOR DISTRIBUTION

IN THE FEDERCL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	j ) No. ACT G 64 of 1990
DISTRICT REGISTRY	1
)
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHERYL GAY ALLAN

Appellant

AND: THE OUEEN

Respondent

CORAM: Neaves, Wilcox and Miles JJ

W: 11 April 1991

EX TEMPORE JUDGMENT

THE COURT:

This is an appeal against the sentences imposed on the appellant by the Supreme Court of the Australian Capital Territory (Gallop J.) on 19 October 1990. The appellant had pleaded guilty to a large number of offences. Those offences

were charged under ss.99, 135C and 135D of the Crimes Act,	1900 (N.S.W.) in its application to the Territory, 9.24 of the
Cash Transactions Reuorts Act 1988 (Cth) and s.67 of the Crimes Act 1914 (Cth).
The offences, which involve fraud and dishonesty, were committed over a period of 2 months and amounted to what has been referred to as a frenzy of criminal activity engaged in by the appellant and her son. The offences were serious

and involved a significant f r aud on the commi~nity. The course of crlminal conduct was only brought to an end by the arrest of the participants.

It is unnecessary to detail the offences or the sentences which the learned sentencing judge imposed in respect of each offence. A number of the sentences were ordered to be served concurrently and others ordered to be served cumulatively. In the result, the appellant was sentenced to imprisonment for 4 years with a non-parole period of 2 years.

Counsel for the appellant has submitted that the head sentences and non-parole periods are, in all the circumstances, so obviously excessive that the sentencing discretion miscarried.

The principles upon which an appellate court will interfere with a sentence are well known and need not be restated.

The principal ground of the appeal is that the sentences are excessive having regard to the appellant's personal circumstances to which, it is submitted, the sentencing judge gave insufficient weight. In support of that contention, counsel for the appellant, in his detailed and helpful argument, referred us to the material that was before his Honour concerning the appellant's personal circumstances and to his Honour's references to it.

We are satisfied that the offences were such as to require a custodial sentence and counsel for the appellant did not submit to the contrary. We are satisfied that the head sentences, resulting in a total sentence of imprisonment for 4 years were within the range of sentences appropriate in all the circumstances. We are not satisfied that any error has been shown warranting this Court's intervention in that regard.

The length of the non-parole period fixed by the sentencing judge has glven us cause for further consideration of the matter. There is no doubt that an important matter for consideration in this regard is what prospects there are for the appellant's rehabilitation and how that may best be achieved. It was submitted that the appellant's rehabilitation would be greatly assisted by a significant reduction in the non-parole period. In this regard we have given anxious consideration to the evidence given before the Supreme Court by Michael Thomas Allan and, in particular, to

the evidence of his willingness to become actively involved in	the appellant's rehabilitation. We have concluded, however,
that it would be inappropriate for thls Court to interfere as it has not had the advantage, as his Honour did, of seeing both the appellant and Mr: Allan in the witness box. His Honour was, therefore, in a far better position than is this Court to evaluate the prospects of the appellant's rehabilitation. His Honour clearly took that aspect into account and we are unable to say that, in fixing a non-parole
period of two years, his Honour's discretion miscarried.
We do not think that any of the other matters relied upon by the appellant warrant thls Court's interference with the sentences imposed.

The appeal is, therefore, dismissed.

I certify that this and the preceding 3 pages are a true copy of the Ex Tempore

Associate

Dated: 11 April 1991

Counsel for the applicant : Mr C. Whitelaw

Solicitors for the applicant : Wood Fussell & Co.

Counsel for the respondent : Mr J. White

Solicitors for the respondent : Director of Public

Prosecutions

Date of hearing	: 11 April 1991
Date of judgment	: 11 April 1991