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Browne v The Queen

Browne v The Queen

Case [2006] ACTCA 15 17 August 2006

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REBECCA LOUISE BROWNE v THE QUEEN
[2006] ACTCA 15 (17 August 2006)

CRIMINAL LAW – sentence – appeal – discretion to admit fresh evidence – need for appellate court to be satisfied fresh evidence would produce different result.

Supreme Court Act 1933 (ACT), s 37N

Crimes Act 1900 (ACT), s 357

CDJ v VAJ (1998) 197 CLR 172

Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
Guss v Johnstone [2000] FCA 1455
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No ACTCA 29 - 2006
No SCC 140 of 2005

Judges: Gray, Connolly and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date: 17 August 2006

IN THE SUPREME COURT OF THE  )   No ACTCA 29 - 2006
  )  No SCC 140 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: REBECCA LOUISE BROWNE
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:  Gray, Connolly and Gyles JJ
Date of Order:  3 August 2006
Date of Reasons:  17 August 2006
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE  )   No ACTCA 29 - 2006
  )  No SCC 140 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: REBECCA LOUISE BROWNE
Appellant

AND: THE QUEEN
Respondent

Judges:  Gray, Connolly and Gyles JJ
Date:  17 August 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Rebecca Louise Browne appeals against a sentence imposed upon her in respect of five charges of theft and in respect of which a further 89 offences of theft were taken into account. The offences took place between September 1999 and October 2000. On 13 July 2006, Crispin J sentenced the appellant to imprisonment for two years on each of the five charges before him but ordered that the sentence that he imposed on each charge be served partly concurrently with and cumulative upon that which he imposed on each charge. He did this by commencing each sentence successive to the first at three monthly intervals. The total effect was a sentence of three years imprisonment. He fixed a non-parole period of six months.

Circumstances of the offence

The offences all took place at a time when the appellant was employed as an accounts clerk. As a consequence of the thefts, the company which employed her suffered extensive losses and the subsequent hardship that results to a relatively small enterprise occasioned by losses of the magnitude involved here.

The offences involved a serious breach of trust and a constant pattern of dishonesty over the time charged. The loss occasioned was substantial both by reason of what was taken at the time and expense incurred by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Browne v The Queen

Details

AGLC: Browne v The Queen [2006] ACTCA 15
Case: [2006] ACTCA 15
Decision Date

CaseChat Overview and Summary

Rebecca Louise Browne appealed to the Court of Appeal of the Australian Capital Territory against a sentence imposed by Crispin J of the Supreme Court of the Australian Capital Territory. The appellant had been sentenced to three years imprisonment, with a non-parole period of six months, for five charges of theft and 89 further offences of theft taken into account. The offences occurred between September 1999 and October 2000, during which time the appellant was employed as an accounts clerk and stole a substantial amount of money from her employer, which was dissipated due to a gambling addiction. The appeal was primarily concerned with whether the sentencing judge should have fully suspended the sentence of imprisonment.

The legal issues before the Court of Appeal included whether the sentencing judge erred by not fully suspending the sentence, and whether the court should admit fresh evidence on appeal. The appellant sought to introduce new evidence relating to her early admission of guilt and co-operation with police, the delay between the offences and her plea, her psychiatric condition at the time of the offences and sentence, her rehabilitation efforts, and her attempts to repay the stolen money. A further issue was whether the appellant should be permitted to dispute the total amount stolen, which she now asserted was approximately $140,000 rather than the $215,028.63 taken into account.

The Court of Appeal applied the principles governing the admission of fresh evidence on appeal, as outlined in section 37N of the *Supreme Court Act 1933* (ACT) and relevant High Court and appellate decisions. The court emphasised that fresh evidence would ordinarily only be admitted if it were likely to have produced a different result at trial and that the discretion to admit such evidence exists to serve the demands of justice. The court found that the proposed fresh evidence concerning rehabilitation, the appellant's attitude to the delay in proceedings, and the amount stolen was not of such significance that it would have likely altered the sentencing judge's decision. The court noted that the sentencing judge had already taken the delay into account favourably and that the appellant had not provided sufficient justification for disputing the amount stolen at this late stage.

Consequently, the Court of Appeal refused leave to adduce further evidence. Without this additional evidence, the appellant was unable to advance further submissions in support of her appeal. Accordingly, the Court of Appeal dismissed the appeal.

Orders