Fry v Queensland Police Service - [2016] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION:	Fry v Queensland Police Service [2016] QDC 33
PARTIES:	BRIDGET MAY FRY (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO:	APPEAL NO: 200 of 2015
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED EX TEMPORE ON:	23 February 2016
DELIVERED AT:	Cairns
HEARING DATE:	23 February 2016
JUDGE:	Morzone QC DCJ
ORDER:	1. The appeal is allowed. 2. The sentence and orders of the magistrate made on 10 November 2015 are set aside and in lieu the following sentence and orders are made:- (a) For each separate charge of fraud by dishonestly obtaining property from another, the appellant is sentenced to two years’ imprisonment to be served concurrently. (b) I order that the term of imprisonment be partly suspended after serving four months with an operational period under this order of two years. (c) I declare that 105 days spent in custody from the 10th of November 2015 to the 22nd of February 2016 inclusive in relation to the offending is to be imprisonment already served under the sentence and I direct the registrar to inform the Commission of this declaration. (d) I order that the appellant make restitution in the sum of $2,647.95 to the clerk of the Magistrates Court at Cairns for transmission to Archers the Strata Professionals. 3. It is noted that the appellant has already made restitution in compliance with order (d) above.
CATCHWORDS:	CRIMINAL LAW – appeal – conviction – charges of fraud by dishonestly obtaining property – against sentence – restitution order in addition to custodial sentence – whether manifestly excessive Legislation Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 35 Cases House v The King (1936) 55 CLR 499 The Queen v La Rosa; ex parte Attorney-General (Qld) [2006] QCA 19 The Queen v Matauaina [2011] QCA 344 Irwin v the Commissioner of Police [2015] QDC 136 The Queen v Alexander [2004] QCA 11
COUNSEL:	J. Sheridan for the Appellant E. Coker (legal officer) for the Respondent
SOLICITORS:	Wettenhall Silva Solicitors for the Appellant Office of the Director of Public Prosecutions for the Respondent

On 10 November 2015, the appellant was convicted and sentenced after her own plea of guilty in the Magistrates Court held in Cairns in relation to 31 charges of fraud by dishonestly obtaining property being money or credits over a four-month period from 5 March 2014 until 23 July 2014. The total value of her fraudulent conduct was $34,644.46. The maximum penalty for the offence was 12 years’ imprisonment.
She was sentenced to imprisonment of two years suspended after serving five months with an operational period of two years. She was also ordered to make restitution in the sum of $31,926.26 after accounting for some pre-sentence repayments or reversals.
The appellant now appeals against the sentence on the grounds that it was manifestly excessive.
Since the grounds of appeal relate to the restitution order made in favour of the complainant, Archer the Strata Professionals, I directed…

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.

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Details

Case: [2016] QDC 33
Decision Date: 23 February 2016

CaseChat Overview and Summary

In the Supreme Court of Queensland, Fry appealed against his conviction and sentence for charges of fraud by dishonestly obtaining property from another. The appeal focused on the sentence imposed by the magistrate, which included a restitution order in addition to a custodial sentence. Fry argued that the sentence was manifestly excessive. The court considered the arguments presented by both parties and the relevant legal principles.

The central legal issue before the court was whether the sentence, including the restitution order, was manifestly excessive. The court needed to assess the appropriateness of the sentence in light of the circumstances of the case and relevant legal standards. The court also had to determine if the magistrate's decision to impose a restitution order alongside a custodial sentence was justified.

The court found that the sentence imposed by the magistrate was manifestly excessive. The appeal was allowed, and the original sentence was set aside. In its place, the court imposed a concurrent two-year imprisonment sentence for each charge, to be partly suspended after serving four months, with an operational period of two years. The court also ordered Fry to make restitution in the sum of $2,647.95 to the clerk of the Magistrates Court at Cairns for transmission to Archers the Strata Professionals. The court declared that 105 days spent in custody from the 10th of November 2015 to the 22nd of February 2016 inclusive in relation to the offending was to be imprisonment already served under the sentence and directed the registrar to inform the Commission of this declaration. It was noted that Fry had already made restitution in compliance with the order.

Orders

Orders of the court

1. The appeal is allowed.

2. The sentence and orders of the magistrate made on 10 November 2015 are set aside and in lieu the following sentence and orders are made:-

(a) For each separate charge of fraud by dishonestly obtaining property from another, the appellant is sentenced to two years’ imprisonment to be served concurrently.

(b) I order that the term of imprisonment be partly suspended after serving four months with an operational period under this order of two years.

(c) I declare that 105 days spent in custody from the 10th of November 2015 to the 22nd of February 2016 inclusive in relation to the offending is to be imprisonment already served under the sentence and I direct the registrar to inform the Commission of this declaration.

(d) I order that the appellant make restitution in the sum of $2,647.95 to the clerk of the Magistrates Court at Cairns for transmission to Archers the Strata Professionals.

3. It is noted that the appellant has already made restitution in compliance with order (d) above.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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