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Hope v Neilsen

Hope v Neilsen

Case [2017] QDC 265 1 November 2017

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DISTRICT COURT OF QUEENSLAND

CITATION:

Hope v Neilsen [2017] QDC 265

PARTIES:

TENILLE SUE-ANNE HOPE
(appellant)

v

BARBARA ANN NEILSEN
(respondent)

FILE NO/S:

1019/17

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

1 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2017

JUDGE:

Farr SC, DCJ

ORDER:

1.   Appeal allowed.

2.   The order made in the Magistrates Court at Brisbane on 17 March 2017 requiring the appellant to serve one month imprisonment before release is set aside and substituted with an order that she be released immediately.

3.   In all other respects the order made in the Magistrates Court at Brisbane on 17 March 2017 is unchanged.

CATCHWORDS:

CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where appellant fraudulently claimed social security payments amounting to $16,070.81 – where appellant had no criminal history prior to the offending - where the appellant pleaded guilty to one charge of obtaining a financial advantage and was sentenced to six months imprisonment to be released after serving one month imprisonment on a recognisance in the sum of $2,500 on the condition that she be of good behaviour for a period of two years – where reparation was also ordered – whether sentence imposed was excessive.

Crimes Act 1914 (Cth) s 17A, 20, s 21B
Criminal Code (Cth) s 135
Justices Act 1886 (Qld) s 222, s 223, s 225

Andersen v Commonwealth Director of Public Prosecutions [2006] QDC 216
Arthur v Collins (Unreported, District Court of Queensland, Durward SC DCJ, 11 May 2007)
Bronson v Commonwealth Director of Public Prosecutions [2013] QDC 202
Commissioner of Police v Al Shakarji [2013] QCA 319
House v The King(1936) CLR 499
Hyde v Mason [2005] QCA 79
Lammon v Emery [2010] QDC 123
R v Holdsworth [1993] QCA 242
R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25
R v M [2002] QCA 409
R v Newton [2010] QCA 101
R v Oag [1993] QCA 225
Smith v Belgrove (Unreported, District Court of Queensland, Forde DCJ, 3 June 2005)
Rosales v Carstens [2004] QDC 579
Teelow v Commissioner of Police [2009] QCA 84
White v Commissioner of Police [2014] QCA 121

LEGAL
REPRESENTATIVE:

K McArthur, counsel for the appellant
S M R Butler, legal officer for the respondent

SOLICITORS:

Legal Aid Office Queensland for the applicant
Commonwealth Director of Public Prosecutions for the respondent

The appellant pleaded guilty to one charge of obtaining a financial advantage for herself contrary to s 135(1) of the Criminal Code(Cth) in the Brisbane Magistrates Court on 17 March 2017. She was sentenced to six months imprisonment to be released pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (“CA”) after serving one month imprisonment, upon entering into a recognisance in the sum of $2,500 on the condition that she be of good behaviour for a period of two years. Reparation of $16,070.81 was ordered pursuant to s 21B of the

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 Hope v Neilsen

Details

AGLC: Hope v Neilsen [2017] QDC 265
Case: [2017] QDC 265
Decision Date: 1 November 2017

CaseChat Overview and Summary

The case of Hope v Neilsen involved an appeal against a sentence handed down by the Magistrates Court at Brisbane. The appellant, Hope, had been found guilty of fraudulently obtaining social security payments amounting to $16,070.81. Prior to this offence, she had no criminal history. She pleaded guilty to one charge of obtaining a financial advantage and was sentenced to six months imprisonment, with the condition that she serve one month before being released on a recognisance of $2,500, on the condition that she be of good behaviour for two years. The court also ordered reparation. The appeal was concerned with whether the sentence was excessive.

The primary legal issue before the court was whether the sentence imposed by the Magistrates Court was excessive, given the appellant's lack of a criminal history and other mitigating factors. The appeal hinged on the assessment of the appropriate punishment for the offence of obtaining a financial advantage by deception. The court had to consider the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, as well as the circumstances of the offender.

The court found that the sentence was indeed excessive. It noted that the appellant had no prior criminal history and had repaid the money stolen. The court held that the requirement for the appellant to serve one month in prison before being released was disproportionate to the offence. The court substituted this part of the sentence with an order for immediate release. However, the court upheld the other parts of the sentence, including the requirement for reparation and the two-year good behaviour bond. The appeal was thus partially allowed, with the court modifying the imprisonment term but affirming the rest of the sentence.

Orders

Orders of the court

1. Appeal allowed.

2. The order made in the Magistrates Court at Brisbane on 17 March 2017 requiring the appellant to serve one month imprisonment before release is set aside and substituted with an order that she be released immediately.

3. In all other respects the order made in the Magistrates Court at Brisbane on 17 March 2017 is unchanged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hope v Neilsen [2017] QDC 265

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

White v Commissioner of Police
[2014] QCA 121 Para 1

…v Al Shakarji [2013] QCA 319 at [65] per Margaret Wilson J; Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4]; White v Commissioner of Police [2014] QCA 121 at [8].…
Commissioner of Police v Al Shakarji
[2013] QCA 319 Para 1

…hat to succeed on such an appeal the appellant must establish some legal, factual or discretionary error.[2] [2] Commissioner of Police v Al Shakarji [2013] QCA 319 at [65] per Margaret Wilson J; Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4]; White v Commissioner of Police [2014] QCA 121 at [8].…
Bronson v Commonwealth Director of Public Prosecutions
[2013] QDC 202 Para 1

…t below, and in this court, the prosecution relied on the following three cases: (a) Bronson v Commonwealth Director of Public Prosecutions :[14] [14][2013] QDC 202.…
R v Newton
[2010] QCA 101

…dsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25 R v M [2002] QCA 409 R v Newton [2010] QCA 101 R v Oag [1993] QCA 225 Smith v Belgrove (Unreported, District Court of Queensland, Forde DCJ, 3 June 2005) Rosales v Carstens [2004] QDC 579 Teelow v Commissioner of…
Lammon v Emery
[2010] QDC 123

…QDC 202 Commissioner of Police v Al Shakarji [2013] QCA 319 House v The King (1936) CLR 499 Hyde v Mason [2005] QCA 79 Lammon v Emery [2010] QDC 123 R v Holdsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25 R v M [2002] QCA 409 R v Newton [2010] QCA 101 R v Oag […
Teelow v Commissioner of Police
[2009] QCA 84 Para 1

…and therefore an error in the House v The King sense needs to be demonstrated.[1] [1](1936) 55 CLR 499 at 504-505; Teelow v Commissioner of Police [2009] QCA 84 at [4] and [18].…
Hyde v Mason
[2005] QCA 79

…f Public Prosecutions [2013] QDC 202 Commissioner of Police v Al Shakarji [2013] QCA 319 House v The King (1936) CLR 499 Hyde v Mason [2005] QCA 79 Lammon v Emery [2010] QDC 123 R v Holdsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25 R v M [2002] QCA 409 R v N…
R v Hurst; ex parte
[2005] QCA 25

…] QCA 79 Lammon v Emery [2010] QDC 123 R v Holdsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25 R v M [2002] QCA 409 R v Newton [2010] QCA 101 R v Oag [1993] QCA 225 Smith v Belgrove (Unreported, District Court of Queensland, Forde DCJ, 3 June 2005) Rosales v C…
Rosales v Carstens
[2004] QDC 579

…QCA 101 R v Oag [1993] QCA 225 Smith v Belgrove (Unreported, District Court of Queensland, Forde DCJ, 3 June 2005) Rosales v Carstens [2004] QDC 579 Teelow v Commissioner of Police [2009] QCA 84 White v Commissioner of Police [2014] QCA 121 LEGAL REPRESENTATIVE: K McArthur, counsel for the appellant S M R Butler,…
R v M
[2002] QCA 409 Para 1

…ffences of dishonesty is a relevant consideration to the degree of leniency that might be afforded to her on sentence for this matter.[9] [9] R v M [2002] QCA 409, 5.…
R v Holdsworth
[1993] QCA 242

…v Al Shakarji [2013] QCA 319 House v The King (1936) CLR 499 Hyde v Mason [2005] QCA 79 Lammon v Emery [2010] QDC 123 R v Holdsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25 R v M [2002] QCA 409 R v Newton [2010] QCA 101 R v Oag [1993] QCA 225 Smith v Belgrove…
R v Oag
[1993] QCA 225 Para 1

…uld be noted however that the need for deterrence should be appropriately balanced against circumstances pertaining to the offender.[13] [13] R v Oag [1993] QCA 225, 3.…
House v R
[1936] HCA 40

…on v Commonwealth Director of Public Prosecutions [2013] QDC 202 Commissioner of Police v Al Shakarji [2013] QCA 319 House v The King (1936) CLR 499 Hyde v Mason [2005] QCA 79 Lammon v Emery [2010] QDC 123 R v Holdsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25…
Andersen v Commonwealth Director of Public Prosecutions
[2006] QDC 216

…, s 21B Criminal Code (Cth) s 135 Justices Act 1886 (Qld) s 222, s 223, s 225 Andersen v Commonwealth Director of Public Prosecutions [2006] QDC 216 Arthur v Collins (Unreported, District Court of Queensland, Durward SC DCJ, 11 May 2007) Bronson v Commonwealth Director of Public Prosecutions [2013] QDC 202 Commis…
House v The King
63 WN 176

…1 May 2007) Bronson v Commonwealth Director of Public Prosecutions [2013] QDC 202 Commissioner of Police v Al Shakarji [2013] QCA 319 House v The King (1936) CLR 499 Hyde v Mason [2005] QCA 79 Lammon v Emery [2010] QDC 123 R v Holdsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
17A, 20 3 mentions (from Para 1)
Justices Act 1886 (Qld)
222 2 mentions

CITATION:	Hope v Neilsen [2017] QDC 265
PARTIES:	TENILLE SUE-ANNE HOPE (appellant) v BARBARA ANN NEILSEN (respondent)
FILE NO/S:	1019/17
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	1 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2017
JUDGE:	Farr SC, DCJ
ORDER:	1. Appeal allowed. 2. The order made in the Magistrates Court at Brisbane on 17 March 2017 requiring the appellant to serve one month imprisonment before release is set aside and substituted with an order that she be released immediately. 3. In all other respects the order made in the Magistrates Court at Brisbane on 17 March 2017 is unchanged.
CATCHWORDS:	CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where appellant fraudulently claimed social security payments amounting to $16,070.81 – where appellant had no criminal history prior to the offending - where the appellant pleaded guilty to one charge of obtaining a financial advantage and was sentenced to six months imprisonment to be released after serving one month imprisonment on a recognisance in the sum of $2,500 on the condition that she be of good behaviour for a period of two years – where reparation was also ordered – whether sentence imposed was excessive. Crimes Act 1914 (Cth) s 17A, 20, s 21B Criminal Code (Cth) s 135 Justices Act 1886 (Qld) s 222, s 223, s 225 Andersen v Commonwealth Director of Public Prosecutions [2006] QDC 216 Arthur v Collins (Unreported, District Court of Queensland, Durward SC DCJ, 11 May 2007) Bronson v Commonwealth Director of Public Prosecutions [2013] QDC 202 Commissioner of Police v Al Shakarji [2013] QCA 319 House v The King(1936) CLR 499 Hyde v Mason [2005] QCA 79 Lammon v Emery [2010] QDC 123 R v Holdsworth [1993] QCA 242 R v Hurst; ex parte Commonwealth Director of Public Prosecutions [2005] QCA 25 R v M [2002] QCA 409 R v Newton [2010] QCA 101 R v Oag [1993] QCA 225 Smith v Belgrove (Unreported, District Court of Queensland, Forde DCJ, 3 June 2005) Rosales v Carstens [2004] QDC 579 Teelow v Commissioner of Police [2009] QCA 84 White v Commissioner of Police [2014] QCA 121
LEGAL REPRESENTATIVE:	K McArthur, counsel for the appellant S M R Butler, legal officer for the respondent
SOLICITORS:	Legal Aid Office Queensland for the applicant Commonwealth Director of Public Prosecutions for the respondent