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 225Andersen 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 121LEGAL
REPRESENTATIVE:K McArthur, counsel for the appellant
S M R Butler, legal officer for the respondentSOLICITORS:
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
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- AGLC
- Hope v Neilsen [2017] QDC 265
- Case
- [2017] QDC 265
- Decision Date
CaseChat Overview and Summary
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
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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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