Mattingly v Hutcheson - [2012] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Mattingly v Hutcheson [2012] QDC 205

PARTIES:

NICOLE AMY MATTINGLY

(Appellant)

V

MICHAEL JUSTIN HUTCHESON

(Respondent)

FILE NO/S:

D 1782/10

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Goondiwindi Magistrates Court

DELIVERED ON:

28 May 2012 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2012

JUDGE:

Irwin DCJ

ORDER:

The appeal against the sentence imposed by the learned Magistrate in the Magistrates Court at Goondiwindi on 9 June 2012 is allowed.

The sentence of imprisonment imposed by the learned Magistrate is set aside.

In substitution for the sentence of imprisonment imposed by the learned Magistrate it is ordered that in respect of each of the two charges to which the appellant pleaded guilty she be sentenced to 12 months imprisonment (to be served concurrently) but by order is it directed that she be released forthwith upon her giving security within 14 days of this date by recognisance in the sum of $1000 conditioned that she be of good behaviour for two years.

The orders of reparation and the costs of the summons made by the learned Magistrate on 9 June 2010 stand.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty and was convicted of two summary offences of obtaining a financial advantage, namely social security payments, for herself from the Commonwealth knowing or believing that she was not eligible to receive the financial advantage- where she was sentenced to 12 months’ imprisonment to be released on parole after a period of four months - where she was also ordered to pay reparation of the balance of the overpayment ($5292.63) and the costs of the summons ($71.70) - where the non-parole period was imposed in error - where a psychological report prepared approximately three months after the sentence demonstrated that the appellant suffered a long standing psychiatric disorder which in large part explained her offending - where her disorder at the time of the offending and her appearance at the sentencing proceedings was a significant mitigating factor reducing her moral culpability and making general deterrence a factor of less weight - where the sentencing discretion was to be exercised afresh - where it was accepted by the respondent that the report could be taken into account in exercising the sentencing discretion afresh - whether a sentence of imprisonment actually to be served as opposed to being served in the community was an appropriate sentence.

Crimes Act 1914 (Commonwealth), s 4K(4), s16A(2), s19AB

Criminal Code Act 1998 (Commonwealth), s135.2(1)

Justices Act 1886 (Qld), s 222

R v Elliot [2000] QCA 267, applied

R v Grehan [2010] QCA 42, applied

R v Neumann; ex parte A-G (Qld) [2005] QCA 362, applied

COUNSEL:

M. Dight for the appellant

C. Porritt for the respondent

SOLICITORS:

Dight Law for the appellant

Commonwealth Director of Public Prosecutions for the respondent

HIS HONOUR: This is an appeal under section 222 of…

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 Mattingly v Hutcheson

Details

AGLC: Mattingly v Hutcheson [2012] QDC 205
Case: [2012] QDC 205
Decision Date: 28 May 2012 (ex tempore)

CaseChat Overview and Summary

The appellant in this case pleaded guilty and was convicted of two summary offences of obtaining a financial advantage for herself from the Commonwealth knowing or believing that she was not eligible to receive the financial advantage. The respondent appealed against the sentence imposed by the learned Magistrate in the Magistrates Court at Goondiwindi. The appellant was sentenced to 12 months’ imprisonment to be released on parole after a period of four months and was also ordered to pay reparation of the balance of the overpayment ($5292.63) and the costs of the summons ($71.70).

The legal issue the court was required to decide was whether a sentence of imprisonment actually to be served as opposed to being served in the community was an appropriate sentence. The court found that the non-parole period was imposed in error and that a psychological report prepared approximately three months after the sentence demonstrated that the appellant suffered a long-standing psychiatric disorder which in large part explained her offending. The court also found that her disorder at the time of the offending and her appearance at the sentencing proceedings was a significant mitigating factor reducing her moral culpability and making general deterrence a factor of less weight. The court accepted that the sentencing discretion was to be exercised afresh and that the report could be taken into account in exercising the sentencing discretion afresh.

The court found that a sentence of imprisonment actually to be served was not an appropriate sentence. The appeal against the sentence imposed by the learned Magistrate was allowed and the sentence of imprisonment was set aside. In substitution for the sentence of imprisonment imposed by the learned Magistrate it was ordered that in respect of each of the two charges to which the appellant pleaded guilty she be sentenced to 12 months imprisonment (to be served concurrently) but by order it was directed that she be released forthwith upon her giving security within 14 days of this date by recognisance in the sum of $1000 conditioned that she be of good behaviour for two years. The orders of reparation and the costs of the summons made by the learned Magistrate on 9 June 2010 stood.

Orders

Orders of the court

1. The appeal against the sentence imposed by the learned Magistrate in the Magistrates Court at Goondiwindi on 9 June 2012 is allowed.

2. The sentence of imprisonment imposed by the learned Magistrate is set aside.

3. In substitution for the sentence of imprisonment imposed by the learned Magistrate it is ordered that in respect of each of the two charges to which the appellant pleaded guilty she be sentenced to 12 months imprisonment (to be served concurrently) but by order is it directed that she be released forthwith upon her giving security within 14 days of this date by recognisance in the sum of $1000 conditioned that she be of good behaviour for two years.

4. The orders of reparation and the costs of the summons made by the learned Magistrate on 9 June 2010 stand.

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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CITATION:	Mattingly v Hutcheson [2012] QDC 205
PARTIES:	NICOLE AMY MATTINGLY (Appellant) V MICHAEL JUSTIN HUTCHESON (Respondent)
FILE NO/S:	D 1782/10
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Goondiwindi Magistrates Court
DELIVERED ON:	28 May 2012 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2012
JUDGE:	Irwin DCJ
ORDER:	The appeal against the sentence imposed by the learned Magistrate in the Magistrates Court at Goondiwindi on 9 June 2012 is allowed. The sentence of imprisonment imposed by the learned Magistrate is set aside. In substitution for the sentence of imprisonment imposed by the learned Magistrate it is ordered that in respect of each of the two charges to which the appellant pleaded guilty she be sentenced to 12 months imprisonment (to be served concurrently) but by order is it directed that she be released forthwith upon her giving security within 14 days of this date by recognisance in the sum of $1000 conditioned that she be of good behaviour for two years. The orders of reparation and the costs of the summons made by the learned Magistrate on 9 June 2010 stand.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty and was convicted of two summary offences of obtaining a financial advantage, namely social security payments, for herself from the Commonwealth knowing or believing that she was not eligible to receive the financial advantage- where she was sentenced to 12 months’ imprisonment to be released on parole after a period of four months - where she was also ordered to pay reparation of the balance of the overpayment ($5292.63) and the costs of the summons ($71.70) - where the non-parole period was imposed in error - where a psychological report prepared approximately three months after the sentence demonstrated that the appellant suffered a long standing psychiatric disorder which in large part explained her offending - where her disorder at the time of the offending and her appearance at the sentencing proceedings was a significant mitigating factor reducing her moral culpability and making general deterrence a factor of less weight - where the sentencing discretion was to be exercised afresh - where it was accepted by the respondent that the report could be taken into account in exercising the sentencing discretion afresh - whether a sentence of imprisonment actually to be served as opposed to being served in the community was an appropriate sentence. Crimes Act 1914 (Commonwealth), s 4K(4), s16A(2), s19AB Criminal Code Act 1998 (Commonwealth), s135.2(1) Justices Act 1886 (Qld), s 222 R v Elliot [2000] QCA 267, applied R v Grehan [2010] QCA 42, applied R v Neumann; ex parte A-G (Qld) [2005] QCA 362, applied
COUNSEL:	M. Dight for the appellant C. Porritt for the respondent
SOLICITORS:	Dight Law for the appellant Commonwealth Director of Public Prosecutions for the respondent