R v Allen

[2005] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v Allen [2005] QCA 73

PARTIES:

R
v
ALLEN, Glen Keith
(applicant/appellant)

FILE NO/S:

CA No 21 of 2005
DC No 4 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

17 March 2005

DELIVERED AT:

Cairns

HEARING DATE:

17 March 2005

JUDGES:

McMurdo P, Jerrard JA, Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application granted
2.    Appeal allowed
3.    Sentence is varied by suspension after nine months       instead of after 15 months imprisonment

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – REPARATION AND RESTITUTION BY OFFENDER – applicant convicted of dishonestly applying employer’s funds to his own use – applicant made full restitution to his employer through the sale of his family residence – sentenced imposed of four years imprisonment suspended after 15 months – whether sentence adequately reflected the matter of restitution

R v Fisher [2002] QCA 259; CA No 148 of 2002, 24 July 2002, considered
R v Hearnden [2002] QCA 258; CA No 149 of 2002, 24 July 2002, considered
R v Ma’afu [1991] CCA 020; CA No 269 of 1990, 28 February 1991, considered
R v Powell, unreported, Macrossan CJ, Davies JA and Mackenzie J, CA No 293 of 1995, 4 October 1995, considered
R v Rees [2002] QCA 469; CA No 205 of 2002, 4 November 2002, considered

COUNSEL:

A J Glynn SC for the applicant
C W Heaton for the respondent

SOLICITORS:

Mellick Smith & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  Justice Jerrard will deliver his reasons first.

JERRARD JA:  Glen Allen pleaded guilty in the Cairns District Court on 24 June 2004 to the offence of dishonestly applying to his own use, between 16 August 2000 and 17 June 2004, a quantity of cheques, two credit cards and a quantity of concrete all belonging to Pioneer North Queensland Pty Ltd with that dishonesty yielding Glen Allen a value greater than $5,000.

The value of the goods and services for which he dishonestly obtained payment over that four year period was $66,146.70.  He had done that by misapplying to his personal use and benefit funds of his employer, Pioneer North Queensland Pty Ltd, and by misuse of two credit cards provided to him by the company.  He also obtained the delivery of 65 cubic metres of concrete to his home address.  At all relevant times he was the company's general manager.

He was sentenced to imprisonment for four years to be suspended after he had served 15 months, with an operational period of five years.

He has applied for leave to appeal against that sentence arguing that it is manifestly excessive.

On its face the sentence appears quite appropriate.  The applicant had abused a position of trust over a…