R v Bailey

[2003] QCA 506

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bailey [2003] QCA 506

PARTIES:

R
v
BAILEY, Frances Amy
(applicant/appellant)

FILE NO/S:

CA No 266 of 2003
DC No 30 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Emerald

DELIVERED ON:

14 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2003

JUDGES:

McPherson and Williams JJA and Mackenzie J
Separate reasons for judgment

ORDER:

1. The appeal against conviction is allowed to the extent of setting aside so much of the verdict and judgment as refers to the appellant being found guilty or convicted as a servant
2.  Allow the application and appeal against sentence and vary the sentence by setting aside the recording of conviction and ordering that no conviction be recorded

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND

PROCEDURE –  SUMMING-UP –  appellant employed by school used purchase order from department to purchase items for personal use – later paid for items – judge did not mention the word ‘victim’ in summing up – whether judge left to jury to decide if appellant was employee and if department was victim

CRIMINAL LAW – JURISDICTION, PRACTICE AND

PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – circumstance of aggravation wrongly considered when sentencing –  conviction recorded – whether appropriate

Criminal Code Act 1899 (Qld), s 408C

Dearnley v The King [1947] St R Qd 51, referred to
Re Austin (1994) 1 Qd R 225, considered
The Queen v de Simoni (1981) 147 CLR 38, followed
Yager v The Queen (1977) 139 CLR 28, followed

COUNSEL:

S Hamlyn-Harris for the applicant/appellant
C Heaton for the respondent

SOLICITORS:

Mullins Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: The appellant was tried before a jury in the District at Emerald and convicted of an offence under s 408C of the Criminal Code of having dishonestly gained a quantity of manchester and haberdashery for herself. The single count in the indictment was accompanied by the averment of a circumstance of aggravation that the appellant “was an employee of the Minister for Education of Queensland.” The notice of appeal as now amended claims that her conviction of the circumstance of aggravation should be set aside as it was not properly before the jury, or alternatively that it was not open to the jury to be satisfied of it. The appeal against conviction in that respect is brought at least partly in order to support an application to vary the sentence imposed on the appellant in so far as it directs the recording of the conviction.

1. The appellant was on 18 May 2002 the acting principal of the State School at Springsure. As such, she was authorised in that capacity to purchase items needed for the school or for school purposes on the credit of the Minister for Education, who was her employer. At the time she was the custodian of certain items of furniture available for the use of…