R v Bajramovic - [2004] QCA 465

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bajramovic [2004] QCA 465

PARTIES:

R
v
BAJRAMOVIC, Grace Mary Theodora

(applicant)

FILE NO/S:

CA No 247 of 2004
DC No 519 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

District Court at Cairns

DELIVERED ON:

3 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2004

JUDGES:

McPherson and Williams JJA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced for aggravated fraud to 18 months imprisonment suspended after 9 months for an operational period of 3 years – where significant mitigating factors noted by sentencing judge – where applicant distressed and suffers from ill health – whether custodial sentence required – whether sentence manifestly excessive

R v Cox (1995) 85 A Crim R 1, cited
R v Ferguson [1995] QCA 554; CA No 381 of 1995, 12 December 1995, cited
R v Geertz [1995] QCA 240; CA No 121 of 1995, 26 April 1995, cited
R v Jacob [1997] QCA 149; CA No 46 of 1997, 12 May 1997, cited
R v Mara; ex parte A-G(Qld) [1999] QCA 308; CA No 170 of 1999, 6 August 1999, distinguished
R v Rees [2002] QCA 469; CA No 205 of 2002, 4 November 2002, cited
R v Riesenweber; ex parte A-G (Qld) [1996] QCA 504; CA No 430 of 1996, 15 November 1996, distinguished

R v Sigley [2002] QCA 11; CA No 297 of 2001, 4 February 2002, cited

COUNSEL:

A J Rafter SC for the applicant

R G Martin for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I agree with the reasons of Philippides J. The application for leave to appeal against sentence is dismissed.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Philippides J and there is nothing I wish to add.

PHILIPPIDES J: The applicant was convicted after a trial of fraud with circumstances of aggravation and sentenced on 11 June 2004 to 18 months’ imprisonment, suspended after 9 months for an operational period of 3 years. She now brings an application for leave to appeal against sentence. An appeal against conviction was abandoned at the hearing before this Court.

The ground upon which the application is made is that the sentence imposed was manifestly excessive. It is submitted that the sentence which should have been imposed was one of 18 months’ imprisonment, suspended immediately, for an operational period of 3 years.

The applicant was 55 to 58 years of age at the time of the offence, 64 at sentencing and is currently 65 years of age. She has no prior criminal history.

The circumstances surrounding the commission of the offence are that…

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 R v Bajramovic

Details

AGLC: R v Bajramovic [2004] QCA 465
Case: [2004] QCA 465
Decision Date: 3 December 2004

CaseChat Overview and Summary

The matter of R v Bajramovic involved a sentencing appeal, where the applicant, Bajramovic, was convicted of aggravated fraud. He was sentenced to 18 months imprisonment, which was suspended after nine months for an operational period of three years. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive given the circumstances and mitigating factors. The Court of Appeal was tasked with determining whether the sentence was appropriate in light of Bajramovic's health and personal circumstances, and whether a custodial sentence was necessary.

The central legal issue before the Court of Appeal was whether the sentence imposed by the primary judge was manifestly excessive. The Court considered the significant mitigating factors noted by the sentencing judge, including Bajramovic's distressed state and ill health. The Court also examined the nature and circumstances of the offence, the offender's personal circumstances, and the principles of sentencing. The Court had to balance the need for punishment and deterrence with the personal circumstances of the offender, particularly his health issues and the impact of imprisonment on him.

The Court of Appeal dismissed the application for leave to appeal against the sentence. The Court found that the sentence imposed was not manifestly excessive, taking into account all the relevant factors. The Court was satisfied that the primary judge had appropriately considered the mitigating factors and the principles of sentencing. The Court held that the sentence was within the range of penalties that could be imposed for the offence, and that a custodial sentence was not required in this case. The Court's decision emphasised the importance of individualised sentencing and the consideration of personal circumstances in determining an appropriate sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

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:	R v Bajramovic [2004] QCA 465
PARTIES:	R v BAJRAMOVIC, Grace Mary Theodora (applicant)
FILE NO/S:	CA No 247 of 2004 DC No 519 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	3 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2004
JUDGES:	McPherson and Williams JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced for aggravated fraud to 18 months imprisonment suspended after 9 months for an operational period of 3 years – where significant mitigating factors noted by sentencing judge – where applicant distressed and suffers from ill health – whether custodial sentence required – whether sentence manifestly excessive R v Cox (1995) 85 A Crim R 1, cited R v Ferguson [1995] QCA 554; CA No 381 of 1995, 12 December 1995, cited R v Geertz [1995] QCA 240; CA No 121 of 1995, 26 April 1995, cited R v Jacob [1997] QCA 149; CA No 46 of 1997, 12 May 1997, cited R v Mara; ex parte A-G(Qld) [1999] QCA 308; CA No 170 of 1999, 6 August 1999, distinguished R v Rees [2002] QCA 469; CA No 205 of 2002, 4 November 2002, cited R v Riesenweber; ex parte A-G (Qld) [1996] QCA 504; CA No 430 of 1996, 15 November 1996, distinguished R v Sigley [2002] QCA 11; CA No 297 of 2001, 4 February 2002, cited
COUNSEL:	A J Rafter SC for the applicant R G Martin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent