R v Baxter - [2012] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baxter [2012] QCA 125

PARTIES:

R
v
BAXTER, Kayleen Mae
(applicant)

FILE NO/S:

CA No 7 of 2012
DC No 81 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2012

JUDGES:

Margaret McMurdo P, Mullins and Ann Lyons JJ
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 refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to two counts of stealing as a servant – where the applicant was sentenced to three years and three months imprisonment suspended after ten months with an operational period of four years – whether the sentence imposed was manifestly excessive – where applicant suffers adjustment disorder with depressed mood and pathological gambling – where the sentencing judge specifically considered the disorder and the pathological gambling and considered that her objective criminality should be reduced because of the presence of those diagnoses – where the sentencing judge took the applicant’s psychological condition into account and reduced the applicable head sentence

R v Alexander [2004] QCA 11, cited
R v Carleton, unreported, Everson DCJ, DC No 184 of 2011, 28 February 2012, cited
R v Glenn, unreported, Devereaux DCJ, DC No 2056 of 2011, 27 February 2012, cited
R v Jeffree [2010] QCA 47, cited
R v La Rosa; ex parte A-G (Qld)[2006] QCA 19, cited
R v Lawrie [2008] QCA 97, cited
R v McCallum, unreported, Wolfe CJDC, DC No 2000 of 2011, 5 December 2011, cited

COUNSEL:

The applicant appeared on her own behalf
D C Boyle for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Ann Lyons J's reasons for refusing this application for leave to appeal against sentence.

MULLINS J: I agree with Ann Lyons J.

ANN LYONS J: On 30 November 2011 the applicant, Kayleen Mae Baxter, was sentenced in the District Court at Brisbane in relation to two counts of stealing as a servant. Count 1 occurred in a period between 1 August 2007 and 31 January 2008. Count 2 occurred between 27 August 2009 and 12 January 2010. The applicant was sentenced to three years imprisonment in relation to Count 1 and three years and three months imprisonment in relation to Count 2. The sentences were suspended after 10 months for an operational period of four years.

Circumstances of the offences

Count 1 occurred when the applicant was employed by a concrete company and she was responsible for the banking. On or about 21 December 2007 she failed to deposit $7,224.85 in cash and a number of cheques into the company’s bank account. When confronted,…

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 Baxter

Details

AGLC: R v Baxter [2012] QCA 125
Case: [2012] QCA 125
Decision Date: 15 May 2012

CaseChat Overview and Summary

The case of R v Baxter involved an appeal against the sentence imposed by the court. The applicant, who had pleaded guilty to two counts of stealing as a servant, contested the sentence of three years and three months imprisonment, which was suspended after ten months, with an operational period of four years. The applicant argued that the sentence was manifestly excessive. The applicant's psychological condition, which included an adjustment disorder with depressed mood and pathological gambling, was considered by the sentencing judge, who decided to reduce the objective criminality due to the presence of these diagnoses. Despite this, the applicant sought leave to appeal against the sentence, arguing that it remained excessive.

The primary legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive, taking into account his psychological condition and the sentencing judge's consideration of those factors. The court had to determine whether the sentence was disproportionate in light of the mitigating factors presented. The applicant's psychological conditions, including the adjustment disorder and pathological gambling, were acknowledged by the sentencing judge, who reduced the applicable head sentence but still imposed a significant penalty.

The court found that the sentencing judge had appropriately considered the applicant's psychological conditions in reducing the applicable head sentence, and the overall sentence was not manifestly excessive. The court noted that while the psychological conditions were significant, they did not warrant a complete departure from the normal sentencing principles. The court concluded that the sentence, while substantial, was not so disproportionate as to constitute an error of law that would warrant interference by the appellate court.

The court refused the application for leave to appeal against the sentence, affirming the original sentence imposed by the lower court. The reasoning was that the sentencing judge had adequately considered the applicant's psychological conditions and the appropriate mitigating effect this had on the objective criminality. The court was satisfied that the sentence was proportionate and appropriate under the circumstances.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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:	R v Baxter [2012] QCA 125
PARTIES:	R v BAXTER, Kayleen Mae (applicant)
FILE NO/S:	CA No 7 of 2012 DC No 81 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2012
JUDGES:	Margaret McMurdo P, Mullins and Ann Lyons JJ 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 refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to two counts of stealing as a servant – where the applicant was sentenced to three years and three months imprisonment suspended after ten months with an operational period of four years – whether the sentence imposed was manifestly excessive – where applicant suffers adjustment disorder with depressed mood and pathological gambling – where the sentencing judge specifically considered the disorder and the pathological gambling and considered that her objective criminality should be reduced because of the presence of those diagnoses – where the sentencing judge took the applicant’s psychological condition into account and reduced the applicable head sentence R v Alexander [2004] QCA 11, cited R v Carleton, unreported, Everson DCJ, DC No 184 of 2011, 28 February 2012, cited R v Glenn, unreported, Devereaux DCJ, DC No 2056 of 2011, 27 February 2012, cited R v Jeffree [2010] QCA 47, cited R v La Rosa; ex parte A-G (Qld)[2006] QCA 19, cited R v Lawrie [2008] QCA 97, cited R v McCallum, unreported, Wolfe CJDC, DC No 2000 of 2011, 5 December 2011, cited
COUNSEL:	The applicant appeared on her own behalf D C Boyle for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent