R v Bingham - [2004] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bingham [2004] QCA 166

PARTIES:

R
v
BINGHAM, Rhett Adrian
(applicant/appellant)

FILE NO/S:

CA No 76 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

18 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2004

JUDGES:

Williams and Jerrard JJA, Atkinson J
Separate reasons for judgment of each member of the court; Jerrard JA and Atkinson J concurring as to the orders made, Williams JA dissenting.

ORDERS:

1. Leave to appeal granted

2. Appeal allowed only to the extent of suspending the 18 months sentence after serving 6 months with an operational period of 3 years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – where applicant convicted on a plea of guilty to one count of fraud and one count of attempted fraud – whether sufficient weight given to ameliorating and mitigating factors – no dishonest receipt of credit card, partner’s ill health, applicant’s heroin addiction and rehabilitation, applicant’s remorse

Bindon v Meyer [1995] QCA 540, CA No 288 of 1995, 5 October 1995, considered
R v Ford [1996] QCA 358, CA No 287 of 1996, 10 September 1996, considered
R v Murdoch, ex parte A-G (Qld) [1998] QCA 81, CA No 387 of 1997, 6 March 1998, considered
R v Riesenweber, ex parte A-G (Qld) [1996] QCA 504, CA No 430 of 1996, 15 November 1996, considered

COUNSEL:

S M Ryan for the Applicant/Appellant
P F Rutledge for the Respondent

SOLICITORS:

Legal Aid Queensland for the Applicant/Appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I'll ask Justice Atkinson to deliver the first judgment.

ATKINSON J: The applicant, Rhett Adrian Bingham, was convicted on his own plea of guilty on 5 March 2004 on one count of fraud and one count of attempted fraud. He was sentenced to 18 months’ imprisonment to be suspended after he had served 9 months with an operative period of four years. He seeks leave to appeal against that sentence on the grounds that it is manifestly excessive.

The circumstances of the offences were that in September 2002 a Westpac Banking Corporation Gold Mastercard with a credit limit of $10,000 and the pin required to operate it, were mistakenly sent to the applicant's address, 11 Limestone Street Ipswich, rather than the address given by the bank's customer, 111 Limestone Street Ipswich.

After holding on to it for a week, the applicant succumbed to temptation and from 12 September to 4 October 2002 he used the card to make 20 withdrawals of $500 each from automatic teller machines. On 9 October 2002 the applicant attempted another withdrawal but the card had been reported missing and the machine retained the card.

The applicant was born on 10 July 1962 and was 40 when the offences were committed and 41 at the time…

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 Bingham

Details

AGLC: R v Bingham [2004] QCA 166
Case: [2004] QCA 166
Decision Date: 18 May 2004

CaseChat Overview and Summary

The case of R v Bingham involved the applicant who had pleaded guilty to one count of fraud and one count of attempted fraud. The court was required to consider whether the sentencing judge had given sufficient weight to certain mitigating factors in determining the applicant's sentence. These factors included the absence of dishonest receipt of credit card proceeds, the ill health of the applicant's partner, the applicant's heroin addiction and efforts towards rehabilitation, and the applicant's expression of remorse.

The court found that the sentencing judge had not adequately considered the impact of these mitigating factors on the applicant's culpability and the overall circumstances of the offence. The court held that the sentence imposed was too severe given the mitigating factors, and that a more lenient sentence would have been appropriate. The court concluded that the appeal should be allowed to the extent of reducing the sentence to a suspended term of 18 months, with the applicant required to serve 6 months before the operational period of 3 years begins.

The orders of the court were to grant leave to appeal and to allow the appeal to the extent of modifying the sentence. The sentence was to be suspended for 18 months after the applicant had served 6 months, with an operational period of 3 years. This decision highlights the importance of properly considering all relevant mitigating factors in sentencing, and the potential for appellate courts to adjust sentences to better reflect the circumstances of the individual offender.

Orders

Orders of the court

1. Leave to appeal granted

2. Appeal allowed only to the extent of suspending the 18 months sentence after serving 6 months with an operational period of 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Bingham [2004] QCA 166
PARTIES:	R v BINGHAM, Rhett Adrian (applicant/appellant)
FILE NO/S:	CA No 76 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	18 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2004
JUDGES:	Williams and Jerrard JJA, Atkinson J Separate reasons for judgment of each member of the court; Jerrard JA and Atkinson J concurring as to the orders made, Williams JA dissenting.
ORDERS:	1. Leave to appeal granted 2. Appeal allowed only to the extent of suspending the 18 months sentence after serving 6 months with an operational period of 3 years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – where applicant convicted on a plea of guilty to one count of fraud and one count of attempted fraud – whether sufficient weight given to ameliorating and mitigating factors – no dishonest receipt of credit card, partner’s ill health, applicant’s heroin addiction and rehabilitation, applicant’s remorse Bindon v Meyer [1995] QCA 540, CA No 288 of 1995, 5 October 1995, considered R v Ford [1996] QCA 358, CA No 287 of 1996, 10 September 1996, considered R v Murdoch, ex parte A-G (Qld) [1998] QCA 81, CA No 387 of 1997, 6 March 1998, considered R v Riesenweber, ex parte A-G (Qld) [1996] QCA 504, CA No 430 of 1996, 15 November 1996, considered
COUNSEL:	S M Ryan for the Applicant/Appellant P F Rutledge for the Respondent
SOLICITORS:	Legal Aid Queensland for the Applicant/Appellant Director of Public Prosecutions (Queensland) for the respondent