District Court at Brisbane – Date of Sentence: 15 January 2016
DELIVERED ON:
24 June 2016
DELIVERED AT:
Brisbane
HEARING DATE:
16 June 2016
JUDGES:
Fraser and Gotterson and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
The application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth) – where the applicant was sentenced to concurrent terms of imprisonment of three years on counts 1 and 2 and 15 months on count 3 – where an order was made under s 20(1)(b) of the Crimes Act 1914 (Cth) that the applicant be released after serving 14 months upon entering into a recognizance in the sum of $1,000 conditioned that she be of good behaviour for four years – where the applicant applies for leave to appeal on the ground that the sentences are manifestly excessive –where the applicant, at the time of sentencing, was already in custody for another similar offence – where the applicant alleged that the pre-release period was excessive and that the sentencing judge had disregarded the ‘totality principle’ – where the offending occurred over 16 months and involved a loss to Medicare of approximately $189,000 – where the applicant used this money to finance her gambling addiction – where the applicant had taken significant steps to overcome this addiction since her arrest – where the applicant was unable to make reparations – whether the sentencing judge had disregarded the ‘totality principle’ – whether the sentence, in all the circumstances, was manifestly excessive
Crimes Act 1914 (Cth), s 16B, s 20 Criminal Code (Cth), s 134.2, s 135.1
A M Christie for the applicant W S Ferguson (sol) for the respondent
SOLICITORS:
Richard Gray & Associates for the applicant Director of Public Prosecutions (Commonwealth) for the respondent
FRASER JA: The applicant pleaded guilty to three counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the
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.
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Details
AGLC
R v Buckman [2016] QCA 176
Case
[2016] QCA 176
Decision Date
CaseChat Overview and Summary
The case of R v Buckman was heard by a court in Australia. The applicant, who had pleaded guilty to three counts of obtaining a financial advantage by deception, sought leave to appeal against the sentence imposed. The applicant was sentenced to concurrent terms of imprisonment, with a specific order for release after serving a portion of the sentence. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had failed to consider the 'totality principle'. The applicant also claimed that the pre-release period was excessively long.
The central legal issues revolved around the fairness and proportionality of the sentence. The applicant contended that the sentences imposed were excessively harsh and did not take into account the totality of the circumstances, including the applicant's efforts to address her gambling addiction and her inability to make reparations. The court was tasked with determining whether the sentence was manifestly excessive and whether the sentencing judge had appropriately considered all relevant factors, including the totality principle.
In examining the sentence, the court considered the nature and extent of the offending, the harm caused to Medicare, and the applicant's personal circumstances. The court acknowledged the seriousness of the fraud, which had resulted in significant financial loss and had been driven by the applicant's gambling addiction. However, the court found that the sentence, while severe, was not manifestly excessive. The court also concluded that the sentencing judge had appropriately considered the totality of the circumstances and had not disregarded any relevant principles in imposing the sentence.
The application for leave to appeal against the sentence was ultimately refused by the court. The court found that the sentence, while harsh, was not so disproportionate as to warrant interference. The court emphasised the importance of the sentencing judge's consideration of the totality principle and the need to balance the punishment with the seriousness of the offence.
Orders
Orders of the court
The application for leave to appeal against sentence is refused.