R v Bulmer - [2000] QCA 248

[2000] QCA 248

COURT OF APPEAL

PINCUS JA
DAVIES JA
THOMAS JA

CA No 27 of 2000

THE QUEEN

YVONNE BULMER Applicant

BRISBANE

..DATE 19/06/2000

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence. The applicant is a woman born in 1949 and she was convicted after a trial of having dishonestly applied to her own use a sum of $7,000.

The trial concluded in July last year but the applicant was not sentenced till December. That was so because his Honour ordered that a pre-sentence report be prepared and also desired to allow time for the making of further inquiries about the applicant's medical condition. She was sentenced to 18 months' imprisonment suspended after three months. She was released on bail on 11 February this year, after having served three weeks.

The complainant, who was aged 19 and 20 years at the time of the offence was then unemployed. The applicant advised her to withdraw money from her bank account to obtain unemployment benefits. The applicant borrowed $2,000 from the complainant and subsequently offered to invest that money for the complainant in the applicant's name. That was done and subsequently the exercise was repeated, a sum totalling $7,000 being entrusted to the applicant and not repaid.

It appears to me that the purpose of these arrangements was to enable the complainant to obtain money from the Commonwealth Government to which she was not entitled. However, that aspect must be disregarded for present purposes, the applicant having been sentenced because she dishonestly applied the $7,000 to her own use.

When the complainant and her mother raised the question of return of the money, the applicant promised to pay it back but she never did so and denied having received it.

The Judge took a serious view of the matter, saying it involved a breach of trust, which is correct. In substance, what the applicant did was to steal a substantial amount of money from a young person who made the mistake of taking the applicant at her word. The pre-sentence report however refers to the applicant's medical difficulties and that has been the main subject of the submissions made by Mr Chowdhury today on her behalf.

The Judge had before him a number of medical reports and also heard oral evidence from Dr K.J. Carroll. Dr Carroll had expressed the view that the applicant could be managed in custody and gave reasons for that opinion. He also said in a report given in January this year that there was no medical reason why the applicant could not serve a short custodial sentence, that is, less than six months. In answer to questions by the primary Judge, the doctor said that he thought that the emotional component of pain which the applicant suffered would be aggravated by imprisonment. In cross-examination, Dr Carroll said that he agreed that the applicant would be excluded from work normally done by a prisoner.

The Judge also had before him a…

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 Bulmer

Details

AGLC: R v Bulmer [2000] QCA 248
Case: [2000] QCA 248
Decision Date: 19/06/2000

CaseChat Overview and Summary

In the case of R v Bulmer, the applicant, Yvonne Bulmer, applied for leave to appeal against her sentence. Bulmer was convicted of dishonestly applying $7,000 to her own use, which she had been entrusted with by a young woman under the pretext of investment. Bulmer was sentenced to 18 months' imprisonment, suspended after three months, following a trial that concluded in July of the previous year. The sentencing was delayed to allow for a pre-sentence report and further inquiries into Bulmer's medical condition. She was released on bail after serving three weeks of her sentence.

The primary legal issue the court had to decide was whether the sentence imposed was excessive and whether the three months of imprisonment should not have been imposed considering Bulmer's medical condition and lack of remorse. The court had to balance the necessity of imposing punishment with considerations of humanity. The court considered various medical reports that highlighted Bulmer's chronic lower back pain and other medical difficulties, but ultimately preferred the opinion of one doctor who believed that Bulmer could be managed in custody.

The Court of Appeal concluded that the sentence of 18 months' imprisonment, while perhaps on the higher side, was not excessive given the nature of the offence and the lack of remorse shown by Bulmer. Regarding the three months of imprisonment, the court found that the primary judge's decision was within the scope of proper discretion, and thus the application for leave to appeal should be refused.

Orders