R v CAK & CAL; ex parte

Case [2009] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAK & CAL; ex parte Cth DPP [2009] QCA 23

PARTIES:

R
v
CAK
(respondent)
R
v
CAL,
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 312 of 2008
CA No 313 of 2008
DC No 2483 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cth DPP

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2009

JUDGES:

Muir JA, Atkinson and P Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed

2.   The respondents’ sentences are varied by substituting the recognizance release orders after four months with the recognizance release orders after nine months

3.   The recognizance is the sum of $1000 conditioned on the respondents’ being of good behaviour for a period of 27 months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondents pleaded guilty to two counts of dishonestly obtaining a financial advantage by deception under the Criminal Code (Cth) – where the respondents were sentenced to three years imprisonment to be released after four months upon entering into a recognizance of $1000 conditioned they be of good behaviour for remainder of sentence – where the appellant appealed against the sentence imposed – where appellant submitted period to be served before release inadequate and disproportionate to the head sentence – whether trial judge erred in allowing an excessive discount in sentence under section 21E of the Crimes Act 1914 (Cth)

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – POWER TO BRING APPEAL

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE GOVERNMENT – DEFRAUDING THE GOVERNMENT

Crimes Act 1914 (Cth), s 16, s16A, s 19AC, s 20(1)(b), s 21E
Criminal Code 1995 (Cth), s 11.2(1), s 134.2(1)
Criminal Code 1899 (Qld), s 669A
Judiciary Act 1903 (Cth), s 68(2)

Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, cited
R v Bernier (1998) 102 A Crim R 44, cited
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited
R v Hooper; ex parte Cth DPP [2008] QCA 308, cited
R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, cited
R v Peterson [2008] QCA 70, cited
R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited

COUNSEL:

W Abraham QC for the appellant
D K Boddice SC for the respondents

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant
Gilshenan & Luton Legal Practice for the respondents

  1. A: MUIR J I agree with the reasons of Atkinson J and with the orders she proposes.

  1. ATKINSON J: The respondents, CAK…

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Details
AGLC
R v CAK & CAL; ex parte [2009] QCA 23
Case
[2009] QCA 23
Decision Date

CaseChat Overview and Summary

In this case, the respondents pleaded guilty to two counts of dishonestly obtaining a financial advantage by deception, contrary to the Criminal Code (Cth). They were sentenced to three years imprisonment, to be released after four months upon entering into a recognizance of $1000, conditioned on them being of good behaviour for the remainder of the sentence. The appellant, acting on behalf of the Crown, appealed against the sentence imposed by the trial judge, arguing that the period to be served before release was inadequate and disproportionate to the head sentence, and that the trial judge erred in allowing an excessive discount in sentence under section 21E of the Crimes Act 1914 (Cth).

The legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate, and if the trial judge erred in applying section 21E of the Crimes Act 1914 (Cth). The court needed to determine whether the sentence imposed by the trial judge was appropriate and whether there was any error in the application of the relevant legislative provisions.

The court found that the trial judge erred in applying section 21E of the Crimes Act 1914 (Cth) and that the sentence imposed was manifestly inadequate. The court held that the appropriate head sentence should have been a term of imprisonment of two years and six months, rather than three years, and that the appropriate period to be served before release should have been nine months, rather than four. The court varied the sentences of the respondents by substituting the recognizance release orders after four months with the recognizance release orders after nine months, and the recognizance was set at $1000, conditioned on the respondents being of good behaviour for a period of 27 months. The appeal was allowed, and the sentences were varied accordingly.

Orders

Orders of the court

1. The appeal is allowed

2. The respondents’ sentences are varied by substituting the recognizance release orders after four months with the recognizance release orders after nine months

3. The recognizance is the sum of $1000 conditioned on the respondents’ being of good behaviour for a period of 27 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MUIR J

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Ratio Decidendi

Legal Principle Established

Established by: MUIR J

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