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 2008DIVISION:
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 madeORDERS:
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, citedCOUNSEL:
W Abraham QC for the appellant
D K Boddice SC for the respondentsSOLICITORS:
Director of Public Prosecutions (Commonwealth) for the appellant
Gilshenan & Luton Legal Practice for the respondents
A: MUIR J I agree with the reasons of Atkinson J and with the orders she proposes.
ATKINSON J: The respondents, CAK…
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- AGLC
- R v CAK & CAL; ex parte [2009] QCA 23
- Case
- [2009] QCA 23
- Decision Date
CaseChat Overview and Summary
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
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Ratio Decidendi
Legal Principle Established
Established by: MUIR J
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