R v Clemments - [2010] QCA 38

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clemments [2010] QCA 38

PARTIES:

R
v
CLEMMENTS, Carole Dianne
(applicant)

FILE NO/S:

CA No 290 of 2009
DC No 511 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Longreach

DELIVERED EX TEMPORE ON:

3 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2010

JUDGES:

Fraser JA and Daubney and P Lyons JJ
Separate reasons for judgment of each member of the Court each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on a plea of guilty for one count of fraud – where the trial judge recorded a conviction and imposed a sentence of 9 months imprisonment, wholly suspended, operational for a period of 18 months – where the applicant made admissions, pleaded guilty and made restitution – where the applicant was in a position of trust – whether the sentencing judge erred in imposing a sentence of imprisonment – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i)

R v Bulmer [2000] QCA 248, cited
R v Miles [2006] QCA 556, cited
R v Shultz[1997] QCA 169, cited

COUNSEL:

B H P Mumford for the applicant
P Alsbury for the respondent

SOLICITORS: P W Skewes and Dempster for the applicant
Department of Public Prosecutions (Qld) for the respondent

FRASER JA: The applicant seeks leave to appeal against sentence on the ground that the sentence is manifestly excessive.

On 29 October 2009 the applicant was convicted on her plea of guilty of one count of fraud committed on various dates between 3 January 2008 and 28 January 2008. The sentencing judge recorded a conviction, sentenced the applicant to imprisonment for a period of nine months, and ordered that the whole term of imprisonment be suspended. The judge fixed the operational period of 18 months, during which the applicant must not commit another offence punishable by imprisonment if she were to avoid being dealt with for a breach of the suspended term of imprisonment.

The applicant was 49 years old at the time of the offence and 51 when sentenced. She had no previous convictions, save for a conviction in 1983 for stealing, which was regarded as not significant.

The applicant had known the complainant, Ms Doreen Eatts, for some three years. When the complainant was hospitalised the applicant ran errands for her. For that purpose the complainant handed over her cheque book to enable the applicant to pay some of the complainant’s bills. On 4 January 2008 the applicant fraudulently withdrew $200 from the complainant’s bank account by using the complainant’s ATM card. The complainant later noticed that her cheque account had been depleted. Inquiries revealed that three cheques in the total amount of $4,000 had been presented in January 2008 without the complainant’s knowledge or consent.

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 Clemments

Details

AGLC: R v Clemments [2010] QCA 38
Case: [2010] QCA 38
Decision Date: 3 March 2010

CaseChat Overview and Summary

The case of R v Clemments involved the applicant appealing against his sentence after pleading guilty to a single count of fraud. The trial judge had imposed a sentence of nine months imprisonment, suspended entirely for 18 months. The applicant argued that the sentence was manifestly excessive. The appeal centred on whether the sentencing judge had erred in imposing a custodial sentence given the applicant’s admissions, guilty plea, and efforts towards restitution, particularly considering his position of trust.

The court was required to determine whether the sentencing judge's decision to impose a custodial sentence, despite the suspension, constituted an error of law or fact. The court considered whether the sentence was manifestly excessive or inadequate in light of the principles of sentencing, particularly the factors relevant to the applicant’s position of trust and his proactive steps towards restitution.

The court found that the sentencing judge had appropriately considered all relevant factors in imposing the sentence. The judge had recognised the applicant’s admissions, guilty plea, and efforts towards restitution, but also emphasised the importance of general deterrence given the applicant’s position of trust. The court held that the sentence, while suspended, was not manifestly excessive, as it balanced punishment, deterrence, and the applicant's efforts towards making amends.

The court refused the application, upholding the original sentence. The applicant was to serve nine months imprisonment, suspended for 18 months, operational from the date of sentencing.

Orders

Orders of the court

Application refused.

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

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CITATION:	R v Clemments [2010] QCA 38
PARTIES:	R v CLEMMENTS, Carole Dianne (applicant)
FILE NO/S:	CA No 290 of 2009 DC No 511 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Longreach
DELIVERED EX TEMPORE ON:	3 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2010
JUDGES:	Fraser JA and Daubney and P Lyons JJ Separate reasons for judgment of each member of the Court each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on a plea of guilty for one count of fraud – where the trial judge recorded a conviction and imposed a sentence of 9 months imprisonment, wholly suspended, operational for a period of 18 months – where the applicant made admissions, pleaded guilty and made restitution – where the applicant was in a position of trust – whether the sentencing judge erred in imposing a sentence of imprisonment – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i) R v Bulmer [2000] QCA 248, cited R v Miles [2006] QCA 556, cited R v Shultz[1997] QCA 169, cited
COUNSEL:	B H P Mumford for the applicant P Alsbury for the respondent
SOLICITORS:	P W Skewes and Dempster for the applicant Department of Public Prosecutions (Qld) for the respondent