R v Cox - [1995] QCA 563

IN THE COURT OF APPEAL	[1995] QCA 563
SUPREME COURT OF QUEENSLAND

C.A. No. 367 of 1995.

Brisbane

Before	Pincus J.A. Dowsett J. Lee J.
[R v. Cox]

T H E Q U E E N

GREGORY JAMES COX

(Applicant)
Pincus J.A. Dowsett J. Lee J.

Judgment delivered 15/12/1995

Separate concurring judgments of each member of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS:CRIMINAL LAW - SENTENCE - whether custodial sentence warranted for serious dishonesty offence - no previous convictions - willingness to pay restitution.

Counsel:	Mr. A. Glynn for the applicant. Mrs. L. Clare for the respondent.
Solicitors:	Price and Roobottom for the applicant. Director of Prosecutions for the respondent.

Hearing Date:27 October 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 15/12/1995

I have read the reasons of Lee J. It seems to me convenient to annex the two schedules, one prepared by Mrs Clare and the other by Mr Glynn, which are mentioned in his Honour’s reasons. The more significant for present purposes is Mrs Clare’s, since it is confined to cases of misappropriation of about $10,000 or less. It deals only with instances in which there was no, or only a minor, criminal history as well as a plea of guilty; all the cases were heard between 1 January 1993 and 30 June 1995.

If one confines attention, in dealing with Mrs Clare’s schedule, to instances where the amount involved was $5,000 or more, only one of the offenders was sent to prison; others received suspended sentences, orders to perform community service, probation orders or orders to pay compensation - and, of course, various combinations of these orders. This schedule tends to support the argument that the treatment of this applicant was unusually harsh, in the sense that recent sentences in comparable cases imposed in the District Court, appear to have been nearly always non-custodial. But there are decisions of the Court of Criminal Appeal which can be relied on to uphold the sentence imposed here; a particularly pertinent example is the case of Seeney (Court of Criminal Appeal, C.A. No. 170 of 1988, 11 August 1988, unreported), where a man of the same age as this applicant and having no criminal record was initially given a non-custodial sentence but on an Attorney’s appeal was sent to prison. The amount involved was about $8,000 and there was a plea of guilty.

It may be that the schedule to which I have referred, prepared by Mrs Clare, shows that in recent times there has been a softening of approach to sentences of this kind, in the District Court. One can understand a reluctance to send to prison, for a commercial offence of this magnitude, a person with no criminal record, even one of mature years; that reluctance may be particularly strong where there is an order for restitution with a provision for imprisonment in default of payment.

But I would not be prepared to hold that a sentence involving some actual custody cannot…

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 Cox

Details

AGLC: R v Cox [1995] QCA 563
Case: [1995] QCA 563
Decision Date: 15/12/1995

CaseChat Overview and Summary

In the case of *R v Cox*, the applicant, Gregory James Cox, sought leave to appeal against his sentence imposed by the District Court. Cox was convicted of misappropriation with two aggravating circumstances, having been an employee and the value of the property misappropriated being $5,000 or more. He was sentenced to two years' imprisonment, with a recommendation for parole after six months, and ordered to pay restitution of $7,000 within 18 months. The appeal centred on whether the sentence was manifestly excessive.

The legal issues before the Court of Appeal were whether the sentence imposed by the District Court was disproportionately severe given Cox's lack of a criminal record, his plea of guilty, and his willingness to pay restitution. The Court also needed to consider the sentencing trends in similar cases, particularly those involving misappropriation of funds by employees with no or minimal criminal histories.

The Court of Appeal reviewed the schedules of sentences provided by both parties, which detailed various outcomes in cases of misappropriation or theft by employees with no or minimal criminal histories and sums involved of approximately $10,000 or less. While the majority of these cases resulted in non-custodial sentences, the Court noted that some offenders received custodial sentences. The Court held that the sentencing judge was entitled to impose a custodial sentence considering the nature of the offence, Cox's position of trust, and the prolonged period over which the offences occurred. The Court concluded that the sentence was not manifestly excessive and dismissed the application for leave to appeal.

The Court's decision highlighted the importance of considering the individual circumstances of each case, including the offender's position of trust, the duration and impact of the offence, and the broader context of similar cases. Despite Cox's plea of guilty and willingness to make restitution, the Court found that a custodial sentence was appropriate given the seriousness of his misconduct and the need to deter similar offences in the future.

Orders