R v Crouch; R v Carlisle - [2016] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v Crouch; R v Carlisle [2016] QCA 81

PARTIES:

In Appeal No 189 of 2015
R
v
CROUCH, Matthew Paul
(applicant)

In Appeal No 190 of 2015
R
v
CARLISLE, Liam Joseph
(applicant)

FILE NO/S:

CA No 189 of 2015
CA No 190 of 2015
DC No 270 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 30 July 2015

DELIVERED ON:

5 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2016

JUDGES:

Margaret McMurdo P and Gotterson JA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The applications for leave to appeal are granted.

2.   The appeals against sentence are allowed.

3.   The sentences imposed at first instance are varied by setting aside the parole eligibility date of 30 July 2019 and substituting the parole eligibility date of 30 November 2018.

4.   The sentences imposed at first instance are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants each pleaded guilty to committing fraud to the value of more than $30,000 – where the applicants were each sentenced to 10 years imprisonment with parole eligibility after four years –where the applicants were not the architects of the fraud – where the applicants contended the judge did not set parole eligibility after one third of the sentence because they did not disclose to authorities the identity of the architect of the fraud – where there is no requirement for a sentencing judge who does not set a parole date, parole eligibility or suspension after one third of the head sentence to give reasons for not doing so – where the judge failed to give proper weight to the fact that that without the applicants’ admissions a fraud of only $1.8 million, instead of $5.6 million, could have been established – whether the sentencing discretion should be re-exercised

Penalties and Sentences Act 1999 (Qld), s 13A

R v Henderson[2014] QCA 12, cited
R v Jamieson[2016] QCA 11, cited
R v Kendrick[2015] QCA 27, cited
R v Lovell[2012] QCA 43, cited
R v Rooney; R v Gehringer[2016] QCA 48, cited

COUNSEL:

P J Callaghan SC, with B P Dighton, for the applicants
M T Whitbread for the respondent

SOLICITORS:

AHA Taylor Lawyers for the applicants
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The applicants, Liam Carlisle and Matthew Crouch, together with another co-offender, Tiffany Lea O’Donnell, pleaded guilty on 23 June 2015 in the Southport District Court to fraud to the value of more than $30,000. O’Donnell’s sentence was adjourned until September. This Court was not told whether she has been sentenced and, if so, the sentence she received. The applicants were each sentenced on 30 July 2015…

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.

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Details

Case: [2016] QCA 81
Decision Date: 5 April 2016

CaseChat Overview and Summary

The applicants, Crouch and Carlisle, each appealed against their sentences for fraud, arguing that the trial judge did not properly consider their admissions in determining parole eligibility. The applicants pleaded guilty to fraud amounting to over $30,000 and were sentenced to 10 years imprisonment with parole eligibility after four years. They contended that the judge did not set parole eligibility after one third of the sentence because they did not disclose the identity of the fraud's architect. They also argued that the judge did not give proper weight to the fact that their admissions resulted in a fraud amount of $5.6 million rather than $1.8 million.

The court needed to decide whether the sentencing discretion should be re-exercised. It considered the sentencing principles and the judge's failure to give proper weight to the applicants' admissions. The court noted that there is no requirement for a sentencing judge who does not set a parole date, parole eligibility or suspension after one third of the head sentence to give reasons for not doing so. However, it held that the judge's failure to give proper weight to the applicants' admissions was a material error. The court found that the applicants' admissions resulted in a significantly higher fraud amount, and the judge should have considered this in determining parole eligibility.

The court granted the applications for leave to appeal and allowed the appeals against sentence. It varied the sentences imposed at first instance by setting aside the parole eligibility date of 30 July 2019 and substituting the parole eligibility date of 30 November 2018. The court confirmed the sentences imposed at first instance in all other respects. This outcome reflects the court's view that the applicants' admissions should have been given proper weight in determining parole eligibility.

Orders

Orders of the court

1. The applications for leave to appeal are granted.

2. The appeals against sentence are allowed.

3. The sentences imposed at first instance are varied by setting aside the parole eligibility date of 30 July 2019 and substituting the parole eligibility date of 30 November 2018.

4. The sentences imposed at first instance are otherwise confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Crouch; R v Carlisle [2016] QCA 81
PARTIES:	In Appeal No 189 of 2015 R v CROUCH, Matthew Paul (applicant) In Appeal No 190 of 2015 R v CARLISLE, Liam Joseph (applicant)
FILE NO/S:	CA No 189 of 2015 CA No 190 of 2015 DC No 270 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 30 July 2015
DELIVERED ON:	5 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2016
JUDGES:	Margaret McMurdo P and Gotterson JA and Burns J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The applications for leave to appeal are granted. 2. The appeals against sentence are allowed. 3. The sentences imposed at first instance are varied by setting aside the parole eligibility date of 30 July 2019 and substituting the parole eligibility date of 30 November 2018. 4. The sentences imposed at first instance are otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants each pleaded guilty to committing fraud to the value of more than $30,000 – where the applicants were each sentenced to 10 years imprisonment with parole eligibility after four years –where the applicants were not the architects of the fraud – where the applicants contended the judge did not set parole eligibility after one third of the sentence because they did not disclose to authorities the identity of the architect of the fraud – where there is no requirement for a sentencing judge who does not set a parole date, parole eligibility or suspension after one third of the head sentence to give reasons for not doing so – where the judge failed to give proper weight to the fact that that without the applicants’ admissions a fraud of only $1.8 million, instead of $5.6 million, could have been established – whether the sentencing discretion should be re-exercised Penalties and Sentences Act 1999 (Qld), s 13A R v Henderson[2014] QCA 12, cited R v Jamieson[2016] QCA 11, cited R v Kendrick[2015] QCA 27, cited R v Lovell[2012] QCA 43, cited R v Rooney; R v Gehringer[2016] QCA 48, cited
COUNSEL:	P J Callaghan SC, with B P Dighton, for the applicants M T Whitbread for the respondent
SOLICITORS:	AHA Taylor Lawyers for the applicants Director of Public Prosecutions (Queensland) for the respondent