R v Cuthbertson - [2019] QCA 213

[2019] QCA 213

COURT OF APPEAL

MORRISON JA
PHILIPPIDES JA
BUSS AJA

CA No 155 of 2019
DC No 2004 of 2018
DC No 33 of 2019

THE QUEEN

CUTHBERTSON, Timothy Albert Applicant

BRISBANE

MONDAY, 14 OCTOBER 2019

JUDGMENT

MORRISON JA: The applicant went to a motor dealership to discuss his proposed purchase of a car. He and the dealer negotiated a price of $60,385. The paperwork was completed, and the applicant told the dealer he would be paying in cash. He said he would transfer that cash directly into the dealership’s bank account. He was given those account details.

At about 3.30 pm the same day, the applicant went to a bank and deposited a personal cheque for $60,385 into the dealership’s account. As the applicant knew at the time, he did not have any funds to match the cheque and never had the ability to buy the car.

About 11 am the following day, the finance department of the dealership told the dealer that the $60,385 was showing in their bank account. The applicant went to the dealership, took possession of the car and drove it away. The next day, the bank reversed the deposit because the cheque bounced. Consequently, the funds were taken out of the dealership’s account.

The dealership could not make contact with the applicant but discovered that he had traded the car to “Hock Your Ride” for $25,000. The dealership had to pay $29,500 to Hock Your Ride to get the car back.

The applicant was charged under s 408C(1)(b) and (2)(d) of the Criminal Code 1899 (Qld) with one count of dishonestly obtaining property from another, that property being of a value over $30,000 but less than $100,000.

On 29 January 2019, he pleaded guilty to that count and was sentenced to three years’ imprisonment. The sentencing judge declared that 83 days of pre-sentence custody was to be time already served under the sentence. In addition, there were two summary fraud charges of dishonestly obtaining property; in each case he obtained money for mobile phones that he never delivered. On those he was sentenced to six months’ imprisonment. Because his previous parole order was automatically cancelled, s 184(2) of the Corrective Services Act 2006 (Qld) applied to set the parole eligibility date at the halfway mark.

The prosecution submitted that the sentence would be no less – should be no less than four years, with parole eligibility after serving one third. The applicant’s Counsel submitted that the sentence should be three years, with parole eligibility after serving three months. The head sentence imposed by his Honour reflected the head sentence contended for by the applicant’s counsel.

On 5 June 2019, more than three months beyond the time limited to appeal, the applicant filed an application to extend time to appeal. He seeks to challenge both his conviction and his sentence. The proposed grounds of appeal are:

(a)he was wrongly convicted, notwithstanding his guilty plea, because he should have been charged under s…

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 Cuthbertson

Details

AGLC: R v Cuthbertson [2019] QCA 213
Case: [2019] QCA 213
Decision Date: 14 OCTOBER 2019

CaseChat Overview and Summary

The applicant, Timothy Albert Cuthbertson, was charged with dishonestly obtaining property from another person, specifically a car valued between $30,000 and $100,000, under s 408C(1)(b) and (2)(d) of the Criminal Code 1899 (Qld). He pleaded guilty and was sentenced to three years’ imprisonment. He filed an application to extend the time to appeal, more than three months after the appeal period had expired. He sought to challenge both his conviction and sentence, claiming that he should have been charged under s 427A of the Code instead of s 408C, and that his sentence was manifestly excessive. The court had to determine whether there was any good reason to account for the delay and if it was in the interests of justice to grant the extension.

The court considered the principles applicable to an extension of time to appeal. It found that the applicant's explanations for the delay were not satisfactory, as he was represented by counsel at the sentencing hearing, which proceeded on an agreed statement of facts. The court also noted that the applicant had a history of similar offences and that his guilty plea was entered of his own free will and with the benefit of legal advice. The court further found that the charge under s 408C was open on the facts and that the sentence was in accordance with what was sought on behalf of the applicant. The court concluded that the proposed appeal lacked merit and that it was not in the interests of justice to grant the extension.

The court refused the application to extend time to appeal, with Morrison JA, Philippides JA, and Buss AJA all concurring. The order of the court was that the application to extend time to appeal was refused.

Orders