R v Docherty

[2009] QCA 379

SUPREME COURT OF QUEENSLAND

CITATION:

R v Docherty [2009] QCA 379

PARTIES:

R
v
DOCHERTY, Gail Ann
(applicant/appellant)

FILE NO/S:

CA No 203 of 2009
DC No 158 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2009

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal granted;

2.   Appeal allowed;

3.   Sentences imposed in District Court set aside;

4.   Sentences of two years imprisonment on each count substituted;

5.   Parole release date fixed at 4 February 2010;

6.   Period of 131 days between 4 August 2009 and 11 December 2009 declared to be imprisonment served under those sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of stealing property, a diamond ring, valued at over $5,000 and one count of fraud to the value of $5,000 or more – where applicant sentenced to three years imprisonment with parole release after 12 months – where applicant stole ring on spur of the moment while working as complainant’s husband’s carer – where applicant sold it one month later for $33,500, unaware of its true value of $292,110 – where applicant 59 years old, remorseful, had no criminal history and suffered health problems, including depression and anxiety and cancer – whether sentence manifestly excessive

R v Bulloch[2003] QCA 578, cited
R v Haugland[2009] QCA 46, cited
R v La Rosa; ex parte A-G (Qld)[2006] QCA 19, cited
R v Rees[2002] QCA 469, cited
R v Robinson; ex parte A-G (Qld) [2004] QCA 169, cited
R v Shultz[1997] QCA 169, cited

COUNSEL:

N V Weston for the applicant/appellant
V A Loury for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Qld) for the respondent

1. :HOLMES JA  The applicant seeks leave to appeal against sentences of three years imprisonment with a parole release date fixed after 12 months, imposed on her in respect of one count of stealing property valued at over $5,000, and one count of fraud to a value of $5,000 or more.  The property in question was a diamond ring subsequently valued at $292,110, although the Crown accepted that the applicant was unaware that its value was so great.  The proposed ground of appeal is that the sentence is manifestly excessive.

The offences

1. The theft occurred when the applicant, a registered nurse employed by a nursing agency, was working as a carer for the complainant’s husband.  She had been in that position for about two or three months at the time of the offence, and was on good terms with the complainant and her husband.  Her unchallenged account of how she came to…