R v Eveleigh - [2009] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

R v Eveleigh [2009] QCA 257

PARTIES:

R
v
EVELEIGH, Lorrell Ann
(applicant)

FILE NO/S:

CA No 72 of 2009
DC No 2887 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2009

JUDGES:

McMurdo P, Fraser JA and Chesterman JA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant stole $87,900 from her employer – applicant sentenced to four years imprisonment with parole eligibility after 14 months – applicant was 22 at the time of the offence and had a gambling addiction – whether the sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCING – ROLE OF GUILTY PLEA OR DEPOSITIONS – applicant pleaded guilty to stealing as a servant property valued at over $5,000 – sentencing judge failed to state that he took into account the plea of guilty when sentencing the applicant but fixed an early parole eligibility date – whether this failure impacts the sentence given to the applicant

Penalties and Sentences Act 1992 (Qld), s 13(1), s 13(3)

R v Lawrie[2008] QCA 97, considered
R v Ma’afu, unreported, Thomas, de Jersey and Cooper JJ, Qld, CA No 269 of 1990, 28 February 1991, considered
R v Ward[2008] QCA 222, considered

COUNSEL:

S L Crofton for the applicant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P: The application for leave to appeal should be refused for the reasons given by Chesterman JA.

FRASER JA: I agree that the application should be refused for the reasons given by Chesterman JA.

CHESTERMAN JA: On 23 January 2009 the applicant pleaded guilty to a charge that:

“... on those dates between ... 4th ... May 2008 and ... 9th ... July 2008 at Calamvale ... (she) being a servant of Woolworths Limited stole a sum of money the property of Woolworths ...and the value of the property was more than $5,000.”

The applicant was sentenced to a term of four years’ imprisonment. The date on which she becomes eligible for release on parole was fixed for 23 March 2010, i.e. fourteen months after the commencement of imprisonment.

The applicant seeks leave to appeal against sentence on two grounds: that it was manifestly excessive and that the sentencing judge failed to state that he took into account the applicant’s plea of guilty contrary to s 13(3) of the Penalties and Sentences Act 1992 (Qld) (“the Act”).

The applicant was employed by a Woolworths supermarket at Calamvale as a cash management systems operator. Her duties included counting the money collected from the supermarket’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 Eveleigh

Details

AGLC: R v Eveleigh [2009] QCA 257
Case: [2009] QCA 257
Decision Date: 4 September 2009

CaseChat Overview and Summary

The applicant, Eveleigh, appealed against the sentence imposed by the lower court for stealing $87,900 from her employer. The applicant was sentenced to four years imprisonment with parole eligibility after 14 months. The applicant was 22 at the time of the offence and had a gambling addiction. The applicant pleaded guilty to stealing as a servant property valued at over $5,000. The sentencing judge did not state that he took into account the plea of guilty when sentencing the applicant but fixed an early parole eligibility date.

The primary legal issues the court had to address were whether the sentence imposed was manifestly excessive, and whether the failure of the sentencing judge to state that he took into account the plea of guilty when sentencing the applicant affected the sentence given to the applicant. The court also considered whether the sentence was inadequate.

The court held that the sentence was not manifestly excessive, as the applicant had committed a serious offence. The court also held that the failure of the sentencing judge to state that he took into account the plea of guilty when sentencing the applicant did not affect the sentence given to the applicant, as the sentence was within the range of appropriate sentences for the offence. The court held that the sentence was adequate and dismissed the application.

The court refused the application. The applicant was not granted a new trial or a reduction in sentence.

Orders

Orders of the court

The application is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Eveleigh [2009] QCA 257
PARTIES:	R v EVELEIGH, Lorrell Ann (applicant)
FILE NO/S:	CA No 72 of 2009 DC No 2887 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2009
JUDGES:	McMurdo P, Fraser JA and Chesterman JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicant stole $87,900 from her employer – applicant sentenced to four years imprisonment with parole eligibility after 14 months – applicant was 22 at the time of the offence and had a gambling addiction – whether the sentence was manifestly excessive CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCING – ROLE OF GUILTY PLEA OR DEPOSITIONS – applicant pleaded guilty to stealing as a servant property valued at over $5,000 – sentencing judge failed to state that he took into account the plea of guilty when sentencing the applicant but fixed an early parole eligibility date – whether this failure impacts the sentence given to the applicant Penalties and Sentences Act 1992 (Qld), s 13(1), s 13(3) R v Lawrie[2008] QCA 97, considered R v Ma’afu, unreported, Thomas, de Jersey and Cooper JJ, Qld, CA No 269 of 1990, 28 February 1991, considered R v Ward[2008] QCA 222, considered
COUNSEL:	S L Crofton for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent