R v. Eveleigh - [2009] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION:

R v Eveleigh [2009] QCA 151

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:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

1 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2009

JUDGES:

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

ORDERS:

1. Application for extension of time within which to appeal allowed;

2. The time is extended to 1 April 2009, when the application for leave to appeal against sentence was filed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant sentenced to four years imprisonment, with parole eligibility date fixed after 14 months, for stealing as a servant – where applicant unaware of time limit – where delay five or six weeks – where applicant youthful; had no criminal history; made full admissions; made an early plea of guilty; and offending arose from applicant’s gambling addiction – whether application for leave to appeal against sentence has prospects of success – whether extension of time should be granted

COUNSEL:

The applicant appeared on her own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Qld) for the respondent

HOLMES JA: The applicant seeks an extension of time within which to seek leave to appeal a sentence imposed on her for stealing as a servant.

She was sentenced on 23 January 2009 to four years' imprisonment with a parole eligibility date fixed after 14 months and filed her application for an extension of time on 1 April 2009.

She says that although her solicitor advised her that she could appeal her sentence, she was not told of any time limit and she was simply unaware of its existence. It is appropriate at this point to consider the prospects of any appeal by the applicant should an extension of time be given and leave to appeal granted.

The Crown has helpfully provided a summary of the allegations on which I rely for this purpose. Over a two and a half month period in 2008, the applicant stole $87,900 in her employment as a cash management systems operator with Woolworths' Supermarket. Her duties involved processing monies collected from cash registers and collected by a security firm for banking. The applicant stole some of those monies and made false computer entries and documentary entries to conceal her activities. She was identified as the thief through CCTV footage and an examination of the falsified records.

The applicant was 22 years old at the time of the offending and had no criminal history. She said that she had lost the stolen money playing poker machines and was only able to make restitution of $1400. A psychological…

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 151
Case: [2009] QCA 151
Decision Date: 1 June 2009

CaseChat Overview and Summary

In the case of R v. Eveleigh, the applicant was sentenced to four years imprisonment, with parole eligibility set for a date 14 months after his imprisonment began, for stealing as a servant. Unaware of the time limit for appealing his sentence, the applicant experienced a delay of five to six weeks before filing his application for leave to appeal. The applicant, who was young and had no prior criminal history, made full admissions and an early plea of guilty. His offending stemmed from a gambling addiction. The legal issues before the court were whether the application for leave to appeal against the sentence had prospects of success and whether an extension of the time to appeal should be granted.

The court examined the applicant's circumstances, including his age, lack of a criminal history, the early guilty plea, and the fact that his offending was due to a gambling addiction. These factors were considered in assessing whether the application for leave to appeal had prospects of success. The court also considered the delay in filing the application and the reasons behind it. In this instance, the court found that the applicant's lack of awareness of the time limit and his otherwise unblemished character warranted an extension of time.

As a result of the court's reasoning, the application for an extension of time within which to appeal was allowed. The court extended the time for filing the appeal to 1 April 2009, the date on which the application for leave to appeal against the sentence was actually filed. This decision recognises the importance of ensuring that justice is served, even if procedural timelines are not strictly adhered to in exceptional circumstances.

Orders

Orders of the court

1. Application for extension of time within which to appeal allowed;

2. The time is extended to 1 April 2009, when the application for leave to appeal against sentence was filed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Eveleigh [2009] QCA 151
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:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	1 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2009
JUDGES:	Holmes and Muir JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time within which to appeal allowed; 2. The time is extended to 1 April 2009, when the application for leave to appeal against sentence was filed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant sentenced to four years imprisonment, with parole eligibility date fixed after 14 months, for stealing as a servant – where applicant unaware of time limit – where delay five or six weeks – where applicant youthful; had no criminal history; made full admissions; made an early plea of guilty; and offending arose from applicant’s gambling addiction – whether application for leave to appeal against sentence has prospects of success – whether extension of time should be granted
COUNSEL:	The applicant appeared on her own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Qld) for the respondent