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 report was tendered on her behalf.  It seems that it gave details of her difficult childhood and vulnerable personality as playing a part in her gambling addiction.

The learned judge noted the breach of trust involved in the theft and the need for deterrence because of the difficulty in detecting the commission of such offences.  He concluded that the appropriate penalty was four years' imprisonment.  Because of the applicant's co-operation and her various problems, he set a parole eligibility date at 14 months.

The Crown points to three authorities which it says support the sentence imposed: R v La Rosa Ex Parte Attorney-General Queensland [2006] QCA 19; R v Lawrie [2008] QCA 97; and R v Ward [2008] QCA 222.

There are aspects of this case, however, which combine to give the applicant at least some prospect of distinguishing those cases and conceivably of succeeding in an appeal.  They are: her youth; her early plea of guilty; her full admissions when interviewed; the fact that although the amount stolen was large, the period of dishonesty was relatively short, some two and a half months; and the fact that it arose from a gambling addiction, not merely a desire to live extravagantly.

There were not the features of a close relationship with and a devastating financial impact on the employer present in Lawrie and Ward.  It is difficult, of course, to reach any clearer view of prospects at this stage without the material relied on in mitigation, particularly the psychological report.

An application for leave to appeal against sentence is at least arguable.  The delay in filing the application for an extension of time was not great – some five or six weeks beyond the expiry of the time limit for applying for leave to appeal against sentence – and it is explained by the applicant's ignorance.

I would grant the application for an extension of time.

MUIR JA:  I agree.

McMURDO J:  I agree.
HOLMES JA:  The order is that the application for an extension of time within which to appeal is allowed and the time is extended to 1 April 2009, the time of the filing date of the notice of application for leave to appeal against sentence.