R v Farrell - [2009] QCA 99

SUPREME COURT OF QUEENSLAND

CITATION:

R v Farrell [2009] QCA 99

PARTIES:

R
v
FARRELL, Mark Christopher
(applicant)

FILE NO/S:

CA No 339 of 2008
DC No 634 of 2006
DC No 373 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

24 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2009

JUDGES:

McMurdo P, Chesterman JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted.1.

Appeal allowed.2.

Set aside the sentences imposed on 5 December 2008.3.

In respect of each of count 1 on Beenleigh District Court Indictment No 634 of 2006 and count 4 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to four years’ imprisonment and it is ordered that the term of imprisonment be suspended after serving a period of 12 months’ imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of four years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.4.

In respect of each of counts 5, 6 and 7 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to imprisonment for a period of 12 months.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – Grounds for interference – General principles – where the applicant was convicted of receiving property during a two year period – where the prosecutor referred to a forensic financial analysis of the applicant’s bank account over a three year period in sentencing submissions that showed a large amount of unaccounted income – where the sentencing judge had regard to the financial analysis – where there was no connection between the unaccounted income and the facts relied on by the prosecutor for the receiving charge – where the sentencing judge incorrectly referred to the number of DVDs the subject of one receiving charge – where the sentencing judge misstated the prosecutor’s suggested head sentence range– whether the applicant should be sentenced afresh because of the cumulative effect of these errors

Criminal Code Act 1899 (Qld), s 433
Criminal Practice Rules 1999 (Qld), r 61, r 62
Penalties and Sentences Act 1992 (Qld), s 160A, s 160B, s 160C, s 160D

House v The King (1936) 55 CLR 499; [1936] HCA 40, followed
R v Haddad [2001] QCA 171, considered

COUNSEL:

P Callaghan SC for the applicant
M B Lehane for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant
Director of Public Prosecutions (Queensland) for the respondent

cMURDO P: MI agree with Mullins J.

CHESTERMAN JA: I agree with the reasons of Mullins J.

MULLINS J: On 5 December 2008 the applicant pleaded guilty to offences on two indictments. The applicant was sentenced to four years’…

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 Farrell

Details

AGLC: R v Farrell [2009] QCA 99
Case: [2009] QCA 99
Decision Date: 24 April 2009

CaseChat Overview and Summary

The case of R v Farrell involved the appellant who was convicted on multiple counts of receiving property and appealed against the sentences imposed by the court. The appellant argued that the sentencing judge made several errors during the sentencing process, including considering irrelevant financial data, miscounting the number of DVDs involved in one of the charges, and misquoting the prosecutor's suggested head sentence range. The appellant sought a fresh sentencing hearing due to these cumulative errors.

The legal issues before the court were whether the errors made by the sentencing judge were significant enough to warrant a new sentencing hearing. The court needed to determine if the cumulative effect of these errors was substantial and whether they materially affected the outcome of the sentencing process. The court had to consider the principles of general fairness and the impact of these errors on the appellant's right to a fair sentencing process.

The court found that the sentencing judge's errors were indeed significant. The consideration of irrelevant financial data and the miscounting of DVDs were substantial errors that affected the sentencing decision. Additionally, the misquotation of the prosecutor’s suggested head sentence range compounded these issues. The court concluded that the cumulative effect of these errors was such that they materially impacted the fairness of the sentencing process, leading to the decision to allow the appeal and order a new sentencing hearing.

The final orders of the court were to grant leave to appeal against the sentence, allow the appeal, set aside the original sentences, and impose new sentences. Specifically, the appellant was sentenced to four years' imprisonment, suspended after serving 12 months, for two of the counts, with a condition of good behaviour for four years. For the other counts, the appellant was sentenced to 12 months imprisonment for each count.

Orders

Orders of the court

Application for leave to appeal against sentence granted.1.

Appeal allowed.2.

Set aside the sentences imposed on 5 December 2008.3.

In respect of each of count 1 on Beenleigh District Court Indictment No 634 of 2006 and count 4 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to four years’ imprisonment and it is ordered that the term of imprisonment be suspended after serving a period of 12 months’ imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of four years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.4.

In respect of each of counts 5, 6 and 7 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to imprisonment for a period of 12 months.5.

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 Farrell [2009] QCA 99
PARTIES:	R v FARRELL, Mark Christopher (applicant)
FILE NO/S:	CA No 339 of 2008 DC No 634 of 2006 DC No 373 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	24 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2009
JUDGES:	McMurdo P, Chesterman JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted.1. Appeal allowed.2. Set aside the sentences imposed on 5 December 2008.3. In respect of each of count 1 on Beenleigh District Court Indictment No 634 of 2006 and count 4 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to four years’ imprisonment and it is ordered that the term of imprisonment be suspended after serving a period of 12 months’ imprisonment and the applicant must not commit another offence punishable by imprisonment within a period of four years, if the applicant is to avoid being dealt with for the suspended term of imprisonment.4. In respect of each of counts 5, 6 and 7 on Beenleigh District Court Indictment No 373 of 2007, the applicant is sentenced to imprisonment for a period of 12 months.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – Grounds for interference – General principles – where the applicant was convicted of receiving property during a two year period – where the prosecutor referred to a forensic financial analysis of the applicant’s bank account over a three year period in sentencing submissions that showed a large amount of unaccounted income – where the sentencing judge had regard to the financial analysis – where there was no connection between the unaccounted income and the facts relied on by the prosecutor for the receiving charge – where the sentencing judge incorrectly referred to the number of DVDs the subject of one receiving charge – where the sentencing judge misstated the prosecutor’s suggested head sentence range– whether the applicant should be sentenced afresh because of the cumulative effect of these errors Criminal Code Act 1899 (Qld), s 433 Criminal Practice Rules 1999 (Qld), r 61, r 62 Penalties and Sentences Act 1992 (Qld), s 160A, s 160B, s 160C, s 160D House v The King (1936) 55 CLR 499; [1936] HCA 40, followed R v Haddad [2001] QCA 171, considered
COUNSEL:	P Callaghan SC for the applicant M B Lehane for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent