R v Ferguson - [1995] QCA 554

IN THE COURT OF APPEAL	[1995] QCA 554
SUPREME COURT OF QUEENSLAND

C.A. No. 381 of 1995.

Brisbane

[R v. Ferguson]

T H E Q U E E N

SCOTT ALEXANDER FERGUSON

(Applicant)

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Pincus J.A.
McPherson J.A.
Thomas J.

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Judgment delivered 12/12/1995

Judgment of the Court
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF REDUCING THE SENTENCE OF 3 YEARS TO 2 YEARS. A WARRANT IS TO BE ISSUED FOR THE APPLICANT’S ARREST. _____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - SENTENCE - misappropriation of property with circumstances of aggravation - amount misappropriated approx. $14,000 - applicant took from employer - money taken partly for personal use and partly to assist parent in repaying a debt - restitution offered; no previous convictions; guilty plea; youth; significance of conviction in pursuit of career; damage to reputation - whether custodial sentence necessary - whether sentence of 3 years is beyond the appropriate range.

S. 408C Criminal Code.

Counsel:	Mr D Kent for the applicant. Mrs L Clare for the respondent.
Solicitors:	Michell Sillar Nicholsons, t/a for Harris Sushames for the applicant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	04/12/1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/12/1995

This is an application for leave to appeal against sentence. The applicant who is aged 24 was convicted on a plea of guilty in the District Court of the offence of misappropriation of property under s. 408C of the Code. There were two circumstances of aggravation charged under paras. (b) and (d) of s. 408C(2): that the applicant was an employee and the property in question belonged to his employer; and that the property was of the value of $5,000 or upwards. The maximum penalty for the offence, with the circumstances of aggravation, is 10 years.

The sentence imposed was 3 years suspended after 3 months, the operational period fixed being 4 years. There was also an order that the applicant pay compensation of $12,800 within 2 years and 9 months, in default 6 months imprisonment. The applicant contended, by his counsel, that there should have been a wholly non-custodial sentence and that the head sentence is too high.

The amount which the applicant misappropriated is not precisely known; he took the money while working as a console operator at a service station, his technique being to use the cash register in such a way that sales were not recorded or were deleted from the register, producing a discrepancy between the sales recorded and the amount received. The offence came to light as a result of a complaint by a customer of the service station; when the matter was put to the applicant he admitted his dishonesty and was sacked. The applicant told the police he had been stealing for about eight months before he was dismissed and said that the amount taken was, on the average, $80 per night. The court was told that the applicant generally worked from Saturday to Wednesday…

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 Ferguson

Details

AGLC: R v Ferguson [1995] QCA 554
Case: [1995] QCA 554
Decision Date: 12/12/1995

CaseChat Overview and Summary

The case before the court was an application for leave to appeal against a sentence. The applicant, Scott Alexander Ferguson, was convicted in the District Court of misappropriation of property under section 408C of the Criminal Code. The primary issue was whether the 3-year sentence, suspended after 3 months with an operational period of 4 years, was appropriate given the circumstances of the offence and the applicant's background. The applicant argued that the sentence was too harsh and should have been wholly non-custodial.

The court considered various factors, including the amount misappropriated, which was approximately $14,000, and the applicant's motive, which involved both personal use and assisting his parent with debt repayment. The applicant had no prior convictions, pleaded guilty, and offered restitution. The court also noted the potential long-term impact of the conviction on the applicant's career and reputation. The primary judge had acknowledged the mitigating factors but expressed concern about the necessity of any imprisonment.

The court examined sentencing patterns in similar cases and found that custodial sentences were less common for first-time offenders who pleaded guilty and stole amounts in the range of $5,000 to $10,000. Although the applicant's case involved a higher amount, the court concluded that the 3-year sentence was excessive. The court decided to reduce the sentence to 2 years, while maintaining the requirement for restitution and issuing a warrant for the applicant's arrest.

Orders