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R v Fidler

R v Fidler

Case [2010] QCA 25 23 February 2010

Appeal

Sentencing

Manifestly Excessive Sentence

Early Guilty Pleas

Remand on Recognizance

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Fidler [2010] QCA 25

PARTIES:

R
v
FIDLER, Jodie Maree
(applicant)

FILE NO/S:

CA No 189 of 2009
DC No 255 of 2006
DC No 309 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

23 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2010

JUDGE:

Holmes, Muir and Chesterman JJA
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal allowed;

2.   Appeal allowed;

3.   Sentences imposed by the sentencing judge set aside;

4.   For count 1 on each indictment the applicant be sentenced to three years imprisonment to be released after serving 12 months imprisonment, upon her entering into one recognizance in the sum of $500, to be of good behaviour for a period of five years, and declare that the applicant had served 13 days pre-sentence custody between 7 July 2009 and 20 July 2009;

5.   The terms of imprisonment be concurrent;

6.   Convictions recorded but no further penalty imposed in respect of the other counts on the indictments.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to 12 counts (on two indictments) of dishonestly obtaining, and one count of attempting to obtain, a financial advantage by deception – where applicant sentenced to 36 months imprisonment "on each indictment", with an order for release on recognizance after serving 18 months, conditional on the applicant being of good behaviour for a period of five years – where applicant submitted the sentence was manifestly excessive – where the applicant submitted early guilty pleas and demonstrated remorse – where the applicant had physical and psychiatric disabilities – whether the sentencing judge erred in accepting she was bound to order the applicant's release on recognizance after serving 60 to 66 per cent of the head sentence – whether the sentencing judge erred in imposing one sentence for all offences on each indictment – whether sentence manifestly excessive

Crimes Act 1914 (Cth), s 16A, s 16F
Criminal Code 1995 (Cth), s 134.2

Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
R v Beesley[2008] QCA 240, cited
R v CAK & CAL; ex parte Cth DPP[2009] QCA 23, disapproved
R v Elliott[2000] QCA 267, cited
R v Engert (1995) 84 A Crim R 67, cited
R v Harkness [2001] VSCA 87, cited
R v Moffat & Attorney-General of Queensland, unreported, Court of Appeal, Qld, No 291 of 1998, 8 October 1998, discussed
R v Moffat & Commonwealth Director of Public Prosecutions[1998] QCA 383, discussed
R v Mokoena[2009] QCA 36, cited
R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78, cited
R v Nguyen and…

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 Fidler

Details

AGLC: R v Fidler [2010] QCA 25
Case: [2010] QCA 25
Decision Date: 23 February 2010

CaseChat Overview and Summary

The case of R v Fidler involves an appeal against the sentence imposed by the sentencing judge. The applicant, Fidler, pleaded guilty to 12 counts of dishonestly obtaining, and one count of attempting to obtain, a financial advantage by deception. Fidler was sentenced to 36 months imprisonment on each of the two indictments, with an order for release on recognizance after serving 18 months, conditional on good behaviour for a period of five years. Fidler argued that the sentence was manifestly excessive, particularly given her early guilty pleas, demonstrated remorse, and physical and psychiatric disabilities. The central legal issues for the court were whether the sentencing judge erred in ordering Fidler's release on recognizance after serving a significant portion of the head sentence, and whether the judge erred in imposing a single sentence for all offences on each indictment.

The court examined the sentencing principles and the circumstances of the case, considering the nature and circumstances of the offences, Fidler's early guilty pleas, and her demonstrated remorse. The court also took into account Fidler's physical and psychiatric disabilities, which were argued to warrant a lesser sentence. The court found that the sentencing judge erred in ordering Fidler's release on recognizance after serving 60 to 66 per cent of the head sentence. Additionally, the court held that the sentencing judge erred in imposing one sentence for all offences on each indictment, as this did not adequately reflect the different nature and severity of the individual offences. The court concluded that the sentence imposed was manifestly excessive and thus warranted interference.

As a result, the court allowed Fidler's application for leave to appeal and allowed the appeal. The sentences imposed by the sentencing judge were set aside. The court ordered that for count 1 on each indictment, Fidler be sentenced to three years imprisonment to be released after serving 12 months imprisonment, upon her entering into one recognizance in the sum of $500, to be of good behaviour for a period of five years. The court declared that Fidler had served 13 days pre-sentence custody between 7 July 2009 and 20 July 2009, and ordered that the terms of imprisonment be concurrent. Convictions were recorded but no further penalty was imposed in respect of the other counts on the indictments.

Orders

Orders of the court

1. Application for leave to appeal allowed;

2. Appeal allowed;

3. Sentences imposed by the sentencing judge set aside;

4. For count 1 on each indictment the applicant be sentenced to three years imprisonment to be released after serving 12 months imprisonment, upon her entering into one recognizance in the sum of $500, to be of good behaviour for a period of five years, and declare that the applicant had served 13 days pre-sentence custody between 7 July 2009 and 20 July 2009;

5. The terms of imprisonment be concurrent;

6. Convictions recorded but no further penalty imposed in respect of the other counts on the indictments.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Fidler [2010] QCA 25

Most Recent Citation

R v Ngo; R v Truong [2010] QCA 151

Cases citing this decision · 4 of 4 shown

R v Latemore
[2019] QCA 55 Para 40

…were good and that imprisonment would have serious effects upon her young children. [1]District Court, unreported, Robertson DCJ, 29 March 2016. [2][2010] QCA 25.…
R v Melrose
[2016] QCA 202 Para 5

…e comparatives. [14][2015] QCA 254. [15][2013] QCA 10. [16][2015] WASCA 23. [17](2011) 205 A Crim R 274; [2011] NSWCCA 67. [18][2010] NSWCCA 221. [19][2010] QCA 25. [20][2016] QCA 176. [21][2015] WASCA 23. [22][2012] QCA 215.…
Hili v The Queen; Jones v The Queen
[2010] HCATrans 248

…handler [2010] QCA 21 which applied Ruha and where Justice Keane was also one of the presiding judges, and agreed to by the Chief Justice: Fidler [2010] QCA 25; and Marshall [2010] QCA 29. So there has been a series of cases that have expressly overruled the proposition in CAK .…
R v Ngo; R v Truong
[2010] QCA 151 Para 1

…His counsel submits that the pre-release period should have been no longer than one year and six months. [1]Record, 129. [2][2010] QCA 10; R v Fidler [2010] QCA 25; and R v Marshall [2010] QCA 29.…

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Cases cited in this decision · 20 of 20 shown

R v Ruha, Ruha & Harris; ex parte
[2010] QCA 10 Para 1

…not exist except in relation to drug offences, or, at least, some such offences.[10] [10]See e.g. R v Ruha, Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10; R v Robertson [2008] QCA 164; R v Mokoena [2009] QCA 36; Bertilone v The Queen (2009) 231 FLR 383; R v Nguyen and Tran [1998] VR 394 and R v Woods (…
Bertilone v The Queen
[2009] WASCA 149

…estly excessive Crimes Act 1914 (Cth), s 16A, s 16F Criminal Code 1995 (Cth), s 134.2 Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited R v Beesley [2008] QCA 240, cited R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, disapproved R v Elliott […
R v Woods
[2009] NTCCA 2

…999] 2 Qd R 166; [1998] QCA 106, discussed R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited R v Woods (2009) 24 NTLR 77; [2009] NTCCA 2, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited COUNSEL: The applicant appeared on her own behalf D N Adsett for the respondent SOLICITORS: The applicant…
R v Mokoena
[2009] QCA 36 Para 1

…ast, some such offences.[10] [10]See e.g. R v Ruha, Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10; R v Robertson [2008] QCA 164; R v Mokoena [2009] QCA 36; Bertilone v The Queen (2009) 231 FLR 383; R v Nguyen and Tran [1998] VR 394 and R v Woods (2009) 24 NTLR 77.…
R v CAK & CAL; ex parte
[2009] QCA 23

…ted Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited R v Beesley [2008] QCA 240, cited R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, disapproved R v Elliott [2000] QCA 267, cited R v Engert (1995) 84 A Crim R 67, cited R v Harkness [2001] VSCA 87, cited R v Moffat & Attorney-General of Queensland , unr…
R v Beesley
[2008] QCA 240 Para 1

…accepted that this was impermissible[14] and that it was thus necessary for this Court to exercise the sentencing discretion afresh. [14] R v Beesley [2008] QCA 240.…
R v Robertson
[2008] QCA 164 Para 1

…to drug offences, or, at least, some such offences.[10] [10]See e.g. R v Ruha, Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10; R v Robertson [2008] QCA 164; R v Mokoena [2009] QCA 36; Bertilone v The Queen (2009) 231 FLR 383; R v Nguyen and Tran [1998] VR 394 and R v Woods (2009) 24 NTLR 77.…
R v Tran
[2007] QCA 221 Para 1

…Queen (2001) 207 CLR 584 at [6] – [8] per Gleeson CJ and Lowe v The Queen (1984) 154 CLR 606 at 610 - 611. [13] R v Tran (2007) 172 A Crim R 436; [2007] QCA 221 at [8].…
R v Parker
[2007] QCA 22 Para 1

…n Attorney's appeal), and five years suspended after twenty months with an operational period of five years. [3][2003] QCA 307. [4][2006] QCA 312. [5][2007] QCA 22.…
R v Adams; ex parte A-G (Qld)
[2006] QCA 312 Para 1

…lth would not normally overshadow the requirement for appropriate deterrent sentencing. [2] R v Banauch [1999] QCA 207; R v Adams; ex parte A-G (Qld) [2006] QCA 312 and R v Tacey [1994] QCA 367.…
R v Gourley
[2003] QCA 307 Para 1

…operational period of five years (on an Attorney's appeal), and five years suspended after twenty months with an operational period of five years. [3][2003] QCA 307. [4][2006] QCA 312. [5][2007] QCA 22.…
Wong v The Queen
[2001] HCA 64

…172 A Crim R 436; [2007] QCA 221, cited R v Woods (2009) 24 NTLR 77; [2009] NTCCA 2, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited COUNSEL: The applicant appeared on her own behalf D N Adsett for the respondent SOLICITORS: The applicant appeared on her own behalf Director of Public Prosecutions…
R v Harkness
[2001] VSCA 87 Para 1

…to cast doubt on or to distinguish the principles articulated in that decision. [11]See e.g., R v Ngui and Tiong [2000] 1 VR 579 at 583; R v Harkness [2001] VSCA 87 and Bertilone v The Queen (2009) 231 FLR 383.…
R v Elliott
[2000] QCA 267 Para 1

…siderations of rehabilitation".[17] As I have said, the applicant's psychiatric disabilities partly explain her offending behaviour. [16] R v Elliott [2000] QCA 267 at para [11]. [17] R v Engert (Supra) at 71.…
R v Ngui and Tiong
[2000] VSCA 78

…Director of Public Prosecutions [1998] QCA 383, discussed R v Mokoena [2009] QCA 36, cited R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78, cited R v Nguyen and Tran [1998] 4 VR 394, cited R v Robertson (2008) 185 A Crim R 441, [2008] QCA 164, cited R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10, cit…
Evans v His Honour Judge Shelton and the Director of Public Prosecutions
[1998] VSCA 29

…discussed R v Mokoena [2009] QCA 36, cited R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78, cited R v Nguyen and Tran [1998] 4 VR 394, cited R v Robertson (2008) 185 A Crim R 441, [2008] QCA 164, cited R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10, cited R v To & Do; ex parte DPP (Cth) [1999] 2…
R v To and Do; ex parte
[1998] QCA 106

…CA 164, cited R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10, cited R v To & Do; ex parte DPP (Cth) [1999] 2 Qd R 166; [1998] QCA 106, discussed R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited R v Woods (2009) 24 NTLR 77; [2009] NTCCA 2, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, c…
R v Tacey
[1994] QCA 367 Para 1

…adow the requirement for appropriate deterrent sentencing. [2] R v Banauch [1999] QCA 207; R v Adams; ex parte A-G (Qld) [2006] QCA 312 and R v Tacey [1994] QCA 367.…
Lowe v R
[1984] HCA 46

…Code 1995 (Cth), s 134.2 Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited R v Beesley [2008] QCA 240, cited R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, disapproved R v Elliott [2000] QCA 267, cited R v Engert (1995) 84 A Crim R 67, cit…
R v Baunach
[1999] QCA 207 Para 1

…ses such as this and that even extreme ill health would not normally overshadow the requirement for appropriate deterrent sentencing. [2] R v Banauch [1999] QCA 207; R v Adams; ex parte A-G (Qld) [2006] QCA 312 and R v Tacey [1994] QCA 367.…

Legislation cited in this decision · 1

Crimes Act 1914 (Cth)
16A 2 mentions (from Para 1)

CITATION:	R v Fidler [2010] QCA 25
PARTIES:	R v FIDLER, Jodie Maree (applicant)
FILE NO/S:	CA No 189 of 2009 DC No 255 of 2006 DC No 309 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	23 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2010
JUDGE:	Holmes, Muir and Chesterman JJA Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal allowed; 2. Appeal allowed; 3. Sentences imposed by the sentencing judge set aside; 4. For count 1 on each indictment the applicant be sentenced to three years imprisonment to be released after serving 12 months imprisonment, upon her entering into one recognizance in the sum of $500, to be of good behaviour for a period of five years, and declare that the applicant had served 13 days pre-sentence custody between 7 July 2009 and 20 July 2009; 5. The terms of imprisonment be concurrent; 6. Convictions recorded but no further penalty imposed in respect of the other counts on the indictments.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to 12 counts (on two indictments) of dishonestly obtaining, and one count of attempting to obtain, a financial advantage by deception – where applicant sentenced to 36 months imprisonment "on each indictment", with an order for release on recognizance after serving 18 months, conditional on the applicant being of good behaviour for a period of five years – where applicant submitted the sentence was manifestly excessive – where the applicant submitted early guilty pleas and demonstrated remorse – where the applicant had physical and psychiatric disabilities – whether the sentencing judge erred in accepting she was bound to order the applicant's release on recognizance after serving 60 to 66 per cent of the head sentence – whether the sentencing judge erred in imposing one sentence for all offences on each indictment – whether sentence manifestly excessive Crimes Act 1914 (Cth), s 16A, s 16F Criminal Code 1995 (Cth), s 134.2 Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited R v Beesley[2008] QCA 240, cited R v CAK & CAL; ex parte Cth DPP[2009] QCA 23, disapproved R v Elliott[2000] QCA 267, cited R v Engert (1995) 84 A Crim R 67, cited R v Harkness [2001] VSCA 87, cited R v Moffat & Attorney-General of Queensland, unreported, Court of Appeal, Qld, No 291 of 1998, 8 October 1998, discussed R v Moffat & Commonwealth Director of Public Prosecutions[1998] QCA 383, discussed R v Mokoena[2009] QCA 36, cited R v Ngui and Tiong (2000) 1 VR 579; [2000] VSCA 78, cited R v Nguyen and…