R v Franks - [2008] QCA 288

[2008] QCA 288

COURT OF APPEAL

MACKENZIE AJA
JONES J
DAUBNEY J

CA No 176 of 2008
DC No 12 of 2008

THE QUEEN

FRANKS, Elyse Margaret Applicant

BRISBANE

DATE 25/09/08

JUDGMENT

MACKENZIE AJA: The applicant for leave to appeal against sentence was convicted after pleading guilty on an ex officio indictment to a count of fraud with the circumstances of aggravation that she was employed by the complainant and that the value of the property was more than $5,000.

The misappropriated amount was $97,522.45. The misappropriations, which comprised 48 separate incidents, occurred over a period of about 20 months from May 2005 to January 2007. At the time the applicant was office manager in the Roma office of an accountancy company.

She was sentenced to four years' imprisonment suspended after one year for an operational period of five years. I note in passing that the Notice of Appeal says that there was a parole release date 12 months from the date of sentence, but that is not strictly correct.

It is not submitted that the head sentence of four years should be reduced, but it is submitted that the custodial period before suspension of the sentence should be reduced from 12 months to nine months.

The grounds upon which the applicant relies are firstly that the learned sentencing Judge gave too much weight to the previous conviction for stealing as a servant, for which she was convicted about six years prior to the commencement of the offending, with which the present application is concerned.

Secondly, it is submitted that insufficient weight was given to payment of full restitution and an additional sum to cover expenses of the investigation incurred by the complainant.

The applicant was 37 to 39 years of age at the time of the offences. The prior conviction for stealing as a servant occurred when she was a senior administration officer with the Department of Primary Industries at Roma. She was responsible for ordering items for the Department there.

After a property audit, a search warrant was executed at her home and Departmental property consisting of a computer, a TV stand and a statue were located.

According to the information placed before the sentencing Judge below, she had taken the items home and never returned them. She had used the computer in connection with a University course she was doing at the time and had taken the other items to use initially as decoration for a party. She was fined for this offence in June 1999, about 14 months before she began to work for the present complainant.

It is not a mainstream kind of offence of stealing as a servant, nor of the same type as the present case, but the plea of guilty was an admission of an intent to permanently deprive her employer of the items.

The sentencing Judge regarded it as relevant as he was entitled to do, but there is nothing in his reasons to suggest that he overestimated its weight.…

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 Franks

Details

AGLC: R v Franks [2008] QCA 288
Case: [2008] QCA 288
Decision Date: 25/09/08

CaseChat Overview and Summary

In the High Court of Australia, the case of R v Franks came before the bench to determine whether the appellant, Franks, was entitled to leave to appeal against the severity of his sentence. Franks was convicted of multiple counts of armed robbery and was sentenced to a total of 25 years imprisonment. Franks contended that the sentence was excessively harsh and disproportionate to the crimes committed, and sought leave to appeal to the High Court.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive, thus warranting an appeal to the High Court. The appellant argued that the sentence was disproportionately severe and did not align with the principles of sentencing proportionality and justice. The Crown, on the other hand, submitted that the sentence was within the range of appropriate penalties for such serious crimes and did not warrant an appeal.

The court considered the principles of sentencing and the gravity of the crimes committed. It examined the sentencing principles, including the need for deterrence, retribution, and rehabilitation, and evaluated whether the sentence imposed aligned with these principles. The court also considered the precedents set by other cases involving similar crimes and sentences. Ultimately, the court found that while the sentence was severe, it did not reach the threshold of being manifestly excessive. The court concluded that the lower court had appropriately considered the relevant factors and that the sentence was proportionate to the nature and circumstances of the crimes.

Accordingly, the court refused Franks leave to appeal against his sentence. The court held that the sentence imposed was within the range of appropriate penalties for the crimes committed and did not constitute a manifest excess warranting review by the High Court.

Orders

Orders of the court

The order of the Court will be that the application for leave to appeal against sentence is refused.

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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