R v Freeman - [2012] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v Freeman [2012] QCA 192

PARTIES:

R
v
FREEMAN, Timothy Michael
(applicant)

FILE NO:

CA No 28 of 2012
DC No 53 of 2012
DC No 54 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2012

JUDGES:

Margaret McMurdo P, Gotterson 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 adduce further evidence refused.1.

Application for leave to appeal against sentence refused.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to offences of fraud as an employee, stealing as a servant, using a carriage service to access child pornography material and possessing child exploitation material – where the applicant was sentenced to an effective sentence of imprisonment of four years, to be suspended after serving 16 months, for an operational period of four years – whether the sentence was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the applicant applied for leave to adduce further evidence that was available at the time of sentencing – where the material was either not necessary or not tendered for forensic reasons – whether there was a miscarriage of justice by that evidence not being available at the sentencing or not being considered on the application for leave to appeal against sentence

R v Eveleigh[2009] QCA 257, considered

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Mullins J's reasons for refusing both the application for leave to adduce further evidence and the application for leave to appeal against sentence.

GOTTERSON JA: I agree with the orders proposed by Mullins J and with the reasons given by her Honour.

MULLINS J: The applicant pleaded guilty to one count of fraud as an employee to the value of $30,000 or more, one count of stealing as a servant, one count of using a carriage service to access child pornography material and one count of possessing child exploitation material (CEM). On the fraud charge he was sentenced to imprisonment for a period of four years to be suspended after serving 16 months for an operational period of four years. He was given concurrent sentences for the other three offences. For the stealing offence, he was sentenced to imprisonment for 16 months to be suspended after serving four months for an operational period of 16 months. In relation to the Commonwealth offence of using a carriage service to access child pornography material, he was sentenced…

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 Freeman

Details

AGLC: R v Freeman [2012] QCA 192
Case: [2012] QCA 192
Decision Date: 17 July 2012

CaseChat Overview and Summary

The applicant, Freeman, was convicted on his pleas of guilty to offences of fraud as an employee, stealing as a servant, using a carriage service to access child pornography material and possessing child exploitation material. He was sentenced to an effective sentence of imprisonment of four years, to be suspended after serving 16 months, for an operational period of four years. Freeman appealed against the sentence on the grounds that it was manifestly excessive, and applied for leave to adduce further evidence that was available at the time of sentencing but not tendered for forensic reasons. The appeal was heard by the Court of Criminal Appeal.

The legal issues before the Court were whether the sentence was manifestly excessive in all the circumstances and whether there was a miscarriage of justice by the evidence not being available at the sentencing or not being considered on the application for leave to appeal against sentence. The Court considered the principles of sentencing and the evidence that was available at the time of sentencing. The Court found that the sentence was not manifestly excessive, as it took into account the seriousness of the offences and the need for deterrence and rehabilitation. The Court also found that there was no miscarriage of justice by the evidence not being available at the sentencing or not being considered on the application for leave to appeal against sentence, as the evidence did not have the capacity to affect the outcome of the appeal.

The Court of Criminal Appeal dismissed the appeal against sentence and refused the application for leave to adduce further evidence. The Court held that the sentence was not manifestly excessive, and that the evidence did not have the capacity to affect the outcome of the appeal. The Court further held that there was no miscarriage of justice by the evidence not being available at the sentencing or not being considered on the application for leave to appeal against sentence, as the evidence did not have the capacity to affect the outcome of the appeal. The Court concluded that the appeal against sentence should be dismissed and the application for leave to adduce further evidence should be refused. The Court did not make any orders as to costs.

Orders

Orders of the court

Application for leave to adduce further evidence refused.1.

Application for leave to appeal against sentence refused.2.

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 Freeman [2012] QCA 192
PARTIES:	R v FREEMAN, Timothy Michael (applicant)
FILE NO:	CA No 28 of 2012 DC No 53 of 2012 DC No 54 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2012
JUDGES:	Margaret McMurdo P, Gotterson 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 adduce further evidence refused.1. Application for leave to appeal against sentence refused.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to offences of fraud as an employee, stealing as a servant, using a carriage service to access child pornography material and possessing child exploitation material – where the applicant was sentenced to an effective sentence of imprisonment of four years, to be suspended after serving 16 months, for an operational period of four years – whether the sentence was manifestly excessive in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the applicant applied for leave to adduce further evidence that was available at the time of sentencing – where the material was either not necessary or not tendered for forensic reasons – whether there was a miscarriage of justice by that evidence not being available at the sentencing or not being considered on the application for leave to appeal against sentence R v Eveleigh[2009] QCA 257, considered
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent