R v Gasenzer - [2013] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gasenzer [2013] QCA 9

PARTIES:

R
v
GASENZER, Sylvia
(applicant)

FILE NO/S:

CA No 194 of 2012
DC No 2073 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2013

JUDGES:

Margaret McMurdo P, Muir and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of fraud as an employee in excess of $5,000 – where the applicant attempted to conceal the offending through further dishonesty – where the applicant failed to make restitution – where there was an absence of evidence that the applicant suffered from a psychiatric condition at the time of offending – where the applicant was sentenced to four years imprisonment suspended after 15 months – whether the sentence was manifestly excessive

R v Adams [1999] QCA 326, considered
R v Allen [2005] QCA 73, considered
R v Dwyer [2008] QCA 117, considered
R v Fisher [2002] QCA 259, distinguished
R v Hearnden [2002] QCA 258, distinguished
R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, considered
R v Lawrie [2008] QCA 97, distinguished
R v Ma’afu unreported, Court of Criminal Appeal, Qld, CA No 269 of 1990, 28 February 1991, considered
R v Parish [2012] QCA 112, distinguished
R v Viola [1996] QCA 214, considered
R v Ward [2008] QCA 222, considered

COUNSEL:

J R Jones for the applicant
B Merrin for the respondent

SOLICITORS:

Peter Shields Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Muir JA’s reasons for refusing leave to appeal against sentence.

MUIR JA: The applicant was convicted on 28 June 2012 after a plea of guilty of one count of fraud as an employee in excess of $5,000 and sentenced to four years imprisonment suspended after 15 months. She appeals on the ground that the sentence was manifestly excessive.

Over a period of about three and a half years concluding on 4 December 2009 the applicant, who did bookkeeping and managerial work for her employer, overpaid herself some $57,662. She and the complainant were the only signatories of the complainant’s business account. The applicant had been employed in the complainant’s transport business for approximately 20 years. She was trusted implicitly by the complainant and was the recipient of generous financial and other assistance from him.

The applicant took steps to hide her fraud from the firm’s accountants, but it came to light when the complainant sought to purchase another vehicle and discovered that there was far less money available for that purpose than…

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 Gasenzer

Details

AGLC: R v Gasenzer [2013] QCA 9
Case: [2013] QCA 9
Decision Date: 8 February 2013

CaseChat Overview and Summary

In the matter of R v Gasenzer, the applicant, Gasenzer, appealed against the sentence imposed upon him by the court below. Gasenzer had pleaded guilty to one count of fraud as an employee in excess of $5,000. The circumstances of the offence involved an attempt by Gasenzer to conceal his fraudulent activities through further dishonest conduct. Additionally, Gasenzer failed to make restitution for the losses caused by his actions. The court was tasked with determining whether the sentence of four years imprisonment, suspended after 15 months, was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The court considered several factors, including the nature and circumstances of the offence, Gasenzer's conduct before and during the trial, his personal circumstances, and the need for the sentence to reflect community standards of justice. Notably, there was no evidence presented to suggest that Gasenzer suffered from a psychiatric condition at the time of the offending, which could have been a mitigating factor. The court assessed whether the sentence appropriately balanced the need for punishment, deterrence, and rehabilitation.

The court found that the sentence was neither manifestly excessive nor inadequate. It took into account the seriousness of the offence, Gasenzer's attempts to conceal his actions, and the absence of any mitigating psychiatric condition. The court concluded that the sentence imposed was within the range of appropriate penalties for the offence committed. Consequently, the application for leave to appeal against the sentence was refused.

The final orders of the court were that the application for leave to appeal against the sentence was dismissed, thereby upholding the original sentence imposed by the lower court.

Orders

Orders of the court

Application for leave to appeal against sentence 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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CITATION:	R v Gasenzer [2013] QCA 9
PARTIES:	R v GASENZER, Sylvia (applicant)
FILE NO/S:	CA No 194 of 2012 DC No 2073 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2013
JUDGES:	Margaret McMurdo P, Muir and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of fraud as an employee in excess of $5,000 – where the applicant attempted to conceal the offending through further dishonesty – where the applicant failed to make restitution – where there was an absence of evidence that the applicant suffered from a psychiatric condition at the time of offending – where the applicant was sentenced to four years imprisonment suspended after 15 months – whether the sentence was manifestly excessive R v Adams [1999] QCA 326, considered R v Allen [2005] QCA 73, considered R v Dwyer [2008] QCA 117, considered R v Fisher [2002] QCA 259, distinguished R v Hearnden [2002] QCA 258, distinguished R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, considered R v Lawrie [2008] QCA 97, distinguished R v Ma’afu unreported, Court of Criminal Appeal, Qld, CA No 269 of 1990, 28 February 1991, considered R v Parish [2012] QCA 112, distinguished R v Viola [1996] QCA 214, considered R v Ward [2008] QCA 222, considered
COUNSEL:	J R Jones for the applicant B Merrin for the respondent
SOLICITORS:	Peter Shields Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent