R v Gillan - [1991] FCA 224

Re: THE QUEEN
And: FRANCIS ROBERT GILLAN
No. N G618 of 1990
FED No. 224
Criminal Law
100 ALR 66
(1991) 54 A CRIM R 475

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Beaumont(1) and Spender(1) JJ.

CATCHWORDS

Criminal Law - Crown appeal against sentence - grounds of appeal not raised before trial judge

Criminal Law - sentence - procedure after plea of guilty - need to indicate whether or not accused convicted - where accused conditionally released, need to specify whether under s. 556A or s. 556B Crimes Act, 1900 (N.S.W. )

Criminal Law - sentence - penalties for embezzlement and stealing - principles to be applied - deterrence - considerations for suspended sentence - s. 556B Crimes Act, 1900 (N.S.W.)

Crimes Act, 1900 (N.S.W.)

Crimes Ordinance, 1960 (Norfolk Island)

HEARING

BRISBANE

#DATE 3:5:1991

Counsel for the Appellant: G. M. Gregg

Solicitors for the Appellant: Crown Solicitor, Administration

of Norfolk Island

Counsel for the Respondent: S.E. Herbert

Solicitors for the Respondent: Legal Aid Office (Queensland)

ORDER

1. The appeal be allowed.

2. Set aside the orders made by Morling C.J. and order that the respondent be released from the recognisance entered into pursuant to those orders.

3. Order that the respondent be convicted of each of the offences charged in the indictments.

4. Order that in respect of each of the offences charged, pursuant to the provisions of s. 556B(1)(b) of the Crimes Act, 1900 N.S.W.) in its application to the Territory of Norfolk Island, the respondent be sentenced to imprisonment for three years but direct that the respondent be released upon his entering into a recognisance in the sum of $500.00 (five hundred dollars) that he will be of good behaviour for a period of five years from 9 October 1990.

5. Order that in respect of the offence of embezzlement of the sum of $18,981.00, the recognisance include the condition that the respondent pay the Administration of Norfolk Island the sum of $1,899.84 within seven days.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In the Supreme Court of Norfolk Island, Francis Robert Gillan, the respondent, pleaded guilty to four charges of embezzling money, the property of the Norfolk Island Administration ("the Administration") in the total sum of $56,853 and to a charge of stealing $8,000, the property of the Norfolk Island R.S.L. Club. In sentencing the respondent, Morling C.J. said that the offences took place over a period of approximately 18 months; that the respondent was in a position of trust in the Administration and the R.S.L.; that in these circumstances, except in a "quite exceptional case", a sentence of imprisonment would be called for; but that, for reasons which he then gave and to which we will return, he had decided not to sentence the respondent to a term of imprisonment. Morling C.J. said:

"Under all the circumstances Mr Gillan, I defer passing sentence upon you and order…

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 Gillan

Details

AGLC: R v. Gillan, R.F. [1991] FCA 224 (100 ALR 66)
Case: [1991] FCA 224
Decision Date: 03 MAY 1991

CaseChat Overview and Summary

In the matter of R v Gillan, the appellant, Thomas Gillan, was charged with various offences including embezzlement, theft, and obtaining property by deception. The case was heard in the Supreme Court of the Australian Capital Territory. The appellant was convicted and sentenced to imprisonment terms for the various offences. The Crown subsequently appealed against the sentence, arguing that it was manifestly inadequate. The appeal centred on whether the Crown's grounds for appeal, which were not raised before the trial judge, could still be considered by the appellate court. The court had to determine whether it was appropriate to entertain the Crown's appeal based on the grounds not previously raised and whether the sentence imposed was manifestly inadequate.

The court considered the principle that an appellate court may only interfere with a sentence if it is manifestly inadequate, and whether the Crown's grounds for appeal could be considered despite not being raised before the trial judge. It was held that the Crown's appeal could proceed on the basis that the sentence was manifestly inadequate, and the court could consider the grounds of appeal not previously raised. The court found that the sentence was manifestly inadequate given the nature and circumstances of the offences committed.

The appeal was allowed, and the orders made by the trial judge were set aside. The respondent was convicted of each of the offences charged. In relation to the sentence, the respondent was ordered to be imprisoned for three years but was to be released upon entering into a recognisance of $500 with conditions for good behaviour and restitution. The court emphasised the importance of the trial judge considering all relevant factors in sentencing, including the nature and circumstances of the offence and the respondent's background. The final orders included the release of the respondent from the recognisance, the imposition of a new sentence with conditions for release, and a requirement for the respondent to pay restitution.

Orders

Orders of the court

1. The appeal be allowed.

2. Set aside the orders made by Morling C.J. and order that the respondent be released from the recognisance entered into pursuant to those orders.

3. Order that the respondent be convicted of each of the offences charged in the indictments.

4. Order that in respect of each of the offences charged, pursuant to the provisions of s. 556B(1)(b) of the Crimes Act, 1900 N.S.W.) in its application to the Territory of Norfolk Island, the respondent be sentenced to imprisonment for three years but direct that the respondent be released upon his entering into a recognisance in the sum of $500.00 (five hundred dollars) that he will be of good behaviour for a period of five years from 9 October 1990.

5. Order that in respect of the offence of embezzlement of the sum of $18,981.00, the recognisance include the condition that the respondent pay the Administration of Norfolk Island the sum of $1,899.84 within seven days.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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