Keane and Fraser JJA and Atkinson J 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:
APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on own plea of one count of dishonestly obtaining property – where applicant fraudulently obtained $94,744.46 from her employer – where applicant argues sentencing judge failed to give proper consideration to applicant's psychiatric condition – whether sentence manifestly excessive
S R Lewis for the applicant V A Loury for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: On 11 September 2009 the applicant pleaded guilty to one count of dishonestly obtaining property in contravention of s 408C(1)(b) of the Criminal Code 1899 (Qld) ("the Criminal Code"). The applicant was an employee of the complainant. The property she fraudulently obtained was $94,744.46.
The applicant was sentenced to four and a half years imprisonment with eligibility for parole after serving 18 months.
The applicant seeks leave to appeal against her sentence on the ground that it is manifestly excessive. In particular it is said that the learned sentencing judge failed to give proper consideration to the applicant's psychiatric condition and to moderate her sentence accordingly.
The circumstances of the offending
The applicant was employed by the complainant as a bookkeeper in its fencing business. She was trusted with access to the accounts of the business and with the password necessary to operate on the business' accounts. She had been employed for about four years before she commenced the misappropriations from the complainant. The discovery of the misappropriations led to the termination of her employment.
Over the period from 10 January 2006 to 25 December 2007, she effected 94 transactions which involved the misappropriation of $94,744.46. These transactions involved the transfer of sums of money from the complainant's business account to her personal account to that of her daughter. She disguised the transactions by labelling them as…
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.
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Details
AGLC
R v Goodger [2009] QCA 377
Case
[2009] QCA 377
Decision Date
CaseChat Overview and Summary
In the case of R v Goodger, the applicant appealed against her sentence, arguing that it was manifestly excessive. The applicant had pleaded guilty to one count of dishonestly obtaining property from her employer in the amount of $94,744.46. She submitted that the sentencing judge had failed to give proper consideration to her psychiatric condition, which she argued should have mitigated her sentence. The primary issue for the court was whether the sentence imposed was manifestly excessive or inadequate, taking into account the applicant's psychiatric condition and other relevant factors.
The court considered the sentencing principles and the circumstances of the case, including the seriousness of the offence and the applicant's personal circumstances. It noted that the applicant's psychiatric condition was a factor that could have been taken into account in determining the appropriate sentence. However, the court found that the sentencing judge had adequately considered the applicant's psychiatric condition and that the sentence imposed was not manifestly excessive. The court also considered the need for deterrence and the protection of the community, and found that the sentence reflected these considerations.
In light of the above, the court dismissed the application for leave to appeal against the sentence. The court found that the sentence imposed was appropriate and that there were no grounds for interference. The applicant's psychiatric condition was a factor that had been taken into account in determining the sentence, and the court was satisfied that the sentence was not manifestly excessive. As such, the application for leave to appeal was refused, and the sentence imposed by the sentencing judge stood.
Orders
Orders of the court
Application for leave to appeal against sentence refused