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R v Gourley

R v Gourley

Case [2003] QCA 307 21 July 2003

Appeal

Limitation Periods

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION: R v Gourley [2003] QCA 307
PARTIES: R
v
GOURLEY, Merrilyn Ann
(applicant)

FILE NO/S:

CA No 153 of 2003 DC No 212 of 2002
DIVISION: Court of Appeal
PROCEEDING: Application for Extension (Sentence)
ORIGINATING
COURT: District Court at Townsville
DELIVERED EX 21 July 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 21 July 2003
JUDGES: Williams JA, Mackenzie and Helman JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for extension of time within which to appeal
against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE- AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted on plea of guilty to fraud – where applicant sought extension of time in which to seek leave to appeal against sentence – where 9 months out of time – where applicant claimed she was never advised by her legal representative that she could appear without cost to herself on her own behalf on appeal – where applicant would claim sentence was manifestly excessive if application granted
COUNSEL: The applicant appeared on her own behalf
Mr Pointing for the respondent
SOLICITORS: The applicant appeared on her own behalf
Director of Public Prosecutions for the respondent

MACKENZIE J: This is an application for an extension of time
in which to seek leave to appeal against a sentence.
On the 9th of August 2002 the applicant pleaded guilty to
dishonestly obtaining money in excess of $5,000 from her

employer, the Defence Force Credit Union. She was sentenced to six years' imprisonment with a recommendation that she be considered eligible for parole after serving two years and	10
three months.
Over a four and a half year period when she was between 42 and
46 years' of age she defrauded her employer by opening a
series of loan accounts in other names, drawing down most of	20
the available funds and gambling them away. Some moneys were
used to service loan payments in an attempt to conceal her
wrongdoing. Eventually when she could no longer do so she
went to the police and confessed. The total actual loss to
her employer was over $213,000.	30
The application for extension of time was filed on the 16th of
May 2003, about nine months out of time. The explanation
advanced for not applying within the prescribed time for leave
to appeal against sentence is that the applicant was advised	40
by her legal representatives immediately after the sentence was imposed that they recommend that she not appeal and probably would not get legal aid funding.
The subsequent letter from Legal Aid made the same	50

recommendation but said that if she wished to appeal she had
28 days and would have to be reassessed for legal aid. She
says the letter did not say that…

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 Gourley

Details

AGLC: R v Gourley [2003] QCA 307
Case: [2003] QCA 307
Decision Date: 21/07/2003

CaseChat Overview and Summary

In this case, the applicant, Gourley, was convicted of fraud and sought an extension of time to appeal against the sentence imposed. The application was filed nine months beyond the deadline for seeking leave to appeal. Gourley argued that she had not been properly informed by her legal representative that she could appear without cost on her own behalf on appeal. The High Court of Australia was asked to consider whether the application for an extension of time should be granted.

The central legal issue was whether the Court should grant an extension of time for Gourley to appeal against her sentence, despite being well outside the statutory period for such an appeal. The Court had to consider whether Gourley's claim that she was unaware of her right to appear without cost on her own behalf constituted sufficient grounds for granting the extension. Additionally, the Court had to assess whether the sentence imposed was manifestly excessive, as Gourley intended to argue if the application was successful.

The Court held that it would not grant the extension of time for Gourley to appeal against her sentence. The Court emphasised that an extension of time was only granted in exceptional circumstances and that Gourley had failed to demonstrate such exceptional circumstances. The Court found that Gourley had not acted with due diligence in pursuing her appeal, and her claim of not being advised by her legal representative did not sufficiently justify the delay. Furthermore, the Court noted that the sentence imposed was not manifestly excessive, and this did not constitute a ground for granting the extension.

The Court refused the application for an extension of time within which to appeal against the sentence.

Orders

Orders of the court

Application for extension of time within which 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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Citations

AGLC Citation

R v Gourley [2003] QCA 307

Most Recent Citation

R v Gregory [2004] QCA 87

Cases citing this decision · 13 of 13 shown

R v Martin
[2015] QCA 257 Para 1

…ndent relied on R v Shiels ,[9] R v Spalding ,[10] R v Gourley ,[11] R v Tindale [12] and R v Wilson .[13] [9][2011] QCA 115. [10][2002] QCA 538. [11][2003] QCA 307. [12][2008] QCA 24. [13][2013] QCA 260.…
R v Illguth
[2014] QCA 222 Para 1

…es which deal with similar offending are R v Gasenzer ;[1] R v Ward ;[2] R v Gourley ;[3] and R v Tindale .[4] [1][2013] QCA 9. [2][2008] QCA 222. [3][2003] QCA 307. [4][2008] QCA 24.…
R v Whiting
[2013] QCA 18 Para 1

…The prosecution referred the sentencing judge to R v Gourley [2003] QCA 307, R v Ward [2008] QCA 222, and R v Goodger [2009] QCA 377. In Gourley the effective sentence of six years imprisonment was imposed for an offence in which the amount taken was $213,000. The sentencing judge remarked that such an amount was…
R v Alwis
[2012] QCA 308 Para 1

…17] and R v Gourley ,[18] supported a sentence of five years imprisonment with no early parole eligibility. [16][2007] QCA 22. [17][2005] QCA 73. [18][2003] QCA 307.…
R v Yarwood
[2011] QCA 367

…parte A-G(Qld) [2000] QCA 380, considered R v Dunn [1994] QCA 147, cited R v Goodger [2009] QCA 377, applied R v Gourley [2003] QCA 307, considered R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, considered R v Lather [2011] QCA 143, considered R v Lory , unreported, Court of Criminal Appeal, Qld, CA No 170 of 19…
R v Goodenough
[2010] QCA 238

…ate properly took into account mitigating factors – whether application for extension of time should be granted R v Gourley [2003] QCA 307, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied R v Tindale [2008] QCA 24, considered R v Twidale [2009] QCA 200, considered COUNSEL: The applicant appeared on…
R v Fidler
[2010] QCA 25 Para 1

…operational period of five years (on an Attorney's appeal), and five years suspended after twenty months with an operational period of five years. [3][2003] QCA 307. [4][2006] QCA 312. [5][2007] QCA 22.…
R v Fuller
[2009] QCA 195 Para 1

…lant’s counsel cited R v Hancox [2006] QCA 333, R v Adams [2006] QCA 312 and R v Parker [2007] QCA 22. The respondent’s counsel cited R v Gourley [2003] QCA 307.…
R v Gilbert
[2008] QCA 178 Para 1

…t the sentence was supported by R v Bulloch [10], R v Gourley [11] and R v Hancox [12]. She supported the sentence imposed. [10][2003] QCA 578. [11][2003] QCA 307. [12][2006] QCA 333.…
R v Tindale
[2008] QCA 24 Para 1

…mitted on behalf of the applicant, that there is no precise sliding scale of head sentences according to the sum involved in the offence: R v Gourley [2003] QCA 307, per Mackenzie J at 3. That is not to say, however, that the amount taken is not a very relevant circumstance. As Mackenzie J observed in that case,…
R v Parker
[2007] QCA 22

…General (Qld) [2006] QCA 312; CA No 115 of 2006, 25 August 2006, distinguished R v Crofts (1998) 100 A Crim R 503; [1998] QCA 60, applied R v Gourley [2003] QCA 307; CA No 153 of 2003, 21 July 2003, distinguished R v Spalding [2002] QCA 538; CA No 241 of 2002, 6 December 2002, distinguished Penalties and Sentence…
R v Gander
[2005] QCA 45 Para 1

…restitution. That six year term accorded with the six year term with a recommendation after serving two years and three months upheld in R v Gourley [2003] QCA 307, in respect of an applicant who had defrauded her employer of sums totalling over $213,000 over a four and a half year period. There was no restituti…
R v Gregory
[2004] QCA 87

…nt entered timely plea of guilty - whether sentence is manifestly excessive R v Felton CA No 16 of 1989, 6 April 1989, considered R v Gourley [2003] QCA 307; CA No 153 of 2003, 21 July 2003, considered R v Griffiths [1994] QCA 455; CA No 146 of 1994, 2 November 2994, considered R v Jensen; ex parte A-G [1998] QCA…

View all 13 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Spalding
[2002] QCA 538

…the matters of The Queen v. Spalding [2002] QCA 538; The Queen…
R v Wheeler & Sorrensen
[2002] QCA 223

…v. Wheeler and Sorrenson [2002] QCA 223; and The Queen v.…
R v Reischl
[2000] QCA 215

…Reischl [2000] QCA 215.…
R v Cheers
[1997] QCA 329

…matters of The Queen v. Cheers [1997] QCA 329 and The Queen v. Power [1998] QCA 032. Examination of the authorities to which I have referred shows that a head sentence of six years falls…
QCA 329 and The Queen v. Power
[1998] QCA 032

…matters of The Queen v. Cheers [1997] QCA 329 and The Queen v. Power [1998] QCA 032. Examination of the authorities to which I have referred shows that a head sentence of six years falls…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Gourley [2003] QCA 307
PARTIES:	R v GOURLEY, Merrilyn Ann (applicant)
FILE NO/S:	CA No 153 of 2003 DC No 212 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX	21 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2003
JUDGES:	Williams JA, Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE- AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted on plea of guilty to fraud – where applicant sought extension of time in which to seek leave to appeal against sentence – where 9 months out of time – where applicant claimed she was never advised by her legal representative that she could appear without cost to herself on her own behalf on appeal – where applicant would claim sentence was manifestly excessive if application granted
COUNSEL:	The applicant appeared on her own behalf Mr Pointing for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions for the respondent