R v Grant - [1999] QCA 497

99.497

COURT OF APPEAL

McMURDO P DAVIES JA HELMAN J

CA No 361 of 1999
THE QUEEN
v.

CHARLES EDWARD GANT	Applicant
BRISBANE ..DATE 30/11/99
JUDGMENT
301199 T6/BP17 M/T COA294/99

THE PRESIDENT: Justice Davies will deliver the reasons of the Court first.

DAVIES JA: The applicant pleaded guilty in the District Court on 30 July last to a total of 31 counts. It is now agreed that they were four of forgery with a circumstance of aggravation, three of uttering with a circumstance of aggravation, nine of forgery, nine of uttering, three of misappropriation with a circumstance of aggravation, one of misappropriation, one of receiving stolen property and one of false pretences.

He was sentenced on 30 September to imprisonment for three years, suspended after six months with an operational period of three years in respect of each of those counts. At the date of sentence the applicant had been in custody, at least partly in relation to proceedings for these offences, for 75 days.

It appears to be, I think, common ground but certainly now the case that that 75 days does not represent a period which is in respect to these offences and no others. Consequently it is not surprising that no order was made by the learned sentencing judge under s.161 of the Penalties and Sentences Act.

However the primary submission for the applicant in this Court, who was represented by Mr Maher, was in reliance on the decision of this Court in Wishart and Jenkins [1994]

2 JUDGMENT

301199 T6/BP17 M/T COA294/99

2 QdR 421, which as he quite rightly submitted, left open the general discretion to make an allowance for time previously spent in custody where it was not wholly in relation to proceedings for the offences before the Court, in other words, a discretion where the circumstances do not bring it within s.161.

Unfortunately it is unclear from the learned sentencing judge's sentencing remarks whether or not it was his intention to make allowance for that period in the sentence which he imposed. I shall return to that question a little later.

The documents which the applicant forged and uttered were used by him for the purpose of providing no less than nine different identities. He used a number of these to obtain lines of credit from a bank and a retailer, and by the time he was apprehended, he had obtained approximately $26,000 worth of property. It may be accepted that all of that property did not go to him beneficially.

By the time of sentence, $11,843 of this was still outstanding, but on sentence the applicant provided a bank cheque for that amount.

The forged documents to which I have referred included driver's licences and birth certificates.

3 JUDGMENT

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Although it was never suggested, and it could not properly be suggested, by the respondent that the applicant should be sentenced for other than the offences for which he had pleaded guilty, it is plain that he was apprehended…

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

Case: [1999] QCA 497
Decision Date: 30/11/1999

CaseChat Overview and Summary

In the case of R v Grant, the applicant, Charles Edward Gant, pleaded guilty to a series of offences, including forgery, uttering, misappropriation, receiving stolen property, and false pretences. The District Court sentenced him to imprisonment for three years, suspended after six months, with an operational period of three years for each of the counts. Gant appealed against his sentence, arguing that the court had not adequately considered the time he had already spent in custody before sentencing.

The legal issues before the Court of Appeal were whether the sentencing judge had appropriately considered the time Gant had spent in custody, and if the sentence imposed was manifestly excessive. The appeal hinged on whether the judge had exercised his discretion correctly in not making an allowance for the time Gant had spent in custody, given that it was not entirely for the offences in question.

Davies JA, delivering the judgment of the Court, noted that while it was unclear from the sentencing remarks whether the judge had intended to make allowance for the 75 days Gant had spent in custody, it was reasonable to infer that the six months of the sentence were to be served before suspension. The Court considered the nature of the offences, the sophistication of Gant's scheme, and his prior convictions in Victoria. Despite Gant's arguments, the Court concluded that the sentence was not manifestly excessive and affirmed the original sentence.

The Court of Appeal ultimately refused Gant's application for leave to appeal against his sentence.

Orders