R v Hawkins

[2011] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hawkins [2011] QCA 173

PARTIES:

R
v
HAWKINS, Arthur Cyril
(applicant)

FILE NO/S:

CA No 147 of 2011
DC No 575 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

22 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2011

JUDGES:

Muir JA, P D McMurdo and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 22 July 2011:

The application for leave to appeal be allowed.1.   

The appeal be allowed.2.   

The sentence imposed on the applicant on 12 May 2011 be set aside.3.   

The matter be remitted to the District Court for the applicant to be sentenced according to law by a judge other than the sentencing judge.4.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the applicant pleaded guilty to the offence of dishonestly causing a pecuniary detriment to his mother-in-law with the circumstance of aggravation that the yield to the applicant was more than $30,000 – where the applicant was sentenced to a three year term of imprisonment suspended after nine months – where the primary judge did not determine the amount of money fraudulently taken – whether there was a miscarriage of justice – whether the sentence should be set aside and the sentencing discretion exercised afresh

R v Alexander [2004] QCA 11, considered

COUNSEL:

A M Nelson for the applicant
D R Kinsella for the respondent

SOLICITORS:

TayLAW Solicitors for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

1. MUIR JA:  The applicant pleaded guilty to the offence of dishonestly causing a pecuniary detriment to the complainant, his mother-in-law with the circumstance of aggravation that the yield to the applicant from his dishonesty was of a value more than $30,000. 

1. He was sentenced to a three year term of imprisonment suspended after nine months, with an operational period of five years.  He seeks leave to appeal against his sentence on grounds that:

(a)        The sentence was manifestly excessive;

(b)        The sentencing Judge erred in failing to determine the amount of the money fraudulently taken; and

(c)        The sentencing Judge erred in failing to take into account factors relevant to mitigation.

1. At the commencement of her submissions, the prosecutor informed the sentencing judge that the quantum of the applicant's fraud was contested.  The prosecution's case was that "up to $86,502.21" was involved.  The applicant claimed that, "the limit of his culpability [was] $35,000."

1. The prosecutor explained that the complainant was then 67 years of age, had moved into an aged care facility in December 2004 and appointed her son and daughter jointly and severally attorneys to manage her affairs.  The applicant is and was the daughter's husband.

1. The complainant's son was in Melbourne and travelled frequently.  Consequently, the…