________________________________________________________________
Judgment delivered 22/06/1993.
Joint reasons of Pincus J.A. and Thomas J. Separate reasons
delivered by the President.

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APPEAL ALLOWED. ORDER (BY MAJORITY):
1. SENTENCE BELOW SET ASIDE AND IN LIEU THEREOF A SENTENCE OF
TWELVE MONTHS' IMPRISONMENT WITH AN ORDER THAT THE RESPONDENT BE
RELEASED UPON HIS GIVING SECURITY BY RECOGNISANCE THAT HE WILL
BE OF GOOD BEHAVIOUR FOR TWO YEARS AFTER HE HAS SERVED THREE
MONTHS;
2. A REPARATION ORDER IN THE SUM OF $5,685.45 FOR PAYMENT TO

THE HEALTH COMMISSION.

3. DIRECT THAT THE	PUBLIC DEFENDER CAUSE TO BE EXPLAINED
T	O THE RESPONDENT -

(A) THAT SERVICE OF THE SENTENCE WILL ENTAIL A PERIOD OF IMPRISONMENT EQUAL TO THE PRE-RELEASE PERIOD SPECIFIED IN THE ORDER, NAMELY THREE MONTHS;

(B) THAT THE CONDITION OF THE ORDER IS THAT HE BE OF GOOD BEHAVIOUR FOR TWO YEARS;

(C) THAT IF HE FAILS TO BE OF GOOD BEHAVIOUR FOR TWO YEARS HE MAY BE PROCEEDED AGAINST UNDER S.20A OF THE CRIMES ACT AND BE SUMMONSED OR BROUGHT BEFORE A MAGISTRATE TO BE DEALT WITH ACCORDING TO LAW AND THAT IN SUCH EVENT THE MAGISTRATE MAY -

(i) REVOKE THE ORDER AND DEAL WITH HIM FOR THE OFFENCE IN RESPECT OF WHICH THE ORDER IS MADE BY ORDERING HIM TO BE IMPRISONED FOR THAT PART OF THE SENTENCE THAT HE HAD NOT SERVED AT THE TIME OF HIS RELEASE; OR

(ii) TAKE NO ACTION; AND
THAT ANY RECOGNISANCE GIVEN IN ACCORDANCE WITH THE ORDER
MAY BE DISCHARGED OR VARIED UNDER S.20AA.

A BENCH WARRANT WILL ISSUE IN THE EVENT THAT THE DIRECTOR

APPLIES FOR ONE.
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CATCHWORDS: Criminal law - sentences - defrauding a Commonwealth Commission - sustained fraud, obtaining over $5,000 - deterrence necessary - custodial sentence imposed on Director's appeal.

Counsel:	T. Gates for Appellant G. Long for Respondent
Solicitors:	Director of Public Prosecutions for Appellant Legal Aid Office for Respondent

Hearing Date: 13/05/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.94 of 1993

Brisbane
Before The President

Mr Justice Pincus Mr Justice Thomas

[R. v. Holdsworth]

T H E Q U E E N

RUSSELL HOLDSWORTH

(Respondent)

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(Appellant)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 22/06/93

The circumstances giving rise to this appeal are set out in the reasons of judgment of Thomas J. and I need not repeat them. I agree that the appeal should be allowed, but differ from his Honour concerning the penalty which should now be imposed.

While deterrence is a significant factor in sentencing in respect of offences such as those of which the respondent is guilty, the need for deterrence must be balanced against other considerations, including especially in this…

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 Holdsworth

Details

AGLC: R v Holdsworth [1993] QCA 242
Case: [1993] QCA 242
Decision Date: 22/06/1993

CaseChat Overview and Summary

The Court of Appeal in Queensland was called upon to determine an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on Russell Holdsworth, who had been convicted of defrauding the Health Insurance Commission. The appeal was grounded on the basis that the original sentence was manifestly inadequate. The original sentence comprised a release order without passing sentence, probation for two years, and a reparation order for $5,685.45. The court found that the need for deterrence was not adequately addressed by the original non-custodial sentence, despite the respondent's personal circumstances and mitigating factors.

The reasoning of the court highlighted the necessity of imposing a sentence that serves as a deterrent for such criminal activities against governmental agencies. The court considered the severity and sustained nature of the fraud, as well as the significant amount obtained by the respondent. It was noted that comparable cases typically involved sentences with a custodial component. The court emphasised that the Commonwealth and its departments should not be perceived as fair game for fraudulent activities. Therefore, the original sentence was deemed inadequate, and the appeal was allowed.

The court substituted a sentence of twelve months' imprisonment with an order for the respondent's release upon giving security by recognisance after serving three months, provided he remains of good behaviour for two years. Additionally, a reparation order of $5,685.45 was imposed. The court directed that the Public Defender explain to the respondent the terms of the sentence, including the consequences of breaching the good behaviour condition. The appeal was thus allowed, and the original sentence was set aside in favour of the substituted custodial sentence.

Orders