R v Hurst; ex parte

[2005] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hurst; ex parte Commonwealth DPP [2005] QCA 25

PARTIES:

R
v
HURST, Joe
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 387 of 2004
DC No 2334 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cth DPP

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

14 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2005

JUDGES:

McMurdo P, Mackenzie J and Chesterman J
Separate reasons for judgment for each member of the Court, each concurring as to the order made

ORDER:

1.   Appeal allowed
2.    Vary the sentence imposed at first instance by       deleting that part of the order that Mr Hurst be       released forthwith and instead order that he be       released after serving six months imprisonment       otherwise confirm the sentence imposed below
3.    Order that a Bench Warrant  be issued but to lie in  
      the registry for seven days    

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where respondent pleaded guilty by ex officio indictment to one count of defrauding the Commonwealth and one count of dishonestly obtaining financial advantage from the Commonwealth – where sentenced to three years imprisonment suspended forthwith under s 20(1)(b) Crimes Act 1914 (Cth) upon recognizance of $1000 on condition he remain of good behaviour for three years – where ordered to pay repatriation to the Commonwealth of $65,089.87 under s 21B Crimes Act 1941 (Cth) – where maximum penalty on each count 10 years imprisonment – where respondent suffered traumatic early life – where some minor and old criminal history – where expressed remorse – where made genuine effort to repay debt to Commonwealth – whether sentence manifestly inadequate

R v Holdsworth [1993] QCA 242; CA No 94 of 1993, 22 June 1993, considered
R v Oag [1993] QCA 225; CA No 73 of 1993, 17 June 1993, considered
R v White CA No 411 of 1986, 3 April 1987, considered
R v Wright (1994) 74 A Crim R 152, considered

COUNSEL:

M C Chowdury for the appellant
S J Keim SC for the respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions for the appellant
Ron Sherman for the respondent

THE PRESIDENT: Mr Hurst pleaded guilty on 4 October 2004, to one count of defrauding the Commonwealth between 31 January 1995 and 23 May 2001 and one count of dishonestly obtaining a financial advantage from the Commonwealth between 24 May 2001 and 21 January 2003. He was convicted and sentenced to three years imprisonment to be released forthwith, under s 20(1)(b)Crimes Act 1914 (Cth), upon entering into a recognizance in the sum of $1,000, on condition that he be of good behaviour for three years and was additionally ordered under s 21B Crimes Act 1914 (Cth) to pay reparation to the Commonwealth of $65,089.87. The maximum penalty on…