R v Kavney - [2006] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION: R v Kavney [2006] QCA 96
PARTIES: R
v
KAVNEY, Raymond Paul
(applicant)
FILE NO/S: CA No 12 of 2006
DC No 265 of 2005
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Toowoomba
DELIVERED EX
TEMPORE ON: 4 April 2006
DELIVERED AT: Brisbane
HEARING DATE: 4 April 2006
JUDGES: Williams and Jerrard JJA and Mullins J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSON – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – FRAUD – where the applicant pleaded guilty on ex officio indictment to 28 charges of fraud – where the applicant passed valueless cheques for a total benefit of $13,981.92 – where the applicant had been sentenced on over 30 prior occasions for dishonesty offences – whether sentence manifestly excessive
R v Jones [1997] QCA 132; CA No 63 of 1997, 27 May
1997, considered
COUNSEL: The applicant appeared on his own behalf
B G Campbell for the respondent
SOLICITORS: The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

MULLINS J: The applicant, who is unrepresented, seeks leave to appeal the sentence of two and one-half years imprisonment that was imposed in respect of each of 28 counts of fraud on an ex officio indictment to which the applicant pleaded guilty on 15 December 2005. The ground of the application is that the sentence is manifestly excessive in all the circumstances.

The applicant was born in October 1961 and is 44 years' old. The applicant has an extensive criminal history in Queensland, New South Wales, Victoria and the Australian Capital Territory which primarily relates to dishonesty offences. He had appeared before the Courts on about 30 occasions to be sentenced for offences of dishonesty.

The chronology of those offences where sentences of
imprisonment were imposed commenced in 1980 when the applicant
was sentenced to imprisonment for 12 months for stealing,
forgery and uttering. He was sentenced to imprisonment for
15 months in 1982 for fraudulently omitting to account. In
1984 he was given a sentence of 12 months' imprisonment on
each of 60 counts of false pretences. He was, again,
sentenced for false pretences in March 1987 when a sentence of
six months' imprisonment was imposed.

In August 1987 the applicant was sentenced to 21 months' imprisonment for 68 charges of passed valueless cheque and 28 charges of imposition. He was sentenced in June 1988 to six months' imprisonment for multiple charges of obtain property by deception, obtain financial advantage by deception, forgery and uttering. In May 1991 the applicant was sentenced to 18 months' imprisonment for multiple counts of obtain property by deception and obtain financial advantage by deception.

In February 1993 he was sentenced to an intensive correction order of 12 months for multiple counts of obtain financial advantage…

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 Kavney

Details

AGLC: R v Kavney [2006] QCA 96
Case: [2006] QCA 96
Decision Date: 4/04/2006

CaseChat Overview and Summary

The applicant in this case pleaded guilty to 28 charges of fraud, having passed valueless cheques resulting in a total benefit of $13,981.92. The applicant had a history of prior convictions for dishonesty offences, having been sentenced on over 30 occasions previously. The primary issue before the court was whether the sentence imposed was manifestly excessive, given the applicant's extensive criminal history and the nature of the current offences.

The court considered the seriousness of the offences, the applicant's criminal history, and the need for general deterrence. The court noted that the applicant had accumulated a substantial number of prior convictions for similar offences, which indicated a persistent pattern of dishonest behaviour. Additionally, the total benefit obtained from the fraud was relatively significant, further supporting the severity of the sentence. The court concluded that the sentence was not manifestly excessive, as it appropriately reflected the gravity of the crimes and the applicant's extensive criminal history.

In light of the above considerations, the court dismissed the application to reduce the sentence. The court held that the sentence was proportionate to the seriousness of the offences and the need to protect the community from further criminal conduct by the applicant. The applicant's extensive history of dishonesty offences justified a severe sentence to ensure general deterrence and to safeguard the community from the applicant's continued criminal behaviour.

Orders

Orders of the court

Application dismissed

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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CITATION:	R v Kavney [2006] QCA 96
PARTIES:	R v KAVNEY, Raymond Paul (applicant)
FILE NO/S:	CA No 12 of 2006 DC No 265 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED EX
TEMPORE ON:	4 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2006
JUDGES:	Williams and Jerrard JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSON – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – FRAUD – where the applicant pleaded guilty on ex officio indictment to 28 charges of fraud – where the applicant passed valueless cheques for a total benefit of $13,981.92 – where the applicant had been sentenced on over 30 prior occasions for dishonesty offences – whether sentence manifestly excessive
R v Jones [1997] QCA 132; CA No 63 of 1997, 27 May 1997, considered
COUNSEL:	The applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent