R v Lather - [2011] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lather [2011] QCA 143

PARTIES:

R
v
LATHER, Stephen Paul
(applicant)

FILE NO/S:

CA No 299 of 2010
DC No 233 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2011

JUDGES:

Muir and White JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted.1.

Appeal against sentence allowed.2.

Sentence varied by reducing to five years the term of imprisonment imposed on each count. The applicant is eligible for parole on 9 July 2012.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was a solicitor in a small practice – where applicant pleaded guilty to two counts of dishonestly applying to his own use money belonging to him subject to a trust which should have been paid to the beneficiaries of a deceased estate – where parole eligibility date set at one-third of sentence – where applicant contends sentence manifestly excessive – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where applicant contends sentencing judge erred in treating an amount of $195,671.56 paid out of the Legal Practitioners’ Fidelity Guarantee Fund as loss caused by the offending – whether grounds for interference with sentence

Criminal Code 1899 (Qld), s 408C(1)(a)(ii), s 408C(2)
Criminal Code and Other Acts Amendment Act 2008 (Qld), s 71

Gregory and Karl as Executors of the Estate of SG Truelove (dec’d) v Lather District Court Southport, No 832 of 2003, 30 June 2003, Judge Noud, cited
R v D [1996] 1 Qd R 363; [1995] QCA 329, cited
R v Lory Queensland Court of Criminal Appeal; CA 170 of 1987, 19 August 1987, considered
R v Marsden; Attorney-General of Queensland [1999] QCA 237, considered

COUNSEL:

J Allen for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Margaret Wilson AJA and with her proposed orders.

WHITE JA: I agree with the reasons of Margaret Wilson AJA and the orders which she proposes.

MARGARET WILSON AJA: The applicant, Stephen Paul Lather, pleaded guilty to two counts of dishonestly applying to his own use money belonging to him subject to a trust which should have been paid to the beneficiaries of a deceased estate.[1] On each count he was sentenced to six years imprisonment, to be served concurrently. He will be eligible for parole after serving one-third of the sentence.
[1]Criminal Code 1899 (Qld) ss 408C(1)(a)(ii) and (2)(c) & (d).

He seeks leave to appeal against the sentence on two grounds…

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 Lather

Details

AGLC: R v Lather [2011] QCA 143
Case: [2011] QCA 143
Decision Date: 24 June 2011

CaseChat Overview and Summary

The case of R v Lather involved an applicant, a solicitor in a small practice, who pleaded guilty to two counts of dishonestly applying to his own use money belonging to him subject to a trust which should have been paid to the beneficiaries of a deceased estate. The legal issues at hand were whether the sentence imposed was manifestly excessive and whether the sentencing judge erred in treating an amount of $195,671.56 paid out of the Legal Practitioners’ Fidelity Guarantee Fund as loss caused by the offending.

The court examined the nature and seriousness of the offence, considering the applicant’s culpability and the impact on the victims. The applicant argued that the sentence was manifestly excessive, particularly given that the parole eligibility date was set at one-third of the sentence. The court weighed the applicant’s remorse, the amount repaid, and the need for deterrence and denunciation in determining the appropriate sentence.

The court found that the sentence was indeed manifestly excessive and that the sentencing judge had erred in treating the amount paid out of the Legal Practitioners’ Fidelity Guarantee Fund as loss caused by the offending. The court allowed the appeal against sentence, reducing the term of imprisonment to five years on each count, with parole eligibility set for 9 July 2012. This decision reflects the court’s consideration of the appropriate balance between punishment, deterrence, and the circumstances of the case.

Orders

Orders of the court

Application for leave to appeal against sentence granted.1.

Appeal against sentence allowed.2.

Sentence varied by reducing to five years the term of imprisonment imposed on each count. The applicant is eligible for parole on 9 July 2012.3.

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 Lather [2011] QCA 143
PARTIES:	R v LATHER, Stephen Paul (applicant)
FILE NO/S:	CA No 299 of 2010 DC No 233 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2011
JUDGES:	Muir and White JJA and Margaret Wilson AJA Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted.1. Appeal against sentence allowed.2. Sentence varied by reducing to five years the term of imprisonment imposed on each count. The applicant is eligible for parole on 9 July 2012.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was a solicitor in a small practice – where applicant pleaded guilty to two counts of dishonestly applying to his own use money belonging to him subject to a trust which should have been paid to the beneficiaries of a deceased estate – where parole eligibility date set at one-third of sentence – where applicant contends sentence manifestly excessive – whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where applicant contends sentencing judge erred in treating an amount of $195,671.56 paid out of the Legal Practitioners’ Fidelity Guarantee Fund as loss caused by the offending – whether grounds for interference with sentence Criminal Code 1899 (Qld), s 408C(1)(a)(ii), s 408C(2) Criminal Code and Other Acts Amendment Act 2008 (Qld), s 71 Gregory and Karl as Executors of the Estate of SG Truelove (dec’d) v Lather District Court Southport, No 832 of 2003, 30 June 2003, Judge Noud, cited R v D [1996] 1 Qd R 363; [1995] QCA 329, cited R v Lory Queensland Court of Criminal Appeal; CA 170 of 1987, 19 August 1987, considered R v Marsden; Attorney-General of Queensland [1999] QCA 237, considered
COUNSEL:	J Allen for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent