R v Lovell

Case [2012] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lovell [2012] QCA 43

PARTIES:

R
v
LOVELL, James Kentwell
(applicant)

FILE NO/S:

CA No 178 of 2011
DC No of 979 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2012

JUDGES:

Margaret McMurdo P, Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Atkinson J concurring as to the orders made, Chesterman JA dissenting

ORDERS:

1.    The application to adduce further evidence is refused.

2.    The application for leave to appeal against sentence is granted.

3.    The appeal is allowed only to the extent of setting aside the term of imprisonment of 12 years imposed on count 2 and substituting a sentence of 10 years imprisonment, and setting aside the parole eligibility date of 30 November 2015 and substituting a parole eligibility date of 30 May 2015.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to three charges of fraud, two charges of forgery and two of uttering – where the applicant was sentenced to 10 years’ imprisonment on count one, 12 years’ imprisonment on count two, three years’ imprisonment on each of counts three, four, six and seven and 12 months’ imprisonment on count five – where the terms of imprisonment imposed with respect to counts one, two, three, four, six and seven were to be served concurrently – where 12 months’ imprisonment imposed on count five was to be served cumulatively on the others – where a parole eligibility date was fixed at 30 November 2015 which required the applicant to spend four and a half years in prison before becoming eligible for parole – whether the sentence imposed was manifestly excessive

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Corporations Act 2001 (Cth), s 184(2)
Criminal Code 1899 (Qld), s 408C
Penalties and Sentences Act 1992 (Qld), s 9(1)

Attorney-General v Tichy (1982) 30 SASR 84, cited
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, cited
R v Cook and Heiser ex-parte Attorney-General[1997] QCA 14, cited
R v Cross (Unreported, Indictment 126/2006, District Court, Maroochydore, Robertson DCJ, 16 May 2006), cited
R v Daswani[2005] QCA 167, cited
R v Gadaloff[1998] QCA 458, cited
United States of America v Madoff, unreported, No 09 CR 213 (DC) (Chin J, SDNY Jun 29, 2009)

COUNSEL:

The applicant appeared on his own behalf
S P Vasta for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P: The applicant, James Kentwell Lovell, pleaded guilty to three counts of fraud with a circumstance of aggravation (counts 1, 2 and 5), two counts of forgery (counts 3 and 6) and two counts of uttering (counts…

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AGLC
R v Lovell [2012] QCA 43
Case
[2012] QCA 43
Decision Date

CaseChat Overview and Summary

In the case of R v Lovell, the applicant was convicted and sentenced in the County Court of Victoria for multiple counts of fraud, forgery, and uttering. The applicant, having pleaded guilty, was sentenced to lengthy terms of imprisonment for each charge, with certain terms to be served concurrently and others cumulatively. The applicant challenged the sentence, arguing it was manifestly excessive. The Court of Appeal was tasked with determining whether the sentence imposed was appropriate.

The legal issues before the court involved assessing the severity of the sentence in light of the crimes committed and the principles governing sentencing in Victoria. The court had to consider whether the sentence was manifestly excessive or inadequate, taking into account the nature and circumstances of the offences, the offender's culpability, and the need for deterrence and rehabilitation. The applicant's submission focused on the cumulative effect of the sentences and the parole eligibility date set for late 2015.

The Court of Appeal held that while the sentence for some counts was appropriate, the 12-year term for count two was excessive given the overall context of the sentence. The court considered the concurrent and cumulative nature of the sentences, and the significant pre-parole period imposed. The court recognised the need for a sentence that adequately reflected the gravity of the offences, but also recognised the risk of an excessive term. Consequently, the court substituted a 10-year sentence for count two and adjusted the parole eligibility date to reflect a more proportionate term.

The court allowed the appeal in part, reducing the term for count two and adjusting the parole eligibility date. The court refused the application to adduce further evidence and granted leave to appeal against the sentence. The final orders included the reduction of the sentence and the adjustment of the parole eligibility date to 30 May 2015.

Orders

Orders of the court

1. The application to adduce further evidence is refused.

2. The application for leave to appeal against sentence is granted.

3. The appeal is allowed only to the extent of setting aside the term of imprisonment of 12 years imposed on count 2 and substituting a sentence of 10 years imprisonment, and setting aside the parole eligibility date of 30 November 2015 and substituting a parole eligibility date of 30 May 2015.

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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