R v Mara; ex parte A-G (Qld) - [1999] QCA 308

IN THE COURT OF APPEAL [1999] QCA 308
SUPREME COURT OF QUEENSLAND
C.A. No. 170 of 1999
Brisbane
[R v Mara; ex parte A-G]
THE QUEEN
v
MARYANNE MARILYN MARA
Respondent
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
Appellant
McMurdo P
McPherson JA
Thomas JA

Judgment delivered 6 August 1999.
Joint reasons for judgment of McMurdo P and Thomas JA, separate reasons of
McPherson JA concurring as to the order made.
APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS:

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - FRAUD, MISAPPROPRIATION AND OMISSION TO ACCOUNT

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE

Indigenous cultural pressure on offender taken into account in sentence - whether non-custodial term within the sentencing range - difficulties in applying sentences for offences committed in the open community to circumstances in remote aboriginal communities - effect of restitution by community whose members had influenced offender to commit offences - whether attitudes of local aboriginal community may be relevant - whether offender should serve actual time in gaol.
R v Cox (1995) 85 A Crim R 1, considered
R v Daniel [1998] 1 Qd R 499, considered
R v Dawson, ex parte Attorney-General (CA No 468 of 1998,
25 February 1999), considered
R v Ferguson (CA No 381 of 1995, 12 December 1995),
considered

R v Jacob (CA No 46 of 1997, 12 May 1997), considered

R v Geertz (CA No 12 of 1995, 26 April 1995), considered considered
Counsel: Mr R Martin for the appellant.
Mr M Shanahan for the respondent.
Solicitors: Director of Public Prosecutions (Queensland) for the appellant.
Legal Aid Queensland for the respondent.
Hearing Date: 9 July 1999
JOINT REASONS FOR JUDGMENT - McMURDO P AND THOMAS JA
Judgment delivered 6 August 1999

This is an appeal by the Attorney-General against sentences imposed on four counts of misappropriation. In essence two offences were alleged to have occurred over the period July 1995 to March 1998, but four charges were laid because of amendments to the relevant legislation on 1 July 1997. The essential misconduct alleged was misappropriation of money belonging to the Commonwealth Bank leading to a general deficiency of $34,476.79, and misappropriation of certain "power cards" issued by the FNQEB to the value of $1,000.00.
The respondent was sentenced to imprisonment for two years, wholly suspended for a period of three years.
The respondent is a member of the Injinoo Aboriginal community in far north Queensland. She was employed to run an agency of the Commonwealth Bank in that community in 1995. With minimal training she was made responsible for bookkeeping, money management and all other aspects of the agency. The arrangement was that she should keep an operating balance of $10,000.00 and that any holdings in excess of that amount were to be forwarded to the bank's…

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.

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Details

Case: [1999] QCA 308
Decision Date: 6/08/1999

CaseChat Overview and Summary

The appeal was heard by the Queensland Court of Appeal, specifically by McPherson JA, McMurdo P, and Thomas JA, in relation to a decision made by a lower court. The appellant, the Attorney-General of Queensland, appealed against a sentence handed down by the respondent, who was found guilty of misappropriation. The primary issue before the Court was whether the lower court had given undue consideration to the wishes of the local community when deciding on the sentence for the respondent. The secondary issue was whether the sentence imposed was appropriate given the nature and circumstances of the offence.

The Court found that while it was not improper for the sentencing judge to take into account the wishes of the local community, it was undesirable for the court to give undue attention to the views of groups in sentencing matters. The Court held that there was no evidence to suggest that the lower court had given undue weight to the community opinion. The Court also found that there were personal factors in favour of the respondent that made the sentence imposed not inappropriate or manifestly inadequate, but that it should not be regarded as setting a standard of sentencing for instances of misappropriation at this level in future matters of this kind.

The appeal was dismissed by the Court of Appeal, with the judges agreeing with the joint reasons given by McMurdo P and Thomas JA for doing so. The Court held that it was not shown that undue weight was given to the community opinion or recommendation in the present case, and that the sentence imposed was appropriate given the nature and circumstances of the offence. The Court also noted that the sentence should not be regarded as setting a standard of sentencing for instances of misappropriation at this level in future matters of this kind.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this instance the appeal of the Attorney-General will be dismissed. REASONS FOR JUDGMENT - McPHERSON JA Judgment delivered 6 August 1999 I agree that this appeal should be dismissed and I agree generally with the joint reasons given by McMurdo P and Thomas JA for doing so. I do, however, wish to make a brief comment on the course adopted by the learned judge in this instance of taking account of the wishes of the local community when deciding not to sentence the respondent to a period of imprisonment. My first reaction to it was that it was proper for her Honour to do so. On one view, it was analogous to the kind of character reference, perhaps embodying a plea for mercy, that is sometimes tendered on sentence. Judges are ordinarily well able to assess the weight, whether little or much, to be given to a reference of that kind, including the circumstances in which it may have been solicited. Occasionally, as in R v Beldan, ex p Attorney-General [1986] 2 Qd R 179, the reference may turn out to have been a fabrication; but that is a risk that, generally speaking, the sentencing system can probably afford to take in return for the convenience of having it established, without undue expense or formality, that there are some who think well of the offender despite the criminal conduct for which sentence is being imposed. Generally, I think that, for the reasons mentioned by McMurdo P and Thomas JA, it is undesirable that in sentencing matters the court should give undue attention to the views of groups as distinct perhaps from those of identified individuals who are prepared to offer written or sworn testimony at the hearing. It would be a serious mistake, and contrary to law, if the sentencing function came to depend too much on views of persons operating outside the courts who are possibly open to influences about which courts have no means of knowing anything. At the same time, I consider that it is not shown that undue weight was given to the community opinion or recommendation in the present case. I agree with the joint reasons of McMurdo P and Thomas JA that there are some personal factors operating in favour of the respondent that tended to make the sentence imposed here not inappropriate or manifestly inadequate; but that it should not be regarded as setting a standard of sentencing for instances of misappropriation at this level in future matters of this kind.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE COURT OF APPEAL	[1999] QCA 308
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - FRAUD, MISAPPROPRIATION AND OMISSION TO ACCOUNT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Indigenous cultural pressure on offender taken into account in sentence - whether non-custodial term within the sentencing range - difficulties in applying sentences for offences committed in the open community to circumstances in remote aboriginal communities - effect of restitution by community whose members had influenced offender to commit offences - whether attitudes of local aboriginal community may be relevant - whether offender should serve actual time in gaol.
*R v Cox* (1995) 85 A Crim R 1, considered *R v Daniel* [1998] 1 Qd R 499, considered *R v Dawson, ex parte Attorney-General* (CA No 468 of 1998, 25 February 1999), considered *R v Ferguson* (CA No 381 of 1995, 12 December 1995),
considered
*R v Jacob* (CA No 46 of 1997, 12 May 1997), considered
*R v Geertz* (CA No 12 of 1995, 26 April 1995), considered considered
Counsel:	Mr R Martin for the appellant. Mr M Shanahan for the respondent.
Solicitors:	Director of Public Prosecutions (Queensland) for the appellant. Legal Aid Queensland for the respondent.
Hearing Date:	9 July 1999