R v Mudgway - [2014] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mudgway [2014] QCA 268

PARTIES:

R
v
MUDGWAY, Beryl Kay
(applicant)

FILE NOS:

CA No 120 of 2014
DC No 100 of 2014
DC No 310 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2014

JUDGES:

Holmes, Fraser and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Leave granted to appeal against sentence.1.

Appeal allowed.2.

Set aside the sentence on count 1 and substitute a sentence of twelve months imprisonment, fixing the applicant’s parole eligibility date at 27 September 2015.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of fraud – where she was sentenced to concurrent sentences of 21 months imprisonment and six months imprisonment, to be served cumulatively on the unserved 26 month portion of a suspended sentence – where the applicant forged cheques and withdrawals on the account of her employer, an elderly woman in poor health – where the applicant had a relevant criminal history – where the applicant suffered from a gambling addiction – where the applicant’s offending did not involve any circumstance of aggravation, so that the maximum penalty was five years imprisonment – whether the head sentence imposed was manifestly excessive

Criminal Code and Other Acts Amendment Act 2008 (Qld), s 71
Penalties and Sentences Act 1992 (Qld), s 9(2)(k)
R v Baxter[2012] QCA 125, cited
R v Gasenzer[2013] QCA 9, cited
R v Jeffree[2010] QCA 47, cited
R v Miles[2006] QCA 556, considered
R v Sigley[2002] QCA 11, considered
R v Vinson[2002] QCA 379, considered

COUNSEL:

N V Weston for the applicant
J A Wooldridge for the respondent

SOLICITORS:

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

HOLMES JA: The applicant pleaded guilty to two counts of fraud. In respect of the first, she was sentenced to 21 months imprisonment, and the second, six months imprisonment. Those sentences were to be served concurrently, but cumulatively upon the unserved 26 month portion of a suspended sentence which the sentencing judge activated. He set a parole eligibility date of 27 October 2015, requiring the applicant to serve 18 months before she could seek parole. The applicant seeks leave to appeal the 21 month sentence.

The offences for which the applicant was sentenced

Born in New Zealand, the applicant was 57 years old when she committed the offences. She was employed to assist an elderly woman in poor health from mid‑2010 to mid-2011, having previously worked as carer for other members of her client’s family. On 12 occasions she took and forged cheques from the woman’s cheque book, usually removing the cheque butt, but…

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 Mudgway

Details

AGLC: R v Mudgway [2014] QCA 268
Case: [2014] QCA 268
Decision Date: 21 October 2014

CaseChat Overview and Summary

In the matter of R v Mudgway, the applicant appealed against her sentence following her guilty plea to two counts of fraud. The applicant had forged cheques and made unauthorised withdrawals from her employer’s bank account. The employer was an elderly woman in poor health. The applicant had a history of relevant criminal conduct and suffered from a gambling addiction. The court sentenced her to concurrent terms of 21 months and six months imprisonment, to be served cumulatively on the unserved portion of a suspended sentence. The applicant contended that the sentence was manifestly excessive.

The legal issue before the court was whether the sentence imposed was manifestly excessive. The court noted that the maximum penalty for the offences was five years imprisonment. The court also considered the nature and circumstances of the offending, the applicant’s criminal history, and the impact of the offending on the victim. The court considered whether the sentence imposed was manifestly excessive or inadequate, taking into account all relevant factors.

The court found that the sentence imposed was manifestly excessive. The court noted that the applicant’s offending did not involve any circumstances of aggravation, and that the maximum penalty was five years imprisonment. The court also considered the applicant’s criminal history and gambling addiction, as well as the impact of the offending on the victim. The court held that the sentence imposed was manifestly excessive and granted leave to appeal against sentence. The appeal was allowed, and the sentence on count 1 was set aside and substituted with a sentence of 12 months imprisonment, with parole eligibility fixed at 27 September 2015.

Orders

Orders of the court

Leave granted to appeal against sentence.1.

Appeal allowed.2.

Set aside the sentence on count 1 and substitute a sentence of twelve months imprisonment, fixing the applicant’s parole eligibility date at 27 September 2015.3.

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 Mudgway [2014] QCA 268
PARTIES:	R v MUDGWAY, Beryl Kay (applicant)
FILE NOS:	CA No 120 of 2014 DC No 100 of 2014 DC No 310 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2014
JUDGES:	Holmes, Fraser and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Leave granted to appeal against sentence.1. Appeal allowed.2. Set aside the sentence on count 1 and substitute a sentence of twelve months imprisonment, fixing the applicant’s parole eligibility date at 27 September 2015.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of fraud – where she was sentenced to concurrent sentences of 21 months imprisonment and six months imprisonment, to be served cumulatively on the unserved 26 month portion of a suspended sentence – where the applicant forged cheques and withdrawals on the account of her employer, an elderly woman in poor health – where the applicant had a relevant criminal history – where the applicant suffered from a gambling addiction – where the applicant’s offending did not involve any circumstance of aggravation, so that the maximum penalty was five years imprisonment – whether the head sentence imposed was manifestly excessive Criminal Code and Other Acts Amendment Act 2008 (Qld), s 71 Penalties and Sentences Act 1992 (Qld), s 9(2)(k) R v Baxter[2012] QCA 125, cited R v Gasenzer[2013] QCA 9, cited R v Jeffree[2010] QCA 47, cited R v Miles[2006] QCA 556, considered R v Sigley[2002] QCA 11, considered R v Vinson[2002] QCA 379, considered
COUNSEL:	N V Weston for the applicant J A Wooldridge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent