R v Officen - [2014] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

R v Officen [2014] QCA 84

PARTIES:

R
v
OFFICEN, Mary Catherine
(applicant)

FILE NOS:

CA No 263 of 2013
DC No 956 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2014

JUDGES:

Margaret McMurdo P and Gotterson JA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal granted.1.

Appeal allowed to the extent of substituting a parole eligibility date of 14 July 2014 for the parole eligibility date of 2 October 2014.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted in 2013 of one count of fraud which occurred in 2008 whilst the applicant was on bail pending conviction for other fraud charges – where the applicant was given a cumulative sentence upon the 2008 sentence – where the cumulative sentence was eight years with time to be served being at least three years – where the applicant submitted that the sentence imposed was excessive due to its cumulative nature – where the applicant submitted that the time spent in pre-sentence custody had not been taken into account when setting the date that the applicant would be eligible for parole – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 160E(d), s 160F(2)

R v Alexander[2004] QCA 11, considered
R v Goodger[2009] QCA 377, considered
R v La Rosa; ex parte A-G (Qld)[2006] QCA 19, considered
R v Roberts-O’Keefe[2012] QCA 260, considered
R v Robinson; ex parte A-G (Qld)[2004] QCA 169, considered
R v Sommerfeld[2009] QCA 333, considered

COUNSEL:

The applicant appeared on her own behalf
V A Loury for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Ann Lyons J's reasons for granting the application for leave to appeal against sentence and allowing the appeal to the limited extent of substituting a parole eligibility date of 14 July 2014 for the parole eligibility date of 2 October 2014.

GOTTERSON JA: I agree with the orders proposed by Ann Lyons J and with the reasons given by her Honour.

ANN LYONS J: The sentence imposed

On 1 July 2013 the applicant pleaded guilty to one count of fraud as an employee to the value of $5,000 or more in a 17 month period between 19 June 2007 and 6 November 2008. On 20 September 2013 a sentence of three years imprisonment was imposed which was to be cumulative upon the sentence of five years imprisonment she was currently serving which had been imposed on 17 November 2008. A parole eligibility date was fixed at 2 October 2014 and 80 days…

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 Officen

Details

AGLC: R v Officen [2014] QCA 84
Case: [2014] QCA 84
Decision Date: 17 April 2014

CaseChat Overview and Summary

The case of R v Officen involved the appellant, who had been convicted in 2013 for one count of fraud that occurred in 2008 while the appellant was on bail for other fraud charges. The appellant was given a cumulative sentence, which included a term of eight years imprisonment with a non-parole period of three years, reflecting the time to be served. The appellant applied for leave to appeal against the sentence, arguing that it was manifestly excessive due to its cumulative nature and that the time spent in pre-sentence custody had not been taken into account when determining the parole eligibility date.

The legal issue before the court was whether the sentence imposed was manifestly excessive and whether the time spent in pre-sentence custody should have been taken into account when setting the date for parole eligibility. The court had to assess the arguments presented by the appellant and determine whether the sentence was appropriate and if the parole eligibility date was correctly calculated.

The court found that the sentence was not manifestly excessive overall, but it did find that the time spent in pre-sentence custody should have been taken into account when setting the parole eligibility date. As a result, the court substituted the parole eligibility date of 14 July 2014 for the original date of 2 October 2014. The application for leave to appeal was granted, and the appeal was allowed to the extent of substituting the parole eligibility date.

Orders

Orders of the court

Application for leave to appeal granted.1.

Appeal allowed to the extent of substituting a parole eligibility date of 14 July 2014 for the parole eligibility date of 2 October 2014.2.

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 Officen [2014] QCA 84
PARTIES:	R v OFFICEN, Mary Catherine (applicant)
FILE NOS:	CA No 263 of 2013 DC No 956 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2014
JUDGES:	Margaret McMurdo P and Gotterson JA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal granted.1. Appeal allowed to the extent of substituting a parole eligibility date of 14 July 2014 for the parole eligibility date of 2 October 2014.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted in 2013 of one count of fraud which occurred in 2008 whilst the applicant was on bail pending conviction for other fraud charges – where the applicant was given a cumulative sentence upon the 2008 sentence – where the cumulative sentence was eight years with time to be served being at least three years – where the applicant submitted that the sentence imposed was excessive due to its cumulative nature – where the applicant submitted that the time spent in pre-sentence custody had not been taken into account when setting the date that the applicant would be eligible for parole – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 160E(d), s 160F(2) R v Alexander[2004] QCA 11, considered R v Goodger[2009] QCA 377, considered R v La Rosa; ex parte A-G (Qld)[2006] QCA 19, considered R v Roberts-O’Keefe[2012] QCA 260, considered R v Robinson; ex parte A-G (Qld)[2004] QCA 169, considered R v Sommerfeld[2009] QCA 333, considered
COUNSEL:	The applicant appeared on her own behalf V A Loury for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent