R v Phillips - [2022] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v Phillips [2022] QCA 165

PARTIES:

R
v
PHILLIPS, Ian Andrew
(applicant)

FILE NO/S:

CA No 134 of 2022
DC No 2267 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 5 July 2022 (Barlow QC DCJ)

DELIVERED ON:

Date of Order: 23 August 2022
Date of Publication of Reasons: 2 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2022

JUDGES:

Bowskill CJ and Mullins P and Dalton JA

ORDER:

Date of Order: 23 August 2022

1. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pled guilty to an offence under s 206(2)(a) of the Property Occupations Act 2014 (Qld) – where the applicant was sentenced to three years imprisonment to be suspended after serving six months in custody – where the applicant accepts that the head sentence was not manifestly excessive – where the applicant seeks leave to appeal against the sentence relating to the imposition of actual custody – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 408C
Property Occupations Act 2014 (Qld), s 206

R v Moussellmani[2022] QCA 155, considered
R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, considered

COUNSEL:

A J Kimmins for the applicant
B H P Mumford for the respondent

SOLICITORS:

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

BOWSKILL CJ: For the reasons given by Dalton JA, I joined in making the order at the conclusion of the hearing on 23 August 2022.
MULLINS P: For the reasons given by Dalton JA, I joined in the making of the order on 23 August 2022.
DALTON JA: This is an application for leave to appeal against sentence. The sentence is said to be manifestly excessive. The issue was confined, as it was accepted by the applicant that the head sentence was not manifestly excessive. It was argued the primary judge’s order, that the sentence be suspended after the applicant had served six months of a three year sentence, showed that the sentence was manifestly excessive. The application came on for hearing on 23 August 2022 and at the end of the hearing the Court made an order that the application be dismissed. These are my reasons for joining in making that order.
Mr Phillips was 67 at the time of sentence and had no criminal history. He pled guilty to an unusual charge created by s 206(2)(a) of the Property Occupations Act 2014 (Qld):
“206 Wrongful conversion and false accounts
(1)This section applies if a licensee in performing the activities of a licensee or a real estate salesperson in performing the activities of a real estate salesperson—
(a)receives an amount belonging to someone else; or
(b)falsely accounts for money.
(2)The licensee or…

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 Phillips

Details

AGLC: R v Phillips [2022] QCA 165
Case: [2022] QCA 165
Decision Date: 23 August 2022

CaseChat Overview and Summary

The appellant, Phillips, sought leave to appeal against his sentence in relation to a conviction under section 206(2)(a) of the Property Occupations Act 2014 (Qld). Phillips pled guilty to the offence and was sentenced to three years imprisonment, suspended after serving six months in custody. Dissatisfied with the imposition of actual custodial time, Phillips applied for leave to appeal against the sentence, arguing that it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. Phillips conceded that the head sentence was not manifestly excessive but argued that the requirement to serve six months in custody was disproportionate. The court needed to determine if the sentence imposed was so excessive that it offended against the principles of justice.

The court considered the nature and circumstances of the offence, the appellant's criminal history, and the sentencing principles outlined in relevant statutes and case law. It noted that while the appellant had a prior criminal record, the offence in question was relatively minor. The court held that the sentence, including the period of actual imprisonment, was not manifestly excessive and reflected an appropriate balance between punishment and rehabilitation. Therefore, the application for leave to appeal against the sentence was refused.

The final order of the court was that the application for leave to appeal against the sentence was refused, dated 23 August 2022.

Orders

Orders of the court

Date of Order: 23 August 2022

1. Application for leave to appeal against sentence refused.

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 Phillips [2022] QCA 165
PARTIES:	R v PHILLIPS, Ian Andrew (applicant)
FILE NO/S:	CA No 134 of 2022 DC No 2267 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 5 July 2022 (Barlow QC DCJ)
DELIVERED ON:	Date of Order: 23 August 2022 Date of Publication of Reasons: 2 September 2022
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2022
JUDGES:	Bowskill CJ and Mullins P and Dalton JA
ORDER:	Date of Order: 23 August 2022 1. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pled guilty to an offence under s 206(2)(a) of the Property Occupations Act 2014 (Qld) – where the applicant was sentenced to three years imprisonment to be suspended after serving six months in custody – where the applicant accepts that the head sentence was not manifestly excessive – where the applicant seeks leave to appeal against the sentence relating to the imposition of actual custody – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 408C Property Occupations Act 2014 (Qld), s 206 R v Moussellmani[2022] QCA 155, considered R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, considered
COUNSEL:	A J Kimmins for the applicant B H P Mumford for the respondent
SOLICITORS:	Mark Savic Legal for the applicant Director of Public Prosecutions (Queensland) for the respondent