R v QU

Case [2019] ACTSC 155 14 June 2019

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v QU

Citation:

[2019] ACTSC 155

Hearing Dates:

1 February; 24 May 2019

Decision Date:

14 June 2019

Before:

Loukas-Karlsson J

Decision:

See [90].

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property and financial advantage by deception – delay – intensive corrections order

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33

Criminal Code 2002 (ACT) ss 326, 332

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

Giourtalis v R [2013] NSWCCA 216

Hili v the Queen [2010] HCA 45; 242 CLR 520

Johnston v R [2017] NSWCCA 53

Markarian v The Queen [2005] HCA 25; 228 CLR 357

McLeod v Queen [2018] ACTCA 59

Mill v The Queen (1988) 166 CLR 59

R v Griffiths [2015] ACTSC 341

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Hill [2016] ACTSC 310

R v Houghton [2000] NSWCCA 62

R v Hopkins [2004] NSWCCA 105

R v Howard [2018] VCC 967

R v Martin [2007] VSCA 291; 20 VR 14

R v McGowan [2015] ACTSC 320

R v McLeod [2018] ACTSC 228

R v Meyboom [2012] ACTCA 48

R v Mooney [2017] ACTSC 358

R v Mooney [2018] ACTCA 24

R v Morris [2017] ACTSC 400

R v NQ [2017] ACTSC 317

R v Pham [2015] HCA 39; 256 CLR 550

R v Pont [2000] NSWCCA 419; 121 A Crim R 302

R v Reid [2016] ACTSC 24

R v Samani [2016] ACTSC 257

R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103

R v Verdins [2007] VSCA 102; 16 VR 269

R v Woodman [2001] NSWCCA 310

Samani v The Queen [2017] ACTCA 23

Scook v The Queen [2008] WASCA 114; 185 A Crim R 164

Zdravkovic v The Queen [2016] ACTCA 53

Parties:

The Queen (Crown)

QU (Offender)

Representation:

Counsel

M Howe (Crown)

S McLaughlin (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 254 of 2018

LOUKAS-KARLSSON J

Introduction

On 27 September 2018, QU (the offender) pleaded guilty to three counts of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) (Criminal Code) ((CC2018/788 (Count 1), CC2018/795 (Count 2), CC2018/796 (Count 3)) and one count of obtaining a financial advantage by deception contrary to s 332 of the Criminal Code (CC2018/814 (Count 4).
The maximum penalty for both offences is a fine of $150,000, 10 years of imprisonment, or both.

Agreed Facts

The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. Those facts include details of each of the transactions constituting the offending. These are briefly summarised below.
The offending occurred over the period of 11 December 2011 to 13 November…

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 QU

Details

AGLC: R v QU [2019] ACTSC 155
Case: [2019] ACTSC 155
Decision Date: 14 June 2019

CaseChat Overview and Summary

The respondent was convicted of multiple counts of obtaining property and financial advantage by deception. The trial judge handed down a sentence that included an intensive corrections order. The respondent sought to appeal against the sentence on the basis of the delay between the date of conviction and the sentencing hearing. The appeal was heard by the Court of Appeal, which dismissed the appeal and upheld the sentence.

The appeal raised questions about the appropriate test to be applied when considering whether a delay in sentencing amounts to a breach of the respondent’s right to a fair trial under section 21 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The appeal also raised questions about the effect of a delay on the imposition of a sentence. The Court of Appeal held that the delay in this case did not amount to a breach of the respondent’s right to a fair trial. The Court of Appeal also held that the delay did not affect the imposition of a sentence.

The Court of Appeal found that the delay in this case was due to a combination of factors, including the complexity of the case, the need for a detailed pre-sentence report and the need for the trial judge to consider other sentencing options. The Court of Appeal found that the delay did not prejudice the respondent’s case, nor did it affect the trial judge’s ability to impose a fair and appropriate sentence. The Court of Appeal also found that the sentence imposed was appropriate and proportionate to the offence. The appeal was dismissed.

The Court of Appeal did not make any orders in relation to the appeal.

Orders