R v Rach - [2012] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rach [2012] QCA 143

PARTIES:

R
v
RACH, Roslyn Mary
(applicant)

FILE NO/S:

CA No 346 of 2011
DC No 61 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

1 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2012

JUDGES:

Holmes and Gotterson JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to give and produce evidence at the appeal allowed;(a)

Leave to appeal granted;(b)

Appeal against sentence allowed;(c)

In place of the sentence imposed below, order that the applicant be sentenced to four years imprisonment to be suspended after 12 months for an operational period of five years.(d)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where applicant was convicted of two offences of stealing as a servant – where the sum stolen was between $57,500 and $82,800 – where applicant tendered a letter from her GP at sentencing stating that she had a large malignancy in her right breast – where applicant seeks leave to give and produce further evidence relating to her medical condition – where respondent did not oppose the admission of further evidence – whether the evidence is properly admissible and relevant to the question of the appropriate level of sentencing in this case

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where applicant was convicted of two offences of stealing as a servant – where the sum stolen was between $57,500 and $82,800 – where applicant was sentenced to six years imprisonment with parole eligibility after two years – whether the sentence was manifestly excessive considering the fresh evidence admitted

Criminal Code 1899 (Qld), s 398, s 671B(1)

R v La Rosa; ex parte Attorney-General [2006] QCA 19, considered
R v Leith [2000] 1 Qd R 660; [1998] QCA 320, considered
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, applied
R v Power[1998] QCA 32, cited
R v Sommerfeld[2009] QCA 333, considered
R v Thacker[2010] QCA 168, considered
R v Viola[1996] QCA 214, considered
R v Ward[2008] QCA 222, cited
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, considered

COUNSEL:

J P Benjamin for the applicant
B J Merrin for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Martin J and the orders he proposes.

GOTTERSON JA: I agree with the orders proposed by Martin J and with the reasons given by his Honour.

MARTIN J: On 18 November 2011 the applicant was convicted, upon…

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 Rach

Details

AGLC: R v Rach [2012] QCA 143
Case: [2012] QCA 143
Decision Date: 1 June 2012

CaseChat Overview and Summary

Rach was convicted of two offences of stealing as a servant, with the sum stolen falling between $57,500 and $82,800. Rach was sentenced to six years imprisonment, with parole eligibility after two years. Rach appealed against the sentence, seeking leave to give and produce further evidence relating to her medical condition. The respondent did not oppose the admission of further evidence. The court was required to determine whether the fresh evidence was properly admissible and relevant to the question of the appropriate level of sentencing. Additionally, the court had to consider whether the sentence imposed was manifestly excessive in light of the fresh evidence.

The court found that the fresh evidence was properly admissible and relevant to the question of the appropriate level of sentencing. The court held that the evidence was relevant to Rach's personal circumstances and could inform the sentencing decision. The court found that the sentence imposed was manifestly excessive in light of the fresh evidence. The court held that the sentence imposed did not take into account Rach's medical condition, which was a significant mitigating factor. The court found that a sentence of six years imprisonment was disproportionate to the offence and the offender.

The orders of the court were that the application for leave to give and produce evidence at the appeal was allowed, leave to appeal was granted, the appeal against sentence was allowed, and in place of the sentence imposed below, the order was that Rach be sentenced to four years imprisonment to be suspended after 12 months for an operational period of five years.

Orders

Orders of the court

Application for leave to give and produce evidence at the appeal allowed;(a)

Leave to appeal granted;(b)

Appeal against sentence allowed;(c)

In place of the sentence imposed below, order that the applicant be sentenced to four years imprisonment to be suspended after 12 months for an operational period of five years.(d)

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Rach [2012] QCA 143
PARTIES:	R v RACH, Roslyn Mary (applicant)
FILE NO/S:	CA No 346 of 2011 DC No 61 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	1 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2012
JUDGES:	Holmes and Gotterson JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to give and produce evidence at the appeal allowed;(a) Leave to appeal granted;(b) Appeal against sentence allowed;(c) In place of the sentence imposed below, order that the applicant be sentenced to four years imprisonment to be suspended after 12 months for an operational period of five years.(d)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where applicant was convicted of two offences of stealing as a servant – where the sum stolen was between $57,500 and $82,800 – where applicant tendered a letter from her GP at sentencing stating that she had a large malignancy in her right breast – where applicant seeks leave to give and produce further evidence relating to her medical condition – where respondent did not oppose the admission of further evidence – whether the evidence is properly admissible and relevant to the question of the appropriate level of sentencing in this case CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where applicant was convicted of two offences of stealing as a servant – where the sum stolen was between $57,500 and $82,800 – where applicant was sentenced to six years imprisonment with parole eligibility after two years – whether the sentence was manifestly excessive considering the fresh evidence admitted Criminal Code 1899 (Qld), s 398, s 671B(1) R v La Rosa; ex parte Attorney-General [2006] QCA 19, considered R v Leith [2000] 1 Qd R 660; [1998] QCA 320, considered R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, applied R v Power[1998] QCA 32, cited R v Sommerfeld[2009] QCA 333, considered R v Thacker[2010] QCA 168, considered R v Viola[1996] QCA 214, considered R v Ward[2008] QCA 222, cited Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, considered
COUNSEL:	J P Benjamin for the applicant B J Merrin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent