R v Ruddell - [2005] QCA 346

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ruddell [2005] QCA 346

PARTIES:

R
v
RUDDELL, Sara Jane
(applicant)

FILE NO/S:

CA No 117 of 2005
DC No 36 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2005

JUDGES:

McPherson JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicant convicted of a series of separate instances of stealing sums of money aggregated into one count – no single amount exceeded $5,000, but total amount stolen exceeded $5,000 – whether sentencing judge inappropriately relied on a matter which was not charged as a circumstance of aggravation – whether special case 9 of s 398 Criminal Code 1889 (Qld) applied – whether sentence imposed excessive

Criminal Code 1899 (Qld), s 1, s 398, s 564, s 568

R v De Simoni (1981) 147 CLR 383, considered
R v Lindsay [1963] Qd R 386, cited
R v Tommekand [1996] 1 Qd R 564, distinguished
Walsh v Tattersall (1996) 188 CLR 77, cited

COUNSEL:

P J Callaghan SC for the applicant
S G Bain for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: The appellant was tried in the District Court at Gladstone on an indictment charging that between 17 July 2001 and 5 March 2003 she stole sums of money and a quantity of hairdressing products the property of Avron Investments Pty Ltd. Because she was an employee of that company, becoming in time co‑manager of it in Gladstone, the indictment charged that she stole in the capacity of a servant of Avron Investments. The jury were unable to agree on a verdict in relation to her guilt of stealing the hairdressing products, but found her guilty of stealing the sums of money in question as a servant of Avron. The learned judge sentenced the appellant to imprisonment for two years.

The matter now comes to this Court as an application to appeal against sentence, the appeal against conviction having now been abandoned and dismissed. The principal submission advanced by Mr Callaghan SC for the appellant, or applicant as she now becomes, is superficially a simple one. It is this. Section 1 of the Criminal Code provides that “circumstance of aggravation” means any circumstance by reason of which an offender is liable to greater punishment than that to which she would be liable if the offence were committed without the existence of that circumstance. The Code commences in s 398(1) by providing that anyone who steals is liable to imprisonment for 5 years “if no other punishment is…

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 Ruddell

Details

AGLC: R v Ruddell [2005] QCA 346
Case: [2005] QCA 346
Decision Date: 23 September 2005

CaseChat Overview and Summary

In the case of R v Ruddell, the applicant appealed against the sentence imposed by the District Court. The applicant was convicted of a series of thefts, with each individual theft being below the threshold of $5,000, but the aggregate of the thefts exceeded $5,000. The court was tasked with determining whether the sentencing judge had inappropriately considered a matter not charged as a circumstance of aggravation and whether the special case 9 of section 398 of the Criminal Code 1889 (Qld) applied. Furthermore, the court needed to decide if the sentence was excessive.

The court examined whether the sentencing judge had erred by relying on an uncharged circumstance of aggravation. The court noted that special case 9 of section 398 of the Criminal Code 1889 (Qld) required that all circumstances of aggravation must be charged. However, the court found that the sentencing judge had not misapplied the law in considering the circumstances of aggravation. The court also reviewed whether the sentence was excessive, taking into account the totality of the circumstances and the relevant statutory provisions. After careful consideration, the court concluded that the sentence imposed was not excessive.

The reasoning of the court was based on the assessment of the sentencing judge's consideration of the circumstances of aggravation and the totality of the circumstances. The court found that the sentencing judge had not erred in considering the uncharged matter as a circumstance of aggravation, as the judge had correctly applied the law. The court also considered the overall circumstances of the case, including the nature and extent of the thefts, and found that the sentence imposed was not excessive.

The final orders of the court were to dismiss the application for leave to appeal against the sentence. The court found that the applicant had not established a prima facie case for appeal, as the sentencing judge had correctly applied the law and the sentence imposed was not excessive. Consequently, the applicant's appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Ruddell [2005] QCA 346
PARTIES:	R v RUDDELL, Sara Jane (applicant)
FILE NO/S:	CA No 117 of 2005 DC No 36 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2005
JUDGES:	McPherson JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicant convicted of a series of separate instances of stealing sums of money aggregated into one count – no single amount exceeded $5,000, but total amount stolen exceeded $5,000 – whether sentencing judge inappropriately relied on a matter which was not charged as a circumstance of aggravation – whether special case 9 of s 398 Criminal Code 1889 (Qld) applied – whether sentence imposed excessive Criminal Code 1899 (Qld), s 1, s 398, s 564, s 568 R v De Simoni (1981) 147 CLR 383, considered R v Lindsay [1963] Qd R 386, cited R v Tommekand [1996] 1 Qd R 564, distinguished Walsh v Tattersall (1996) 188 CLR 77, cited
COUNSEL:	P J Callaghan SC for the applicant S G Bain for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent