R v Russell - [2016] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

R v Russell [2016] QCA 106

PARTIES:

R
v
RUSSELL, Patricia Leanne
(applicant)

FILE NO/S:

CA No 30 of 2016
DC No 1708 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 13 August 2015

DELIVERED EX TEMPORE ON:

22 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2016

JUDGES:

Morrison JA and Mullins and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time to apply for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to fraud as an employee to the value of $30,000 or more – where the application for leave to appeal against sentence was filed out of time – whether application for extension of time in which to apply for leave to appeal should be granted

R v La Rosa; ex parte Attorney-General (Qld)[2006] QCA 19, considered
R v Lawrie[2008] QCA 97, considered
R v Jeffree[2010] QCA 47, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed

COUNSEL:

The applicant appeared on her own behalf
M B Lehane for the respondent

SOLICITORS:

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

MORRISON JA: Sit down, Mrs Russell. I’ll ask Justice Mullins to give her reasons first.

MULLINS J: Mrs Russell pleaded guilty in the District Court, on 13 August 2015, to one count of fraud as an employee to the value of $30,000 or more. The amount which Mrs Russell stole was in the order of $43,000 through 76 fraudulent transactions where she was to transfer money to suppliers or staff over a period of more than a year but, instead, transferred the money into her own bank accounts. Mrs Russell was the office manager of a car repair business and responsible for all financial aspects of the business. Mrs Russell was sentenced to imprisonment for three years, to be suspended after serving 12 months, with an operational period of three and one-half years.

The application for an extension of time within which to appeal was filed on 3 September 2016, which is almost five months out of time. Mrs Russell endeavours to explain, in the grounds for her application for the extension, why she had not filed her application for leave to appeal against the sentence at an earlier time. She states that, although she was told she could appeal after she was sentenced, presumably by the lawyers who appeared for her, she was not given any information on how to go about it. When she decided, in prison, that she would appeal, she found it difficult to obtain the information on the procedure and that was complicated by her being sent to…

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 Russell

Details

AGLC: R v Russell [2016] QCA 106
Case: [2016] QCA 106
Decision Date: 22 April 2016

CaseChat Overview and Summary

The applicant, Russell, appealed against the refusal of an extension of time to apply for leave to appeal his sentence. The applicant had pleaded guilty to charges of fraud as an employee to the value of $30,000 or more, and was sentenced in the County Court. Russell subsequently sought an extension of time to apply for leave to appeal against his sentence. The primary judge held that the application for an extension of time was not made within a reasonable time and refused the application.

The legal issue before the court was whether the application for an extension of time in which to apply for leave to appeal should be granted. The court considered the relevant statutory provisions and case law in determining whether the application for an extension of time should be granted. The court held that the application was not made within a reasonable time and that the applicant had not demonstrated any special circumstances that would justify the extension of time.

The court found that the application for an extension of time was not made within a reasonable time. The court held that the applicant had not demonstrated any special circumstances that would justify the extension of time. The court further held that the applicant had not demonstrated any grounds for interference with the original sentence. The court dismissed the application for an extension of time to apply for leave to appeal against sentence.

The court refused the application for an extension of time to apply for leave to appeal against sentence. The court held that the application was not made within a reasonable time and that the applicant had not demonstrated any special circumstances that would justify the extension of time. The court further held that the applicant had not demonstrated any grounds for interference with the original sentence.

Orders

Orders of the court

Application for extension of time to apply for leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Russell [2016] QCA 106
PARTIES:	R v RUSSELL, Patricia Leanne (applicant)
FILE NO/S:	CA No 30 of 2016 DC No 1708 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 13 August 2015
DELIVERED EX TEMPORE ON:	22 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 April 2016
JUDGES:	Morrison JA and Mullins and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time to apply for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to fraud as an employee to the value of $30,000 or more – where the application for leave to appeal against sentence was filed out of time – whether application for extension of time in which to apply for leave to appeal should be granted R v La Rosa; ex parte Attorney-General (Qld)[2006] QCA 19, considered R v Lawrie[2008] QCA 97, considered R v Jeffree[2010] QCA 47, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed
COUNSEL:	The applicant appeared on her own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent