R v Sea - [2006] QCA 421

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sea [2006] QCA 421

PARTIES:

R
v
SEA, Jack
(applicant)

FILE NO/S:

CA No 234 of 2006
DC No 402 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

26 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2006

JUDGES:

McMurdo P, Holmes JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence refused
2. Applicant asks that approximately three days in May
    2003 during which time he was in custody be declared
    time already served; if Corrective Services can confirm
    this and are unable to have the three days dealt with as
    time already served under the sentence, applicant may
apply to the original sentencing judge under s 188
    Penalties and Sentences Act 1992 (Qld) to reopen
    his sentence and have a declaration made as to those
    three days in custody
3. Because of applicant's language difficulties, community
    correctional authorities should give consideration to his
    desire to serve his term of imprisonment at Lotus Glen
    Correctional Centre

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 – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant first pleaded not guilty to 12 counts of attempted fraud, 36 counts of fraud and 11 counts of fraud with a circumstance of aggravation – where on eighth day of trial applicant pleaded guilty to two counts of fraud with a circumstance of aggravation that amount was more than $5,000 – where applicant had been involved in a fraudulent scheme using between 23 and 25 counterfeit credit cards with genuine credit card holders' details transferred onto them – where applicant allowed co-offenders to use EFTPOS and credit card facilities in his two shops to misappropriate monies – where applicant and co-offenders also fraudulently purchased items of electrical equipment – where applicant was sentenced to an effective total term of three years' imprisonment – where applicant has repaid misappropriated monies – where applicant's plea of guilty was late – where applicant claims that trial judge did not give sufficient weight to mitigating factors in imposing sentence – whether sentence was manifestly excessive in all the circumstances – whether applicant should be returned to Lotus Glen Correctional Centre near Cairns where he commenced serving his sentence and where his friends and relatives live – whether three days in May 2003 during which applicant claims he was held in custody should be taken into account as time already served

Criminal Proceeds Confiscation Act 2002 (Qld), s 260

R v Adams [1999] QCA 326; CA No 114 of 1999, 20 August 1999, applied

R v Power [1998] QCA 32; CA No 440 of 1997, 11 February 1998, applied

COUNSEL:

Applicant appeared on his…

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 Sea

Details

AGLC: R v Sea [2006] QCA 421
Case: [2006] QCA 421
Decision Date: 26 October 2006

CaseChat Overview and Summary

The case of R v Sea involved the applicant, who had pleaded not guilty to multiple charges of attempted fraud, fraud, and fraud with a circumstance of aggravation. However, on the eighth day of the trial, the applicant changed his plea to guilty for two counts of fraud with a circumstance of aggravation, involving more than $5,000. The applicant was found to have been part of a fraudulent scheme involving counterfeit credit cards and had allowed co-offenders to use EFTPOS and credit card facilities in his shops to misappropriate money. Additionally, the applicant and his co-offenders had fraudulently purchased electrical equipment. The applicant was sentenced to an effective term of three years' imprisonment and has since repaid the misappropriated funds. The applicant appealed the sentence, claiming that the trial judge did not adequately consider mitigating factors and that the sentence was excessively harsh. The applicant also requested to serve his sentence at Lotus Glen Correctional Centre due to language difficulties and sought to have three days in custody in May 2003 counted as time already served.

The primary legal issues in this case centred on whether the sentence imposed was manifestly excessive given the circumstances and whether the applicant's late guilty plea should have been given more weight by the trial judge. Additionally, the court had to consider the applicant's request to serve his sentence at Lotus Glen Correctional Centre and whether the three days in custody in May 2003 should be counted as time already served. The appeal raised questions about the appropriate weight to be given to mitigating factors and the overall fairness of the sentence in light of the applicant's cooperation and repayment of the misappropriated funds.

In addressing these issues, the court found that the trial judge had properly considered the mitigating factors presented by the applicant. The court held that the sentence was not manifestly excessive, given the nature and extent of the applicant's involvement in the fraudulent activities. Regarding the request to serve the sentence at Lotus Glen Correctional Centre, the court noted the applicant's language difficulties but did not compel the correctional authorities to transfer him. As for the three days in custody in May 2003, the court did not order them to be counted as time already served but advised that the applicant could seek a declaration from the original sentencing judge if Corrective Services could not address this matter.

The court's final orders were to deny the applicant's application for leave to appeal against the sentence. The court suggested that the applicant could seek a declaration from the original sentencing judge if Corrective Services could not account for the three days in custody in May 2003 as time already served. The court also encouraged community correctional authorities to consider the applicant's desire to serve his sentence at Lotus Glen Correctional Centre due to his language difficulties.

Orders

Orders of the court

1. Application for leave to appeal against sentence refused

2. Applicant asks that approximately three days in May

2003 during which time he was in custody be declared

time already served; if Corrective Services can confirm

this and are unable to have the three days dealt with as

time already served under the sentence, applicant may

apply to the original sentencing judge under s 188

Penalties and Sentences Act 1992 (Qld) to reopen

his sentence and have a declaration made as to those

three days in custody

3. Because of applicant's language difficulties, community

correctional authorities should give consideration to his

desire to serve his term of imprisonment at Lotus Glen

Correctional Centre

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Sea [2006] QCA 421
PARTIES:	R v SEA, Jack (applicant)
FILE NO/S:	CA No 234 of 2006 DC No 402 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	26 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2006
JUDGES:	McMurdo P, Holmes JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence refused 2. Applicant asks that approximately three days in May 2003 during which time he was in custody be declared time already served; if Corrective Services can confirm this and are unable to have the three days dealt with as time already served under the sentence, applicant may apply to the original sentencing judge under s 188 Penalties and Sentences Act 1992 (Qld) to reopen his sentence and have a declaration made as to those three days in custody 3. Because of applicant's language difficulties, community correctional authorities should give consideration to his desire to serve his term of imprisonment at Lotus Glen Correctional Centre
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 – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant first pleaded not guilty to 12 counts of attempted fraud, 36 counts of fraud and 11 counts of fraud with a circumstance of aggravation – where on eighth day of trial applicant pleaded guilty to two counts of fraud with a circumstance of aggravation that amount was more than $5,000 – where applicant had been involved in a fraudulent scheme using between 23 and 25 counterfeit credit cards with genuine credit card holders' details transferred onto them – where applicant allowed co-offenders to use EFTPOS and credit card facilities in his two shops to misappropriate monies – where applicant and co-offenders also fraudulently purchased items of electrical equipment – where applicant was sentenced to an effective total term of three years' imprisonment – where applicant has repaid misappropriated monies – where applicant's plea of guilty was late – where applicant claims that trial judge did not give sufficient weight to mitigating factors in imposing sentence – whether sentence was manifestly excessive in all the circumstances – whether applicant should be returned to Lotus Glen Correctional Centre near Cairns where he commenced serving his sentence and where his friends and relatives live – whether three days in May 2003 during which applicant claims he was held in custody should be taken into account as time already served Criminal Proceeds Confiscation Act 2002 (Qld), s 260 R v Adams [1999] QCA 326; CA No 114 of 1999, 20 August 1999, applied R v Power [1998] QCA 32; CA No 440 of 1997, 11 February 1998, applied
COUNSEL:	Applicant appeared on his…