R v Searle - [2024] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v Searle [2024] QCA 211

PARTIES:

R
v
SEARLE, Danielle Mary
(applicant)

FILE NO/S:

CA No 213 of 2024
DC No 523 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 18 September 2024 (Clare SC DCJ)

DELIVERED EX TEMPORE ON:

7 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2024

JUDGES:

Mullins P, Boddice JA and Bradley J

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial before a jury of one count of fraud – where the offending was committed against the estate of the applicant’s stepfather – where the applicant had been given enduring power of attorney and was authorised to make decisions about the stepfather’s financial matters – where the stepfather’s last will appointed a friend to be the executor and trustee and left the whole of his estate to another friend – where the applicant dishonestly dealt with the stepfather’s property after his death – where the applicant conceded that she breached a position of trust – where the applicant was sentenced to 18 months’ imprisonment to be suspended after serving nine months – whether the custodial component of the sentence made the sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

COUNSEL:

M J Jackson for the applicant
T L Corsbie for the respondent

SOLICITORS:

SANS Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: The applicant was charged with fraud to the value of $30,000 or more. Her defence was that what she did was not dishonest. She was convicted on 18 September 2024 after trial in the District Court before a jury of the fraud without the circumstance of aggravation. The maximum penalty for that offence is five years’ imprisonment. The applicant was sentenced to imprisonment for 18 months to be suspended after serving nine months for an operational period of 18 months. The applicant applies for leave to appeal on the ground that the custodial component of the sentence of nine months was, in all the circumstances, manifestly excessive. There is no challenge to the head sentence.
Circumstances of the offending
The victim of the fraud was the estate of the applicant’s stepfather from the marriage to the applicant’s mother which had dissolved over 40 years earlier. The applicant had reconnected with the stepfather in 2014. The stepfather died on 5 July 2021 at the residential care facility where he resided. He had given an enduring power of attorney (the power of attorney) to the applicant on 21 June 2021 that authorised the applicant to make all medical and health decisions for him and also to make decisions about his financial matters. The residential care facility informed the applicant of the stepfather’s death on the day he…

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 Searle

Details

AGLC: R v Searle [2024] QCA 211
Case: [2024] QCA 211
Decision Date: 7 November 2024

CaseChat Overview and Summary

In the matter of R v Searle, the respondent, who had been convicted of fraud following a trial before a jury, appealed against the sentence imposed. The fraud involved dishonest dealings with the property of the respondent's deceased stepfather, against whose estate the offence was committed. The respondent had been granted enduring power of attorney and was responsible for managing the financial affairs of the deceased. Despite the deceased's will appointing a friend as executor and trustee and bequeathing the entire estate to another friend, the respondent misappropriated the deceased's property post-mortem. The respondent admitted to breaching a position of trust but contested the severity of the sentence, which included an 18-month custodial term, suspended after nine months of imprisonment.

The central legal issue in the appeal was whether the custodial component of the sentence rendered it manifestly excessive. The respondent argued that the sentence imposed was disproportionately harsh given the circumstances of the offence and her personal situation. The appeal hinged on whether the trial judge's assessment of the appropriate punishment was flawed to the extent that it warranted appellate interference.

The court considered the principle that appellate courts should be cautious in interfering with the sentencing decisions of trial judges, particularly in criminal matters where the trial judge has the advantage of observing the accused and hearing the evidence firsthand. The court found that the sentence, while severe, was not manifestly excessive. It noted that the respondent's actions constituted a serious breach of trust and that the sentence reflected the gravity of the offence. The court held that the sentence was within the range of reasonable outcomes and did not warrant appellate intervention. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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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 Searle [2024] QCA 211
PARTIES:	R v SEARLE, Danielle Mary (applicant)
FILE NO/S:	CA No 213 of 2024 DC No 523 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 18 September 2024 (Clare SC DCJ)
DELIVERED EX TEMPORE ON:	7 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2024
JUDGES:	Mullins P, Boddice JA and Bradley J
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial before a jury of one count of fraud – where the offending was committed against the estate of the applicant’s stepfather – where the applicant had been given enduring power of attorney and was authorised to make decisions about the stepfather’s financial matters – where the stepfather’s last will appointed a friend to be the executor and trustee and left the whole of his estate to another friend – where the applicant dishonestly dealt with the stepfather’s property after his death – where the applicant conceded that she breached a position of trust – where the applicant was sentenced to 18 months’ imprisonment to be suspended after serving nine months – whether the custodial component of the sentence made the sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9
COUNSEL:	M J Jackson for the applicant T L Corsbie for the respondent
SOLICITORS:	SANS Law for the applicant Director of Public Prosecutions (Queensland) for the respondent