R v Sheehan

[2007] QCA 409

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sheehan [2007] QCA 409

PARTIES:

R
v
SHEEHAN, Justin Mark
(applicant)

FILE NO/S:

CA No 255 of 2007
DC No 190 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

21 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2007

JUDGES:

Williams and Holmes JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal 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 – WHEN REFUSED – GENERALLY – where the applicant was convicted on pleas of guilty of one count of stealing as a servant, four counts of fraud, and one count of stealing simpliciter – where the applicant was sentenced to two-and-a-half year’s imprisonment suspended after four months for an operational period of two-and-a-half years – where restitution of all misappropriated funds had occurred by the time of sentence – whether the sentence imposed was manifestly excessive given the mitigating factors of the applicant

R v Law; Ex parte Attorney-General [1996] 2 Qd R 63, considered
R v Bell (1981) 5 A Crim R 347, considered

COUNSEL:

M J Byrne QC for the applicant
M R Byrne for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  I will ask Justice Holmes to deliver her reasons first. 

HOLMES JA:  The applicant for leave to appeal was convicted on pleas of guilty of one count of stealing as a servant, four counts of fraud (two with a circumstance of aggravation, that the property exceeded $5,000), and one count of stealing simpliciter.  He was sentenced to two and a-half year's imprisonment suspended after four months for an operational period of two and a-half years. 

The applicant had worked since 1993 for FAI Insurance and in January 2000 took up a position as branch manager of one of the company's offices in a country town.  The stealing as a servant occurred in the turmoil surrounding the collapse of FAI's parent company and another insurer's taking over of FAI's business at the beginning of 2001. 

Over a four-week period between mid-January 2001 and mid-February 2001 the applicant failed to bank insurance premium payments received in cash.  He told investigators that he had expected to receive some funds from which the amount taken could be repaid.  He also gambled some of the money in the hope of replacing what he had taken.  The amount misappropriated in that way was some $25,000. 
The two counts of fraud simpliciter involve the applicant receiving funds direct from a customer to insure a vehicle and tools.  He twice took cash amounts from the complainant in January 2002 and again in January 2003, purportedly by way of insurance premiums, but…