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R v Sheppard

R v Sheppard

Case [2000] QCA 57 7 March 2000

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Sheppard [2000] QCA 57

PARTIES:

R
v
SHEPPARD, Ian Gordon
(applicant/appellant)

FILE NO/S:

CA No 332 of 1999
DC No 438 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

7 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2000

JUDGES:

McMurdo P, Pincus JA and Williams J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:
Leave to appeal against sentence granted.

Order made below set aside.

On each of counts 1, 3, and 6 on the indictment, imprisonment for a period of seven years, such sentences to be served concurrently, and to date from 16 September 1999.
On counts 2, 4, 5 and 7 on the indictment, convictions recorded but no further punishment imposed. Recommend that the applicant be eligible to apply for parole after serving three years of that sentence.
Declare that the applicant was in pre-sentence custody solely in relation to these offences for a period of 188 days from 12 March 1999 to 16 September 1999.
Further declare that the period of 188 days is to be time already served under the sentence hereby imposed.

Order that the applicant pay by way of compensation to the National Australia Bank pursuant to s 35 of the Penalties and Sentences Act 1992 the sum of $437,850.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE – convictions of three counts of uttering and four counts of false pretences – sentence of three years imprisonment concurrent on each of the uttering counts and five years imprisonment concurrent on each of the false pretence counts made cumulative making effective sentence eight years – whether sentencing judge breached s 16 of the Criminal Code by imposing a cumulative sentence – whether acts constituted separate and distinct offences or constituted one transaction – whether the court may increase a sentence in the absence of an appeal by the Attorney-General – Neal distinguished

Corrective Services Act 1988 (Qld), s 166
Criminal Code (Qld), s 16, s 17, s 427, s 488, s 489, s 598, s 668E, s 669A
PenaltiesandSentencesAct 1992 (Qld), s 35, s 157

Brand and Hein v Parson (1993) 68 A Crim R 147, considered
Connolly v Meagher (1906) 3 CLR 682, considered
Dube v Knowles (1987) 46 SASR 118, considered
Heal v Police [1999] SASC 374, 26 September 1999, considered
Kellerman v Pecko [1988] 1 Qd R 419, considered
Parker v DPP (1992) 65 A Crim R 209, considered
Pearce v The Queen (1998) 72 ALJR 1416, followed
R v Bailey [1999] QCA 40; CA No 15 of 1999, 24 February 1999, considered
R v Brooks CA No 183 of 1996, 20 September 1996, considered
R v Cameron-Smith CA No 537 of 1994, 5 April 1995, considered
R v C D Hughes [2000] QCA 16; CA No…

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 Sheppard

Details

AGLC: R v Sheppard [2000] QCA 57
Case: [2000] QCA 57
Decision Date: 7 March 2000

CaseChat Overview and Summary

The appellant, Sheppard, was convicted of uttering three cheques and making four false pretences. He was sentenced to three years' imprisonment on each of the uttering counts and five years on each of the false pretences counts, with the sentences to run concurrently with each other but cumulatively, making an effective sentence of eight years. Sheppard appealed the sentence on the basis that the sentencing judge had breached section 16 of the Criminal Code by imposing a cumulative sentence, and that the acts in question constituted one transaction rather than separate offences. He also argued that the court could not increase a sentence in the absence of an appeal by the Attorney-General.

The court found that the sentencing judge had indeed breached section 16 of the Criminal Code by imposing a cumulative sentence, which was not permitted under the Act. The court also found that the acts in question constituted one transaction, rather than separate offences. The court held that the imposition of a cumulative sentence was not permissible in this case, and that the sentence should be reconsidered. The court further found that the court could not increase a sentence in the absence of an appeal by the Attorney-General, and that the case of Neal was distinguishable. The court granted leave to appeal against sentence, set aside the order made below, and imposed a sentence of seven years' imprisonment on each of counts 1, 3, and 6, to run concurrently, and a conviction but no further punishment on counts 2, 4, 5, and 7. The court also made several other orders, including that Sheppard be eligible to apply for parole after serving three years of his sentence, that the period of 188 days he had spent in pre-sentence custody be counted as time already served, and that he pay compensation to the National Australia Bank in the sum of $437,850.

Orders

Orders of the court

Leave to appeal against sentence granted.

Order made below set aside.

On each of counts 1, 3, and 6 on the indictment, imprisonment for a period of seven years, such sentences to be served concurrently, and to date from 16 September 1999.

On counts 2, 4, 5 and 7 on the indictment, convictions recorded but no further punishment imposed. Recommend that the applicant be eligible to apply for parole after serving three years of that sentence.

Declare that the applicant was in pre-sentence custody solely in relation to these offences for a period of 188 days from 12 March 1999 to 16 September 1999.

Further declare that the period of 188 days is to be time already served under the sentence hereby imposed.

Order that the applicant pay by way of compensation to the National Australia Bank pursuant to s 35 of the Penalties and Sentences Act 1992 the sum of $437,850.

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.

Citations

AGLC Citation

R v Sheppard [2000] QCA 57

Most Recent Citation

R v Nagy [2003] QCA 175

Cases citing this decision · 5 of 5 shown

R v Davy
[2017] QCA 312

…257, considered R v Meehan , unreported, Atkinson J, SC No 873 of 2017, 14 July 2017, considered R v Sheppard [2001] 1 Qd R 504; [2000] QCA 57, considered R v Shiels [2011] QCA 115, cited R v Spalding [2002] QCA 538, considered R v Tindale [2008] QCA 24, considered R v Wheeler & Sorrensen [2002] QCA 223, consid…
Finch v. Bailey
[2008] QDC 286

…Some very large compensation orders have been made by the Court of Appeal, notably in Sheppard [2000] QCA 57, where it occurred by consent. The Court of Appeal has made a compensation order in association with allowing an appeal, so that an offender would not have to serve actual custody, in Casiotis [2006] QCA…
R v Tindale
[2008] QCA 24 Para 1

…ender had a relevant criminal history: R v Cheers [1997] QCA 329 (where some $173, 000 was taken over two years) and R v Sheppard [2001] 1 Qd R 504 ; [2000] QCA 57, (where some $435,000 was taken over a few months). The force of that distinction – that the applicant here had no prior convictions whereas those of…
R v Alexander
[2004] QCA 11 Para 1

…pect to the offences in question, in arriving at the notional head sentence of six and a half years. Counsel for the applicant referred to Sheppard [2000] QCA 57, Jones CA 393 of 1997, Low [2001] QCA 67, McMillan CA 54 of 1999 and Cameron-Smith CA 537 of 1994. Counsel for the respondent referred to Cheers CA 214…
R v Nagy
[2003] QCA 175 Para 1

…Reference should also be made in this regard to the decision of this court in R v Sheppard [2000] QCA 57. There sentences had to be set aside because effectively they amounted to double punishment contrary to section 16 of the Criminal Code. The decision required consideration of, inter alia, Pearce and Kellerma…

View all 5 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Holder
[2019] SASCFC 73

…onsidered R v Heiser & Cook CA Nos 506, 507 and 513 of 1996, 4 March 1997, considered R v Hoad (1989) 42 ACR 312, considered R v Holder (1983) 3 NSWLR 245, considered R v Hughes [1999] 1 Qd R 389, considered R v Kiripatea [1981] 2 Qd R 686, considered R v M; ex parte Attorney-General [1999] QCA 442; CA No 251 of 1999…
R v Hughes
[2000] QCA 16 Para 1

…e circumstances "neither in procedure nor in substance is it necessary … to go through the process that was considered necessary in Neal ."[19] [16][2000] QCA 16; CA No 306 of 1999, 11 February 2000. [17][1999] 1 Qd R 389. [18][1999] QCA 442; CA No 251 of 1999, 2 November 1999. [19]At [17].…
R v M; ex parte Attorney-General
[1999] QCA 442 Para 1

…through the process that was considered necessary in Neal ."[19] [16][2000] QCA 16; CA No 306 of 1999, 11 February 2000. [17][1999] 1 Qd R 389. [18][1999] QCA 442; CA No 251 of 1999, 2 November 1999. [19]At [17].…
R v Bailey
[1999] QCA 40

…988] 1 Qd R 419, considered Parker v DPP (1992) 65 A Crim R 209, considered Pearce v The Queen (1998) 72 ALJR 1416, followed R v Bailey [1999] QCA 40; CA No 15 of 1999, 24 February 1999, considered R v Brooks CA No 183 of 1996, 20 September 1996, considered R v Cameron-Smith CA No 537 of 1994, 5 April 1995, cons…
Pearce v The Queen
[1998] HCA 57

…ber 1999, considered Kellerman v Pecko [1988] 1 Qd R 419, considered Parker v DPP (1992) 65 A Crim R 209, considered Pearce v The Queen (1998) 72 ALJR 1416, followed R v Bailey [1999] QCA 40; CA No 15 of 1999, 24 February 1999, considered R v Brooks CA No 183 of 1996, 20 September 1996, considered R v Cameron-Smith CA…
Coco v the Queen
[1994] HCA 15 Para 1

…d Hein v Parson .[15] [11](1989) 168 CLR 227, 233. [12][1998] 2 Qd R 442. [13](1992) 28 NSWLR 282. [14][1999] SASC 374, 26 September 1999. [15][1994] 1 VR 252.…
Malvaso v the Queen
[1989] HCA 58 Para 1

…e." A similar view of Neal appears to have been taken in R v Waters ,[12] Parker v DPP ,[13] Heal v Police [14] and Brand and Hein v Parson .[15] [11](1989) 168 CLR 227, 233. [12][1998] 2 Qd R 442. [13](1992) 28 NSWLR 282. [14][1999] SASC 374, 26 September 1999. [15][1994] 1 VR 252.…
Griffiths v The Queen
[1989] HCA 39 Para 1

…Queen ,[2] R v Pollock ,[3] R v Holder and Johnston ,[4] Kellerman v Pecko ,[5] R v Duke and Knowles ,[6] and R v Gage .[7] [1](1998) 194 CLR 610. [2](1989) 167 CLR 372, 393. [3](1993) 67 A Crim R 166. [4][1983] 3 NSWLR 245, 260. [5][1988] 1 Qd R 419. [6](1987) 46 SASR 118, 124. [7](1992) 62 A Crim R 134,139.…
Neal v The Queen
[1982] HCA 55 Para 1

…The other legal point in this case is the effect, on the present circumstances, of the High Court's decision in Neal (1982) 149 CLR 305. I am in respectful agreement with the conclusions of Williams J on that aspect.…
Connolly v Meagher
[1906] HCA 20 Para 1

…quit or autrefois convict must be upheld; s 598 contains provisions complementary to s 17. As was pointed out by the High Court in Connolly v Meagher (1906) 3 CLR 682 at 684, s 16 of the Code "is not quite the same as the law which allows the defence of ' autrefois convict ', which is dealt with in ss 17 and 598 of…

Legislation cited in this decision · 2

Corrective Services Act 1988 (Qld)
166 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
35 2 mentions (from Para 1)

CITATION:	R v Sheppard [2000] QCA 57
PARTIES:	R v SHEPPARD, Ian Gordon (applicant/appellant)
FILE NO/S:	CA No 332 of 1999 DC No 438 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	7 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2000
JUDGES:	McMurdo P, Pincus JA and Williams J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal against sentence granted. Order made below set aside. On each of counts 1, 3, and 6 on the indictment, imprisonment for a period of seven years, such sentences to be served concurrently, and to date from 16 September 1999. On counts 2, 4, 5 and 7 on the indictment, convictions recorded but no further punishment imposed. Recommend that the applicant be eligible to apply for parole after serving three years of that sentence. Declare that the applicant was in pre-sentence custody solely in relation to these offences for a period of 188 days from 12 March 1999 to 16 September 1999. Further declare that the period of 188 days is to be time already served under the sentence hereby imposed. *Order that the applicant pay by way of compensation to the National Australia Bank pursuant to s 35 of the Penalties and Sentences Act* 1992 the sum of $437,850.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE – convictions of three counts of uttering and four counts of false pretences – sentence of three years imprisonment concurrent on each of the uttering counts and five years imprisonment concurrent on each of the false pretence counts made cumulative making effective sentence eight years – whether sentencing judge breached s 16 of the Criminal Code by imposing a cumulative sentence – whether acts constituted separate and distinct offences or constituted one transaction – whether the court may increase a sentence in the absence of an appeal by the Attorney-General – Neal distinguished Corrective Services Act 1988 (Qld), s 166 Criminal Code (Qld), s 16, s 17, s 427, s 488, s 489, s 598, s 668E, s 669A PenaltiesandSentencesAct 1992 (Qld), s 35, s 157 Brand and Hein v Parson (1993) 68 A Crim R 147, considered Connolly v Meagher (1906) 3 CLR 682, considered Dube v Knowles (1987) 46 SASR 118, considered Heal v Police [1999] SASC 374, 26 September 1999, considered Kellerman v Pecko [1988] 1 Qd R 419, considered Parker v DPP (1992) 65 A Crim R 209, considered Pearce v The Queen (1998) 72 ALJR 1416, followed R v Bailey [1999] QCA 40; CA No 15 of 1999, 24 February 1999, considered R v Brooks CA No 183 of 1996, 20 September 1996, considered R v Cameron-Smith CA No 537 of 1994, 5 April 1995, considered R v C D Hughes [2000] QCA 16; CA No…