R v Sheppard

Case [2000] QCA 57


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…

Continue reading R v Sheppard

Sign in free to access the full text

Details
AGLC
R v Sheppard [2000] QCA 57
Case
[2000] QCA 57
Decision Date

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.