R v Smallwood - [2014] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smallwood [2014] QCA 70

PARTIES:

R
v
SMALLWOOD, Brett Cameron
(applicant)

FILE NO/S:

CA No 255 of 2013
DC No 167 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2014

JUDGES:

Chief Justice and Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was an accountant practising as a sole practitioner – where the applicant lodged tax returns purportedly on instructions from clients and deposited the refunds into a bank account controlled by him – where the deposits were made without authority – where the amounts involved were more than $30,000 – where the applicant initially provided fraudulent correspondence to police pretending he had authorisation – where the applicant declined to assist police in their investigation – where the applicant changed his plea to guilty to two counts of fraud on the third day of trial – where the applicant was sentenced to five years imprisonment on each count to be served concurrently – where the parole eligibility date was fixed at 5/12^thsof the sentence – whether the term of imprisonment was manifestly excessive – whether the sentence should have been suspended rather than a parole eligibility date fixed

Criminal Code 1899 (Qld), s 408C
Criminal Code and Other Acts Amendment Act 2008 (Qld), s 71

R v Campbell[2009] QCA 203, cited
R v Lather[2011] QCA 143, applied
R v Ward[2008] QCA 222, cited
R v Whiting[2013] QCA 18, cited

COUNSEL:

C F O’Meara for the applicant (pro bono)
C N Marco for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Gotterson JA. I agree that the application should be refused, for those reasons.

FRASER JA: I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

GOTTERSON JA: On 9 September 2013 and on the third day of his trial in the District Court at Ipswich, the applicant, Brett Cameron Smallwood, changed his plea to guilty to two counts of fraud. Count 1 related to the period between 2 and 14 December 2002 and Count 2 to the period between 17 December 2002 and 18 January 2003. Each count alleged an offence against s 408C(1)(a)(ii) of the Criminal Code (Qld) (“Code”) by dishonestly applying the property of another to the use of a company, Garden Makers (Qld) Pty Ltd (“Garden Makers”), of which the applicant was the sole director and, in the case of Count 1, to the use of another person also. In…

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 Smallwood

Details

AGLC: R v Smallwood [2014] QCA 70
Case: [2014] QCA 70
Decision Date: 11 April 2014

CaseChat Overview and Summary

In the matter of R v Smallwood, the appellant was a sole practitioner accountant who engaged in fraudulent activities by lodging tax returns on behalf of clients and depositing the refunds into a bank account controlled by him without authorisation. The total amount involved was over $30,000. The appellant initially provided fraudulent correspondence to the police and declined to assist in their investigation. On the third day of trial, the appellant changed his plea to guilty on two counts of fraud. He was sentenced to five years imprisonment on each count, to be served concurrently, with a parole eligibility date set at five-twelfths of the sentence. The appellant appealed against the sentence, arguing that it was manifestly excessive and that a suspended sentence should have been imposed instead of setting a parole eligibility date.

The central legal issues in this appeal were whether the sentence imposed was manifestly excessive and whether a suspended sentence should have been imposed instead of setting a parole eligibility date. The court needed to determine whether the trial judge exercised his discretion properly and whether the sentence was unjust or inappropriate in all the circumstances. In assessing the sentence, the court considered the nature and circumstances of the offence, the appellant’s culpability, and the need for deterrence and denunciation. The court also examined the principles of sentencing and the precedents for similar offences.

The court found that the trial judge had exercised his discretion appropriately and had considered all relevant factors in determining the sentence. The court held that the sentence was not manifestly excessive and that the imposition of a parole eligibility date was within the range of acceptable outcomes. The court also found that the trial judge had properly considered the possibility of a suspended sentence but had decided against it due to the seriousness of the offence and the need for general deterrence. The appeal was dismissed, and the application for a reduction in the sentence was refused.

Orders

Orders of the court

Application 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 Smallwood [2014] QCA 70
PARTIES:	R v SMALLWOOD, Brett Cameron (applicant)
FILE NO/S:	CA No 255 of 2013 DC No 167 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	11 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2014
JUDGES:	Chief Justice and Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was an accountant practising as a sole practitioner – where the applicant lodged tax returns purportedly on instructions from clients and deposited the refunds into a bank account controlled by him – where the deposits were made without authority – where the amounts involved were more than $30,000 – where the applicant initially provided fraudulent correspondence to police pretending he had authorisation – where the applicant declined to assist police in their investigation – where the applicant changed his plea to guilty to two counts of fraud on the third day of trial – where the applicant was sentenced to five years imprisonment on each count to be served concurrently – where the parole eligibility date was fixed at 5/12^thsof the sentence – whether the term of imprisonment was manifestly excessive – whether the sentence should have been suspended rather than a parole eligibility date fixed Criminal Code 1899 (Qld), s 408C Criminal Code and Other Acts Amendment Act 2008 (Qld), s 71 R v Campbell[2009] QCA 203, cited R v Lather[2011] QCA 143, applied R v Ward[2008] QCA 222, cited R v Whiting[2013] QCA 18, cited
COUNSEL:	C F O’Meara for the applicant (pro bono) C N Marco for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent