R v Smith

[2017] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2017] QCA 144

PARTIES:

R
v
SMITH, Jan Maree
(applicant)

FILE NO/S:

CA No 150 of 2016
DC No 1733 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Application for Leave to Adduce Further Evidence

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 3 May 2016

DELIVERED ON:

23 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2017

JUDGES:

Holmes CJ and Morrison JA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The applications for leave to adduce further evidence and for leave to appeal against sentence are refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of two counts of fraud, contrary to s 408C of the Criminal Code (Qld) – where the applicant was sentenced to 5 years imprisonment, suspended after serving 2 years, with an operational period of 5 years – whether the sentence imposed was manifestly excessive

Criminal Code (Qld), s 408C

R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Sommerfeld[2009] QCA 333, cited
R v Spina[2012] QCA 179, cited

COUNSEL:

The applicant appeared on her own behalf
D Nardone for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES CJ:  I agree with the reasons of Bond J and with the orders he proposes.

2. MORRISON JA:  I have read the reasons of Bond J and agree with those reasons and the orders his Honour proposes.

3. BOND J:  Prior to 2004, John Michael Houston operated his own floor-laying business as a sole trader.  In May of 2004, he and the applicant agreed that she would take care of all of his business affairs.  She was then aged 46, and Mr Houston had known her for 5 years.  Unfortunately for Mr Houston, the applicant would prove to be a fraudster who would deprive him of his life’s savings.

4. On 3 May 2016, the applicant pleaded guilty to two counts of fraud.  She was convicted and sentenced to 5 years imprisonment, suspended after serving 2 years, with an operational period of 5 years.  She has sought leave to appeal against the sentence.  For the following reasons, the application (together with an application for leave to adduce further evidence) should be refused.

5. After reaching the agreement to take care of Mr Houston’s business affairs, the applicant set up All Points Flooring Pty Ltd, a private company of which Mr Houston was the sole shareholder and director, as the vehicle by which Mr Houston would carry on his business.  She also set up a business bank account with the Commonwealth Bank (the APF account).  Outgoings such as telephone bills, computer costs and so on were to be paid by…