R v Stephens

[2006] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stephens [2006] QCA 123

PARTIES:

R
v
STEPHENS, Barry John Ensell
(applicant/appellant)

FILE NO/S:

CA No 332 of 2005
DC No 2333 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2006

JUDGES:

Jerrard JA, Fryberg and Douglas JJ
Separate reasons for judgment of each member of the Court, Jerrard JA and Douglas J concurring as to the orders made, Fryberg J dissenting

ORDERS:

(1) Grant leave to appeal against sentence
(2) Vary the sentence by reducing the ordered fine to $10,000, but not interfere with the sentence of six months imprisonment in default of non-payment, nor with the 12 months allowed for payment

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – whether the fine imposed was manifestly excessive – where defendant pleaded guilty to attempted fraud – where insurance company suffered no real loss from this dishonesty – where defendant did not benefit from the attempted fraud – where there is a need for deterrence – where the defendant has substantial debts at the time of his arrest and received a pension – where the defendant owned limited assets but lived in a house owned by his ex-wife, whose income was applied for the joint purposes of their household

Criminal Code 1899 (Qld), s 408C(2), s 536(2)
Penalties and Sentences Act 1992 (Qld), s 48

COUNSEL:

The applicant/appellant appeared on his own behalf
L J Clare for the respondent

SOLICITORS:

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

1. JERRARD JA:  On 10 November 2005 Barry Stephens pleaded guilty to a count on an indictment charging that on 25 May 2002 at Brisbane he attempted to obtain dishonestly a sum of money from NRMA Insurance Ltd, and that the intended yield to him from the dishonesty was $23,000.  On 11 November 2005 he was sentenced to 12 months imprisonment, wholly suspended for an operational period of three years, and fined $20,000, that fine to be paid on or before 11 November 2006, in default of six months imprisonment.  He has applied for leave to appeal against his sentence, contending that he should not have been fined at all.

1. Mr Stephens was 65 at the time of the offence and 68 when sentenced.  He is married with now adult children, and his wife to whom he has been married since age 19 was described to the learned sentencing judge as suffering from ill health, specified as arthritis and spinal problems.  Mr Stephens has no prior convictions, and as at the date of his sentence was a recipient of an aged person’s pension.

1. He had been self-employed in the motor vehicle retailing industry throughout nearly all of his working life, apart from a three year period…