R v Suarez - [2012] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION:

R v Suarez [2012] QCA 190

PARTIES:

R
v
SUAREZ, Lorenzo David
(applicant)

FILE NO/S:

CA No 97 of 2012
DC No 1391 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2012

JUDGES:

Fraser and Gotterson JJA and Philippides J
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 pleaded guilty to one count of fraud to the value of $30,000 or more and two counts of passing a valueless cheque – where the applicant sentenced to two years’ imprisonment for the fraud and 12 months’ imprisonment for each of the other two offences – where all sentences were ordered to be served concurrently – where a parole release date was set such that the applicant would be released after serving six months – where the applicant was on parole at the time of offending – where the applicant made a timely plea and full restitution – whether the trial judge gave enough weight to the totality principle – whether the sentence imposed was manifestly excessive

Corrective Services Act 2006 (Qld), s 209, s 211

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Allen [2005] QCA 73, cited
R v Brockfield [1993] QCA 348, cited
R v Donnelly and Corbic[2007] QCA 77, considered
R v L; ex parte Attorney-General of Queensland [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Miceli [1998] 4 VR 588; (1997) 94 A Crim R 327; [1997] VSC 22, cited
R v Nuttall [2011] 2 Qd R 328; [2011] QCA 120, cited
R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, considered
R v Piacentino; R v Ahmad (2007) 15 VR 501; [2007] VSCA 49, considered
R v Sheehan[2007] QCA 409, cited
R v Todd [1982] 2 NSWLR 517, cited
R v Whitnall (1993) 42 FCR 512; (1993) 68 A Crim R 119; [1993] FCA 271, cited

COUNSEL:

A J Kimmins for the applicant
A D Anderson for the respondent

SOLICITORS:

Bell Miller Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

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

GOTTERSON JA: On 8 February 2012 the applicant, Lorenzo David Suarez, pleaded guilty to three separate offences identified in the record as:

Count 6 – an offence against s 427A(1)(b) of the Criminal Code committed on or about 12 January 2007 of passing a valueless cheque in discharge of a debt;
Count 7 – an offence of fraud…

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 Suarez

Details

AGLC: R v Suarez [2012] QCA 190
Case: [2012] QCA 190
Decision Date: 17 July 2012

CaseChat Overview and Summary

In the case of R v Suarez, the applicant appealed against the sentence imposed by the trial judge. The applicant had pleaded guilty to one count of fraud to the value of $30,000 or more and two counts of passing a valueless cheque. The trial judge sentenced the applicant to two years’ imprisonment for the fraud and 12 months’ imprisonment for each of the other two offences, with all sentences to be served concurrently. Additionally, the trial judge set a parole release date such that the applicant would be released after serving six months.

The primary legal issues before the court were whether the trial judge gave adequate consideration to the totality principle, and whether the sentence imposed was manifestly excessive. The totality principle requires that the totality of the sentence be considered, not just the individual sentences for each offence. The applicant argued that the trial judge did not sufficiently weigh this principle, and that the sentence was excessive given the circumstances of the case, including the applicant’s timely plea, full restitution, and the fact that the applicant was on parole at the time of the offending.

The court held that the trial judge had given appropriate weight to the totality principle, and that the sentence imposed was not manifestly excessive. The court recognised that the applicant had pleaded guilty and made full restitution, but also noted that the offences were serious and involved significant deception. The court found that the sentence reflected the seriousness of the offences, the need for deterrence, and the circumstances of the case. Consequently, the appeal against sentence was refused.

Accordingly, the court dismissed the application and the sentence imposed by the trial judge stood. The applicant was to serve two years’ imprisonment for the fraud and 12 months’ imprisonment for each of the other two offences, with all sentences to be served concurrently, and a parole release date set for after serving six months.

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 Suarez [2012] QCA 190
PARTIES:	R v SUAREZ, Lorenzo David (applicant)
FILE NO/S:	CA No 97 of 2012 DC No 1391 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2012
JUDGES:	Fraser and Gotterson JJA and Philippides J 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 pleaded guilty to one count of fraud to the value of $30,000 or more and two counts of passing a valueless cheque – where the applicant sentenced to two years’ imprisonment for the fraud and 12 months’ imprisonment for each of the other two offences – where all sentences were ordered to be served concurrently – where a parole release date was set such that the applicant would be released after serving six months – where the applicant was on parole at the time of offending – where the applicant made a timely plea and full restitution – whether the trial judge gave enough weight to the totality principle – whether the sentence imposed was manifestly excessive Corrective Services Act 2006 (Qld), s 209, s 211 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Allen [2005] QCA 73, cited R v Brockfield [1993] QCA 348, cited R v Donnelly and Corbic[2007] QCA 77, considered R v L; ex parte Attorney-General of Queensland [1996] 2 Qd R 63; [1995] QCA 444, cited R v Miceli [1998] 4 VR 588; (1997) 94 A Crim R 327; [1997] VSC 22, cited R v Nuttall [2011] 2 Qd R 328; [2011] QCA 120, cited R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, considered R v Piacentino; R v Ahmad (2007) 15 VR 501; [2007] VSCA 49, considered R v Sheehan[2007] QCA 409, cited R v Todd [1982] 2 NSWLR 517, cited R v Whitnall (1993) 42 FCR 512; (1993) 68 A Crim R 119; [1993] FCA 271, cited
COUNSEL:	A J Kimmins for the applicant A D Anderson for the respondent
SOLICITORS:	Bell Miller Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent