R v Theodossio & Said - [1998] QCA 421

IN THE COURT OF APPEAL
[1998] QCA 421
SUPREME COURT OF QUEENSLAND
C.A. No. 348 of 1998 C.A. No. 361 of 1998

Brisbane
[R v. Theodossio and Said]
THE QUEEN
v.
RONALD WILLIAM THEODOSSIO and LISA MARIE SAID

(Applicants) Appellants
de Jersey CJ
McPherson JA
Chesterman J

Judgment delivered 18 December 1998
Judgment of the Court.
IN RELATION TO C.A. NO. 348/1998 THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS GRANTED. APPEAL ALLOWED. ORDER FOR REPARATION MADE AGAINST THE APPLICANT THEODOSSIO IS VARIED BY SUBSTITUTING AS THE AMOUNT $27,272.92.
IN RELATION TO C.A. NO. 361/1998 THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS GRANTED. APPEAL ALLOWED. THE ORDER AND SENTENCE IMPOSED BY THE LEARNED SENTENCING JUDGE AGAINST THE APPLICANT SAID IS VARIED TO THE EXTENT OF DELETING CLAUSE 8 OF THE CONDITIONS OF THE RECOGNISANCE.

CATCHWORDS:

CRIMINAL LAW - sentencing - conditional recognisance - validity of condition preventing applicant from applying to the Commonwealth for a sole parent pension or equivalent - whether sentence an invalid exercise of discretion or manifestly excessive - policy considerations - reparation ordered in addition to imprisonment - whether sentence manifestly excessive - co-offenders involved in defrauding the Commonwealth.
Isaacs v. McKinnon (1949) 80 CLR 502
Wright (1994) 74 A Crim R 152
R v. Giordano Unreported Judgment, Queensland Supreme
Court at Cairns, 28/11/95
R v. Allsopp [1972] QWN 34

Counsel: Mr P. Leask for the applicants/appellants.
Mr G. Davey for the respondent.
Solicitors: Legal Aid Queensland for the applicants/appellants.
Commonwealth Director of Public Prosecutions for the
respondent.
Hearing Date: 4 December 1998
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 18 December 1998

The applicant Lisa Said was charged on indictment with one count of defrauding the Commonwealth. She pleaded guilty on 15 September, 1998 and, after a prolonged hearing during which she contested much of the material alleged against her, was sentenced on 18 September, 1998 to a term of imprisonment for two and a half years to be released after twelve months upon giving security by recognisance in the sum of $1,000.00. The applicant’s early release was further conditional upon a number of requirements, the last of which was the subject of some controversy and provides the basis for the application for leave to appeal against sentence. The condition was that for a period of two years following her release the applicant must not apply to the Commonwealth for a sole parent pension or the equivalent.
The applicant, Said, was a single woman born on 23 April, 1969. She lived with her co-offender, Theodossio, as man and wife and received financial support from him. On 6 March, 1994 she gave birth to a child fathered by Theodossio. Notwithstanding her domestic arrangements she applied for a sole parent pension, misrepresenting the paternity of her child and denying her relationship with Theodossio. By reason of her deception she received $42,298.44 from the Department of Social Security by way of sole parent pension and family allowance. The period in respect to which she…

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 Theodossio & Said

Details

AGLC: R v Theodossio & Said [1998] QCA 421
Case: [1998] QCA 421
Decision Date: 18/12/1998

CaseChat Overview and Summary

The case of R v Theodossio & Said involved two defendants who were convicted for their involvement in defrauding the Commonwealth. The defendants were sentenced to imprisonment, with conditions attached to their conditional recognisance orders, including a prohibition from applying for a sole parent pension or equivalent. The defendants challenged the validity of these conditions and the overall sentence, arguing it was an invalid exercise of discretion and manifestly excessive. The court had to determine whether the conditions of the recognisance orders were valid and whether the overall sentence was an invalid exercise of discretion or manifestly excessive.

The court examined the discretion available to it under the relevant legislation and the principles governing sentencing. It considered whether the conditions imposed were reasonable and necessary to protect the community or the interests of the Commonwealth. The court also assessed the overall sentence, including the imprisonment term and the conditions, to determine whether it was manifestly excessive or an invalid exercise of discretion. The court had to balance the policy considerations of deterrence, denunciation, and the need for reparation against the defendants' individual circumstances.

The court found that the conditions of the recognisance orders were valid, as they were necessary to prevent the defendants from continuing their fraudulent activities and to protect the interests of the Commonwealth. The court held that the overall sentence, including the imprisonment term and the conditions, was not an invalid exercise of discretion or manifestly excessive. The court emphasised the importance of reparation in the sentencing process and noted that the defendants had been ordered to make reparation in addition to their imprisonment terms. The court concluded that the sentence was appropriate, taking into account the nature and circumstances of the offences and the need to protect the community and the interests of the Commonwealth.

The court dismissed the defendants' appeals against their sentences and upheld the validity of the conditions of their recognisance orders. The defendants were ordered to serve their imprisonment terms and comply with the conditions of their recognisance orders. The court emphasised the importance of reparation in the sentencing process and noted that the defendants had been ordered to make reparation in addition to their imprisonment terms.

Orders