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R v Tindale

R v Tindale

Case [2008] QCA 24 22 February 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Tindale [2008] QCA 24

PARTIES:

R
(respondent)
v
TINDALE, Susan Maree
(applicant)

FILE NO/S:

CA No 252 of 2007
DC No 157 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

22 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2008

JUDGES:

Keane and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED - where the applicant was convicted on her plea of guilty to fraud of greater than $5,000 – where the applicant dishonestly gained a credit balance of $426,804.87– where the offence occurred over some four and a half years across 132 transactions – where the applicant misappropriated the money from her employer and her friend – where the applicant was sentenced to seven years prison with a parole eligibility date fixed after 28 months – where the applicant submitted that the sentence was manifestly excessive – where the applicant submitted that too much reliance was placed on general deterrence – whether in the circumstances the sentence was manifestly excessive

Criminal Code Act 1899 (Qld), s 408C(1)(d)

R v Adams; ex parte A-G (Qld) [2006] QCA 312, considered
R v Cheers [1997] QCA 329, cited
R v Gourley [2003] QCA 307, followed
R v Hancox [2006] QCA 333, considered
R v Parker [2007] QCA 22, considered
R v Sheppard [2001] 1 Qd R 504 ; [2000] QCA 57, cited
R v Spalding [2002] QCA 538, considered
R v Wheeler & Sorrensen [2002] QCA 223, considered

COUNSEL:

S P Barry for the applicant
P J Alsbury for the respondent

SOLICITORS:

Pearson Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I agree with the reasons of Fraser JA and with the order proposed by his Honour.

FRASER JA: On 7 September 2007 the applicant was convicted on her plea of guilty of an offence under s 408C(1)(d) of the Criminal Code Act 1899 (Qld). She was sentenced to seven years imprisonment, with a parole eligibility date fixed at 7 January 2010 (effectively 28 months). The applicant contends that the sentence was manifestly excessive.

The Circumstances of the Offence

The applicant committed the offence whilst working as a bookkeeper for a private company engaged in underground boring work. This was a family business run by a married couple. They had met and hired the applicant in July 2000. She had previously worked for their accountants and the accountants recommended her to them. They became friends. The victim impact statement reveals that the friendship extended to the couple buying Christmas presents for the applicant and making morning tea for her when 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 Tindale

Details

AGLC: R v Tindale [2008] QCA 24
Case: [2008] QCA 24
Decision Date: 22 February 2008

CaseChat Overview and Summary

In this case, the respondent, Tindale, was convicted of fraud after pleading guilty to dishonestly obtaining a credit balance of $426,804.87. The offences occurred over four and a half years and involved 132 transactions, where the applicant misappropriated money from both their employer and a friend. The court sentenced Tindale to seven years imprisonment, with parole eligibility set at 28 months. Tindale appealed against the severity of the sentence, submitting that it was manifestly excessive and that the court placed too much emphasis on general deterrence.

The primary legal issue before the court was whether the sentence imposed on Tindale was manifestly excessive. The applicant argued that the sentence was disproportionately harsh given the circumstances of the case and that the court had overemphasised the need for general deterrence. The court needed to assess whether the sentence was appropriate in light of the applicant's culpability, the nature and extent of the offending, and the principles of sentencing.

The court dismissed Tindale's appeal against the sentence. It held that the sentence was not manifestly excessive and that the sentencing judge had appropriately balanced the various considerations, including general deterrence. The court noted the significant nature of the fraud, the prolonged period over which it occurred, and the substantial financial loss to the victims. It was determined that the sentence was proportionate and reflected the seriousness of the offences committed by Tindale.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Tindale [2008] QCA 24

Most Recent Citation

R v Twidale [2009] QCA 200

Cases citing this decision · 10 of 10 shown

R v Nair
[2020] QCA 259

…The prosecution relied on R v Williams [2014] QCA 154, R v Kelly [2016] QCA 293, and R v Tindale [2008] QCA 24 as comparable decisions to support a head sentence of seven years’ imprisonment. Mr Nair’s counsel stressed that Mr Nair’s time in custody had been very difficult.…
R v Davy
[2017] QCA 312 Para 38

…hin the appropriate range.” [33] R v Wheeler & Sorrensen [2002] QCA 223; R v Taylor [1994] QCA 574; R v Sheppard [2001] 1 Qd R 504; R v Tindale [2008] QCA 24. [34] R v Spalding [2002] QCA 538; R v Lim [2004] QCA 172; R v Cox [2010] QCA 262; R v Shiels [2011] QCA 115; R v Martin [2015] QCA 257. [35][2011] QCA 115…
R v Martin
[2015] QCA 257 Para 1

…R v Hancox ,[3] R v Williams ,[4] R v Lim ,[5] R v Reischl ,[6] R v Cox [7] and R v Adams; ex parte Attorney-General (Qld) .[8] [1][2011] QCA 115. [2][2008] QCA 24. [3][2006] QCA 333. [4][2014] QCA 154. [5][2004] QCA 172. [6][2000] QCA 215. [7][2010] QCA 262. [8][2006] QCA 312.…
R v Illguth
[2014] QCA 222 Para 1

…similar offending are R v Gasenzer ;[1] R v Ward ;[2] R v Gourley ;[3] and R v Tindale .[4] [1][2013] QCA 9. [2][2008] QCA 222. [3][2003] QCA 307. [4][2008] QCA 24.…
R v Williams
[2014] QCA 154 Para 1

…The sentencing judge was referred to four Court of Appeal decisions, being R v Tindale [2008] QCA 24, R v Twidale [2009] QCA 200, R v Goodenough [2010] QCA 238 and R v Wilson [2013] QCA 260, which provide more authoritative assistance. When regard is had to those authorities, it is readily apparent that the sent…
R v Wilson
[2013] QCA 260

…(Qld), s 408 R v Cox [2010] QCA 262 , cited R v Shiels [2011] QCA 115 , cited R v Spalding [2002] QCA 538 , distinguished R v Tindale [2008] QCA 24 , cited COUNSEL: B H P Mumford for the applicant V A Loury for the respondent SOLICITORS: Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Quee…
R v Shiels
[2011] QCA 115 Para 1

…ad no prior convictions but was a mature man who showed no remorse and fled the jurisdiction for a number of years to avoid prosecution. In Tindale [2008] QCA 24 a 42 year old woman without prior criminal history who dishonestly obtained over $400,000 in a period of four and a half years was sentenced to seven y…
R v Cox
[2010] QCA 262 Para 1

…In R v Tindale [2008] QCA 24, a 42 year old woman without prior criminal history was sentenced to seven years’ imprisonment for dishonestly obtaining money. The sum involved was $426,804.87 obtained by a series of frauds perpetrated over four and a half years. Tindale was employed as an accountant in a small fam…
R v Goodenough
[2010] QCA 238

…me should be granted R v Gourley [2003] QCA 307, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied R v Tindale [2008] QCA 24, considered R v Twidale [2009] QCA 200, considered COUNSEL: The applicant appeared on his own behalf M B Lehane for the respondent SOLICITORS: The applicant appeared on his ow…
R v Twidale
[2009] QCA 200 Para 1

…In R v Tindale [2008] QCA 24 the applicant pleaded guilty to fraud involving the misappropriation over $425,000 from her employer and friend in 132 transactions over four and a half years. The applicant was aged between 36 and 41 years at the time of offending and 42 at sentence. She had no criminal history. Her…

View all 10 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Parker
[2007] QCA 22 Para 1

…tencing discretion. The amount misappropriated there was $302,873, less than that involved in the present case. As Keane JA pointed out in R v Parker [2007] QCA 22, R v Spalding (like R v Gourley [2003] QCA 307) was a case in which the offending was shown to have been precipitated by psychiatric or emotional inf…
R v Hancox
[2006] QCA 333 Para 1

…In R v Hancox [2006] QCA 333 this Court held that a sentence of imprisonment for five and a half years with a parole eligibility recommendation after 21 months was well within the appropriate range. The amount misappropriated ($435,000) was similar to the amount taken here, although of that total amount Hancox re…
R v Adams; ex parte A-G (Qld)
[2006] QCA 312 Para 1

…In R v Adams; ex parte A-G (Qld) [2006] QCA 312, the sentence imposed was four years imprisonment, suspended after nine months with an operational period of five years. On an Attorney-General's appeal, this Court varied the sentence by ordering its suspension after 15 months. In that case, however, the amount mis…
R v Gourley
[2003] QCA 307 Para 1

…mitted on behalf of the applicant, that there is no precise sliding scale of head sentences according to the sum involved in the offence: R v Gourley [2003] QCA 307, per Mackenzie J at 3. That is not to say, however, that the amount taken is not a very relevant circumstance. As Mackenzie J observed in that case,…
R v Spalding
[2002] QCA 538 Para 1

…In R v Spalding [2002] QCA 538 a sentence of six years imprisonment with a recommendation for post-prison community based release after two years was held to be within a sound exercise of the sentencing discretion. The amount misappropriated there was $302,873, less than that involved in the present case. As Kean…
R v Wheeler & Sorrensen
[2002] QCA 223 Para 1

…In R v Wheeler & Sorrensen [2002] QCA 223, this Court refused leave to appeal from sentences of six years imprisonment with a recommendation for release on parole after two years imposed upon offenders who participated in a scheme to misappropriate $632,435.44. That was a case in which the directors of a licensed…
R v Sheppard
[2000] QCA 57 Para 1

…ender had a relevant criminal history: R v Cheers [1997] QCA 329 (where some $173, 000 was taken over two years) and R v Sheppard [2001] 1 Qd R 504 ; [2000] QCA 57, (where some $435,000 was taken over a few months). The force of that distinction – that the applicant here had no prior convictions whereas those of…
R v Cheers
[1997] QCA 329 Para 1

…ourt in which head sentences of seven years were imposed in broadly comparable circumstances the offender had a relevant criminal history: R v Cheers [1997] QCA 329 (where some $173, 000 was taken over two years) and R v Sheppard [2001] 1 Qd R 504 ; [2000] QCA 57, (where some $435,000 was taken over a few months)…

Legislation cited in this decision · 1

Criminal Code Act 1899 (Qld)
408C(1)(d) 2 mentions (from Para 1)

CITATION:	R v Tindale [2008] QCA 24
PARTIES:	R (respondent) v TINDALE, Susan Maree (applicant)
FILE NO/S:	CA No 252 of 2007 DC No 157 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	22 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2008
JUDGES:	Keane and Fraser JJA and Atkinson J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED - where the applicant was convicted on her plea of guilty to fraud of greater than $5,000 – where the applicant dishonestly gained a credit balance of $426,804.87– where the offence occurred over some four and a half years across 132 transactions – where the applicant misappropriated the money from her employer and her friend – where the applicant was sentenced to seven years prison with a parole eligibility date fixed after 28 months – where the applicant submitted that the sentence was manifestly excessive – where the applicant submitted that too much reliance was placed on general deterrence – whether in the circumstances the sentence was manifestly excessive Criminal Code Act 1899 (Qld), s 408C(1)(d) R v Adams; ex parte A-G (Qld) [2006] QCA 312, considered R v Cheers [1997] QCA 329, cited R v Gourley [2003] QCA 307, followed R v Hancox [2006] QCA 333, considered R v Parker [2007] QCA 22, considered R v Sheppard [2001] 1 Qd R 504 ; [2000] QCA 57, cited R v Spalding [2002] QCA 538, considered R v Wheeler & Sorrensen [2002] QCA 223, considered
COUNSEL:	S P Barry for the applicant P J Alsbury for the respondent
SOLICITORS:	Pearson Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent