R v Voll - [2014] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

R v Voll [2014] QCA 170

PARTIES:

R
v
VOLL, Paul Michael
(applicant)

FILE NO/S:

CA No 137 of 2014
DC No 357 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2014

JUDGES:

Holmes and Gotterson JJA and Philip McMurdo 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 was a practising solicitor - where the applicant dishonestly applied to his own use a sum of money amounting to more than $30,000 – where the applicant pleaded guilty to one count of fraud – where the applicant was sentenced to two years and six months imprisonment, suspended after three months with an operational period of 30 months – where the applicant contends that the sentence should have been wholly suspended – whether the sentencing judge erred in the exercise of sentencing discretion by not giving appropriate weight to mitigating factors – whether the sentence was manifestly excessive

R v Blackhall-Cain; ex parte Attorney-General (Qld)[2000] QCA 380, cited
R v Lather[2011] QCA 143, cited
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited

COUNSEL:

A S McDougall for the applicant
D Barlic for the respondent

SOLICITORS:

Lawler Magill for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of Philip McMurdo J and the order he proposes.

GOTTERSON JA: I agree with the order proposed by Philip McMurdo J and with the reasons given by his Honour.

PHILIP McMURDO J: On 29 May 2014, the applicant pleaded guilty to the dishonest application to his own use of a sum of money amounting to more than $30,000. He was then sentenced to a term of two years and six months imprisonment, suspended after three months with an operational period of 30 months. He applies for leave to appeal that sentence, arguing that it should have been wholly suspended.

The offence was committed by the applicant in the course of his practice as a solicitor in a firm of which he was one of the two partners. The offence involved the misapplication of moneys which should have been used for the payment of stamp duty in relevantly four transactions. Instead the applicant caused these funds to be applied for his own purposes. The total misapplied was $77,360.88. The offending occurred over various dates in 2006.

The applicant’s firm was authorised by the Office of State Revenue (“OSR”) to “self assess” stamp duty on conveyancing transactions carried out by the firm for clients. The firm would send weekly returns to the OSR together with payments of the duty as assessed.

The applicant caused the required…

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 Voll

Details

AGLC: R v Voll [2014] QCA 170
Case: [2014] QCA 170
Decision Date: 25 July 2014

CaseChat Overview and Summary

The applicant, a practising solicitor, was convicted of fraud following an application of funds amounting to over $30,000 to his own use. He entered a guilty plea to one count of fraud and was sentenced to imprisonment for two years and six months, suspended after serving three months with an operational period of 30 months. The applicant appealed against the sentence, arguing that it should have been wholly suspended and that the sentencing judge did not appropriately weigh the mitigating factors. The central issue before the court was whether the sentence imposed was manifestly excessive or inadequate.

In examining the grounds for interference, the court considered whether the sentencing judge erred in not appropriately weighing the mitigating factors and whether the sentence was manifestly excessive. The applicant argued that the sentence should have been wholly suspended, taking into account his remorse, character, and the improbability of reoffending. The court reviewed the circumstances of the offence and the applicant's background, but ultimately found that the sentence was within the range of appropriate penalties for the offence committed. The court held that the sentencing judge had given due consideration to the mitigating factors and that the sentence imposed was not manifestly excessive.

The court dismissed the applicant's appeal against the sentence. The reasoning was that the sentencing judge had appropriately balanced the seriousness of the offence against the mitigating factors presented. The court found no error in the exercise of discretion by the sentencing judge and concluded that the sentence was not manifestly excessive. The application for a wholly suspended sentence was refused, affirming the original sentence as just and appropriate.

Orders

Orders of the court

Application refused.

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.

CITATION:	R v Voll [2014] QCA 170
PARTIES:	R v VOLL, Paul Michael (applicant)
FILE NO/S:	CA No 137 of 2014 DC No 357 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2014
JUDGES:	Holmes and Gotterson JJA and Philip McMurdo 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 was a practising solicitor - where the applicant dishonestly applied to his own use a sum of money amounting to more than $30,000 – where the applicant pleaded guilty to one count of fraud – where the applicant was sentenced to two years and six months imprisonment, suspended after three months with an operational period of 30 months – where the applicant contends that the sentence should have been wholly suspended – whether the sentencing judge erred in the exercise of sentencing discretion by not giving appropriate weight to mitigating factors – whether the sentence was manifestly excessive R v Blackhall-Cain; ex parte Attorney-General (Qld)[2000] QCA 380, cited R v Lather[2011] QCA 143, cited R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited
COUNSEL:	A S McDougall for the applicant D Barlic for the respondent
SOLICITORS:	Lawler Magill for the applicant Director of Public Prosecutions (Queensland) for the respondent