R v Wheeler & Sorrensen

Case [2002] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wheeler & Sorrensen [2002] QCA 223

PARTIES:

R
v
WHEELER, Graham John
(applicant)
SORRENSEN, Leslie Carl
(applicant)

FILE NO/S:

CA No 56 of 2002
CA No 57 of 2002
DC No 364 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence applications

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2002

JUDGES:

McPherson JA, Mackenzie and Atkinson JJ

ORDER:

Applications for leave to appeal sentence are refused   

CATCHWORDS:

CRIMINAL LAW – JURISDICITION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO  ACCOUNT – FACTUAL BASIS FOR SENTENCE – where applicant/s pleaded guilty to an ex-officio indictment - agreed Schedule of Facts - nature of some transactions disputed in oral submissions on appeal 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant/s convicted of fraud as a trustee of a sum greater than $5,000 – where misappropriation of $632,435.44 with claims totalling $453,123.00 paid out of Fidelity Guarantee Fund – no previous convictions - good work histories - whether sentence of six years imprisonment with a recommendation for parole after two years is manifestly excessive

Auctioneers and Agents Act 1971 (Qld) s 104(1), s 104 (5), s 19(8), s 408(2)(d)

Tilley (1991) 53A Crim R applied

COUNSEL:

M Hogan for the applicant Wheeler
The applicant  Sorrensen appeared on his own behalf
M Copley for the respondent

SOLICITORS:

Mitchells Solicitors for the applicant Mr Wheeler
The applicant Sorrensen appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

  1. McPHERSON JA: I agree with the reasons of Mackenzie J for dismissing these applications for leave to appeal against sentence.

  1. MACKENZIE J:  Each of the applicants was a director of Queensland Motor Auctions Pty Ltd, (“QMA”) licensed auctioneers and motor dealers.  When an administrator was appointed to the company on 10 December 1999 it was found that there was a general deficiency in the trust account of $632,435.44.  Only $21,703.70 remained in it.  Subject to one issue raised in the submissions by the applicant Sorrensen, who appeared on his own behalf, the business received vehicles from customers for sale on consignment.  The proceeds of sale of those vehicles, less commission and expenses, were to be paid into a statutory trust account and ultimately disbursed to the consignor of the vehicle.

  1. The business had been set up in 1996 by the two applicants who had previously worked together at similar businesses.  They had hoped for a substantial investment in it by an associate but it did not materialise.  The applicant Wheeler obtained an overdraft facility of $93,000 against the security of his mother’s home unit.  The applicant Sorrensen had not contributed any capital.  A third director who had a financial interest in the business withdrew his capital in 1997.  A decision was taken in January 1999 to relocate the business from the Valley…

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AGLC
R v Wheeler and Sorrensen [2002] QCA 223
Case
[2002] QCA 223
Decision Date

CaseChat Overview and Summary

The case of R v Wheeler & Sorrensen involved two applicants who had pleaded guilty to an ex-officio indictment. The applicants contested the sentence imposed on them, which was six years imprisonment with a recommendation for parole after two years. They argued that the sentence was manifestly excessive, considering the facts of the case. The applicants were convicted of fraud as trustees, having misappropriated a sum greater than $5,000. The amount misappropriated was $632,435.44, with claims totalling $453,123.00 paid out of the Fidelity Guarantee Fund. Both applicants had no previous convictions and good work histories.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the applicants' lack of prior convictions, their good work histories, and the nature of the transactions that formed the basis of the charges. The court had to consider the circumstances of the offence, the nature of the transactions, and whether the applicants' personal circumstances warranted a more lenient sentence. The applicants argued that the sentence should have been more proportionate to the offence, considering these factors.

In its reasoning, the court noted that while the applicants had misappropriated a substantial sum of money, the sentence imposed was not manifestly excessive. The court took into account the agreed Schedule of Facts, which outlined the nature of the transactions in dispute. The court also considered the applicants' lack of prior convictions and good work histories. However, the court held that the sentence of six years imprisonment with a recommendation for parole after two years was appropriate, given the gravity of the offence and the amount misappropriated. The court concluded that the sentence was not manifestly excessive, and the applications for leave to appeal the sentence were refused.

The final orders of the court were that the applications for leave to appeal the sentence were refused. The applicants' appeal against their sentence was dismissed, and the original sentence of six years imprisonment with a recommendation for parole after two years was upheld.

Orders

Orders of the court

Applications for leave to appeal sentence are 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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