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R v Whiting

R v Whiting

Case [2013] QCA 18 15 February 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Whiting [2013] QCA 18

PARTIES:

R
v
WHITING, Debra Maree
(applicant)

FILE NO/S:

CA No 204 of 2012
DC No 281 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

15 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2013

JUDGES:

Margaret McMurdo P and Fraser JA and Dalton 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 applicant convicted of one count of fraud as an employee to the value of more than $30,000, one count of fraud to the value of more than $30,000 and a further count of fraud – where applicant transferred a total of more than $138,750 over a period of four years and ten months – where applicant was given concurrent sentences of four years and six months imprisonment for counts 1 and 2 and six months for count 3, with eligibility for parole after serving half the sentence –where applicant argued that the sentencing judge failed to take into account her anxiety and depression and the impact of the sentence on her child – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(g)

R v D’Arrigo; ex parte A-G (Qld) [2004] QCA 399, cited
R v Eveleigh[2009] QCA 257, considered
R v Freeman[2012] QCA 192, considered
R v Goodger[2009] QCA 377, distinguished
R v Gourley [2003] QCA 307, considered
R v Haddad[2009] QCA 143, cited
R v Hearnden[2002] QCA 258, considered
R v Lawrie[2008] QCA 97, considered
R v MP [2004] QCA 170, cited
R v Parish[2012] QCA 112, considered
R v Tilley (1991) 53 A Crim R 1, cited
R v Tsiaras [1996] 1 VR 398; [1996] Vic Rp 26, cited
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
R v Ward [2008] QCA 222, considered
R v Wirth (1976) 14 SASR 291, cited
R v Yarwood[2011] QCA 367, considered

COUNSEL:

G J Watson for the applicant
M R Byrne SC for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Fraser JA’s reasons for refusing the application for leave to appeal against sentence.

FRASER JA: After a trial in the District Court the applicant was convicted of one count of fraud as an employee in which the yield to her was of the value of more than $30,000, one count of fraud in which the yield to her was of a value of more than $30,000, and one count of fraud. On 19 July 2012 the applicant was given concurrent sentences of four…

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 Whiting

Details

AGLC: R v Whiting [2013] QCA 18
Case: [2013] QCA 18
Decision Date: 15 February 2013

CaseChat Overview and Summary

In this appeal against sentence, the applicant, Whiting, was convicted of one count of fraud as an employee, one count of fraud to the value of more than $30,000 and a further count of fraud. The applicant was sentenced to concurrent terms of imprisonment for each of the first two counts, and a shorter term for the third count, with eligibility for parole after serving half the sentence. Whiting sought an appeal against the severity of the sentence, arguing that the sentencing judge did not take into account her mental health and the impact the sentence would have on her child.

The primary issue before the court was whether the sentence imposed was manifestly excessive or inadequate. Whiting contended that the sentencing judge failed to adequately consider her personal circumstances, specifically her anxiety and depression, which she argued should have warranted a lesser sentence. The court was required to determine whether the sentence was outside the range of reasonable responses and whether the sentencing judge erred in failing to take Whiting's mental health and the impact on her child into account.

The court found that the sentencing judge had considered Whiting's mental health, noting that she had received psychiatric care and was prescribed medication. The court also observed that the judge had considered the impact of the sentence on Whiting's child but found that this did not warrant a lesser sentence. The court held that the sentence was not manifestly excessive, as it fell within the range of reasonable responses for the crimes committed. The appeal against the sentence was dismissed.

The court made no alteration to the sentence imposed. The application was refused, and Whiting remains subject to the original terms of imprisonment and parole eligibility.

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.

Citations

AGLC Citation

R v Whiting [2013] QCA 18

Most Recent Citation

R v Ganley; R v Ganley [2013] QCA 380

Cases citing this decision · 6 of 6 shown

R v Tsougranis
[2017] QCA 264 Para 1

…ult in hardship to her husband and family did not justify significant mitigation in the sentence for her serious offending[1]). [1] R v Whiting [2013] QCA 18 at [12].…
R v Roberts
[2017] QCA 256 Para 1

…luding three offences where the value involved was $30,000 or more) a sentence of four years’ imprisonment would not have been out of range. [7][2013] QCA 18.…
R v Williams
[2014] QCA 114 Para 1

…to a number of sentencing decisions, particularly R v Whiting ,[35] R v Parker [36] and R v Adams; ex-parte Attorney-General of Queensland .[37] [35][2013] QCA 18. [36][2007] QCA 22. [37][2006] QCA 312.…
R v Smallwood
[2014] QCA 70 Para 1

…ere was not only a lack of cooperation but also deception by the applicant in the initial stages of the police investigation. [5][2009] QCA 203. [6][2013] QCA 18.…
R v Ryan; Ex parte
[2014] QCA 68 Para 1

…an early parole eligibility date should not have been fixed. [8](2000) 202 CLR 321, Gleeson CJ and Hayne J, 325. [9](2010) 242 CLR 520, 538-540. [10][2013] QCA 18, [12]. [11](1996) 90 A Crim R 510, Gleeson J 516-517. [12](1991) 53 A Crim R 1.…
R v Ganley; R v Ganley
[2013] QCA 380 Para 1

…offence, particularly a serious offence for which a substantial period of imprisonment inevitably must be imposed: see, for example, R v Whiting [2013] QCA 18 at [12], referring to R v Tilley (1991) 53 A Crim R 1 at 3-4, 6; R v MP [2004] QCA 170 at 3; R v Wirth (1976) 14 SASR 291 at 296; R v D’Arrigo; ex parte…

View all 6 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Freeman
[2012] QCA 192 Para 1

…uilty by a 22 year old woman with a gambling addiction who stole $87,900 from her employer over a period of two months and five days) and R v Freeman [2012] QCA 192 (four years imprisonment suspended after 16 months on a plea of guilty by a 31 year old man with no prior criminal history who pleaded guilty to one…
R v Parish
[2012] QCA 112 Para 1

…Other decisions relied upon by the applicant do not support the contention that her sentence was manifestly excessive. In R v Parish [2012] QCA 112 (three years imprisonment with a parole release date after 12 months) the offender pleaded guilty and the total amount of the loss was only a little more than half th…
R v Yarwood
[2011] QCA 367 Para 1

…The applicant’s counsel referred the sentencing judge to R v Yarwood [2011] QCA 367, in which the offender was sentenced to four and a half years imprisonment. The sentencing judge observed of that case that it concerned a solicitor who got into financial difficulties and presented false documents to the Office o…
R v Goodger
[2009] QCA 377 Para 1

…The prosecution referred the sentencing judge to R v Gourley [2003] QCA 307, R v Ward [2008] QCA 222, and R v Goodger [2009] QCA 377. In Gourley the effective sentence of six years imprisonment was imposed for an offence in which the amount taken was $213,000. The sentencing judge remarked that such an amount was…
R v Eveleigh
[2009] QCA 257 Para 1

…If further support for the sentence is thought to be required, it may be derived from cases such as R v Eveleigh [2009] QCA 257 (four years imprisonment with parole eligibility after 14 months on a plea of guilty by a 22 year old woman with a gambling addiction who stole $87,900 from her employer over a period of…
R v Haddad
[2009] QCA 143 Para 1

…170 at 3; R v Wirth (1976) 14 SASR 291 at 296; R v D’Arrigo; ex parte Attorney-General of Queensland [2004] QCA 399 at 5-6; R v Haddad [2009] QCA 143. It was inevitable that the applicant would be imprisoned for a substantial period for her offence, so that the child’s father would necessarily suffer disruption…
R v Ward
[2008] QCA 222 Para 1

…The prosecution referred the sentencing judge to R v Gourley [2003] QCA 307, R v Ward [2008] QCA 222, and R v Goodger [2009] QCA 377. In Gourley the effective sentence of six years imprisonment was imposed for an offence in which the amount taken was $213,000. The sentencing judge remarked that such an amount was…
R v Lawrie
[2008] QCA 97 Para 1

…the offender pleaded guilty, had no prior convictions, took half the amount taken by the applicant, and offended for only seven months. In R v Lawrie [2008] QCA 97 (three and a half years suspended after 12 months) the offender pleaded guilty, he took much less than half the amount taken by the applicant and ove…
R v Verdins
[2007] VSCA 102

…sidered R v Tilley (1991) 53 A Crim R 1, cited R v Tsiaras [1996] 1 VR 398; [1996] Vic Rp 26, cited R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited R v Ward [2008] QCA 222, considered R v Wirth (1976) 14 SASR 291, cited R v Yarwood [2011] QCA 367, considered COUNSEL: G J Watson for the applicant M R Byrne SC…
R v D'Arrigo; ex parte
[2004] QCA 399 Para 1

…m R 1 at 3-4, 6; R v MP [2004] QCA 170 at 3; R v Wirth (1976) 14 SASR 291 at 296; R v D’Arrigo; ex parte Attorney-General of Queensland [2004] QCA 399 at 5-6; R v Haddad [2009] QCA 143. It was inevitable that the applicant would be imprisoned for a substantial period for her offence, so that the child’s father wo…
R v MP
[2004] QCA 170 Para 1

…y and friends justifies substantial mitigation in a sentence for a serious offence: see R v Tilley (1991) 53 A Crim R 1 at 3-4, 6; R v MP [2004] QCA 170 at 3; R v Wirth (1976) 14 SASR 291 at 296; R v D’Arrigo; ex parte Attorney-General of Queensland [2004] QCA 399 at 5-6; R v Haddad [2009] QCA 143. It was inevita…
R v Gourley
[2003] QCA 307 Para 1

…The prosecution referred the sentencing judge to R v Gourley [2003] QCA 307, R v Ward [2008] QCA 222, and R v Goodger [2009] QCA 377. In Gourley the effective sentence of six years imprisonment was imposed for an offence in which the amount taken was $213,000. The sentencing judge remarked that such an amount was…
R v Hearnden
[2002] QCA 258 Para 1

…ths) the offender pleaded guilty and the total amount of the loss was only a little more than half the amount taken by the applicant. In R v Hearnden [2002] QCA 258 (three years imprisonment suspended after six months) the offender pleaded guilty, had no prior convictions, took half the amount taken by the applic…
R v Jiminez
[1999] NSWCCA 7 Para 1

…ndition was nonetheless relevant as a mitigating factor which should have led to an earlier parole eligibility date. R v Tsiaras [1996] 1 VR 398 was cited for the proposition that a psychiatric illness short of insanity might be relevant in relation to the kind of sentence imposed and the conditions upon wh…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
9(2)(g) 2 mentions (from Para 1)

CITATION:	R v Whiting [2013] QCA 18
PARTIES:	R v WHITING, Debra Maree (applicant)
FILE NO/S:	CA No 204 of 2012 DC No 281 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	15 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2013
JUDGES:	Margaret McMurdo P and Fraser JA and Dalton 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 applicant convicted of one count of fraud as an employee to the value of more than $30,000, one count of fraud to the value of more than $30,000 and a further count of fraud – where applicant transferred a total of more than $138,750 over a period of four years and ten months – where applicant was given concurrent sentences of four years and six months imprisonment for counts 1 and 2 and six months for count 3, with eligibility for parole after serving half the sentence –where applicant argued that the sentencing judge failed to take into account her anxiety and depression and the impact of the sentence on her child – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(g) R v D’Arrigo; ex parte A-G (Qld) [2004] QCA 399, cited R v Eveleigh[2009] QCA 257, considered R v Freeman[2012] QCA 192, considered R v Goodger[2009] QCA 377, distinguished R v Gourley [2003] QCA 307, considered R v Haddad[2009] QCA 143, cited R v Hearnden[2002] QCA 258, considered R v Lawrie[2008] QCA 97, considered R v MP [2004] QCA 170, cited R v Parish[2012] QCA 112, considered R v Tilley (1991) 53 A Crim R 1, cited R v Tsiaras [1996] 1 VR 398; [1996] Vic Rp 26, cited R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited R v Ward [2008] QCA 222, considered R v Wirth (1976) 14 SASR 291, cited R v Yarwood[2011] QCA 367, considered
COUNSEL:	G J Watson for the applicant M R Byrne SC for the respondent
SOLICITORS:	Cranston McEachern Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent