R v Williams - [2005] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

R v Williams [2005] QCA 14

PARTIES:

R
v
WILLIAMS, Davida Ellen
(applicant)

FILE NO/S:

CA No 429 of 2004
DC No 1972 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

9 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2005

JUDGES:

de Jersey CJ, McPherson JA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Application for leave to adduce additional evidence refused.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – where sentencing and appeal courts adequately seized of subject considered in further material – where case not sufficiently exceptional to warrant receiving material going to detail, albeit matters of considerable importance to the applicant – whether applicant entitled to adduce further material on appeal

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTUAL BASIS FOR SENTENCE – CIRCUMSTANCES OF OFFENDER – where applicant relied on deteriorating health and the availability of medication in jail to reduce sentence – whether sentence should be reduced

R v BG (2000) 111 A Crim R 302; [2000] QCA 42, considered
R v Hughes [2004]1 Qd R 541; [2003] QCA 460, followed
R v Irlam; ex parte A-G [2002] QCA 235, considered

COUNSEL:

The applicant appeared on her own behalf
S G Bain for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant pleaded guilty to one count of fraud and five counts of attempted fraud, in each case with a circumstance of aggravation because the property involved was worth more than $5,000.

On each count she was sentenced on 19th November 2004 to three years imprisonment to be suspended after six months for an operational period of four years. As at today's date she has served two days short of three months. She was 42 to 43 years old at the time of the offending, which occurred between May 2001 and February 2002, and she had no prior criminal convictions.

The applicant submits that she should be released forthwith. She has not submitted that the head sentence of three years was inappropriate - it clearly was within range. The applicant was a qualified lawyer. Her method was to enter into contracts for the purchase of residential properties, generally valued at the order of $140,000. Then she would make loan applications to various financial institutions, but for amounts substantially greater than the contract prices.

On occasions she also produced false records suggesting she had term deposits in substantial amounts - $60,000 for example - as well as employment, which was in fact not the case. Only one of her applications succeeded and that…

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 Williams

Details

AGLC: R v Williams [2005] QCA 14
Case: [2005] QCA 14
Decision Date: 9 February 2005

CaseChat Overview and Summary

The case of R v Williams involved an appeal against the sentence given by the lower court. The applicant, Williams, sought to introduce new evidence regarding his health conditions and availability of medication in prison to argue for a reduced sentence. The appeal was heard in the higher court, which had to decide whether to admit the new evidence and if the sentence should be reconsidered.

The court needed to determine whether the new evidence could be admitted given it was not available at the time of the original hearing. The applicant argued that the new evidence was critical to understanding his circumstances and that it was not reasonably available earlier. The court also had to assess whether the new evidence was significant enough to warrant a reduction in sentence.

The higher court held that the new evidence was not admissible because the sentencing and appeal courts had already considered the relevant matters. The court found that the case was not exceptional enough to warrant the admission of new evidence, even though the matters were of considerable importance. The court also concluded that the sentence was appropriate given the circumstances of the offender and the evidence already considered.

The higher court refused the application to adduce additional evidence and also refused the application for leave to appeal against the sentence. The applicant's request to introduce new health-related evidence and to appeal the sentence was denied, and the original sentence was upheld.

Orders

Orders of the court

1. Application for leave to adduce additional evidence refused.

2. Application for leave to appeal against sentence 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 Williams [2005] QCA 14
PARTIES:	R v WILLIAMS, Davida Ellen (applicant)
FILE NO/S:	CA No 429 of 2004 DC No 1972 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	9 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2005
JUDGES:	de Jersey CJ, McPherson JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Application for leave to adduce additional evidence refused. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN NOT ADMISSIBLE – where sentencing and appeal courts adequately seized of subject considered in further material – where case not sufficiently exceptional to warrant receiving material going to detail, albeit matters of considerable importance to the applicant – whether applicant entitled to adduce further material on appeal CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTUAL BASIS FOR SENTENCE – CIRCUMSTANCES OF OFFENDER – where applicant relied on deteriorating health and the availability of medication in jail to reduce sentence – whether sentence should be reduced R v BG (2000) 111 A Crim R 302; [2000] QCA 42, considered R v Hughes [2004]1 Qd R 541; [2003] QCA 460, followed R v Irlam; ex parte A-G [2002] QCA 235, considered
COUNSEL:	The applicant appeared on her own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent