Fraser and White JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
Leave to read and file the affidavit of Michael Dermott Yarwood sworn 21 July 2011.1.
Application to adduce evidence for a limited purpose granted.2.
Application for leave to appeal against sentence granted.3.
Appeal allowed and sentence imposed below varied by ordering suspension on 13 December 2011.4.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was a solicitor and registered agent for collecting stamp duty and stamping dutiable documents on behalf of Office of State Revenue – where applicant failed to remit funds to Office of State Revenue and deposited into own account and accounts of other entities and persons – where total outstanding tax collected but not paid was $207,027.24 – where offending continued over three years – where applicant sentenced on each count to four-and-a-half years’ imprisonment suspended after serving 18 months with operational period of five years, to be served concurrently – where applicant suffered significant psychiatric and psychological illness prior to, during and after period of offending – where applicant contended, among other grounds of appeal, that primary judge erred in not recognising applicant’s mental illness – whether sentence manifestly excessive
[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.
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Details
AGLC
R v Yarwood [2011] QCA 367
Case
[2011] QCA 367
Decision Date
CaseChat Overview and Summary
The applicant, Michael Dermott Yarwood, a solicitor and registered agent for collecting stamp duty, appealed against his sentence for fraud. Yarwood was found guilty of failing to remit funds to the Office of State Revenue, instead depositing them into his own account and accounts of other entities and persons. The total outstanding tax collected but not remitted was $207,027.24, and the offending continued over a period of three years. Yarwood was sentenced to four-and-a-half years’ imprisonment on each count, suspended after serving 18 months, with an operational period of five years to be served concurrently. The applicant argued that his mental illness was not adequately recognised by the primary judge and that the sentence was manifestly excessive.
The court was required to decide whether the sentence imposed was manifestly excessive or inadequate, particularly in light of the applicant's significant psychiatric and psychological illness. The applicant contended that the primary judge failed to recognise the extent of his mental health issues, which had a substantial impact on his offending behaviour. The court needed to assess whether the sentence appropriately balanced the seriousness of the offence and the applicant's personal circumstances, including his mental health.
The court found that the primary judge did not adequately consider the extent of Yarwood's mental illness and how it affected his offending. The court held that the sentence was manifestly excessive because it did not sufficiently account for the applicant's mental health issues. The court allowed the appeal and varied the sentence by ordering suspension on 13 December 2011. The leave to appeal against sentence was granted, and the application to adduce evidence for a limited purpose was also granted. The court's decision emphasised the importance of considering the full context of an offender's circumstances, including mental health, when determining an appropriate sentence.
Orders
Orders of the court
Leave to read and file the affidavit of Michael Dermott Yarwood sworn 21 July 2011.1.
Application to adduce evidence for a limited purpose granted.2.
Application for leave to appeal against sentence granted.3.
Appeal allowed and sentence imposed below varied by ordering suspension on 13 December 2011.4.