R v Edwards [2011] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION: R v Edwards [2011] QCA 331

PARTIES: R v EDWARDS, Annie Paivi (appellant/applicant)

FILE NO/S: CA No 43 of 2011 / DC No 1288 of 2010

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 22 November 2011

DELIVERED AT: Brisbane

HEARING DATES: 18 October 2011, 17 November 2011

JUDGES: Chief Justice, Fraser and White JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **1. The appeal against convictions is dismissed.****2. The application for leave to appeal against sentence is granted.****3. The appeal against sentence is allowed.**4. The sentence imposed in the District Court is varied by fixing the date upon which the appellant is to be released on parole at 25 November 2011.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of five counts of fraud – where the appellant sold horses by dishonestly making representations about their age, health, temperament and other qualities – where the appellant used a number of different names and alleged that a fictional person made the sales without her knowledge – where the appellant argued that the trial judge erred in refusing a no case to answer submission made on the basis that there was no ‘continuity evidence’ establishing that the horses which arrived at the complainants’ premises were the same horses loaded into the transport vehicles – where the appellant argued that the verdicts were unreasonable because the district was in serious drought at the time, the complainants failed to inspect the horses before they purchased them and did not ask for their money back, there was a lack of expert and photographic evidence to prove the condition of the horses, there were inherent risks of injury and ill health when transporting horses, and there were other inconsistencies in the evidence – where there was nonetheless a solid body of evidence supporting the prosecution case – whether the trial judge erred in refusing the no case to answer submission – whether the verdicts were unreasonable / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where a number of the complainants gave evidence that the appellant’s voice ‘seemed similar’ to the voice of the fictional character created by the appellant – where one witness gave evidence that the appellant and the fictional character were ‘the same person’ and had ‘the same voice’ – where the trial judge warned the jury not simply to take the word of an unqualified witness that the speaker on the telephone was the same on two occasions – whether the evidence was admissible – whether there was a miscarriage of justice notwithstanding the trial judge’s directions / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to two years imprisonment on each count with a parole release date of after one year – where the appellant was ordered to pay $8,200 compensation to the complainants and there was a real prospect that she might default on such payment – where the trial judge considered the appellant’s conduct to be callous and persistent and that she had betrayed the industry – where the appellant had a relevant criminal history and did not demonstrate acceptance of responsibility or remorse – whether the compensation orders ought to be set aside – whether the sentence was manifestly excessive / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the appellant is the sole carer of two daughters aged 16 and 18 – where the appellant’s daughters are living unsupported by friends or family – where the elder daughter had not been able to complete her schooling as a result of caring for the younger daughter – where the daughters have been unable to visit the appellant in prison due to lack of identification – where the consequences for the welfare of the children which eventuated after sentence were not foreseen – whether the appellant’s parole release date ought to be brought forward / Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, considered / Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, applied / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied / MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited / R v Butler [2010] 1 Qd R 325; [2009] QCA 111, cited / R v Chong; ex parte A-G (Qld) [2008] QCA 22, applied / R v Ferrari [1997] 2 Qd R 472; [1997] QCA 73, cited / R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, applied

COUNSEL: The appellant/applicant appeared on her own behalf / G Cummings for the respondent

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

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree with the orders proposed by his Honour, and with his reasons.

[2] FRASER JA: The appellant was found guilty by a jury and convicted of five counts of dishonestly gaining a benefit, namely credit to a bank account, contrary to s 408C(1)(d) of the Criminal Code 1899 (Qld). On 21 February 2011 she was sentenced to concurrent terms of imprisonment of two years on each count, with an order that she be released on parole on 20 February 2012. The appellant was also ordered to pay compensation in specified amounts to the complainants in four of the counts. The appellant has appealed against her convictions and she has applied for leave to appeal against sentence.

[3] The prosecution case on each count was that the appellant gained the credit to her bank account of the purchase price for the sale of a horse or horses by dishonestly making misrepresentations to the complainant purchaser about each horse’s age, health, temperament and other qualities. In counts 1 and 5 the complainants negotiated the purchase during telephone conversations with a person who identified herself by a name which matched that of the appellant. There was no real issue at the trial that the appellant was the seller in those counts. In counts 3 and 4 the complainants negotiated the purchase price with a person who identified herself over the phone as Kelly Brown. The appellant admitted that she owned the horse the subject of count 2, but alleged that her friend, Kelly Brown, sold the horse while it was in Kelly’s paddock while the appellant was recovering from an injury. On the prosecution case, “Kelly Brown” was a name used by the appellant for the purpose of those sales.

No case to answer

[4] One of the grounds of the appeal against conviction is that the trial judge erred in not determining that there was no case to answer “due to a lack of continuity evidence”.

[5] At the close of the prosecution case defence counsel submitted that there was no case to answer in respect of counts 1, 3, 4 and 5. The argument was that the prosecution failed to prove that the horse received by each complainant in those counts was the same as the horse sent by the appellant. Defence counsel emphasised that none of the complainants had seen the horses at any time before they were delivered and that the drivers of the vehicles which transported the horses from the appellant’s property to the complainants’ properties were not called to give evidence. The trial judge rejected the submission, finding that there was evidence that the horses loaded at the appellant’s property were delivered to the complainants.

[6] The appellant, who represented herself in the appeal, repeated and elaborated upon the submission rejected by the trial judge, and she expanded it to include count 2. (During the no case submission, defence counsel had expressly accepted that there was sufficient evidence of continuity in count 2). The appellant referred to the facts that: waybills were not signed; witnesses gave different details in their evidence about the condition and temperament of the horses; and there was no evidence about matters such as the route taken by the vehicles which delivered the horses, what people accompanied the horses, what security was in place, where the vehicles stopped, and how many horses were on board. She argued that “at any time a horse could have been swapped.”

[7] In my respectful opinion, the trial judge’s ruling was correct and there was also sufficient evidence on this point in relation to count 2. The test for deciding whether there is no case to answer was expressed in the following terms in Doney v The Queen:¹

“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”

[8] There was sufficient evidence to justify a finding beyond reasonable doubt that the appellant did practise the frauds which the prosecution alleged. In order to explain that conclusion it is useful to summarise the critical evidence relating to each count. At the same time, I will discuss some additional arguments advanced by the appellant.

[9] In relation to count 1, the complainant Burston gave evidence that he purchased a horse from the appellant after responding to an advertisement with a picture of the horse in the October 2005 edition of “Horse Deals” magazine. He rang the mobile phone number printed in the advertisement and spoke to the appellant. Burston was induced to buy the horse by the appellant’s statements that the horse was a “lovely quiet mare in every way and a reliable mare ... in beautiful condition, good health”, “would suit the children very well”, and was “very quiet and very reliable”. Burston arranged for Idano Horse Transport to collect the horse from the appellant’s property at Jimboomba and to deliver it to Burston’s property at Kuttabul, Mackay. Burston gave evidence that whilst the horse which was delivered was generally similar to the horse pictured in the advertisement, the horse was at least 28 years old and in very poor condition and ill health. The horse could not be ridden. She was “too old and too poor. You just wouldn’t even attempt to ride the poor old thing.” A vet advised Burston to euthanize the horse and he did so. Burston made it clear, however, that he had compared the horse with the photograph in the advertisement and he was “not saying it’s not the same mare”.

[10] Contrary to one of the appellant’s submissions, it was open to the jury to act upon Burston’s evidence that the horse had been euthanized because of its very bad condition notwithstanding the absence of veterinary reports, photographic proof of the horse’s condition, or further evidence that the horse had been put down. The appellant’s argument that she did not hear from Burston after he purchased the horse and that it was not returned to her is met by Burston’s evidence that she did not answer or reply to his repeated telephone calls to the appellant’s telephone number. The appellant’s argument that Burston signed a waiver which indicated that the horse was received in good condition was also incorrect. The words on the waybill are instead “[r]eceived in good order”. Defence counsel did not suggest to Burston that, contrary to his unambiguous evidence in chief, the horse was in good condition, and nor were the words on the waybill upon which the appellant now relies drawn to Burston’s attention. It was not suggested to him that those words were inconsistent with his evidence.

[11] In relation to count 2, the complainant, Mansbridge, responded to an advertisement in the May 2006 edition of “Horse Deals” magazine for the sale of a buckskin quarter horse. He rang the mobile telephone number published in the advertisement. The woman who answered gave her name as Annabelle Edwards. She said that the horse was a 10 year old stock horse in good condition which was quiet natured, had done stock work, her children were riding it, and it had a good temperament. Mansbridge mentioned that he was getting over a broken pelvis and that he did not want a horse that was too demanding. He agreed to pay $1,500 plus $50 for feed to maintain the horse until he picked it up. He transferred that amount into the appellant’s bank account using details provided by Annabelle Edwards. Mansbridge accepted Annabelle Edwards’ recommendation to use Rudd’s Transport to transport the horse. He contacted the transport company and arranged for the horse to be transported from the address given by Annabelle Edwards (the appellant’s property) to a racetrack in Victoria which was close to where Mansbridge and Speed (the complainant in count 3) lived. Mansbridge had given Speed Annabelle Edwards’ telephone number and contact details, and a horse was delivered to Speed at the same time.

[12] Rudd gave evidence that he collected horses from the appellant’s property at Jimboomba on some occasions. He recalled a particular occasion on 8 May 2006 when he went to the appellant’s property to transport three horses to Hayes (the complainant in count 4) at Mareeba. In cross‑examination he said that he drove those horses to the north side of Brisbane where another driver took them through to Mareeba. When Rudd arrived at the appellant’s property, another Rudd’s Horse Transport truck was loaded and was just about to leave with the horses going to Speed and “Massbridge” in Benalla, Victoria. The appellant was at the property at that time. Rudd gave evidence that the three horses he loaded onto his truck were in very poor condition. He described them as “terribly undernourished”. He mentioned that to the appellant and she told him that they were not her horses and they were “just being left there, she was doing a friend a favour.” The “friend” was not present.

[13] Mansbridge gave evidence that the horse delivered to him was the same horse, wearing the same halter, as the horse photographed in the advertisement in “Horse Deals” magazine. However the horse was malnourished, bearing scars, and was obviously very scared of people. Speed gave similar evidence that the horse delivered to Mansbridge, a quarter horse, was extremely flighty and obviously in poor health and poor condition. Mansbridge gave evidence that despite attempting to train the horse over some weeks, it was dangerous and could not be ridden. It appears that the horse escaped from Mansbridge’s property. He said that the horse had “just gone” and he had not seen it for two years. Contrary to one of the appellant’s arguments, this evidence suggested that the horse had no monetary value.

[14] Mansbridge telephoned Annabelle Edwards after the horse had been delivered to try to find out where the horse had come from and why it behaved as it did. She did not have any answers. He tried to contact her again but she did not answer his calls. Some time after Mansbridge had paid his money and received the horse, he received a letter from “Kelly Brown” which described the horse as a shy and nervous type, which was contrary to what Annabelle Edwards had told him before he paid his money. He had never spoken with anyone called Kelly Brown about horses. The letter, which was dated 1 May 2006, included a receipt and the words “[s]old in ‘As is condition with no warrantee [sic]’” and included the following note:

“Shy and nervous

Has not been ridden in a long time

Needs reeducating”.

The letter was signed “Kel” above the name “Kelly Brown”. Curiously, the letter did not include any address, telephone number, or other contact details. In light of the evidence about “Kelly Brown”, to which I will return, the jury might have concluded that this letter was a step in the appellant’s dishonest design.

[15] The appellant’s argument that Mansbridge had never returned the horse or asked for his money back was unpersuasive in light of his evidence of unsuccessful attempts to contact the appellant and obtain her explanation.

[16] In relation to count 3, Speed gave evidence that Mansbridge gave him a telephone number for Kelly Brown. Speed telephoned the number and a lady introduced herself as Kelly. Speed explained that he weighed 105 kilograms and rode in the mountains. He said he needed a big, strong horse. Kelly told him that she had a stock horse with camp drafting and trail riding experience which would do the job. She said that the horse was in beautiful working order, sound, and in good condition. They agreed on a price of $2,000. He accepted her recommendation to use Rudd’s Horse Transport. At her request, he transferred the price into a bank account in the name of Annabelle Edwards using the bank details Kelly Brown had provided. Kelly Brown told him that Annabelle Edwards was her sister.

[17] Speed gave evidence that Kelly Brown had told him that the horse was about 15 hands and that the horse which was delivered was about that height. However, the horse was skinny, small framed, a “child’s pony”, anaemic, and skeletal. Although the horse later regained health it was never going to be able to carry Speed. Mansbridge gave similar evidence that the horse delivered to Speed suffered from malnutrition and “could hardly walk off the float.” As soon as Speed arrived at his home after the horse was delivered, he tried to contact Kelly Brown. In the first telephone call the person who answered introduced herself as Annabelle Edwards and said that Kelly Brown was not available. Speed started explaining that the horse was “ill-described” and Annabelle Edwards said words to the effect that “it was too bad” and then hung up on him. Every subsequent time he rang she quickly hung up or his number was blocked. The only other time Speed managed to get through to Annabelle Edwards was when he rang from a friend’s place. When he introduced himself, Annabelle Edwards hung up. Speed gave evidence that Annabelle Edwards had the same voice as Kelly Brown.

[18] The appellant pointed out that Mansbridge said that he spoke to the appellant but that Speed’s evidence was that Mansbridge gave him the name and number of Kelly Brown as the seller. One of the witnesses must have been mistaken on that point, but that did not detract significantly from the prosecution case, particularly in light of the evidence suggesting that “Kelly Brown” was the appellant by another name.

[19] The appellant relied upon Speed’s evidence that he re-sold the horse. Farrell gave evidence that he had purchased Speed’s horse and paid about $2,500 for it. It appears that he still had the horse. It had “worked out well” for him. However, Farrell corroborated Speed’s evidence about the very poor condition of the horse. When he first saw the horse it could not have been ridden by Speed. Farrell gave evidence that he was not sure exactly how long after the delivery of the horse to Speed that Farrell bought it. In cross-examination Farrell said that he took the horse on, despite its poor condition, as a project, and that it was a long process. Farrell’s evidence did not detract from the evidence to the effect that the qualities and condition of the horse were fundamentally different to that which the appellant represented to Speed.

[20] In relation to count 4, the complainant Hayes gave evidence that she was a senior horse riding instructor and had been involved with horses all of her life. She operated a riding school and was looking to buy a few more horses that were suitable for kids to ride. She saw an advertisement for a pony in “Horse Deals” magazine and rang the mobile number in the advertisement. Hayes spoke to a person with a “female-sounding voice” who gave her name as Kelly Brown. Kelly Brown told Hayes about five horses for sale but they only discussed three in detail. She said that the horses belonged to the children of her cousin and she was selling them for her cousin as a favour. Kelly said that they were “kids’ horses” in good condition, the temperament of the horses was good, and they had been kids’ horses for eight years. She said that two of the horses were aged 15 and one was aged 10. One was a bay and the other two were palominos. In a second conversation, Hayes offered $3,000 for all three horses, and Kelly Brown said that she would have to talk to “her cousin, Annabelle” and ring Hayes back. Kelly Brown later rang and said that her cousin, Annabelle, had agreed on the price. She suggested that Hayes use Rudd’s Horse Transport to collect the horses, which Hayes did. Kelly Brown told Hayes that the money should be transferred directly into the bank account of her cousin, Annabelle Edwards, and she gave the bank details to Hayes. Hayes transferred the agreed purchase price into the appellant’s account.

[21] Two or three days after Hayes transferred the money, Rudd’s Horse Transport delivered three horses to a pre-arranged meeting point about an hour and a half from Hayes’ property. One was a bay and two were palominos. Hayes gave evidence that: the horses were in shocking condition; their ribs were all sticking out; the rump was visible; one of the horses had very large knees from arthritis; and the horses were so sick that they could hardly stand up. It was apparent that the horses had not been fed for a long time and they had the flu. Hayes cleaned the horses and fed and watered them. The bay was probably about 13 or 14 years old, but the palominos were closer to 30 than 20 years of age. The bay was a brood mare which had never been handled. She had a nasty demeanour and tried to bite and kick Hayes. The smaller palomino had apparently never been broken in. It had obviously never been ridden. The other palomino must have had a long life of being ridden and arthritis had set in because of its age. It could not be trusted to be ridden by children. If it was ridden it would start to limp. None of the horses could be used for riding by children in Hayes’ business.

[22] Whether or not, as the appellant contended, Hayes retained one of the horses, there was nothing unreasonable about the jury accepting her evidence to the effect that the condition of the horse was much worse than their represented condition.

[23] Hayes gave evidence that before the horses arrived she received a phone call from a person calling herself “Anne”. The person agreed that she was “Annabelle”, but when Hayes said “Annabelle Edwards” the person called herself “Annabelle Army”. The woman said that she had put the horses onto the truck and that they were on the way. Hayes said that the voice of “Annabelle Army” was very similar to the voice of “Kelly Brown”. When Hayes subsequently rang to complain about the horses the woman who answered said that her name was Annabelle Army. Hayes gave evidence that the woman’s voice was identical to the voice of “Annabelle Army” who she had spoken to previously. The woman denied that she was Annabelle Edwards and said that Hayes’ complaints had nothing to do with her and that Hayes should speak to Kelly Brown. After Hayes had made some inquiries of her own, she again rang. Hayes told the woman who answered that Hayes knew that she was Annabelle Edwards. The woman initially denied that, but she ultimately admitted it to be so. She told Hayes that Hayes had “no hope in hell” of finding Kelly Brown because she was a minor. She said that she had bought the horses from the Laidley saleyard. The woman told Hayes to “watch out for that bay bitch”. She said that the horse had bitten her 10 year old daughter and kicked the woman herself so hard in the breast that she needed a new breast implant. (When the appellant subsequently gave evidence in her defence she said that this horse had in fact kicked her and burst her breast implant.) The woman said that the older horses were about 24, “good luck with using them”, and that it was “buyer beware”. Hayes demanded her money back.

[24] Subsequently a woman calling herself Annabelle Edwards telephoned Hayes in response to a telephone message Hayes had left for her. Hayes described the woman’s voice as “identical” to the woman she had spoken to on three prior occasions. Initially the woman said that she did not know what was going on. She had received 27 messages about horses being sold but had no idea why she was being called. Hayes told the woman that she was the same person who Hayes had spoken to before. The woman got angry and told Hayes there was no chance of getting her money back and that it was “buyer beware”. She also said that when the horses had left her place they were “tucked-up” (meaning they had not had a drink of water for some time so that their flanks were a little bit in). Hayes gave evidence that this definitely could not explain the condition of the horses. The woman said that Kelly owed her the money. When Hayes asked her how Kelly could have bought horses if she was a minor, the woman denied having said that Kelly was a minor and claimed that she was 30 years old and owed her the money. The woman admitted that Hayes had transferred the money into her account and said that Hayes was not getting it back.

[25] In relation to count 5, the complainant Hayman gave evidence that she saw an advertisement in the April 2007 edition of “Horse Deals” magazine for the sale of a bay gelding. She telephoned the mobile telephone number in the advertisement and spoke to a lady who identified herself as Anna Edwards. She negotiated to buy a bay gelding and a buckskin mare. Hayman said that she told Anna Edwards that she wanted to buy a safe and reliable horse for her 12 year old daughter to ride, and that Hayman herself, who was not a very confident rider, might be interested in the buckskin mare if it was safe. Anna Edwards said that the horses would go all day, they were safe, and Anna Edwards’ daughters were riding them to pony club. She said that she had owned the horses for 10 years, they could jump 1.2 metres, the bay gelding was 16 and the buckskin mare was 15 or 14. Hayman transferred the agreed purchase price (Hayman’s husband gave evidence that the price paid was $2,000) into the bank account specified by Anna Edwards.

[26] Hayman gave evidence that she arranged for Idano Transport to collect the horses from the appellant’s property in Jimboomba and deliver the horses to Hayman’s property in Bundaberg, and that a buckskin mare and bay gelding were duly delivered. Hayman said that before the sale, and after she had expressed interest in the horses, Anna said that she would send through photographs of the horses to Hayman’s mobile phone using a friend’s phone. Those photographs arrived. The horses which were delivered matched the colour of the horses shown in the photographs on the mobile phone. However a lack of clarity in the photographs, which appeared to have been taken in shadows, meant that the condition of the horses could not be discerned.

[27] Hayman’s evidence was that the mare was emaciated, had trouble in her joints, had difficulty walking, appeared lame, and was very old. The gelding was agitated and snorting as it came out of the truck and, although in a bit better condition than the mare, it was not as healthy as had been represented. Hayman attempted to ride the gelding but it bucked her off and then bolted. Neither horse could be ridden. It was surprising that either horse had survived the trip on the truck. Neither horse subsequently gained weight or health despite being fed. The horses were sold for $20 each. As soon as the horses were settled into the stable yard Hayman rang Anna Edwards and was directed to a message bank. She left a message asking for Anna to return her call. Hayman tried several times after that to contact Anna but was unable to get through.

[28] Mr Hayman described the buckskin mare which arrived as being in very poor condition with very hollow flanks. It was “flat out walking”, its legs were stiff, its rib bones were sticking out, and he was doubtful that it would be able to walk down the ramp of the transport vehicle. The gelding was pawing in the truck, snorting, very agitated and almost unmanageable. Mr Hayman also attempted to contact the appellant on several occasions but was unable to get through to her.

[29] Contrary to one of the appellant’s submissions, the jury could accept Hayman’s evidence, and evidence to the same effect given by Mr Hayman, that the horses were useless for the purposes for which they were purchased and were on-sold for nominal amounts.

[30] Returning to the appellant’s “continuity” argument, the delivered horses generally accorded with the kinds of horses advertised by the appellant, even though critically important qualities of the horses fell well short of the represented qualities of which the complainants gave evidence. These were not valuable horses which might profitably be replaced by other horses. There is no reason to think that the horses put on trucks at the appellant’s property were not the horses taken off trucks at the complainants’ properties. It stretches credulity to find an explanation for the complainants’ disappointed expectations in the possibility that one or more of the horses were “swapped” in transit. That is particularly so in relation to count 4, in which three horses were sold and delivered, and in relation to count 5, in which two horses were sold and delivered. Furthermore, Mansbridge positively identified the horse he received as the advertised horse, and his horse was delivered together with the horse delivered to Speed. Rudd gave evidence of the very bad condition of the horses he loaded onto his truck and his evidence accorded with Hayes’ evidence about the very bad condition of the horses she received. Hayes also gave evidence of damning admissions made by the appellant. Hayman gave evidence that her horses appeared to match the mobile phone photographs.

[31] Taken as a whole, the evidence reveals a striking pattern of conduct in which the appellant, having ascertained the qualities which each complainant was looking for in a horse, represented that a horse she had for sale at a cheap price possessed those qualities, sold a horse which was fundamentally different from that which she had represented, and fobbed off each complainant by avoiding communications and by giving false explanations.

[32] The most notable false explanation concerned “Kelly Brown”. There was a body of evidence upon which the jury might reasonably have found that “Kelly Brown” was simply a name used by the appellant to distance herself from her dishonest representations. There was evidence that: the appellant had bought all of the horses in the first place; the horses were all transported from her property; all of the purchase prices were paid into her bank account; it was the appellant who had put the advertisements in the magazines; and the appellant’s telephone numbers in the advertisements were used by complainants. A police officer, Stapleton, gave evidence that the appellant told him that Kelly Brown lived nearby, was associated with a particular council paddock, and owned a certain type of car. The appellant also provided a physical description of Kelly Brown to Stapleton. Investigations revealed that the paddock was leased to someone else and no connection with any Kelly Brown could be found. The mobile telephone number and post office box number on a waybill in the name of Kelly Brown, which the appellant supplied to Stapleton, had no apparent connection with anyone of that name. The phone number was held in the appellant’s name. The post office box number was held by one Plant, and the appellant formally admitted that this postal address was used by Plant during the relevant period and that he had never heard of anyone with the appellant’s name, the name “Kelly Brown”, or any variation of either name. Stapleton’s searches for persons in the Jimboomba and surrounding area named “Kelly Brown”, “Kellie Brown”, and “Kelley Brown” did not unearth any such person who might fit the description given by the appellant.

[33] However enquiries of stock agents and others involved in the horse industry did identify a “Kellie Brown”, who frequented the Laidley horse sales. She gave evidence in the prosecution case that she had been going to horse sales since she was about nine years old. (She was 40 years old when she gave evidence.) She had been going to the Laidley horse sales for some 10 to 12 years and she also attended the Toowoomba horse sales. She knew the appellant as one of the dealers that bought horses at the Laidley horse sales. Kellie Brown had never asked the appellant to sell, house or stable horses for her. She had never sold a horse where the purchase price was paid into the appellant’s account, they had never worked together to sell the same horse, and the appellant had never worked for her in selling horses. She had never encountered any other person called Kelly Brown. Defence counsel elicited only that the witness spelt her name “Kellie” rather than “Kelly”. He did not ask any other questions.

[34] This body of evidence supplied a solid foundation for the trial judge’s rejection of the appellant’s no case submission. Accordingly the present ground of appeal fails.

Reasonableness of the verdicts

[35] The appellant made many other written submissions, which she adopted in her succinct oral argument. The main points appeared to be directed to the reasonableness of the verdict. Because the appellant did not have legal representation I will discuss the points which were stressed by the appellant, even though there is no ground of appeal that the verdicts are unreasonable.

[36] The appellant gave and called evidence in her own defence. She admitted that each of the horses was hers and that she had personally loaded the horses onto the stock transports at her home address. She also admitted that the money paid by each complainant went into her personal bank account, that she spent that money on whatever she liked, and that she did not give any of that money to any other person.

[37] The appellant agreed that she had sold the horses in counts 1 and 5 to the complainants. Her evidence was that the qualities of the horses accorded with her descriptions to those complainants. The appellant denied that she had sold the horses in counts 2, 3 and 4 to the complainants. The appellant gave evidence that she had sold those horses to her friend Kelly Brown, who had expressed the intention of selling the horses to others. Her evidence concerning communications with the complainants after the sales was radically different from the evidence given by the complainants. Many of the appellant’s submissions relied upon that evidence. It is evident, however, that the jury must have rejected the appellant’s evidence where it was inconsistent in essential respects with the evidence of the complainants.

[38] In relation to “Kelly Brown”, the appellant said that this friend of hers had returned the horses to the appellant’s place, from which they were transported to the complainants. The appellant gave evidence that she first met Kelly Brown at the local hotel. The appellant always called her Kelly and only subsequently learned her surname from some paperwork. The appellant said that the last time she saw Kelly Brown was towards the end of 2006, in about October or November. The appellant said that she had told Kelly Brown that the police were looking for her. She did not know where Kelly Brown was and could not give an address for her, except that she had told the appellant that she had rented a paddock in Cedar Vale. The appellant described Kelly Brown’s appearance and two witnesses gave evidence in the defence case that they had met a woman called Kelly, who matched that description, at the appellant’s property. In short, the inference from the numerous circumstances proved in evidence in the prosecution case that the appellant sold all of the horses was contradicted only by the appellant’s uncorroborated evidence that the horses in counts 2, 3 and 4 were instead sold by “Kelly Brown”. The jury might reasonably have disbelieved the appellant’s evidence and drawn the inference sought by the prosecution.

[39] The appellant argued that when she sold the horses the district was in the grip of a serious drought. However the drought could not explain why horses sold as suitable for riding by children could not be ridden because of extreme age, very bad health, or unsuitable temperament. The drought could not explain the vast discrepancy between the condition and qualities of the horses as they were delivered and the condition and qualities of the horses as represented by the appellant according to the evidence of the complainants.

[40] Another submission referred to the complainants’ failure to inspect the horses before they bought them. That could not justify the appellant in her conduct by which, so the jury must have found, she induced the complainants to part with their money by dishonestly misrepresenting the condition and qualities of the horses. Nor is the appellant’s appeal advanced by her contention, which was unsupported by evidence, that the charges against her related only to a small fraction of her 700 horse sales between 2002 and 2008.

[41] The appellant also submitted that the complainants did not ask for their money back or seek to exchange the horses they purchased. As to that, the jury evidently accepted the evidence of the complainants concerning their attempts to complain and the way in which the appellant fobbed them off. The appellant also relied upon the absence of expert and photographic evidence to prove the condition of the horses before or after the sales, but it was open to the jury to act upon the apparently persuasive evidence of the complainants.

[42] The appellant referred to the evidence given in the prosecution case on counts 4 and 5 by a veterinarian, Cronin. An examination of his evidence demonstrates that it supported the prosecution case in most respects and in other respects his evidence was inconclusive. He gave evidence with reference to photographs of the horses taken after they were delivered. He assessed the horses with reference to the “Huntington/Carroll” scale, in which a low score (out of a maximum of 5) indicated poor husbandry, poor feeding, or in some cases extreme disease conditions. In relation to count 4, Cronin expressed the opinions that one of the palomino horses looked older than 20 years, it had a bacterial skin infection, it scored between one and one and a half, the condition of its teeth were such that it would have a lot of trouble grazing normally, it was in poor condition, it was “probably unsuitable for any use whatsoever in that condition”, and was definitely not suitable for riding. The smaller palomino was in reasonably good condition but Cronin could not express any view about its age. Cronin could not express any opinion in relation to Hayes’ evidence that this horse had apparently never been broken in and had obviously never been ridden. Cronin said that the bay horse was probably about 10 years old. It scored two, meaning it was in moderate condition. In the past it had suffered a nasty injury in front of the right hock, which might influence the horse’s locomotion and ability to be ridden, but it was hard to say without having seen the horse in person. In relation to count 5, Cronin expressed the opinions that the buckskin mare was probably 20 years of age or older, it was quite a poor horse, it had lost muscle and fat, it scored one and a half, it would be “a risky horse to do anything with” and it was “debatable … whether it was ever going to be any use because it was so old.” The other horse was in reasonable condition, probably a score of two, but he could not comment about whether it may have been ridden.

[43] The appellant referred also to Cronin’s evidence of the risks involved in transporting horses: they can fall and injure their legs, they can bite and kick each other, they can catch colds from each other, and it is important to have regular stops and to feed and water the horses. However there was no evidence that any of these matters might have explained the serious defects in the horses of which the complainants gave evidence. The great ages of some of the horses and the serious defects in others were not explicable by the possibility that the horses were not properly cared for during their journeys to the purchasers’ properties.

[44] The appellant also referred to the evidence of an inspector with the Royal Society for the Prevention of Cruelty to Animals, Crowden. Crowden inspected the horses in count 5 in August 2007 at the Haymans’ property. He could not get anywhere near the bay gelding’s mouth to inspect its teeth, but he expressed the opinion that neither horse was older than 10 years. In that respect Crowden’s evidence differed from the evidence of Hayman, Cronin and Marland (whose evidence I discuss in the next paragraph). The evidence of those three witnesses amply justified the jury in finding that both horses were far older than Crowden thought. In other respects Crowden’s evidence supported the prosecution. He said that the buckskin mare was in poor to very poor body condition, was under-developed in her muscle tone, she was also very badly sway backed, and he “wouldn’t have put anybody on her”. He said that the bay gelding was “not at all handleable” and was very difficult to catch.

[45] The prosecutor also called a veterinarian, Marland, who inspected the horses in count 5 on 30 May 2007. The buckskin mare was very thin and weak, and in his opinion she was over 20 years old. She was in an emaciated condition and it would not have been humane for anybody to ride her. The horse would most likely never be suitable to be ridden. In his opinion the bay gelding was about 20 or possibly over 20 years of age. He was unable to comment on its temperament.

[46] The appellant also referred to the evidence of Zigterman, who was employed by Biosecurity Queensland (formerly known as the Department of Primary Industries and Fisheries). Zigterman inspected the horses in count 5 shortly after they arrived at the Haymans’ property. The appellant contended that Zigterman’s evidence was that the horses could be ridden by children. In fact, his evidence was that the buckskin mare “may have been able to be ridden by a small child for short periods” and that he “certainly wouldn’t be riding her for long periods.” That was hardly a glowing endorsement. Zigterman said of the other horse, that whilst it was reasonably quiet, he could not capture it, so could only look at it trotting around.

[47] None of this evidence required the jury to harbour a reasonable doubt that the condition and qualities of all of the horses were very much worse than represented by the appellant. That and the other circumstances I discussed earlier combined to justify a finding beyond reasonable doubt that the appellant had gained the purchase prices by dishonest misrepresentations to the complainants.

[48] Having regard to the whole of the evidence before the jury, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on each count. Accordingly, the appellant has not established that the verdicts were unreasonable.²

Voice Identification Evidence

[49] The remaining ground of the appellant’s appeal against conviction is that the trial judge erred in not discharging the jury after voice identification evidence was inadvertently led through the witness, Hayes. This ground of appeal also states that, notwithstanding the directions given to the jury, the leading of the evidence resulted in a miscarriage of justice.

[50] The appellant argued that Hayes had disobeyed instructions given by the trial judge about giving evidence on voice identification. The record does not bear out that complaint. Before any evidence was adduced, defence counsel referred the trial judge to statements in relation to counts 2, 3 and 4 by the complainants Mansbridge, Speed and Hayes. Defence counsel noted that Mansbridge and Speed stated that the voice of a woman who answered the telephone calling herself “Kellie Brown” seemed similar to the voice of the woman they subsequently rang who identified herself as the appellant. Defence counsel acknowledged that evidence that the voices seemed to be similar could be adduced, but submitted that the evidence of Hayes that “Annabelle Army” and “Annabelle Edwards” were “the same person” and had “the same voice” should be excluded because the prejudicial effect of that identification outweighed its slight probative value. After hearing defence counsel’s submissions, the trial judge indicated that he was not sure that he could rule on the point without evidence but would hear from the prosecutor. The prosecutor indicated that he proposed to ask the witnesses, including Hayes, to give evidence about similarity of voices but not the witnesses’ opinion that it was the same person. The trial judge subsequently addressed defence counsel, noting that the prosecutor did not depend upon an opinion of Hayes that the second person she spoke to was the same person she had spoken to before. Defence counsel responded that, in that case, what the prosecution sought to lead was within the parameters of what the witnesses could say.

[51] In the result, it was not necessary for the trial judge to give any ruling. Defence counsel did not object to any of the evidence on this topic given by Hayes. In my opinion, her evidence of her impression that the voices of the two Annabelles were identical was admissible.³

[52] After Hayes gave her evidence in chief, defence counsel sought the discharge of the jury on the ground that she had gone further, and had identified persons with different names as the same person. Defence counsel argued that this was critical because of the defence that Kelly Brown was a real person who had made some of the representations of which the complainants gave evidence. In fact, whilst Hayes gave evidence that the voices of “Annabelle Army” and “Annabelle Edwards” were the same, her evidence was that the voice of Kelly Brown was “very, very similar”.

[53] Furthermore, in summing up to the jury, the trial judge warned the jury that they should not act on the evidence of a witness who asserted that the person spoken to on the telephone on one occasion was the same person spoken to on another occasion. His Honour told the jury that the witness could perhaps say the two voices sounded similar, but that the jury should consider all of the evidence, keep in mind that the voices were heard on the telephone and that the persons did not otherwise know each other. The trial judge directed the jury to take into account their own experience “about whether voices of different people might sound sometimes the same” on the telephone. His Honour made it clear to the jury that they must not simply take the word of a witness that the speaker was the same on two occasions, because that would be the opinion of someone who does not hold any particular qualifications as an expert. The trial judge explained to the jury that it is difficult for lay people to explain why one voice sounds like another, and it is almost impossible to test that sort of evidence in cross-examination. His Honour pointed out that Hayes did not articulate any reason why she concluded that the voices were the same and it was impossible for the other side to examine why that conclusion was reached. The trial judge again warned the jury not to act on a lay opinion about the person being the same, and explained that the prosecution did not ask the jury to do that, but asked the jury to look at all of the circumstances, including the lay opinion that there was no particular distinction between the voices.

[54] The appellant argued that the trial judge’s directions could not have remedied the prejudicial effect of the voice identification evidence, but there is no basis for making that assumption. The general rule is that it should be assumed that juries understand and follow the directions they are given by a trial judge.⁴ No reason appears why the court should depart from that general rule. In any case, the jury is likely to have regarded this evidence as being of little significance in light of the other compelling evidence that Kelly Brown was the appellant under another name.

New Evidence

[55] At the hearing of the appeal the appellant sought to rely upon additional evidence which was not adduced at the trial. The appellant acknowledged that the foreshadowed evidence could, with reasonable diligence, have been adduced at the trial. Leave to adduce new evidence is generally not granted in such circumstances, except where on the whole of the evidence a reasonable doubt attends the conviction.⁵ It was not shown that the evidence foreshadowed by the appellant, when taken together with the evidence adduced at the trial, was capable of demonstrating such a doubt. The Court refused leave to adduce new evidence.

Sentence

[56] As I have mentioned, on 21 February 2011 the appellant was sentenced to concurrent terms of imprisonment of two years on each count, with an order that she be released on parole on 20 February 2012. She was also ordered to pay compensation to the purchasers of the horses relating to counts 1 ($1,700), 2 ($1,500), 4 ($3,000), and 5 ($2,000).

[57] In sentencing the appellant, the trial judge noted that the appellant had dishonestly taken advantage of the buyers by purchasing horses from sales and then passing them off as being better than they were. The trial judge considered that there was real callousness as well as dishonesty in the appellant’s continued offending. Those remarks were justified by the verdicts, which indicated that the jury rejected as false the appellant’s evidence that a different person, Kelly Brown, was responsible for some of the transactions, and by the trial judge’s findings that the letter sent to one of the buyers in the name of Kelly Brown and the waybill which purported to evidence the transfer of horses from the appellant to Kelly Brown were false documents. As the trial judge also observed, the appellant’s offending was persistent, with one offence occurring in September 2005, three offences occurring together in about April and May 2006, and a subsequent offence in May 2007. The trial judge took into account that each transaction was not for a tremendously large amount of money and that Speed had probably recouped his purchase price (but not his transport costs) by re-selling his horse.

[58] The appellant criticised the trial judge’s comment that the appellant had really betrayed the relevant industry by her conduct. However, as the trial judge pointed out, the complainant buyers came from different parts of the country and, whilst each transaction was not itself very significant, the evidence suggested that some of the commerce in horses relied upon faith.

[59] The appellant was 39 to 41 years of age at the time of the offences and 44 years old when sentenced. She had a criminal history which included an offence of dishonesty in the early 1990s for which she was sentenced to four years imprisonment with a parole recommendation after 18 months. The trial judge disregarded other much less serious entries on the appellant’s criminal record. The appellant submitted that the trial judge should not have taken into account her criminal history, but her previous offence of dishonesty was certainly relevant, even though she had committed it many years earlier.

[60] The trial judge found that the appellant had not demonstrated acceptance of responsibility or remorse. The appellant submitted that this was harsh because she had offered to take the horses back. That submission was inconsistent with the evidence of the complainants. The fact is that there was no expression of remorse by the appellant. That remains the case, so far as the evidence reveals.

[61] The maximum penalty for each offence was five years imprisonment. As the trial judge observed it would be open in principle to accumulate the sentences on different counts. Subject to two further matters, the matters to which his Honour adverted suggest that the effective sentence of two years imprisonment with parole after one year, though severe, is not manifestly excessive.

[62] The first matter concerns the orders requiring the appellant to pay compensation to four of the five complainants. The appellant submitted that those orders should be set aside because her expenditure on lawyers and other losses related to her arrest and the legal proceedings and convictions had rendered her bankrupt. She submitted that she was made bankrupt by creditors in October 2010. She is unable to pay the total amount of $8,200. In view of the convictions it was unlikely that she would be able to gain employment, and she also suffered from other medical and mental conditions.

[63] Much the same point was made on the appellant’s behalf at the sentence hearing when defence counsel opposed the order for restitution on the grounds that what resources the appellant possessed would probably be depleted in looking after her family during the period of incarceration. Defence counsel’s submissions suggested at least that there was a real prospect that the appellant might default in paying the ordered compensation. Under the State Penalties Enforcement Act 1999 (Qld), such a default would put the appellant at risk of further adverse consequences, potentially extending to a further term of imprisonment without any further court orders.⁶ That is significant, but it was not submitted that the trial judge did not take it into account in making the compensation orders. The appellant has not demonstrated that there is any ground for setting aside those orders. (I note in passing that the complainants who are beneficiaries of the compensation orders would be entitled to an opportunity to be heard before any such order was set aside).⁷

[64] The second matter relating to the appropriateness of the sentence concerns the consequences for the appellant and her daughters of her arrest and conviction. The appellant has been the sole carer for her daughters, now aged 16 and 18 years, for the past 14 years and most of her family live overseas. The appellant submitted that whilst her mother and sister lived close to where her children were living, they had not visited her children to ensure their welfare and refused to assist with their accommodation or care. The appellant’s submission received some support from statements by the elder daughter, in an affidavit she affirmed on 26 September 2011, that: she and her sister had been unable to continue their schooling and their father had taken no responsibility for their welfare and finances; they had suffered health and stress problems; they were finding it difficult to keep away people who knew their situation; and they did not feel safe without an adult with them.

[65] Because of the seriousness of these issues, the Court gave the appellant leave to file evidence directed to the welfare of her children whilst she was incarcerated, with leave to the respondent to respond if necessary.

[66] According to the appellant’s statutory declaration, her children have been left unattended since 21 February 2011, she does not have family or friends to assist with their care, and they are not coping without their mother. The elder daughter was forced to leave school to seek employment to care for her sister, who had anger issues and was difficult to control. Recently, the younger daughter was injured and required stitches when she punched her fist through a glass window. The younger daughter declared that her sister has been her sole carer since their mother was sent to prison in February 2011. She finished part of year 12 in July 2011 but cannot find work. Her sister has been forced to do everything, is always stressed, and they would have to move to a care centre if the appellant could not return to help. For financial reasons she cannot fulfil her wish to pursue her education. The elder daughter declared that she and her sister have been on their own since February 2011. She can no longer attend school because she had to seek employment to care for her sister and pay bills. She works part-time and will have to repeat year 12 when her mother is released. She has stopped paying the rent as she cannot afford it. The prison has denied access for visits to her mother due to lack of identification. (The younger daughter declared that she has been unable to find her birth certificate.) She has been unsuccessful in her attempts to seek a loan to pay her outstanding debts.

[67] The respondent adduced evidence in response from employees of the educational college which both daughters had attended. Their evidence did not shed any light upon the current position. The respondent sought information about the welfare of the daughters from the Department of Communities, but the Department considered that provisions of the Child Protection Act 1999 (Qld) precluded the release of confidential information in its possession. In the result, the only relevant evidence is contained in the statutory declarations by the appellant and her daughters. The respondent did not seek to cross-examine the appellant or her daughters.

[68] In R v Maniadis,⁸ it was held that there was power to admit new evidence in an appeal against sentence where it is in the interests of justice. The discretion will not commonly be exercised, but an appeal court may admit new evidence if it causes the court to form the “opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed”.⁹

[69] In this case the new evidence is significant. The younger daughter is a child of 16 years. The principles to be applied by a sentencing court when considering the effect of the sentence on an offender’s children were discussed by Atkinson J, with whom Keane JA and I agreed, in R v Chong; ex parte A-G (Qld):¹⁰

“There is authority for the proposition that the hardship caused to an offender’s children by imprisonment may be taken account of in the exercise of the sentencing discretion but only in certain circumstances. It is then one of many factors to be taken into account. In R v Stewart (1994) 72 A Crim R 17 at 21, the Court of Criminal Appeal in Western Australia held:

‘Generally the hardship caused to an offender’s children is not a circumstance to be taken into account. The authorities are clear, however, that it may be taken into account when the degree of hardship that imprisonment will involve is exceptional or when the offender is the mother of young children, or where imprisonment will result in the children being deprived of parental care. In all cases, however it depends on the gravity of the offence and the circumstances of the case.’

It is true that the hardship to an offender’s children cannot be allowed to overwhelm all other considerations in sentencing: See R v Tilley (1991) 53 A Crim R 1 at 3. However, as the appellant conceded in this case, the effect on a family is not irrelevant. As Cooper J observed in R v Tilley at p6:

‘The public interest is promoted by preserving wherever possible a family unit. The respondent’s background demonstrates quite clearly the social cost where some semblance of family stability and support is lacking. Rehabilitation and preservation of a stable family environment are both relevant and important to the process of sentencing.’

Tilley was followed in this court in R v Le [1996] 2 Qd R 516 by Thomas J at p522 with whom Williams J agreed. Thomas J said that the hardship and distress shared by the family of an offender cannot be allowed to overwhelm factors such as retribution and deterrence. Pincus JA observed, at p519, that the practice of Queensland courts is to give consideration, when appropriate, to the effect of a sentence on an offender’s young children.

In R v D’Arrigo; ex parte A-G (Qld) [2004] QCA 399, the court was considering a case in which the only reason for suspending a term of imprisonment was the respondent’s position as sole carer of his young daughter. In that case it was held that the fact that the applicant was the sole carer for a 16 month old child could not be allowed to overwhelm the otherwise appropriate punishment for a conviction of dangerous operation of a vehicle causing death for which the offender was convicted after a trial. He had a previous conviction for dangerous driving and convictions for speeding which preceded and followed the driving the subject of the conviction before the court. The President noted that he had other children living in Victoria with their mother and he did not contribute to their maintenance. The Chief Justice observed at pages 5-6:

‘The balance of authority supports the view that while hardship to third parties because of the imprisonment of a family member may, if rarely, be a relevant consideration, it must not overwhelm others such as the need for deterrence, denunciation and punishment. See Le and Le v R [1996] 2 Qd R 516.

Indeed the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances. See R v MP [2004] QCA 170; R v Boyle (1987) 34 A Crim R 202; Arnold v Trenerry (1997) 118 NTR 1; and R v Edwards (1996) 90 A Crim R 510.’

In my view, where relevant, the best interests of children who are dependant on the offender fall within s 9(2)(r) of the Penalties and Sentences Act 1992 (Qld*)* which requires the sentencing court to take account not only of the enumerated matters found in s 9(2)(a) to (q), but also of ‘any other relevant circumstance’. …

Nevertheless the law as it currently stands requires the sentencing court to take account of any ‘relevant circumstance.’ The United Nations Convention on the Rights of the Child, which entered into force for Australia in 1991 (Australian Treaty Series 1991 No 4), relevantly provides in article 3.1:

‘In all actions concerning children ... undertaken by ... courts of law ... the best interests of the child shall be a primary consideration.’

It appears, as Pincus JA observed in R v Le at p519, that the terms of s 9 of the Penalties and Sentences Act preclude the courts from regarding the best interests of the child being a primary consideration in sentencing those upon whom the child is dependent. They do not however preclude the court from regarding the best interests of such a child or children as being a relevant circumstance.”

[70] It may reasonably be assumed that his Honour took into account that both the appellant and her daughters would suffer financial and emotional consequences as a result of the conviction and sentence. However, the consequences for the welfare of the appellant’s daughters which have eventuated appear not to have been foreseen when the appellant was sentenced. The new evidence supports the appellant’s submission that the parole release date should be brought forward, particularly having regard also to other considerations: the appellant’s sentence is not a lenient one; she runs the risk of a further term of imprisonment if she defaults under the compensation orders; she will continue to be bound to fulfil her parole obligations for the balance of the term after her release on parole; and she has already served a substantial part of her sentence in custody.

[71] The respondent adduced evidence that the appellant has recently been charged with two counts of supplying a dangerous drug to a minor, three counts of indecent treatment of a child under 16, and other offences. The appellant contests those charges. She has been remanded in custody on them, so that, notwithstanding any order made in this application for the release of the appellant on parole, she will remain in custody unless and until she applies for and is granted bail in respect of the recent charges. Otherwise, those charges have no material bearing upon this matter.

Proposed orders

[72] I would make the following orders:

1. The appeal against convictions is dismissed.

2. The application for leave to appeal against sentence is granted.

3. The appeal against sentence is allowed.

4. The sentence imposed in the District Court is varied by fixing the date upon which the appellant is to be released on parole at 25 November 2011.

[73] WHITE JA: I agree with the reasons of Fraser JA and the orders proposed by his Honour.

Footnotes

1. (1990) 171 CLR 207 at 214 - 215. ↩

2. MFA v The Queen (2002) 213 CLR 606 at 614-615 [25] per Gleeson CJ, Hayne and Callinan JJ and 624 [59] per McHugh, Gummow and Kirby JJ, applying M v The Queen (1994) 181 CLR 487. ↩

3. See R v Ratten [1971] VR 87 at 92. ↩

4. Gilbert v The Queen (2000) 201 CLR 414 at 420 [13] per Gleeson CJ and Gummow J. ↩

5. See R v Butler [2010] 1 Qd R 325 at [40] - [42] per Keane JA (McMurdo P and Holmes JA agreeing). ↩

6. See Part 6 of the Act. ↩

7. R v Ferrari [1997] 2 Qd R 472 at 479 per McPherson JA (Davies JA and White J agreeing). ↩

8. [1997] 1 Qd R 593; [1996] QCA 242. ↩

9. See Criminal Code 1899 (Qld), s 668E(3). ↩

10. [2008] QCA 22 at [29] - [34], applied in R v McConachy [2011] QCA 183 at p 5. ↩