Banks v The Queen - [2005] ACTCA 10

WAYNE ALAN BANKS v THE QUEEN
[2005] ACTCA 10 (16 FEBRUARY 2005)

EX TEMPORE JUDGMENT

Crimes Act1900 (ACT), s 357

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 47 – 2003
No. SC 40/63 of 2003

Judges: Crispin P, Gray and Allsop JJ
Court of Appeal of the Australian Capital Territory
Date: 16 February 2005

IN THE SUPREME COURT OF THE       )
  )          No. ACTCA 47 – 2003
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 40/63 of 2003  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: WAYNE ALAN BANKS

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Crispin P, Gray and Allsop JJ
Date:  16 February 2005
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be dismissed.

IN THE SUPREME COURT OF THE       )
  )          No. ACTCA 47 – 2003
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 40/63 of 2003  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: WAYNE ALAN BANKS

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and Allsop JJ
Date:  16 February 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

This is an appeal against the perceived severity of a sentence imposed upon the appellant by Connolly J.
On 15 May 2003, the appellant was committed for sentence in the Supreme Court after pleading guilty in the Magistrates Court to one count of burglary and one count of possessing housebreaking implements, both offences having been committed on 30 September 2002. On 24 October 2003, the appellant indicated that he adhered to his pleas of guilty and also pleaded guilty to one count of possession of stolen property. The stolen property, which formed the substance of that charge, consisted of 195 items worth in total some $150,000.

The maximum penalty for an offence of burglary is 14 years’ imprisonment. The maximum penalty for possession of housebreaking implements is 3 years’ imprisonment and that for the possession of stolen property is also 14 years’ imprisonment.

A further offence of possessing goods reasonably suspected of being stolen was taken into account pursuant to a schedule under s 357 of the Crimes Act1900 (ACT).

His Honour proceeded to sentence the appellant to a term of 5 years’ imprisonment in respect of the offence of possession of stolen property. He imposed a non-parole period of 3 years and ordered that the non‑parole period be backdated to 31 October 2002. The offence of possessing goods reasonably suspected of being stolen was taken into account in the determination of the sentence for the offence of possessing stolen property and no further penalty was imposed in relation to that additional offence.

His Honour also imposed a sentence of 1 years’ imprisonment for the offence of burglary and a sentence of 3 months’ imprisonment for the possession of housebreaking implements but ordered that each of those sentences be served concurrently with…

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 Banks v The Queen

Details

AGLC: Banks v The Queen [2005] ACTCA 10
Case: [2005] ACTCA 10
Decision Date

CaseChat Overview and Summary

The Court of Appeal of the Australian Capital Territory heard an appeal by Wayne Alan Banks against the severity of a sentence imposed by a single judge of the Supreme Court. Banks had pleaded guilty to one count of burglary, one count of possessing housebreaking implements, and one count of possession of stolen property, which involved 195 items valued at approximately $150,000. A further offence of possessing goods reasonably suspected of being stolen was taken into account for sentencing purposes.

The legal issues before the Court of Appeal were whether the sentence imposed, particularly the non-parole period, was manifestly excessive, indicating an error of fact or principle. The appellant's counsel contended that the sentence was so markedly excessive as to demonstrate error, although no specific factual or principled errors were identified. The court also considered an application to adduce fresh evidence relating to the appellant's family circumstances and his completion of training courses while in custody.

The Court of Appeal reasoned that the offence of possessing stolen property, especially when involving a large quantity and value of goods stolen over an extended period from numerous victims, is a serious offence that encourages further dishonesty. The court noted that the sentencing judge had properly considered objective factors such as the number and value of the goods, the systematic nature of the receiving, and the motivation of greed, as well as subjective factors including the guilty plea and the appellant's criminal record, albeit with a significant gap since his last offence. The court found that the fresh evidence sought to be adduced was either known to the sentencing judge or related to events post-sentencing, and therefore not relevant to demonstrating an appealable error by the sentencing judge.

Ultimately, the Court of Appeal found no error of fact or principle in the sentencing decision and was not persuaded that the sentence fell outside the reasonable discretion available to the sentencing judge. Accordingly, the appeal was dismissed.

Orders