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Chisholm v Wanklin

Chisholm v Wanklin

Case [2009] QDC 286 4 September 2009

Unconscionable Conduct

Criminal Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

Chisholm v Wanklin & Anor [2009] QDC 286

PARTIES:

BROCK WILLIAM CHISHOLM

(Applicant Appellant)

v

RONALD FRANCIS WANKLIN

(Respondent)

and

ROBERT FRANCIS FINLAY

(Respondent)

FILE NO/S:

BD897/09

BD1173/09

DIVISION:

Appellate

PROCEEDING:

Applications to extend the time for filing notices of appeal and appeals against conviction

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2009

JUDGE:

Irwin DCJ

ORDER:

1.        Grant the applications to extend the time for filing the notices of appeal and allow the appeals

2.        Set aside the sentence and all associated orders imposed on 6 March 2008, and order instead that:

(i)        the appellant is convicted and a conviction is recorded on each charge;

(ii)       on each of the three charges of enter premises and commit an indictable offence he be sentenced to 2 years imprisonment;

(iii)      on the charge of enter premises with intent he be sentenced to 2 years imprisonment;

(iv)      on each of the two charges of fraud (on 6 July 2002 and 15 July 2002) he be convicted and not further punished;

(v)       on each of the four charges of fraud (on 2 July 2007, 3 July 2007, 4 July 2007 and 11 July 2007) he be sentenced to 6 months imprisonment;

(vi)      on each of the three charges of receiving stolen property he be sentenced to 3 months imprisonment;

(vii)     on the charge of possession of dangerous drugs he be sentenced to 3 months imprisonment;

(viii)     on the charge of possess tainted property he be sentenced to 3 months imprisonment;

(ix)      on the charge of possess implements he be sentenced to 3 months imprisonment;

(x)       on the charge of unlawful use of a motor vehicle he be sentenced to 2 months imprisonment;

(xi)      on the charge of possess utensils he be sentenced to 1 month’s imprisonment;

(xii)     all sentences be served concurrently with each other and all other terms of imprisonment that he is currently serving;

(xiii)     the parole eligibility date is fixed as 5 June 2009.

3.        Set aside the sentence imposed on 11 April 2008, and order instead that:

(i)        the appellant is convicted and a conviction is recorded;

(ii)       he be sentenced to 2 months imprisonment;

(iii)      the sentence be served concurrently with all other terms of imprisonment that he is currently serving;

(iv)      the parole eligibility date is fixed as 5 June 2009.

4.        No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where applicant pleaded guilty to 3 counts of entering premises and committing an indictable offence and 1 count of entering premises with intent- where the offence committed on parole – where applicant sentenced to a head sentence of 30 months’ imprisonment to be served concurrently with part of the period of imprisonment for offences on which parole cancelled – where parole release date fixed after…

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 Chisholm v Wanklin

Details

AGLC: Chisholm v Wanklin [2009] QDC 286
Case: [2009] QDC 286
Decision Date: 4 September 2009

CaseChat Overview and Summary

Chisholm v Wanklin is an appeal against sentence by the applicant who pleaded guilty to three counts of entering premises and committing an indictable offence and one count of entering premises with intent. The applicant was sentenced to 30 months' imprisonment, which was to be served concurrently with part of the period of imprisonment for offences on which parole was cancelled. The matter was before the court to determine whether there was a discernible error of principle and whether the sentence was manifestly excessive or inadequate.

The legal issues before the court were whether there was a discernible error of principle in the way the sentence was calculated and whether the sentence was manifestly excessive or inadequate. The court noted that the applicant was entitled to a discount in sentence recognising his plea of guilty, cooperation with the administration of justice and that he was 20 years old when he committed the offences. The court also noted that the applicant was unlikely to be admitted to parole until shortly before his full time release date.

The court found that there was a discernible error of principle in the way the sentence was calculated as the magistrate administratively amended the parole release date to a parole eligibility date without the applicant being heard. The court also found that the sentence was manifestly excessive as it was cumulative to the extent of 21 months with a parole eligibility date after serving 6 months. The court set aside the sentence and all associated orders imposed on 6 March 2008 and ordered that the applicant be convicted and a conviction is recorded on each charge. The court also ordered that the sentences be served concurrently with each other and all other terms of imprisonment that the applicant is currently serving and fixed the parole eligibility date as 5 June 2009.

Orders

Orders of the court

1. Grant the applications to extend the time for filing the notices of appeal and allow the appeals

2. Set aside the sentence and all associated orders imposed on 6 March 2008, and order instead that:

(i) the appellant is convicted and a conviction is recorded on each charge;

(ii) on each of the three charges of enter premises and commit an indictable offence he be sentenced to 2 years imprisonment;

(iii) on the charge of enter premises with intent he be sentenced to 2 years imprisonment;

(iv) on each of the two charges of fraud (on 6 July 2002 and 15 July 2002) he be convicted and not further punished;

(v) on each of the four charges of fraud (on 2 July 2007, 3 July 2007, 4 July 2007 and 11 July 2007) he be sentenced to 6 months imprisonment;

(vi) on each of the three charges of receiving stolen property he be sentenced to 3 months imprisonment;

(vii) on the charge of possession of dangerous drugs he be sentenced to 3 months imprisonment;

(viii) on the charge of possess tainted property he be sentenced to 3 months imprisonment;

(ix) on the charge of possess implements he be sentenced to 3 months imprisonment;

(x) on the charge of unlawful use of a motor vehicle he be sentenced to 2 months imprisonment;

(xi) on the charge of possess utensils he be sentenced to 1 month’s imprisonment;

(xii) all sentences be served concurrently with each other and all other terms of imprisonment that he is currently serving;

(xiii) the parole eligibility date is fixed as 5 June 2009.

3. Set aside the sentence imposed on 11 April 2008, and order instead that:

(i) the appellant is convicted and a conviction is recorded;

(ii) he be sentenced to 2 months imprisonment;

(iii) the sentence be served concurrently with all other terms of imprisonment that he is currently serving;

(iv) the parole eligibility date is fixed as 5 June 2009.

4. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Chisholm v Wanklin [2009] QDC 286

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Visser & Ors v. Eldridge & Ors
[2008] QDC 277

…, s 160B(4), s 160C(4) House v The King (1936) 55 CLR 499, applied Jones v Commissioner of Police [2008] QDC 277, cited Morris v Spink [2008] QDC 270, applied Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Anderson [2004] QCA 74, applied R v B; ex parte Attorney-General [2000] QCA 110, distingu…
Morris v Spink
[2008] QDC 270 Para 1

…In Morris v Spink [2008] QDC 270 at [7] Robin QC DCJ said:…
Jones v Commissioner of Police
[2008] QDC 227

…His Honour referred to Jones v Commissioner of Police [2008] QDC 227 in which Forde DCJ said at para [4]:…
Bucknell v Robins
[2008] QCA 214

…Sittczenko, ex parte Cth DPP [2005] QCA 461, cited R v Tait [1999] 2 Qd R 667, applied R v Taylor [2008] QCA 214, distinguished R v Vaughan [2005] QCA 348, distinguished R v Walker [2008] QCA 166, applied Veen v The Queen [No. 1] (1979) 143 CLR 458, applied Veen v The Queen [No. 2] (1987) 164 CLR 465, applied COU…
R v Walker
[2008] QCA 166 Para 1

…I also agree with the applicant on the authority of R v Walker [2008] QCA 166, that it is a relevant consideration in this case that he was unable to realise parole due to matters beyond his control and his inability to complete courses.…
R v Kitson
[2008] QCA 86 Para 1

…eligibility date past the midway point of the sentence. As a result I must explain the process of reasoning underlying this postponement: R v Kitson [2008] QCA 86 at [17] and [18]. In this case, it follows from my decision to reduce the head sentence to ensure that the applicant receives the discount to which h…
R v Taylor
[2007] QCA 214 Para 1

…In R v Taylor [2007] QCA 214 in which the applicant was resentenced to a period of two years imprisonment, there were factors which are both more and less serious than the present case. The more serious factors were that the applicant who was 20 years of age at the time of the offending which included offences co…
Parry v Mayfield Holdings (Qld) Pty Ltd
[2006] QDC 250 Para 1

…e the review of authorities in R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219. See Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [28]. I am indebted to his Honour for the review of the relevant authorities at paras [27] to [29].…
R v Mladenovic; ex parte Attorney-General
[2006] QCA 176 Para 1

…In R v Mladenovic, ex parte Attorney-General [2006] QCA 176 at [15] McMurdo P said that the appellant must establish error in the exercise of the sentencing judge’s discretion (here, that the sentence is manifestly excessive) before this court can intervene and re-exercise the sentencing discretion.[3] [3]See als…
R v Sittczenko; ex parte
[2005] QCA 461 Para 1

…is manifestly excessive) before this court can intervene and re-exercise the sentencing discretion.[3] [3]See also R v Sittczenko, ex parte Cth DPP [2005] QCA 461 per Keane J at [25] and [26].…
R v Vaughan
[2005] QCA 348 Para 1

…534, the head sentence that was held to be in range was four years. In R v Walker a sentence of four years was reduced to three years. In R v Vaughan [2005] QCA 348 and R v Donald [2000] QCA 399, sentences of three years were found not to have been manifestly excessive.…
R v Dullroy and Yates; ex parte
[2005] QCA 219 Para 1

…ourt to appeal against sentence.[2] [2]See also on this issue the review of authorities in R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219. See Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [28]. I am indebted to his Honour for the review of the relevant authoriti…
R v Rose
[2003] QCA 534

…cited R v Cutjar [1995] QCA 570, applied R v Donald [2000] QCA 399, distinguished R v Karbanowicz [2003] QCA 534, distinguished R v Kitson [2008] QCA 86, cited R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, applied R v Mladenovic; ex parte Attorney-General [2006] QCA 176, cited R v Mulder [2002] QCA 455…
R v Mulder
[2002] QCA 455 Para 1

…Vaughan , Donald and R v Mulder [2002] QCA 455 involved older offenders. In Vaughan the offender was 25 years. In Donald and Mulder the offenders were 23-26 years and 23‑25 years respectively at the time of the offending.…
R v Donald
[2000] QCA 399 Para 1

…s held to be in range was four years. In R v Walker a sentence of four years was reduced to three years. In R v Vaughan [2005] QCA 348 and R v Donald [2000] QCA 399, sentences of three years were found not to have been manifestly excessive.…
R v B; ex parte A-G
[2000] QCA 110 Para 1

…The respondent argued on the basis of R v Black [1948] QWN 23 and R v B; ex parte Attorney-General [2000] QCA 110 that a sentencing judge in Queensland should not adjust the head sentence because of an expectation that the Parole Board may comply with a recommendation for parole or not.…
R v Cutajar
[1995] QCA 570 Para 1

…In R v Cutjar [1995] QCA 570 McPherson JA said, with reference to the facts of that case:…
R v Booth
[1995] QCA 478 Para 1

…On the basis of R v Booth [1995] QCA 478 the respondent submits that serious offences committed while on parole and, in particular, offences of a similar character, will ordinarily attract cumulative sentences. In that case, Pincus JA and Demack J (with whom McPherson JA agreed) said:…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…ed beyond this merely to extend the period of protection of society from the risk of recidivism on the part of the offender: Veen v The Queen [No. 2] (1987) 164 CLR 465; Veen v The Queen [No. 1] (1979) 143 CLR 458 at 467-468, 482-483, 493.…
Veen v The Queen
[1979] HCA 7 Para 1

…protection of society from the risk of recidivism on the part of the offender: Veen v The Queen [No. 2] (1987) 164 CLR 465; Veen v The Queen [No. 1] (1979) 143 CLR 458 at 467-468, 482-483, 493.…
House v R
[1936] HCA 40 Para 1

…on of this provision is generally consistent with the established principles relating to appeals against discretion referred to in House v The King (1936) 55 CLR 499 per Dixon, Evatt, and McTiernan JJ at 504‑5. Section 669A is an analogue provision to the right of a complainant aggrieved by a decision of the Magistr…
R v Anderson
[2004] QCA 74 Para 1

…In R v Anderson [2004] QCA 74 the applicant, who was 22 and 21 at the time of the offences, pleaded guilty to numerous property offences and was sentenced to a head sentence of 7½ years imprisonment and a recommendation for eligibility for post-prison community-based release after 2½ years. The applicant appeare…
House v The King
63 WN 176 Para 1

…hat the application of this provision is generally consistent with the established principles relating to appeals against discretion referred to in House v The King (1936) 55 CLR 499 per Dixon, Evatt, and McTiernan JJ at 504‑5. Section 669A is an analogue provision to the right of a complainant aggrieved by a decision of…

Legislation cited in this decision · 4

Corrective Services Act 2006 (Qld)
180(2) 2 mentions (from Para 1)
Justices Act 1886 (Qld)
222(2)(c) 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
160B(2) 2 mentions (from Para 1)
Bail Act 1980 (Qld)
1 mention

CITATION:	Chisholm v Wanklin & Anor [2009] QDC 286
PARTIES:	BROCK WILLIAM CHISHOLM (Applicant Appellant) v RONALD FRANCIS WANKLIN (Respondent) and ROBERT FRANCIS FINLAY (Respondent)
FILE NO/S:	BD897/09 BD1173/09
DIVISION:	Appellate
PROCEEDING:	Applications to extend the time for filing notices of appeal and appeals against conviction
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	4 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2009
JUDGE:	Irwin DCJ
ORDER:	1. Grant the applications to extend the time for filing the notices of appeal and allow the appeals 2. Set aside the sentence and all associated orders imposed on 6 March 2008, and order instead that: (i) the appellant is convicted and a conviction is recorded on each charge; (ii) on each of the three charges of enter premises and commit an indictable offence he be sentenced to 2 years imprisonment; (iii) on the charge of enter premises with intent he be sentenced to 2 years imprisonment; (iv) on each of the two charges of fraud (on 6 July 2002 and 15 July 2002) he be convicted and not further punished; (v) on each of the four charges of fraud (on 2 July 2007, 3 July 2007, 4 July 2007 and 11 July 2007) he be sentenced to 6 months imprisonment; (vi) on each of the three charges of receiving stolen property he be sentenced to 3 months imprisonment; (vii) on the charge of possession of dangerous drugs he be sentenced to 3 months imprisonment; (viii) on the charge of possess tainted property he be sentenced to 3 months imprisonment; (ix) on the charge of possess implements he be sentenced to 3 months imprisonment; (x) on the charge of unlawful use of a motor vehicle he be sentenced to 2 months imprisonment; (xi) on the charge of possess utensils he be sentenced to 1 month’s imprisonment; (xii) all sentences be served concurrently with each other and all other terms of imprisonment that he is currently serving; (xiii) the parole eligibility date is fixed as 5 June 2009. 3. Set aside the sentence imposed on 11 April 2008, and order instead that: (i) the appellant is convicted and a conviction is recorded; (ii) he be sentenced to 2 months imprisonment; (iii) the sentence be served concurrently with all other terms of imprisonment that he is currently serving; (iv) the parole eligibility date is fixed as 5 June 2009. 4. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where applicant pleaded guilty to 3 counts of entering premises and committing an indictable offence and 1 count of entering premises with intent- where the offence committed on parole – where applicant sentenced to a head sentence of 30 months’ imprisonment to be served concurrently with part of the period of imprisonment for offences on which parole cancelled – where parole release date fixed after…