Knibbs v R - [2008] QDC 288

DISTRICT COURT OF QUEENSLAND

CITATION:

Knibbs v R [2008] QDC 288

PARTIES:

KNIBBS, John Wayne

(appellant)

v

The Queen

(respondent)

FILE NO/S:

Toowoomba Appeal No 7/08

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

26 November 2008 (ex tempore)

DELIVERED AT:

Toowoomba

HEARING DATE:

26 November 2008

JUDGE:

Rafter SC DCJ

ORDERS:

1.   Appeal allowed

2.   Set aside the sentence of 18 months imprisonment imposed for the fraud charges

3.   In lieu thereof, the appellant is sentenced to 6 months imprisonment in respect of each charge of fraud

4.   Confirm the sentences of 18 months imprisonment in respect of the charges of stealing and entering premises by breaking and committing an indictable offence

5.   Set aside the order of the Magistrates Court fixing the parole release date at 13 August 2009

6.   In lieu thereof, the appellant’s parole release date is fixed at 26 November 2008

7.   Confirm the pre-sentence custody declaration of 14 days imprisonment between 13 February 2008 and 27 February 2008 made in the Magistrates Court

CATCHWORDS:

MAGISTRATES – APPEALS FROM MAGISTRATES – QUEENSLAND – APPEAL – OTHER CASES – where the appellant was convicted upon entering pleas of guilty to one charge of stealing, five charges of fraud and one charge of entering premises by breaking and committing an indictable offence – where the learned magistrate imposed a sentence of 18 months imprisonment – where the appellants parole release date was fixed on the last date of the sentence – whether the learned magistrate erred in not imposing an appropriate sentence in respect of each charge – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – PARTICULAR CASES – where the learned magistrate failed to give reasons for fixing the appellant’s parole release date at the end of the 18 month term of imprisonment

Penalties and Sentences Act 1992 (Qld), s 160B(3),
s 160G(1)
Corrective Services Act 1996 (Qld), s 199(1)

R v Kitson [2008] QCA 86, followed
R v Parker [2007] QCA 22, cited

COUNSEL:

R Davies for the appellant
MI Petcopoulos for the respondent

SOLICITORS:

David Burns Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HIS HONOUR: On the 27th of February 2008 in the Magistrates Court at Toowoomba, the appellant pleaded guilty to one charge of stealing, five charges of fraud and one charge of entering premises by breaking and stealing. He was sentenced to 18 months' imprisonment with a parole release date at the end of the sentence on 13 August 2009. A period of 14 days' pre-sentence custody from 13 February 2008 to the date of sentence was declared as imprisonment already served under the sentence.

The appellant was born on the 11th of January 1978. He was 30 years old when sentenced. The appellant's criminal history includes offences of stealing,…

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 Knibbs v R

Details

AGLC: Knibbs v R [2008] QDC 288
Case: [2008] QDC 288
Decision Date: 26 November 2008

CaseChat Overview and Summary

The appellant, Knibbs, was convicted by the Magistrates Court of Queensland on multiple charges, including stealing, fraud, and entering premises by breaking and committing an indictable offence. After entering pleas of guilty, the learned magistrate imposed a sentence of 18 months imprisonment. The appellant's parole release date was set for the conclusion of the sentence. Knibbs appealed against the sentence, arguing that it was inappropriate and manifestly excessive, and that the magistrate had failed to provide reasons for setting the parole release date at the end of the 18-month term.

The legal issues before the court involved whether the sentence imposed was appropriate in light of the offences and whether the magistrate had erred by not providing reasons for fixing the parole release date. The court had to consider whether the sentence was manifestly excessive and whether the failure to give reasons constituted an error of law.

In its decision, the court found that the sentence was manifestly excessive, particularly for the fraud charges. The court held that the sentence for the fraud charges should be reduced to 6 months imprisonment for each of the five charges. The court also found that the magistrate had failed to provide reasons for setting the parole release date at the end of the 18-month term, which constituted an error of law. Consequently, the court set aside the original parole release date and fixed a new date, taking into account the reduced sentences for the fraud charges.

The court allowed the appeal and made several orders. The sentence of 18 months imprisonment for the fraud charges was set aside, and in its place, the appellant was sentenced to 6 months imprisonment for each fraud charge. The sentences for the charges of stealing and entering premises by breaking and committing an indictable offence were confirmed at 18 months each. The order fixing the parole release date at 13 August 2009 was set aside, and a new date of 26 November 2008 was fixed. The pre-sentence custody declaration was confirmed.

Orders

Orders of the court

1. Appeal allowed

2. Set aside the sentence of 18 months imprisonment imposed for the fraud charges

3. In lieu thereof, the appellant is sentenced to 6 months imprisonment in respect of each charge of fraud

4. Confirm the sentences of 18 months imprisonment in respect of the charges of stealing and entering premises by breaking and committing an indictable offence

5. Set aside the order of the Magistrates Court fixing the parole release date at 13 August 2009

6. In lieu thereof, the appellant’s parole release date is fixed at 26 November 2008

7. Confirm the pre-sentence custody declaration of 14 days imprisonment between 13 February 2008 and 27 February 2008 made in the Magistrates Court

Background

Background to the litigation

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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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CITATION:	Knibbs v R [2008] QDC 288
PARTIES:	KNIBBS, John Wayne (appellant) v The Queen (respondent)
FILE NO/S:	Toowoomba Appeal No 7/08
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Toowoomba
DELIVERED ON:	26 November 2008 (ex tempore)
DELIVERED AT:	Toowoomba
HEARING DATE:	26 November 2008
JUDGE:	Rafter SC DCJ
ORDERS:	1. Appeal allowed 2. Set aside the sentence of 18 months imprisonment imposed for the fraud charges 3. In lieu thereof, the appellant is sentenced to 6 months imprisonment in respect of each charge of fraud 4. Confirm the sentences of 18 months imprisonment in respect of the charges of stealing and entering premises by breaking and committing an indictable offence 5. Set aside the order of the Magistrates Court fixing the parole release date at 13 August 2009 6. In lieu thereof, the appellant’s parole release date is fixed at 26 November 2008 7. Confirm the pre-sentence custody declaration of 14 days imprisonment between 13 February 2008 and 27 February 2008 made in the Magistrates Court
CATCHWORDS:	MAGISTRATES – APPEALS FROM MAGISTRATES – QUEENSLAND – APPEAL – OTHER CASES – where the appellant was convicted upon entering pleas of guilty to one charge of stealing, five charges of fraud and one charge of entering premises by breaking and committing an indictable offence – where the learned magistrate imposed a sentence of 18 months imprisonment – where the appellants parole release date was fixed on the last date of the sentence – whether the learned magistrate erred in not imposing an appropriate sentence in respect of each charge – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – PARTICULAR CASES – where the learned magistrate failed to give reasons for fixing the appellant’s parole release date at the end of the 18 month term of imprisonment Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1) Corrective Services Act 1996 (Qld), s 199(1) R v Kitson [2008] QCA 86, followed R v Parker [2007] QCA 22, cited
COUNSEL:	R Davies for the appellant MI Petcopoulos for the respondent
SOLICITORS:	David Burns Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent