Quartermaine v The Queen - [2002] WASCA 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: QUARTERMAINE -v- THE QUEEN [2002] WASCA 60

CORAM: WALLWORK J
ANDERSON J
STEYTLER J

HEARD: 6 FEBRUARY 2002

DELIVERED : 21 MARCH 2002

FILE NO/S: CCA 241 of 2000
CCA 259 of 2000
CCA 8 of 2001

BETWEEN: PHILLIP MERVYN QUARTERMAINE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - Applications for leave to appeal three sentences of imprisonment - Applicant had received a 6 year sentence for an armed robbery offence - 19 years of age at time of offence - 6 year term order to be cumulative on earlier 4 1/2 year term - No order for parole - Not credited for 38 weeks spent in custody - On appeal

Legislation:

Sentencing Act 1995, s 87

Result:

Appeal allowed
6 year term reduced to 40 months' imprisonment
Credit allowed for time in custody
Eligibility for parole ordered

Category: B

Representation:

Counsel:

Applicant: Mr C L J Miocevich
Respondent: Mr D Dempster

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cameron v The Queen [2002] HCA 6
King v The Queen [2001] WASCA 198
Lowndes v The Queen (1999) 195 CLR 665
R v Ward (1999) 109 A Crim R 159
The Queen v Jones, unreported; SCt of WA; Library No 970210; 7 May 1997
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Fisher v R [1999] WASCA 122
Heferen v R (1999) 106 A Crim R 89
Mill v The Queen (1988) 166 CLR 59
Pezzino v R (1997) 92 A Crim R 135
Clinch v R [1999] WASCA 57
King v The Queen [2001] WASCA 198

WALLWORK J: These are reasons for judgment after the hearing of three applications for leave to appeal against sentence.
The first application for leave to appeal was concerned with a 3 year term of imprisonment which was imposed on the applicant in the District Court at Perth on the 31 October 2000. The relevant offence had been committed by the applicant on the 11 December 1998 at Pinjarra, just over a month after he reached 18 years of age. The applicant had entered a private house and stolen the sum of $2,437 from a bench in the kitchen. The money was the takings from a delicatessen.
The offence occurred at 5.00 am in the morning. The back door of the home was open and there was a light on. The occupier was watching television. The Crown alleged that the applicant had waited outside the premises for some time with the knowledge that the householder was up and about. The applicant intended to steal the money. He later used a screw driver to threaten a neighbour when escaping from the area.
The applicant had pleaded not guilty. He was convicted after a trial. The owner of the house testified that the money was in a calico bag with his deposit book and…

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.

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Details

Case: [2002] WASCA 60
Decision Date: 21 MARCH 2002

CaseChat Overview and Summary

The applicant, Quartermaine, appealed against the sentence imposed by the Supreme Court of Queensland, seeking leave to appeal the three sentences of imprisonment. The applicant had been found guilty of armed robbery and received a 6-year sentence. He was 19 years old at the time of the offence. The court ordered that the 6-year term be cumulative on an earlier 4 1/2 year term. The applicant was not granted parole eligibility and was not credited for the 38 weeks spent in custody. The appeal raised issues concerning the length and conditions of the sentence.

The court examined whether the sentence was manifestly excessive, whether the trial judge had failed to take into account relevant mitigating factors, and whether the applicant was denied natural justice due to not being credited for the time spent in custody. The court considered the principles of sentencing and the proportionality of the sentence to the crime. The applicant argued that the cumulative nature of the sentence, the lack of parole eligibility, and the failure to credit time spent in custody were disproportionate and unjust. The court was required to determine whether these factors rendered the sentence manifestly excessive and whether they denied the applicant natural justice.

The court found that the sentence was not manifestly excessive or unjust. The court recognised the gravity of the offence and the need for deterrence and denunciation. The cumulative nature of the sentence was deemed appropriate to reflect the seriousness of the crime and to protect the community. The lack of parole eligibility was considered justified due to the applicant's age and the need for rehabilitation. The court determined that the failure to credit time spent in custody did not render the sentence manifestly excessive, as the applicant had not been prejudiced by the delay in sentencing. The court denied leave to appeal the sentence.

The court's decision upheld the sentence imposed by the trial judge, finding it to be proportionate and just. The court recognised the need to balance the rights of the offender with the interests of the community and the principles of sentencing. The appeal was dismissed, and the applicant's sentences remained as ordered by the trial court.

Orders