R v Abraham - [2011] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Abraham [2011] QCA 270

PARTIES:

R
v
ABRAHAM, Al Rewi
(applicant)

FILE NO/S:

CA No 127 of 2011
DC No 907 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

7 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2011

JUDGES:

Muir and Chesterman JJA, and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty at the re-trial to seven counts of burglary and one count of breaking, entering and stealing – where the applicant had earlier been convicted of a large number of offences of dishonesty and the dangerous operation of a motor vehicle and was sentenced to five years’ imprisonment suspended after two years – where the applicant’s plea of guilty to the ten counts put him in breach of the suspended sentence – where the applicant had been remanded in custody for three years and seven months – where the lengthy period in remand did not relate to the ten counts and no declaration of time served could be made – where the applicant claimed he should not have been sentenced on the counts of unlawful operation of a motor vehicle as the sentences had already been served – whether there was an error in the sentences imposed

COUNSEL:

C F C Wilson for the applicant (pro bono)
B J Power for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by Chesterman JA.

CHESTERMAN JA: On 29 September 2009, after a nine day trial, the applicant was convicted of four counts of armed robbery in company and six counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence. The offences were the armed robberies. On 25 January 2010 he was sentenced on those 10 offences and eight further offences to which he pleaded guilty. The other offences were:

· Seven counts of burglary and stealing; and

· One count of breaking, entering and stealing.

Earlier, on 29 March 2004 he had been convicted of a large number of offences of dishonesty and the dangerous operation of a motor vehicle. He was sentenced to five years’ imprisonment suspended after having served two years. The offences of which he was convicted on September 2009 and January 2010 put him in breach of the suspended sentence.

On 25 January 2010 he was sentenced effectively to five years’ imprisonment for the burglaries and eight years’ imprisonment for the armed robberies. Twelve months of the suspended sentence was activated for the breach. The sentences were to be served…

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 R v Abraham

Details

AGLC: R v Abraham [2011] QCA 270
Case: [2011] QCA 270
Decision Date: 7 October 2011

CaseChat Overview and Summary

In the matter of R v Abraham, the applicant sought leave to appeal against the sentence imposed by the trial court. The applicant had pleaded guilty to seven counts of burglary and one count of breaking, entering and stealing. These charges arose following a period of unlawful activity during which the applicant had previously been convicted of multiple offences of dishonesty and dangerous operation of a motor vehicle. After being sentenced to a suspended term of imprisonment, the applicant found himself in breach of that sentence by entering a guilty plea to the ten counts. The applicant had spent three years and seven months in remand prior to sentencing, though this period was unrelated to the current charges and could not be credited towards the sentence. The applicant contested the imposition of sentences for the unlawful operation of a motor vehicle, asserting that these had already been served.

The court was tasked with determining whether the sentences imposed were erroneous and whether they constituted a manifest excess or inadequacy. Specifically, the court needed to consider whether the lengthy pre-sentence remand should have influenced the sentencing, whether there was a misunderstanding in the application of the sentences for the prior motor vehicle offences, and if the overall sentence was proportionate to the seriousness of the crimes committed. The central issue was whether the sentence was just and appropriate, taking into account all relevant circumstances.

Upon review, the court found that the sentences imposed were neither manifestly excessive nor inadequate. The lengthy pre-sentence remand did not entitle the applicant to credit for time served on the current charges. Moreover, the sentences for the unlawful operation of a motor vehicle were deemed appropriate as they related to the overall criminal conduct. The court concluded that the sentence was proportionate to the crimes committed, taking into account the applicant's criminal history and the seriousness of the offences. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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:	R v Abraham [2011] QCA 270
PARTIES:	R v ABRAHAM, Al Rewi (applicant)
FILE NO/S:	CA No 127 of 2011 DC No 907 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	7 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2011
JUDGES:	Muir and Chesterman JJA, and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty at the re-trial to seven counts of burglary and one count of breaking, entering and stealing – where the applicant had earlier been convicted of a large number of offences of dishonesty and the dangerous operation of a motor vehicle and was sentenced to five years’ imprisonment suspended after two years – where the applicant’s plea of guilty to the ten counts put him in breach of the suspended sentence – where the applicant had been remanded in custody for three years and seven months – where the lengthy period in remand did not relate to the ten counts and no declaration of time served could be made – where the applicant claimed he should not have been sentenced on the counts of unlawful operation of a motor vehicle as the sentences had already been served – whether there was an error in the sentences imposed
COUNSEL:	C F C Wilson for the applicant (pro bono) B J Power for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent