R v Aston-Brien

SUPREME COURT OF QUEENSLAND

CITATION:

R v Aston-Brien [2004] QCA 23

PARTIES:

R
v
ASTON-BRIEN, Stephen John
(applicant/appellant)

FILE NO/S:

CA No 307 of 2003
DC No 2078 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

11 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2004

JUDGES:

de Jersey CJ, Davies JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Quash the conviction for attempted entry with intent and set aside the penalty of two years imprisonment imposed on that count. Otherwise, dismiss the appeal against conviction and refuse the application for leave to appeal against sentence

CATCHWORDS:

PARTICULAR OFFENCES – PROPERTY OFFENCES – RECEIVEING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED – RECEIVING – RECEIPT – whether conviction should be overturned on the ground the charge was incorrect – whether the Crown established an attempted entry

JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OTHER CONVICTIONS OF OFFENDER – where the appellant had substantial prior criminal history - whether the sentences imposed were manifestly excessive

COUNSEL:

The appellant appeared on his own behalf
P Rutledge for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  The appellant was convicted on charges of receiving and attempted entry with intent.  He was acquitted on other counts of offences alleged to have been committed on the same date - burglary, breaking and entering and stealing and unlawful use of a motor vehicle.

He appeals against his convictions on the ground they are unsafe and unsatisfactory and contrary to law.  The particulars of that ground which he has provided were limited and I will come to those shortly.  The case against him was as follows.  A breaking and entering was committed in relation to a house and adjoining garage at Tennyson in the night time on the 5th of May 2002.  Property was stolen and a Range Rover was driven away. 

Among the stolen property were sets of keys, including keys to cars in the garage and remote control devices in relation to the garage doors.  The Range Rover was later found unoccupied with its engine running at Fortitude Valley in a street near to where the appellant was then living.

Then the following morning, police on patrol in the Tennyson area, located the appellant in a car with two other men at about 1.30 a.m. parked in King Arthur Terrace about 360 metres

away from the house which had been broken into.  The keys and remote control units were found concealed near the appellant in the back seat area of the vehicle.

The Prosecution case was that the three men had returned after the first offence in order to steal the remaining…