R v. Ayres - [2009] QCA 18

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ayres [2009] QCA 18

PARTIES:

R
v
AYRES, Shane Peter
(applicant/appellant)

FILE NO/S:

CA No 277 of 2008
DC No 444 of 2008
DC No 360 of 2008
DC No 361 of 2008
DC No 362 of 2008
DC No 449 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

17 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2009

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted

2.   Appeal allowed

3.   Substitute a term of imprisonment of four years for the term of five years imposed at first instance

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was charged with several offences including attempted robbery whilst armed with a syringe – where the applicant received a head sentence of five years imprisonment with parole eligibility 12 months from the date of sentencing – where the applicant had an extensive criminal history – whether the sentencing judge took into account irrelevant matters and failed to appreciate the true level of seriousness of the offending conduct – whether the sentencing judge erred in relying on more serious cases in evaluating submissions on penalty – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER GROUNDS – where the applicant was charged with several offences including attempted robbery whilst armed with a syringe – where the applicant entered a plea of guilty to all charges – whether the sentencing judge failed to take into account the applicant’s early pleas – whether the sentencing judge failed to comply with s 13(3) Penalties and Sentences Act 1992

Penalties and Sentences Act 1992 (Qld), s 13(3)

R v Hill [2005] QCA 18, considered
R v Keating [2002] QCA 19, considered
R v Mather[1999] QCA 226, considered
R v McNeill & Wells [1994] QCA 501, considered
R v Rose [2002] QCA 134, considered

COUNSEL:

S Ryan for the applicant/appellant
S B Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Muir JA. I agree with his Honour's reasons and the orders proposed by his Honour.

MUIR JA:Introduction

The applicant pleaded guilty in the District Court to 10 offences on four indictments and to two summary offences and was sentenced as follows:

Indictment & OffenceSentence

Indictment 1: Entering premises and stealing 307 days imprisonment

Indictment 2: Unlawful use of a motor vehicle

and arson 307 days imprisonment

Indictment 3: Stealing and assault occasioning

bodily harm whilst armed with…

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. Ayres

Details

AGLC: R v Ayres [2009] QCA 18
Case: [2009] QCA 18
Decision Date: 17 February 2009

CaseChat Overview and Summary

In the case of R v. Ayres, the applicant was convicted of several offences, including attempted robbery while armed with a syringe. The sentencing judge imposed a head sentence of five years imprisonment, with parole eligibility after 12 months. The applicant appealed against the sentence, contending that it was manifestly excessive and that the sentencing judge had taken into account irrelevant matters, failed to appreciate the seriousness of the offending conduct, and erred in relying on more serious cases. Additionally, the applicant argued that the sentencing judge did not appropriately consider the applicant’s early pleas and failed to comply with section 13(3) of the Penalties and Sentences Act 1992.

The court was required to determine whether the sentencing judge had indeed taken into account irrelevant matters and failed to appreciate the true level of seriousness of the offending conduct. It was also necessary to assess whether the judge erred in comparing the case to more serious ones when evaluating submissions on penalty. Furthermore, the court had to consider whether the judge had failed to appropriately account for the applicant's early pleas and whether this constituted a breach of section 13(3) of the Penalties and Sentences Act 1992.

The court found that the sentencing judge had taken into account irrelevant matters and failed to fully appreciate the seriousness of the offending conduct. The reliance on more serious cases was also found to be an error. Additionally, the court determined that the sentencing judge did not sufficiently account for the applicant’s early pleas, which amounted to a breach of section 13(3) of the Penalties and Sentences Act 1992. As a result, the court granted the application for leave to appeal against the sentence and allowed the appeal. The court substituted a term of imprisonment of four years for the term of five years imposed at first instance.

Consequently, the final orders were that the application for leave to appeal against sentence was granted, the appeal was allowed, and a term of imprisonment of four years was substituted for the term of five years imposed at first instance.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Substitute a term of imprisonment of four years for the term of five years imposed at first instance

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 Ayres [2009] QCA 18
PARTIES:	R v AYRES, Shane Peter (applicant/appellant)
FILE NO/S:	CA No 277 of 2008 DC No 444 of 2008 DC No 360 of 2008 DC No 361 of 2008 DC No 362 of 2008 DC No 449 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	17 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2009
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Substitute a term of imprisonment of four years for the term of five years imposed at first instance
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was charged with several offences including attempted robbery whilst armed with a syringe – where the applicant received a head sentence of five years imprisonment with parole eligibility 12 months from the date of sentencing – where the applicant had an extensive criminal history – whether the sentencing judge took into account irrelevant matters and failed to appreciate the true level of seriousness of the offending conduct – whether the sentencing judge erred in relying on more serious cases in evaluating submissions on penalty – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER GROUNDS – where the applicant was charged with several offences including attempted robbery whilst armed with a syringe – where the applicant entered a plea of guilty to all charges – whether the sentencing judge failed to take into account the applicant’s early pleas – whether the sentencing judge failed to comply with s 13(3) Penalties and Sentences Act 1992 Penalties and Sentences Act 1992 (Qld), s 13(3) R v Hill [2005] QCA 18, considered R v Keating [2002] QCA 19, considered R v Mather[1999] QCA 226, considered R v McNeill & Wells [1994] QCA 501, considered R v Rose [2002] QCA 134, considered
COUNSEL:	S Ryan for the applicant/appellant S B Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent