R v B - [2003] QCA 169

SUPREME COURT OF QUEENSLAND

CITATION:

R v B [2003] QCA 169

PARTIES:

R
v
B
(applicant)

FILE NO/S:

CA No 15 of 2003
DC No 1229 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2003

JUDGES:

Williams and Jerrard JJA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the application for leave to appeal
2. Allow the appeal
3. Set aside the sentence only to the extent of deleting the order for suspension after nine months and order that the sentence be suspended after the applicant has served four months imprisonment

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant provided substantial assistance to investigating police and gave undertakings as to future assistance – whether sentence should be reduced based solely on this mitigating factor

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of unlawful possession of a motor vehicle – where applicant intimately involved in offence – where evidence showed applicant was not expecting to gain any benefit from possessing the vehicle – where evidence showed applicant had no intention to help dispose of the vehicle – whether sentence manifestly excessive

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

R v Hearn [1992] QCA 76; CA No 325 of 1991, 31 March 1992, distinguished
R v Kent [2000] QCA 247; CA No 418 of 1999, 19 June 2000, distinguished
R v Milner [2002] QCA 222; CA No 70 of 2002, 21 June 2002, distinguished
R v Nomikos & Luff [1999] QCA 195; CA No 98 of 1999, 27 May 1999, considered
R v Phillips [2002] QCA 97; CA No 333 of 2001, 19 March 2002, considered
R v W (2002) 129 A Crim R 400, applied
R v Webber (2000) 114 A Crim R 381, applied

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

WILLIAMS JA: I agree with the reasons for judgment of Jerrard JA and with the orders therein proposed.

JERRARD JA: On 6 July 2000 a Scania prime mover was taken from the premises of a trucking company at Richlands. On 15 June 2001 officers of the Queensland Police Service executed a search warrant at an address at Rochedale, where they found the prime mover in a shed on that property, which property was then being rented by an associate of the applicant B. On 21 January 2003 Mr B pleaded guilty in the Brisbane District Court to a charge on an indictment alleging that…

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 B

Details

AGLC: R v B [2003] QCA 169
Case: [2003] QCA 169
Decision Date: 24 April 2003

CaseChat Overview and Summary

In the case of R v B, the applicant appealed against his sentence on the grounds of manifest excessiveness. The applicant had been convicted of unlawful possession of a motor vehicle. The Crown had accepted that the applicant had provided substantial assistance to the police in the investigation of the offence and had given undertakings as to future assistance. The primary judge, however, did not reduce the sentence on this basis alone. Instead, the primary judge imposed a sentence of 18 months imprisonment, to be suspended after nine months. The applicant sought to appeal on the basis that the sentence was manifestly excessive.

The legal issue for the court was whether the sentence imposed by the primary judge was manifestly excessive. The applicant submitted that the primary judge failed to take into account the substantial assistance provided by the applicant to the police and the undertakings given to provide future assistance. The applicant also submitted that the evidence showed that he was not expecting to gain any benefit from possessing the vehicle and had no intention to help dispose of the vehicle.

The court found that the primary judge had not adequately considered the mitigating factor of the applicant's substantial assistance to the police. The court found that this was a significant factor in determining the appropriate sentence. The court also found that the sentence imposed was manifestly excessive, given the applicant's limited involvement in the offence and the absence of any personal gain. The court found that the sentence should be reduced to reflect the mitigating factors and the circumstances of the offence. The court granted the application for leave to appeal and allowed the appeal. The sentence was set aside to the extent of deleting the order for suspension after nine months and ordering that the sentence be suspended after the applicant had served four months imprisonment.

Orders

Orders of the court

1. Grant the application for leave to appeal

2. Allow the appeal

3. Set aside the sentence only to the extent of deleting the order for suspension after nine months and order that the sentence be suspended after the applicant has served four months imprisonment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v B [2003] QCA 169
PARTIES:	R v B (applicant)
FILE NO/S:	CA No 15 of 2003 DC No 1229 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2003
JUDGES:	Williams and Jerrard JJA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal 2. Allow the appeal 3. Set aside the sentence only to the extent of deleting the order for suspension after nine months and order that the sentence be suspended after the applicant has served four months imprisonment
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant provided substantial assistance to investigating police and gave undertakings as to future assistance – whether sentence should be reduced based solely on this mitigating factor CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted of unlawful possession of a motor vehicle – where applicant intimately involved in offence – where evidence showed applicant was not expecting to gain any benefit from possessing the vehicle – where evidence showed applicant had no intention to help dispose of the vehicle – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13A R v Hearn [1992] QCA 76; CA No 325 of 1991, 31 March 1992, distinguished R v Kent [2000] QCA 247; CA No 418 of 1999, 19 June 2000, distinguished R v Milner [2002] QCA 222; CA No 70 of 2002, 21 June 2002, distinguished R v Nomikos & Luff [1999] QCA 195; CA No 98 of 1999, 27 May 1999, considered R v Phillips [2002] QCA 97; CA No 333 of 2001, 19 March 2002, considered R v W (2002) 129 A Crim R 400, applied R v Webber (2000) 114 A Crim R 381, applied
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent