R v Ball - [2001] QCA 201

[2001] QCA 201

COURT OF APPEAL

McPHERSON JA
MUIR J
ATKINSON J

CA No 32 of 2001

THE QUEEN

WARREN GORDON BALL Applicant

BRISBANE

..DATE 28/05/2001

JUDGMENT

McPHERSON JA: The applicant for leave to appeal was convicted on his own plea of guilty in the District Court at Toowoomba.

The offences of which he was convicted and the sentences imposed on each of them are as follows:

Count 1, breaking and entering a dwelling house with intent to commit an indictable offence, 16 months imprisonment.

Count 2, arson, five years imprisonment, suspended after 16 months for a period of five years.

Count 3, resisting a police officer in the execution of his duty, 16 months imprisonment.

Simple offence, breach of a domestic violence order, three months imprisonment.

The sentences were concurrent, with the result that an effective overall head sentence of five years was imposed, suspended after 16 months for a period of five years. There was 14 days of presentence custody which was declared to be time already served under the sentence.

The grounds advanced in support of the application are that the sentence is manifestly excessive, as to which it is said that comparable cases do not support a sentence of the duration imposed in the circumstances of this case; and also that in having regard to the offence or its effect on the complainant, the learned sentencing Judge had failed to give adequate weight to mitigating factors that were personal to the applicant.

The circumstances of the offences can be summarised in the following way. On 24 January 2001, the applicant went to the complainant's residence. He and she had been married in June 1999, but in October she had left him and shortly thereafter obtained a domestic violence order against him.

The marriage having broken down, the applicant continued to communicate with the complainant and to proffer declarations of his love, despite the prohibition imposed by the domestic violence order.

The order did, however, contain a provision which stated that the complainant was to allow the applicant access to her house for the specific purpose of recovering his property on or before 30 November 2000. It seems that correspondence was sent by solicitors acting on behalf of the applicant in an effort to make an arrangement for this property to be retrieved but no response was received from the complainant or her solicitors.

At all events, at about 4.30 in the afternoon of the day on which the offences occurred, namely 24 January 2001, a neighbour saw the applicant arrive at the complainant's home and begin to load property from the garage at the house into a trailer attached to his car. At about 6 that night, the complainant received a call from the applicant who, when he spoke to her, made her realise that the call was being made from the telephone at her home. She immediately rang the police, and some 15 minutes later rang the neighbours, but by that time the house…

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 Ball

Details

AGLC: R v Ball [2001] QCA 201
Case: [2001] QCA 201
Decision Date: 28/05/2001

CaseChat Overview and Summary

In the matter of R v Ball, the applicant, Warren Gordon Ball, sought leave to appeal against his conviction and sentence. The case was heard by McPherson JA, Muir J, and Atkinson J in the Court of Appeal. The applicant had been convicted of multiple offences, including breaking and entering a dwelling house with intent to commit an indictable offence, arson, resisting a police officer in the execution of his duty, and breach of a domestic violence order. The applicant was sentenced to concurrent terms of imprisonment, with an effective overall head sentence of five years, suspended after 16 months for a period of five years. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had failed to give adequate weight to mitigating factors personal to him.

The Court of Appeal considered the applicant's arguments and examined the circumstances of the offences. The applicant had gone to the complainant's residence, despite a domestic violence order prohibiting him from doing so. He loaded property from the garage into a trailer and set the house on fire. The house, valued at approximately $200,000, was completely destroyed, along with irreplaceable personal items of sentimental value to the complainant. The applicant had a prior criminal record involving assault and unlawful assault, as well as psychiatric difficulties related to heavy drinking.

The Court of Appeal examined relevant case law and compared the present case to previous cases involving similar offences. They concluded that the combined sentence, while not low, was not excessive, considering all the offences involved. The applicant's actions were described as vindictive and vengeful, showing a callous disregard for the complainant and her children's home and personal items.

The Court of Appeal granted the application for leave to appeal and allowed the appeal only to the extent of omitting the words "and otherwise keep the peace and be of good behaviour" in relation to the sentence on count 2. The rest of the application for leave to appeal was dismissed.

Final orders: The application for leave to appeal is granted and the appeal is allowed only to the extent of omitting the words "and otherwise keep the peace and be of good behaviour" in relation to the sentence on count 2. Otherwise, the application is dismissed.

Orders