R v Baumgart - [2014] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baumgart [2014] QCA 109

PARTIES:

R
v
BAUMGART, Daniel Lucas
(applicant)

FILE NO/S:

CA No 273 of 2013
DC No 49 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

16 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2014

JUDGES:

Fraser JA and Atkinson and Jackson JJ
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 is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant was convicted, on his own pleas of guilty, of a number of offences including armed robbery in company with personal violence, fraud, attempted fraud, and several drug-related offences – where the applicant was sentenced to five years imprisonment with parole eligibility set at 18 months for the offence of armed robbery in company with personal violence – where the applicant’s co-offender on the armed robbery in company with personal violence was sentenced, on his plea of guilty, to three years imprisonment with parole eligibility set at nine months – where the co-offender was 10 years younger than the applicant with a less extensive criminal history – where the co-offender had not committed additional offences with which the applicant was charged – where the co-offender was not in breach of a suspended sentence or on parole – whether the applicant could have a justifiable sense of grievance about parity of the sentences

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Floyd[2013] QCA 74, cited

COUNSEL:

The applicant appeared on his own behalf
V A Loury for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Atkinson J and the order proposed by her Honour.

ATKINSON J: Daniel Baumgart has applied for leave to appeal against sentences imposed upon him in the District Court at Maryborough on 3 October 2013 on the ground that the sentence for armed robbery in company with personal violence is manifestly excessive when compared to the sentence imposed upon a co-offender for the same offence.

The applicant was sentenced on 3 October 2013 on his plea of guilty with respect to offences committed on three different occasions. He committed an offence of fraud and two counts of attempted fraud on 20 September 2012. On 22 December 2012, he committed the offence of armed robbery in company with personal violence. On 3 January 2013, he committed the offences of possession of drugs, possession of drug utensils and use of a controlled drug.

He was sentenced to…

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 Baumgart

Details

AGLC: R v Baumgart [2014] QCA 109
Case: [2014] QCA 109
Decision Date: 16 May 2014

CaseChat Overview and Summary

The case of R v Baumgart involved the applicant, who was convicted on his own pleas of guilty to multiple offences including armed robbery in company with personal violence, fraud, attempted fraud, and several drug-related offences. The applicant was sentenced to five years imprisonment with parole eligibility set at 18 months for the armed robbery offence. His co-offender, who also pleaded guilty to the armed robbery, was sentenced to three years imprisonment with parole eligibility at nine months. The co-offender was 10 years younger and had a less extensive criminal history, and had not committed additional offences that the applicant was charged with. The applicant argued that the disparity in sentences between him and his co-offender was unjust and sought leave to appeal against his sentence.

The primary legal issue before the court was whether the applicant could demonstrate a justifiable sense of grievance about the parity of sentences between himself and his co-offender. This involved examining the principles of sentencing and whether there was a discernible difference in the circumstances of the two offenders that warranted a different sentence. The court considered the nature of the offences, the personal circumstances of the offenders, and the principle of parity between co-offenders. The applicant needed to show that the disparity was so significant that it rendered his sentence unjust.

The court found that, while the sentences were different, the disparity was not so disproportionate as to justify interference. The sentencing judge had considered the individual circumstances of both offenders, including their respective roles in the offences, their criminal histories, and other relevant factors. The court held that the applicant’s argument did not establish a clear case of unjust disparity. The sentencing judge was entitled to impose a harsher sentence on the applicant given his more extensive criminal history and the additional offences he had committed. The application for leave to appeal against sentence was therefore refused.

No further orders were made. The decision confirmed the original sentence imposed on the applicant and upheld the discretion of the sentencing judge in determining the appropriate punishment for the crimes committed.

Orders

Orders of the court

Application for leave to appeal against sentence is 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 Baumgart [2014] QCA 109
PARTIES:	R v BAUMGART, Daniel Lucas (applicant)
FILE NO/S:	CA No 273 of 2013 DC No 49 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	16 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2014
JUDGES:	Fraser JA and Atkinson and Jackson JJ 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 is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant was convicted, on his own pleas of guilty, of a number of offences including armed robbery in company with personal violence, fraud, attempted fraud, and several drug-related offences – where the applicant was sentenced to five years imprisonment with parole eligibility set at 18 months for the offence of armed robbery in company with personal violence – where the applicant’s co-offender on the armed robbery in company with personal violence was sentenced, on his plea of guilty, to three years imprisonment with parole eligibility set at nine months – where the co-offender was 10 years younger than the applicant with a less extensive criminal history – where the co-offender had not committed additional offences with which the applicant was charged – where the co-offender was not in breach of a suspended sentence or on parole – whether the applicant could have a justifiable sense of grievance about parity of the sentences Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Floyd[2013] QCA 74, cited
COUNSEL:	The applicant appeared on his own behalf V A Loury for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent