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R v Blenkinsop

R v Blenkinsop

Case [2007] QCA 181 1 June 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Blenkinsop; R v Blenkinsop [2007] QCA 181

PARTIES:

R
v
BLENKINSOP, Aaron Michael
(first applicant)

R
v
BLENKINSOP, Tony Michael
(second applicant/appellant)

FILE NO/S:

CA No 24 of 2007
CA No 25 of 2007
DC No 45 of 2007
DC No 47 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

1 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2007

JUDGES:

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

ORDER:

Aaron Michael Blenkinsop
1. Application for leave to appeal against sentence dismissed

Tony Michael Blenkinsop
1. Application for leave to appeal against sentence allowed
2. Set aside the sentence of four years imprisonment on the burglary count and substitute a sentence of three years imprisonment with a parole release date fixed at
24 October 2007
3. On the remaining counts, leave in place the sentence of two years imprisonment to be served concurrently with the sentence on the burglary count, but set aside the order for suspension and instead fix a parole release date of
24 October 2007

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicants carried out a home invasion in part to gather information about a supposed paedophile ring – where they were convicted, on pleas of guilty, of one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing – where the first applicant was sentenced to five and a half years on the burglary count and two years concurrent on each of the remaining counts – where the first applicant also pleaded guilty to five counts of receiving and one of fraud on a separate indictment and was sentenced to two years on each count, to be served concurrently with the sentences on the first indictment – whether the sentence imposed was excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the second applicant was sentenced to four years imprisonment, suspended after 12 months with an operational period of five years, on the burglary counts and concurrent sentences of two years imprisonment, suspended after 12 months with an operational period of five years, on the remaining counts – whether, given the second applicant’s youth, lack of previous convictions and prospects for rehabilitation, the sentence imposed was excessive

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

R v Cockfield [2006] QCA 276; CA No 159 of 2006,
4 August 2006, distinguished
R v Denham; ex parte A-G (Qld) [2003] QCA…

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 Blenkinsop

Details

AGLC: R v Blenkinsop [2007] QCA 181
Case: [2007] QCA 181
Decision Date: 1 June 2007

CaseChat Overview and Summary

The applicants, Aaron Michael Blenkinsop and Tony Michael Blenkinsop, were convicted of a series of offences, including burglary, deprivation of liberty, assault, and theft, stemming from a home invasion intended to gather information about an alleged paedophile ring. The applicants pleaded guilty and were sentenced in the Supreme Court of Victoria. Aaron was sentenced to seven and a half years, while Tony received a suspended sentence of four years on the burglary count, with other sentences suspended similarly. Both applicants sought to appeal against their sentences on the basis that they were excessive.

The central legal issue before the court was whether the sentences imposed on the applicants were excessive. Aaron argued that his sentence was unduly harsh, while Tony contended that his sentence was excessive given his youth, lack of prior criminal history, and potential for rehabilitation. The court needed to determine whether the sentences appropriately reflected the gravity of the offences and whether they took into account the individual circumstances of each applicant.

The court found that Aaron's sentence was not excessive. It considered the totality of his offending, which included additional unrelated offences of receiving and fraud, and concluded that the sentence adequately reflected the seriousness of his crimes. However, in Tony's case, the court determined that his sentence was indeed excessive. Factors such as Tony's young age, absence of prior convictions, and prospects for rehabilitation warranted a reduced sentence. The court accordingly allowed Tony's appeal and substituted a sentence of three years imprisonment on the burglary count, with a parole release date set for 24 October 2007. The sentences on the remaining counts were to be served concurrently, with parole release also fixed at 24 October 2007.

Aaron's application for leave to appeal against his sentence was dismissed, while Tony's application was allowed. The court set aside the original sentence for Tony on the burglary count, substituting it with a three-year imprisonment term, and adjusted the parole release date for all counts to 24 October 2007.

Orders

Orders of the court

Aaron Michael Blenkinsop

1. Application for leave to appeal against sentence dismissed

Tony Michael Blenkinsop

1. Application for leave to appeal against sentence allowed

2. Set aside the sentence of four years imprisonment on the burglary count and substitute a sentence of three years imprisonment with a parole release date fixed at

24 October 2007

3. On the remaining counts, leave in place the sentence of two years imprisonment to be served concurrently with the sentence on the burglary count, but set aside the order for suspension and instead fix a parole release date of

24 October 2007

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.

Citations

AGLC Citation

R v Blenkinsop [2007] QCA 181

Most Recent Citation

R v Jurd [2007] QCA 228

Cases citing this decision · 12 of 12 shown

R v Murphy
[2023] QCA 98 Para 4

…In R v Blenkinsop ; R v Blenkinsop [2007] QCA 181, two brothers were part of a group of four men who carried out a home invasion. The offences were one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing. The four men be…
R v Gibb
[2018] QCA 120

…v Blenkinsop [2007] QCA 181, cited R v Boal [1965] 1 QB 402, cited R v Cockfield [2006] QCA 276, cited R v Esposito (1998) 45 NSWLR 442, cited R v Leu ; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited R v Mawson [1967] VR 205; [1967] VicRp 23, cited R v Miller [2015] QCA 94, cited R v Rigney [1996] 1 Qd…
R v Macklin
[2016] QCA 244 Para 14

…g all occurred within a very short period of time. There should also be some amelioration to reflect the pleas of guilty.[10] [4][2013] QCA 158. [5][2007] QCA 181. [6][1996] QCA 34. [7][2001] QCA 474. [8][2009] QCA 73. [9][2006] QCA 121. [10]T1-30, AB 68.…
R v Amato
[2013] QCA 158 Para 1

…rted by R v A ,[3] R v Aaron Blenkinsop ,[4] R v Leu and Togia ,[5] and R v Dodds .[6] [1][2001] 1 Qd R 393. [2][2000] QCA 84. [3][2001] QCA 56. [4][2007] QCA 181. [5][2008] QCA 201. [6][2003] QCA 540.…
R v Ross
[2012] QCA 247 Para 1

…he respondent to indicate that a parole release date fixed after six months in a case such as this is by no means excessive.[7] [7]See R v Blenkinsop [2007] QCA 181 and R v Cockfield [2006] QCA 276 where the imprisonment was suspended after service of three months but the sentence had been imposed pursuant to s 1…
R v Woodman
[2012] QCA 236 Para 1

…ect the complainant. Property was damaged in the melee. Togia stole some marijuana and money was taken. [28][2006] QCA 276. [29][2008] QCA 201. [30][2007] QCA 181.…
R v Honeysett; ex parte
[2010] QCA 212 Para 1

…ed with a baton but also struck the complainant with a baseball bat and a Club lock with which the co-offenders had come armed); and R v Blenkinsop [2007] QCA 181 (where the offender, who led a well planned vigilante style home invasion, was armed with a sword, while his co-offenders were armed with a steak knife…
R v Nolan
[2009] QCA 129 Para 1

…Counsel for the respondent relied particularly upon R v Frazer (upon which the applicant also relied) and R v Blenkinsop [2007] QCA 181 for the proposition that the sentence was towards the top end of the sentencing range but within it. In both cases young offenders with very serious criminal histories committed…
R v Leu; R v Togia
[2008] QCA 201 Para 1

…In R v Blenkinsop; R v Blenkinsop [2007] QCA 181, Aaron Blenkinsop's application for leave to appeal against his sentence of five and a half years imprisonment with a recommendation for parole after two years for burglary with a circumstance of aggravation (with two years imprisonment on the remaining counts of d…
R v Armstrong, Park, Pullyn
[2008] QCA 132

…In R v Blenkinsop [2007] QCA 181, two brothers were part of a group of four men who carried out a house invasion for the purpose of assaulting a person who they believed to be a paedophile. The two persons in the house were subjected to a prolonged assault and the house was ransacked.…
R v Jurd
[2007] QCA 228

…cited R v Bowe; R v Taylor [2004] QCA 414, cited R v Bower-Miles & Smith [1995] QCA 453, cited R v. Blenkinsop ; R v Blenkinsop [2007] QCA 181, cited R v Gompelman [2002] QCA 191, cited R v Hardman [2001] QCA 15, cited R v Hess [2003] QCA 553, cited R v Houghton & Genrich [1998] QCA 137, cited R v Kraaz [2006] QC…
Brott v The Queen
[1992] HCA 5

…4. In the paradigm case of forgery, the offence consists in signing another person's name, real or fictitious, to an instrument with intent to defraud. R. v. Marshall (1804) Russ and Ry 75 (168 ER 691); Reg. v. Toshack (1849) 4 Cox CC 38; Reg. v. Parkinson (1896) 22 VLR 73. However, it is forgery fo…

View all 12 citing cases →

Cases cited in this decision · 3 of 3 shown

R v Cockfield
[2006] QCA 276 Para 1

…he range of two and a half to three years imprisonment, with an early recommendation in that case to recognise the significant mitigating factors. [1][2006] QCA 276. [2][2003] QCA 74. [3][2003] QCA 227.…
R v Sailor; ex parte A-G (Qld)
[2003] QCA 227 Para 1

…ears imprisonment, with an early recommendation in that case to recognise the significant mitigating factors. [1][2006] QCA 276. [2][2003] QCA 74. [3][2003] QCA 227.…
R v Denham; ex parte A-G (Qld)
[2003] QCA 74 Para 1

…a half to three years imprisonment, with an early recommendation in that case to recognise the significant mitigating factors. [1][2006] QCA 276. [2][2003] QCA 74. [3][2003] QCA 227.…

Legislation cited in this decision · 2

Penalties and Sentence Act 1992 (Qld)
13A 1 mention
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Blenkinsop; R v Blenkinsop [2007] QCA 181
PARTIES:	R v BLENKINSOP, Aaron Michael (first applicant) R v BLENKINSOP, Tony Michael (second applicant/appellant)
FILE NO/S:	CA No 24 of 2007 CA No 25 of 2007 DC No 45 of 2007 DC No 47 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	1 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 April 2007
JUDGES:	Williams, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Aaron Michael Blenkinsop 1. Application for leave to appeal against sentence dismissed Tony Michael Blenkinsop 1. Application for leave to appeal against sentence allowed 2. Set aside the sentence of four years imprisonment on the burglary count and substitute a sentence of three years imprisonment with a parole release date fixed at 24 October 2007 3. On the remaining counts, leave in place the sentence of two years imprisonment to be served concurrently with the sentence on the burglary count, but set aside the order for suspension and instead fix a parole release date of 24 October 2007
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicants carried out a home invasion in part to gather information about a supposed paedophile ring – where they were convicted, on pleas of guilty, of one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing – where the first applicant was sentenced to five and a half years on the burglary count and two years concurrent on each of the remaining counts – where the first applicant also pleaded guilty to five counts of receiving and one of fraud on a separate indictment and was sentenced to two years on each count, to be served concurrently with the sentences on the first indictment – whether the sentence imposed was excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the second applicant was sentenced to four years imprisonment, suspended after 12 months with an operational period of five years, on the burglary counts and concurrent sentences of two years imprisonment, suspended after 12 months with an operational period of five years, on the remaining counts – whether, given the second applicant’s youth, lack of previous convictions and prospects for rehabilitation, the sentence imposed was excessive Penalties and Sentence Act 1992 (Qld), s 13A R v Cockfield [2006] QCA 276; CA No 159 of 2006, 4 August 2006, distinguished R v Denham; ex parte A-G (Qld) [2003] QCA…