R v Boggs - [2014] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v Boggs [2014] QCA 31

PARTIES:

R
v
BOGGS, Brett Ian
(applicant)

FILE NO/S:

CA No 53 of 2013
DC No 27 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

28 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2014

JUDGES:

Margaret McMurdo P and Gotterson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The 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 charged together with three others with attempted robbery – where after a trial the applicant was sentenced to 30 months imprisonment suspended after 15 months with an operational period of three years – where one of the applicant's co-offenders was sentenced to 30 months imprisonment suspended after 10 months with an operational period of three years for the attempted robbery and an assault occasioning bodily harm – where the applicant's co-offender pleaded guilty at a very early stage and cooperated fully with the administration of justice – where the sentencing judge found that the applicant's and that co-offender's criminality was equal – where the applicant had no real mitigating features other than his unfortunate background and the fact that his mother and family would be disadvantaged by his imprisonment – whether the applicant has a justifiable sense of grievance – whether the applicant's application for leave to appeal against sentence should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted after a trial of attempted robbery – where the applicant was sentenced to 30 months imprisonment suspended after 15 months with an operational period of three years – where the offence was a serious example of attempted armed robbery – where the applicant had no real mitigating features other than his unfortunate background and the fact that his mother and family would be disadvantaged by his imprisonment – whether the sentence was manifestly excessive

R v Edwards[2013] QCA 216, cited
R v Hanvey[2002] QCA 498, considered
R v Hill[2005] QCA 18, cited
R v Moodie[1999] QCA 125, cited

COUNSEL:

The applicant appeared on his own behalf
S P Vasta for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The applicant was charged, together with Justin Brunker, Sereena Edwards and Dwayne Goodhew, with attempted robbery on 27 April 2011 at Townsville. On 30 November 2012, Brunker, who had pleaded guilty on 14 June 2012, was sentenced to 30 months imprisonment with presentence custody declared as time served under the sentence; his sentence was suspended after 10 months with an operational period of three…

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 Boggs

Details

AGLC: R v Boggs [2014] QCA 31
Case: [2014] QCA 31
Decision Date: 28 February 2014

CaseChat Overview and Summary

The applicant, along with three others, was charged with attempted robbery. The applicant was convicted following a trial and was sentenced to 30 months imprisonment, suspended after 15 months, with an operational period of three years. One co-offender, who pleaded guilty early and fully cooperated with the authorities, received a sentence of 30 months imprisonment, suspended after 10 months, also with a three-year operational period. The applicant argued that the sentencing was unfair due to the disparity in their sentences compared to their co-offender, and that the sentence was excessive considering his background and the potential hardship it would cause his family. The applicant sought leave to appeal against the sentence on these grounds.

The court had to determine whether the applicant's sense of grievance was justified and whether the sentence imposed was manifestly excessive. In assessing the parity between co-offenders, the court considered the roles and cooperation of each participant in the crime. The court also evaluated the severity of the offence and the applicant's personal circumstances, including his background and the potential impact of imprisonment on his family.

The court found that the sentencing judge had appropriately considered the equality of the criminality between the applicant and his co-offender, and that the disparity in sentences was justified by the co-offender's early plea and cooperation. The court also concluded that the sentence was not manifestly excessive, considering the seriousness of the crime. The court noted that the applicant's background and family situation, while unfortunate, did not significantly mitigate the gravity of the offence.

The application for leave to appeal against sentence was refused. The court found no basis to interfere with the original sentence, upholding the decision of the sentencing judge.

Orders

Orders of the court

The 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 Boggs [2014] QCA 31
PARTIES:	R v BOGGS, Brett Ian (applicant)
FILE NO/S:	CA No 53 of 2013 DC No 27 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	28 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2014
JUDGES:	Margaret McMurdo P and Gotterson JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The 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 charged together with three others with attempted robbery – where after a trial the applicant was sentenced to 30 months imprisonment suspended after 15 months with an operational period of three years – where one of the applicant's co-offenders was sentenced to 30 months imprisonment suspended after 10 months with an operational period of three years for the attempted robbery and an assault occasioning bodily harm – where the applicant's co-offender pleaded guilty at a very early stage and cooperated fully with the administration of justice – where the sentencing judge found that the applicant's and that co-offender's criminality was equal – where the applicant had no real mitigating features other than his unfortunate background and the fact that his mother and family would be disadvantaged by his imprisonment – whether the applicant has a justifiable sense of grievance – whether the applicant's application for leave to appeal against sentence should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted after a trial of attempted robbery – where the applicant was sentenced to 30 months imprisonment suspended after 15 months with an operational period of three years – where the offence was a serious example of attempted armed robbery – where the applicant had no real mitigating features other than his unfortunate background and the fact that his mother and family would be disadvantaged by his imprisonment – whether the sentence was manifestly excessive R v Edwards[2013] QCA 216, cited R v Hanvey[2002] QCA 498, considered R v Hill[2005] QCA 18, cited R v Moodie[1999] QCA 125, cited
COUNSEL:	The applicant appeared on his own behalf S P Vasta for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent