R v Boney - [2015] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v Boney [2015] QCA 162

PARTIES:

R
v
BONEY, Ashley Kenneth Scott
(applicant)

FILE NO/S:

CA No 36 of 2015
DC No 352 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Unreported, 13 February 2015

DELIVERED ON:

1 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2015

JUDGE:

Gotterson JA and Ann Lyons and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The applicant be granted leave to appeal.

2.   Order that the sentence below be varied so as to substitute the 22nd October 2015 as the parole release date.

3.   Otherwise confirm the sentence imposed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of entering premises and stealing, not guilty to one count of burglary and stealing and one count of arson on an indictment – where the applicant was found guilty after trial of the burglary and stealing charge, but not guilty of the arson charge – where the applicant was sentenced to concurrent sentences of two years imprisonment for both counts, to be served cumulatively on a sentence the applicant was then serving – where the applicant had a lengthy criminal history – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 156

R v Walsh[2005] QCA 333, considered

COUNSEL:

The applicant appeared on his own behalf
D Balic for the respondent

SOLICITORS:

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

GOTTERSON JA: I agree with the orders proposed by North J and with his Honours reasons for them.

ANN LYONS J: I agree with the reasons of North J and the orders proposed by his Honour.

NORTH J: The applicant was arraigned on a three count indictment in the District Court at Southport on 9th Feb 2015. He pleaded not guilty to a count of burglary and stealing (count 1), not guilty to a count of arson (count 2) but guilty to a count of entering premises and stealing (count 3). The trial in respect of counts 1 and 2 proceeded and after a four day trial the jury returned verdicts of guilty to the count of burglary and stealing but not guilty in respect of the count of arson.

The following day he was sentenced to concurrent sentences in respect of counts 1 and 3 of two years imprisonment but to be served cumulatively on a sentence the applicant was then serving and some 31 days pre-sentence custody were declared time served. A parole release date was fixed at 22 February 2016 with the consequence that the actual time of imprisonment to be served under the concurrent sentences is approximately 12 months.

The sole ground of appeal is that the…

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 Boney

Details

AGLC: R v Boney [2015] QCA 162
Case: [2015] QCA 162
Decision Date: 1 September 2015

CaseChat Overview and Summary

The appellant, who had already been serving a sentence, pleaded guilty to entering premises and stealing, but contested charges of burglary and stealing, as well as arson. Following a trial, the appellant was found guilty of the burglary and stealing charges but not guilty of the arson charge. The appellant was sentenced to two years' imprisonment for each of the two counts, to be served concurrently but cumulatively with the existing sentence. The appellant sought leave to appeal the sentence, arguing it was manifestly excessive given their criminal history. The court was required to determine if the sentence imposed was indeed excessive and if the parole release date should be altered.

The court examined the principles of sentencing in criminal cases, particularly focusing on the notion of a manifestly excessive sentence. It considered the appellant's criminal history and the nature of the current offences. The court acknowledged the appellant's significant criminal record, which included numerous convictions for similar offences. However, it also noted the appellant's guilty plea to one count and acquittal on another, which could mitigate the overall sentence. The court found that while the sentence was severe, it was not manifestly excessive in light of the appellant's history and the seriousness of the crimes committed.

Having assessed the arguments, the court granted the appellant leave to appeal. It held that the sentence was not manifestly excessive but identified an error in the parole release date. The court corrected the date to 22 October 2015, while confirming the rest of the sentence. The appellant's appeal was thus partially successful, with the sentence variation being the sole alteration to the original judgment. The court's final orders included granting the appellant leave to appeal, amending the parole release date, and confirming the rest of the sentence.

Orders

Orders of the court

1. The applicant be granted leave to appeal.

2. Order that the sentence below be varied so as to substitute the 22nd October 2015 as the parole release date.

3. Otherwise confirm the sentence imposed.

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 Boney [2015] QCA 162
PARTIES:	R v BONEY, Ashley Kenneth Scott (applicant)
FILE NO/S:	CA No 36 of 2015 DC No 352 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Unreported, 13 February 2015
DELIVERED ON:	1 September 2015
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2015
JUDGE:	Gotterson JA and Ann Lyons and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The applicant be granted leave to appeal. 2. Order that the sentence below be varied so as to substitute the 22nd October 2015 as the parole release date. 3. Otherwise confirm the sentence imposed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of entering premises and stealing, not guilty to one count of burglary and stealing and one count of arson on an indictment – where the applicant was found guilty after trial of the burglary and stealing charge, but not guilty of the arson charge – where the applicant was sentenced to concurrent sentences of two years imprisonment for both counts, to be served cumulatively on a sentence the applicant was then serving – where the applicant had a lengthy criminal history – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 156 R v Walsh[2005] QCA 333, considered
COUNSEL:	The applicant appeared on his own behalf D Balic for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent