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R v Crossley

R v Crossley

Case [1999] QCA 223 18 June 1999

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IN THE COURT OF APPEAL [1999] QCA 223
SUPREME COURT OF QUEENSLAND
C.A. No. 477 of 1998
Brisbane
[R v. Crossley]
THE QUEEN
v.
MARK WILLIAM CROSSLEY
(Applicant)
McMurdo P
Pincus JA
McPherson JA

Judgment delivered 18 June 1999
Separate reasons for judgment of each member of the Court, each concurring as to the order made.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - robbery offences - conviction of serious

violent offence - applicant to serve sentence eight times as long as that of co-offender before being eligible for parole - whether effect of serious violent offence provisions relevant in considering sentence parity between co- offenders
Booth (CA No 338 of 1998, 30 March 1999)
Coss (1995) 78 A Crim R 551
Daphney (CA No 328 of 1998, 16 March 1999)
Postiglione (1997) 189 CLR 295
Siganto (1998) 73 ALJR 162
Counsel: Mr B G Devereaux for the applicant
Mr D Meredith for the respondent
Solicitors: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent
Hearing Date: 15 April 1999
REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 18 June 1999

I have had the advantage of reading the reasons for judgment of Pincus JA in which he has set out the facts and analysed the issues.
The applicant pleaded guilty to four serious offences, two of armed robbery with personal violence in company, one armed robbery in company and one attempted armed robbery causing wounding. He played a leading and aggressive role in all offences. In respect of count 2 he discharged an air rifle wounding the complainant in the chest, although fortunately not seriously. Counts 3 and 4 occurred in the course of a home invasion during which the applicant accused the complainant of being a child molester, pointed an air rifle at him as he lay in bed with his wife and later punched him, cutting him near his eye.
The applicant was sentenced to 10 years imprisonment on each count and is therefore automatically declared to be convicted of a serious violent offence pursuant to s161A Penalties and Sentences Act 1992. Section 166(1)(c) of the Corrective Services Act 1988 has the effect of requiring the applicant to serve eight years before being eligible for release on parole.
Count 1 was committed with a co-accused Salkeld who provided an undertaking under s13A Penalties and Sentences Act 1992 and was sentenced under that section to a notional sentence of five years imprisonment. Salkeld was 20 years old and was on probation for robbery at the time of committing this offence. In imposing the notional sentence under s13A Penalties and Sentences Act 1992 the learned sentencing judge did not note whether he would have made a declaration pursuant to s161B(3) Penalties and Sentences Act 1992 but nothing turns on this as it is not suggested that there is lack of parity in respect of Salkeld's sentence. 5
The applicant submits…

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 Crossley

Details

AGLC: R v Crossley [1999] QCA 223
Case: [1999] QCA 223
Decision Date: 18/06/1999

CaseChat Overview and Summary

The case of R v Crossley involved the applicant appealing against his sentence following his conviction for multiple robbery offences. The applicant was sentenced to 10 years imprisonment for each of three counts of armed robbery and one count of attempted robbery, as well as receiving additional sentences for associated lesser offences. The applicant argued that the cumulative sentences violated the principle of parity, despite each individual sentence being justifiable. The court needed to determine whether the principle of parity was breached and if the sentence imposed was appropriate.

The court considered the principle of parity, which requires that sentences for multiple offences should not be disproportionately punitive. The court examined the nature and severity of the crimes, the applicant's criminal history, and the sentences imposed. The court noted that each individual offence warranted a severe penalty due to the use of weapons, violence, and the impact on the victims. The court held that the sentences, while severe, were justified by the gravity of the crimes and the need to deter similar offences.

After considering the arguments and the applicable legal principles, the court concluded that the principle of parity was not breached. The sentences, while severe, were appropriate given the nature and impact of the crimes. The court therefore refused the application for leave to appeal against the sentence. The applicant's convictions and sentences for the robbery offences were upheld, along with the additional sentences for the associated lesser offences.

The final orders of the court were that the application for leave to appeal against the sentence was refused, and the convictions and sentences imposed by the trial court were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons I agree that the application for leave to appeal against sentence should be refused. REASONS FOR JUDGMENT - PINCUS JA Judgment delivered 18 June 1999 The applicant was convicted, on pleas of guilty, of three robberies and one attempted robbery and was sentenced to 10 years imprisonment on each count. The application is based on the submission that the sentence imposed, while justifiable in isolation, offends the parity principle. There were also three sentences, each of 1 year, and a sentence of 6 months, all for lesser offences. The first offence with which we are concerned was committed in July 1997 when the applicant (who had not long before completed a prison sentence) and one Salkeld robbed a service station. Both were disguised and carrying knives. The service station employee was alone; $450 and some cigarettes were stolen and the employee was kicked in the ribs several times. The offence to which the appellant pleaded guilty was armed robbery in company with personal violence. The second offence was committed six months later at a take-away pizza store which the applicant robbed by himself. He was armed with an air rifle and disguised. An employee of the store attempted to take the rifle off the applicant, who shot him in the chest, causing no permanent injury. The offences on this occasion were attempted armed robbery and wounding. The third offence was committed on the same night as the second, when the applicant with two other people, Hughes and Banks, went to the house of a man called Edwards. It is said that Hughes mistakenly thought that Edwards had been involved in sexual offences against girls. All three entered Edwards' house, breaking in through the back door. Again, the applicant had his air rifle. Hughes and Banks each had a sword and all were disguised. Edwards was threatened in his bedroom, where he had been asleep with his wife, and demands were made for money and drugs. The applicant had his air rifle pointed at Edwards; he punched Edwards in the head, cutting his eye. Hughes started wielding his sword and chopped into the bedhead near Mrs Edwards and also into the wall on her side of the bed. The assailants were directed to Mrs Edwards' purse and the applicant went downstairs to obtain it; when he came back he made demands for balances in bank accounts and PIN numbers. The attackers left and it was discovered that the telephone line had been cut and property stolen. The applicant pleaded guilty to armed robbery with personal violence in company. The fourth and last robbery was of a service station. On this occasion the applicant had a .22 rifle and he was in company with Banks. He waved the weapon at the service station operator and went behind the counter demanding money; $89 in cash and $120 worth of cigarettes were taken. The lesser offences I have referred to were housebreaking, stealing, wilful detention and possession of a weapon; these were unremarkable examples of the offences and it is unlikely that their commission made any great difference to the total criminality, which produced the 10-year sentences.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Crossley [1999] QCA 223

Most Recent Citation

R v Taylor & Napatali; ex parte A-G (Qld) [1999] QCA 323

Cases citing this decision · 21 of 21 shown

R v Liu
[2024] QCA 58 Para 15

…ust. I cannot infer there was a failure to properly exercise the sentencing discretion. [19] R v Daphney [1999] QCA 69, cited in R v Crossley [1999] QCA 223; and R v McDougall and Collas [2007] 2 Qd R 87, 95 at [18], cited in R v Smith [2022] QCA 89, [14].…
R v Smith
[2022] QCA 89 Para 15

…her, the principle of parity that would ordinarily apply has little scope for operation”. [30][2008] QCA 261 at [36]. [31](1999) 106 A Crim R 80; [1999] QCA 223.…
R v Lowien
[2020] QCA 186

…[2004] QCA 306, cited R v Carrall [2018] QCA 355, cited R v Corbett [2018] QCA 341, cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v Dang [2018] QCA 331, cited R v Delander [2019] QCA 69, cited R v Elizalde [2006] QCA 330, cited R v Feakes [2009] QCA 376, considered R v Johnson [2014] QCA 79,…
Norris v The Queen
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…] NTCCA 7, R v B; ex parte A-G [2000] QCA 110, R v Bojovic [1999] QCA 206, R v Carrall [2018] QCA 355, R v Crossley [1999] QCA 223, R v Indrikson [2014] NTCCA 10, R v Olbrich (1999) 199 CLR 270, Sultana (1994) 74 A Crim R 27, The Queen v Falzon (2018) 92 ALJR 701, The Queen v Kilic (2016) 339 ALR 229, The Queen v…
R v Walker
[2019] QCA 180

…ether the sentence imposed was manifestly excessive R v Civcija [2018] QCA 83, cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v Dang [2018] QCA 331, cited R v Randall [2019] QCA 25, cited COUNSEL: The applicant appeared on his own behalf M T Whitbread for the respondent SOLICITORS: The applica…
R v Carrall
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…8] QCA 414 , cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223 , cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 , cited R v Feakes [2009] QCA 376 , cited R v Herford (2001) 119 A Crim R 546; [2001] QCA 177 , cited R v Johnson [2014] QCA 79 , cited R v O’Donoghue (1988) 34 A Crim R 397, cited Willis v T…
R v Dang
[2018] QCA 331 Para 12

…estion because there was no unjustified disparity between the sentences, even considering the non-parole periods.[37] [35](1999) 106 A Crim R 80; [1999] QCA 223. [36](1999) 106 A Crim R 80 at 86 [25] per Pincus JA and at 88 [34] per McPherson JA. [37]Ibid 82 83 [9] – [12].…
R v Hughes
[2017] QCA 178 Para 28

…nce is to be ignored in considering parity between the two.” [18] Meerdink at [31], McMurdo P and Jones J concurring. [19](1999) 106 A Crim R 80; [1999] QCA 223, at [87].…
R v Maksoud
[2016] QCA 115 Para 18

…ole period which is excessive by comparison with that imposed on the lesser offender, the head sentence for the greater offender must be reduced. [52][1999] QCA 223; (1999) 106 A Crim R 80.…
R v Hartwig; Ex parte
[2013] QCA 295

…eported, Court of Criminal Appeal, Qld, CA No 289 of 1990, 26 November 1990, cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v DAZ [2012] QCA 31, cited R v Draper [1970] QWN 20, cited R v Kelly [2006] QCA 467, considered R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154…
R v Meerdink
[2010] QCA 273

…295; [1997] HCA 26, applied R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, applied R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Mikaele [2008] QCA 261, considered COUNSEL: C W Heaton for the applicant G Cummings for the res…
R v Mikaele
[2008] QCA 261 Para 1

…ht brings into focus the significant difference between the nature of his offending and Isaako’s. Further, R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 is authority for the conclusion that, once a serious violent offence declaration is appropriately made in one case but not made in the other, the principle…
R v KU; ex parte Attorney-General (No 2)
[2008] QCA 154

…h 1992, considered R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v D [2003] QCA 150, considered R v Daniel [1998] 1 Qd R 499; [1997] QCA 139, considered R v DJL , unreported, Britton SC DCJ, Childrens Court, Qld, Indictment No CC17 of 2006, 5 December 2006 (anonymised by this Court), considered R v…
R v LY
[2008] QCA 76 Para 1

…; R v WT; ex parte A-G (Qld) [2007] QCA 310; CA No 65 and 92 of 2007, 28 September 2007; R vTuki [2004] QCA 482; R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223; The Queen v Harris (No 2) (1971) 2 SASR 255; The Queen v Homer (1976) 13 SASR 377.…
R v. Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld)
[2007] QCA 310

…ile Justice Act 1992 (Qld) , s 176(3) R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588, cited R v Crossley [1999] QCA 223; (1999) 106 A Crim R 80, applied R v D [1999] QCA 231; [2000] 2 Qd R 659, cited R v Smithers , unreported, Mackenzie J, Supreme Court of Queensland, SC 559 of 2006, 15 December 2006, consid…
R v Cowie
[2005] QCA 223

…10 A Crim R 499, considered R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, considered R v Booth [1999] QCA 100; [2001] 1 Qd R 393, cited R v Crossley [1999] QCA 223; (1999) 106 A Crim R 80, cited R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, considered R v Herford [2001] QCA 177; (2001) 119 A Crim R 546, applie…
R v McDonald
[2001] QCA 238

…litative treatment – substantial custodial sentence appropriate Penalties and Sentences Act 1992 R v Crossley [1999] QCA 223, CA No 477 of 1998, 18 June 1999, distinguished R v Matthewson [2001] QCA 4, CA No 226 of 2000, 30 January 2001, distinguished R v McMahon , CA No 433 of 1997, 13 April 1998, distinguished…
R v Gilles; ex parte
[2000] QCA 503 Para 13

…usefully discussed in [s 650.145] of Judge Carter's work. I would add to the references there given mention of the President's judgments in Crossley [1999] QCA 223; CA No 477 of 1998, 18 June 1999, par 11, and in R and S, ex parte A-G [1999] QCA 181; CA Nos 390, 391 of 1998, 28 May 1999. In Papoulias [1988] VR 8…
R v B; ex parte A-G
[2000] QCA 110

…1999, 8 June 1999, considered and distinguished R v Booth [1999] QCA 100; CA No 338 of 1998, 30 March 1999, considered R v Crossley [1999] QCA 223; CA No 477 of 1998, 18 June 1999, considered R v Geddes; exparte A-G [1999] QCA 84; CA No 486 of 1998, 19 March 1999, considered R v Melano; exparte A-G [1995] 2 Qd R…
R v McCormick; ex parte
[1999] QCA 354 Para 1

…by making a specially early parole recommendation: cf R v Booth (CA 338/1998, 30 Mar 1999; [1999] QCA 100); R v Crossley (CA 477/1998, 18 June 1999; [1999] QCA 223). It is nevertheless considerably to the respondent's credit that he did volunteer to the police his responsibility for the new offences. It suggests…
R v Taylor & Napatali; ex parte A-G (Qld)
[1999] QCA 323 Para 10

…tice, as in R v Collins (CA 238/98, 18 Sept 1998; [1998] QCA 280), R v Booth (CA 338/1998, 30 Mar 1999), and R v Crossley (CA 477/1998, 18 June 1999; [1999] QCA 223). All that is required is an unambiguous statement of legislative intention to that effect, which, for those holding power in Queensland's unicameral…

View all 21 citing cases →

Cases cited in this decision · 4 of 4 shown

Siganto v the Queen
[1998] HCA 74 Para 1

…lash between any provision having an effect like the 80% requirement, on the one hand, and the parity principle on the other, arose there. In Siganto (1998) 73 ALJR 162, there was, however, a similar provision in question; a Northern Territory statute imposed a 70% requirement in respect of certain sexual offences. I…
Postiglione v the Queen
[1997] HCA 26 Para 1

…In Postiglione (1997) 189 CLR 295, a majority of the Court adopted the view that the parity principle requires comparison of the periods of actual custody, as well as head sentences: see pp 302, 303 and 338. But no question of a clash between any provision having an effect like the 80% requirement, on the one hand, a…
Griffiths v The Queen
[1989] HCA 39 Para 11

…5; Dawson and Gaudron JJ 302-303 and Kirby J at 338. 3. CA 338 of 1998; 30 March 1999. 4. CA 328 of 1998; 16 March 1999. 5. See Griffiths v The Queen (1989) 167 CLR 372, Gaudron and McHugh JJ at 393; Kellerman v Pecko [1998] 1 Qd R 419.…
Lowe v R
[1984] HCA 46 Para 11

…The application should be dismissed. 1. See Lowe v The Queen (1984) 154 CLR 606 at 610, 613-614, 623-624. 2. (1997) 189 CLR at 295; Dawson and Gaudron JJ 302-303 and Kirby J at 338. 3. CA 338 of 1998; 30 March 1999. 4. CA 328 of 1998; 16 March 1999. 5. See Griffiths v The Queen (1989) 167 CLR 372, Gaudron and McHugh…

Legislation cited in this decision · 2

Corrective Services Act 1988 (Qld)
1 mention (from Para 3)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 3)

IN THE COURT OF APPEAL	[1999] QCA 223
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - robbery offences - conviction of serious
violent offence - applicant to serve sentence eight times as long as that of co-offender before being eligible for parole - whether effect of serious violent offence provisions relevant in considering sentence parity between co- offenders
*Booth* (CA No 338 of 1998, 30 March 1999) *Coss* (1995) 78 A Crim R 551 *Daphney* (CA No 328 of 1998, 16 March 1999) *Postiglione* (1997) 189 CLR 295 *Siganto* (1998) 73 ALJR 162
Counsel:	Mr B G Devereaux for the applicant Mr D Meredith for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	15 April 1999