R v Del Arco - [1994] QCA 70

IN THE COURT OF APPEAL	[1994] QCA 070
SUPREME COURT OF QUEENSLAND

C.A. No. 289 of 1993

Brisbane

[The Queen v. Del Arco]

T H E Q U E E N
v
ENRIQUE MANUEL SYDNEY DEL ARCO

(Applicant)
The Chief Justice Mr Justice Pincus Mr Justice Thomas

Judgment delivered 25/03/1994

Judgment of the Court

1. Application for leave to appeal granted and appeal allowed.

2. Sentences imposed below set aside insofar as it was there

ordered that the terms imposed should be served
cumulatively on sentences already being served.

3. The respective terms of four years and of three months are to remain but they are to be concurrent, that is they will commence from 18 June 1993.

4. There will be added a fresh parole recommendation ordering that the applicant be eligible for consideration for parole on 1 December 1994.

CATCHWORDS: CRIMINAL LAW - SENTENCE - effect of cumulative sentences - concurrent sentences - principles applicable to sentencing co- offenders - principles applicable to sentencing persons already serving a term of imprisonment - fresh recommendation for parole - s157 Penalties and Sentences Act

Counsel: S.E. Herbert Q.C., with him J. Wagner for the

applicant.

P. Feeney for the Crown.
Solicitors: Legal Aid Office (Queensland) for the applicant
Director of Prosecutions for the Crown.
Hearing Date:04/10/1993

JUDGMENT OF THE COURT

Judgment delivered 25/03/1994

The applicant seeks leave to appeal against sentences imposed upon him by a judge of District Courts following his guilty plea to three offences.

On 29 August 1992 by falsely pretending that a cheque was good the applicant fraudulently obtained two replica pistols, on 1 September 1992 he stole with actual violence a sum of money from a person while pretending to be armed with a dangerous weapon, namely a pistol and on 5 September 1992 he stole with actual violence from a different person a sum of money while again in the same manner, pretending to be armed. The pistol referred to in the second and third charges was one of those obtained by the appellant in the circumstances referred to in the first charge.
In each of the two robberies the applicant was involved
with a young co-offender, Fitzgerald
, with whom he had formed a friendship. Unlike his co-offender,
the applicant had some prior criminal history.

On 6 March 1992 the applicant was sentenced before Judge McMurdo of District Courts on six charges of stealing, two charges of unlawful use of motor vehicles, three charges of uttering, two charges of false pretences, one charge of breaking and entering a dwelling house with intent, and two charges of misappropriation of property with a circumstance of aggravation.

These offences appear all to have been committed between August and October of 1991. On each charge Judge McMurdo sentenced the applicant to two years imprisonment but recommended his consideration for parole after serving six months of the terms.

A recommendation was added that whilst in prison and on parole he should receive psychiatric treatment and counselling. In June…

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 Del Arco

Details

AGLC: R v Del Arco [1994] QCA 70
Case: [1994] QCA 70
Decision Date: 25/03/1994

CaseChat Overview and Summary

In the case of The Queen v. Del Arco, the applicant sought leave to appeal against the sentences imposed upon him by a judge of the District Court following his guilty plea to three offences. The applicant, Enrique Manuel Sydney Del Arco, was sentenced on three charges: falsely pretending that a cheque was good to fraudulently obtain two replica pistols, and two charges of stealing with actual violence while pretending to be armed with a pistol. The court had to decide whether the sentences imposed were appropriate, particularly given the cumulative nature of the terms and the principles applicable to sentencing co-offenders and persons already serving a term of imprisonment.

The Court of Appeal found that the sentences imposed were excessive and that the cumulative terms were unjust. The court noted that the applicant, while not directly participating in the robberies, played a significant role in planning and facilitating them. However, the court also recognised the applicant's age, prior lack of a significant criminal history, and the potential for rehabilitation. The court decided that the terms of imprisonment should remain the same but should be made concurrent rather than cumulative, and a fresh parole recommendation should be made in accordance with the Penalties and Sentences Act 1992.

The final orders of the Court of Appeal were that the application for leave to appeal was granted, and the sentences imposed below were set aside insofar as they were ordered to be served cumulatively on sentences already being served. The respective terms of four years and three months were to remain but should be concurrent, commencing from 18 June 1993. Additionally, a fresh parole recommendation was to be added, ordering that the applicant be eligible for consideration for parole on 1 December 1994.

Orders