| 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…
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- AGLC
- R v Del Arco [1994] QCA 70
- Case
- [1994] QCA 70
- Decision Date
CaseChat Overview and Summary
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.
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