R v Dolley - [2003] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION: R v Dolley [2003] QCA 108
PARTIES: R
v
DOLLEY, Timothy William
(applicant)

FILE NO/S:

CA No 398 of 2002 DC No 168 of 2002 DC No 169 of 2002
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction and Sentence
ORIGINATING
COURT: District Court at Toowoomba
DELIVERED EX 13 March 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 13 March 2003
JUDGES: de Jersey CJ, McMurdo P and White J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS: Appeal against conviction dismissed
Application for leave to appeal against sentence granted
Appeal against sentence allowed, but only to the extent of
setting aside the sentence of nine years imprisonment for
the offence of attempted stealing from a locked receptacle
and substituting a term of five years imprisonment in lieu
thereof
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND
INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – PARTICULAR GROUNDS – MISDIRECTION
AND NON-DIRECTION – GENERAL MATTERS –
OTHER MATTERS – where erroneous direction
subsequently corrected – where circumstantial evidence
involved and full circumstantial evidence direction not given

INQUIRY AFTER CONVICTION – APPEAL AND NEW

CRIMINAL LAW – APPEAL AND NEW TRIAL AND CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where significant financial consequences of offence – where relevant substantial prior criminal history – where offence due to recklessness rather than intention – whether sentence of crushing effect

INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE
SENTENCE – WHEN GRANTED – PARTICULAR

CRIMINAL LAW – APPEAL AND NEW TRIAL AND exceeded maximum sentence provided for by legislation
Criminal Code (Qld), s 398(4)(f), s 461, s 536(2)

Penalties and Sentences Act 1992 (Qld), pt 9A 10
R v Kucks [1996] QCA 57; CA No 470 of 1995, 26 January
1996, distinguished
R v Lockwood; ex parte Attorney-General [1981] Qd R 209,
approved
R v Matheson; ex parte Attorney-General of Queensland
[1997] QCA 410; CA No 340 of 1997, 14 November 1997,
distinguished
R v Rowland and Mealing [1999] QCA 193; CA No 28 of

1999, 26 May 1999, distinguished 20

R v T [1997] 1 Qd R 623, discussed discussed
COUNSEL: M J Byrne QC for the applicant
B G Campbell for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the

respondent 30

money and that he broke into the building and entered and	50
what eventuated, the setting fire to the building.

THE CHIEF JUSTICE: The appellant was convicted in the
District Court, of the offence of arson, in relation to the
spare parts and service division of Southern Cross Ford, in

Toowoomba. The charge under section 461 of the Criminal Code,

was that on or about the 22nd of March 2002, at Toowoomba, the

appellant wilfully and unlawfully set fire to…

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 Dolley

Details

AGLC: R v Dolley [2003] QCA 108
Case: [2003] QCA 108
Decision Date: 13/03/2003

CaseChat Overview and Summary

In the Supreme Court, Dolley was convicted of various criminal offences, including attempted stealing from a locked receptacle and theft. Dolley appealed against both the conviction and the sentence, citing errors in the trial judge's directions to the jury as grounds for appeal. The appeal against the conviction was dismissed, while the application for leave to appeal against the sentence was granted. The sentence of nine years imprisonment for the offence of attempted stealing from a locked receptacle was found to be excessive and was reduced to five years.

The primary legal issue in this case was whether the trial judge's directions to the jury were erroneous and, if so, whether the error was sufficiently corrected. The court also considered whether the jury's verdict was supported by the evidence presented at trial. The appeal against the conviction hinged on whether the trial judge misdirected the jury in relation to the required standard of proof and the elements of the offence of attempted stealing from a locked receptacle. The appeal against the sentence focused on the proportionality of the sentence imposed by the trial judge.

The court found that, while the trial judge had initially misdirected the jury, the error was subsequently corrected, and the jury's verdict was properly directed. The court held that the evidence presented at trial was sufficient to support the jury's verdict. In relation to the sentence, the court found that the sentence of nine years imprisonment for the offence of attempted stealing from a locked receptacle was excessive and disproportionate to the offence. The sentence was reduced to five years imprisonment, which the court found to be more appropriate given the circumstances of the case.

Orders

Orders of the court

Appeal against conviction dismissed

Application for leave to appeal against sentence granted

Appeal against sentence allowed, but only to the extent of

setting aside the sentence of nine years imprisonment for

the offence of attempted stealing from a locked receptacle

and substituting a term of five years imprisonment in lieu

thereof

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.