R v Dunn - [1999] QCA 470

SUPREME COURT OF QUEENSLAND

CITATION:	R v Dunn [1999] QCA 470
PARTIES:	The Queen v DUNN, Mark Neville (Applicant/Appellant)
FILE NO/S:	CA No 256 of 1999 DC No 718 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave to appeal against sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 1999
JUDGES:	McMurdo P, Thomas JA and Williams J
ORDER:	Leave granted to amend notice of application for leave to appeal against sentence to include the 17 summary offences of using the postal system in an offensive manner. Leave to appeal granted. Appeal allowed with respect to count 2 (stalking with a circumstance of aggravation) in the indictment dated 12 March 1999 by reducing the sentence imposed thereon from five years to four years and seven months. With respect to the 17 summary offences of using the postal system in an offensive manner the sentence is confirmed, and a declaration added that the court is satisfied that no other sentence than imprisonment is appropriate in all the circumstances and that a recognisance release order is inappropriate in the circumstances. Further direct that a copy of these reasons for judgment be placed with the court file. Declaration made below in relation to pre-sentence custody set aside and in its place declare that the applicant was in custody in relation to the present sentences for the periods 26 August 1998 to 13 April 1999 and 4 July 1999 to 9 July 1999 totalling 227 days, and that that period is to be regarded as time served under the present sentences. In all other respects all sentences are
ACCOUNT – applicant convicted of stalking and other offences in District Court, and also sentenced for breaches of probation and summary offences – sentencing judge not told that applicant recently dealt with in Magistrates Court for other offences – whether applicant had suffered double punishment – whether applicant received credit for his pleas of guilty – s 17A, s 19, s 19AC of the Crimes Act 1914 (Cth) discussed – effect of sentencing judge's failure to observe these provisions – totality of sentences as the dominant factor – pre-sentence custody declaration requiring amendment
COUNSEL:	Mr J McLennan for the applicant/appellant Ms L Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant was dealt with in the District Court on 9 July 1999 in respect of widely varying offences. Firstly there was an indictment charging him with stalking with a circumstance of aggravation and further offences of breaking, entering and wilfully damaging property and stealing. Secondly he was dealt with for breaches of probation orders made on earlier occasions by judges in the District Court and was re-sentenced in relation to the original offences the subject of those orders. These included various offences of breaking, entering and stealing, wilful damage, forgery and written threats to murder. Thirdly he was…

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 Dunn

Details

AGLC: R v Dunn [1999] QCA 470
Case: [1999] QCA 470
Decision Date: 9/11/1999

CaseChat Overview and Summary

The applicant, Mr Dunn, sought leave to appeal against his sentence in the County Court of Victoria. The dispute centred on the severity of the sentences imposed on Mr Dunn for stalking and for using the postal system in an offensive manner. Mr Dunn sought to challenge the length of the sentences and the appropriateness of the imprisonment term. The Court of Appeal was required to determine whether leave to appeal should be granted, and if so, whether the appeal should be successful in reducing the sentence or modifying the terms of imprisonment.

The primary legal issues addressed by the Court of Appeal involved the principles of sentencing and the proportionality of the sentences imposed. Specifically, the Court had to consider whether the sentence for stalking with an aggravating circumstance was excessive and whether the sentences for the postal offences were appropriate, including the decision to impose imprisonment rather than a recognisance release order. The Court also had to verify the calculation of pre-sentence custody time to ensure it was accurately reflected in the total sentence.

The Court of Appeal allowed the appeal in part, modifying the sentence for stalking by reducing it from five years to four years and seven months, finding it to be excessive. However, the Court confirmed the sentences for the 17 summary offences of using the postal system in an offensive manner, and declared that imprisonment was the only appropriate sentence in those circumstances. The Court also declared that the periods of pre-sentence custody should be regarded as time served, correcting the earlier declaration. In all other respects, the sentences were upheld.

Orders

Orders of the court

Leave granted to amend notice of application for leave to appeal against sentence to include the 17 summary offences of using the postal system in an offensive manner. Leave to appeal granted. Appeal allowed with respect to count 2 (stalking with a circumstance of aggravation) in the indictment dated 12 March 1999 by reducing the sentence imposed thereon from five years to four years and seven months. With respect to the 17 summary offences of using the postal system in an offensive manner the sentence is confirmed, and a declaration added that the court is satisfied that no other sentence than imprisonment is appropriate in all the circumstances and that a recognisance release order is inappropriate in the circumstances. Further direct that a copy of these reasons for judgment be placed with the court file. Declaration made below in relation to pre-sentence custody set aside and in its place declare that the applicant was in custody in relation to the present sentences for the periods 26 August 1998 to 13 April 1999 and 4 July 1999 to 9 July 1999 totalling 227 days, and that that period is to be regarded as time served under the present sentences. In all other respects all sentences are

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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