R v Edie - [2006] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v Edie [2006] QCA 111

PARTIES:

R
v
EDIE, Allan Mark
(applicant/appellant)

FILE NO/S:

CA No 338 of 2005
DC No 1524 of 2004
DC No 2763 of 2004
DC No 2764 of 2004
DC No 3366 of 2005
DC No 3367 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2006

JUDGES:

McMurdo P, Williams JA and Fryberg J
Separate reasons for judgment of each member of the Court, McMurdo P and Fryberg J concurring as to the orders made, Williams JA dissenting in part

ORDERS:

1.Leave to appeal granted

2.Appeal allowed in part

3.Set aside the declaration of the District Court relating to time spent in custody, and in lieu thereof declare and direct as follows:

“Declare that the applicant was held in pre-sentence custody between 18 July 2003 and 24 November 2003, a period of 130 days; between 15 April 2004 and 1 September 2004, a period of 140 days; and between 5 January 2005 and 24 November 2005, a period of 324 days, a total time in pre-sentence custody of 590 days.

Declare that no time is taken to be imprisonment already served under any of these sentences.

Direct that the registrar advise the chief executive (corrective services) in writing of these declarations and their details.”

4.Add to the sentence of the District Court: “Recommend that the applicant be eligible for post-prison community based release after serving one year and four months of the foregoing period of imprisonment, namely on 24 March 2007.”

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - where the applicant pleaded guilty to a total of 141 offences over a period of 18 months, the vast majority involving burglary - where the applicant was on bail and on probation when many of the offences were committed - in the applicant’s favour was his co-operation with authorities and his youth - where effectively, the applicant was given a head sentence of seven years and four months with no recommendation for post-prison community based release - whether in all the circumstances the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 651

Penalties and Sentences Act 1992 (Qld), s 161, s 161(1),
s 161(3A), s 161(3B), s 161(3C), s 161(4A), s 189, s 189(2)(b)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292, considered
R v Kunst [2002] QCA 400; [2003] 2 Qd R 98, considered
R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999, considered

R v Wishart and Jenkins [1994] 2 Qd R 421, considered

COUNSEL:

The applicant/appellant appeared on his own behalf
C W Heaton for the respondent

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 Edie

Details

AGLC: R v Edie [2006] QCA 111
Case: [2006] QCA 111
Decision Date: 13 April 2006

CaseChat Overview and Summary

The applicant in this matter appealed against the sentence handed down by the District Court, arguing that it was manifestly excessive. The applicant had pleaded guilty to 141 offences over an 18-month period, mostly burglaries, while on bail and probation. The court had given the applicant a head sentence of seven years and four months, with no recommendation for post-prison community based release. The applicant's youth and cooperation with authorities were considered in his favour. The court was required to determine whether the sentence was manifestly excessive in all the circumstances.

The court considered relevant legislation and previous cases in its decision. It noted that the applicant's youth and cooperation with authorities were mitigating factors, but also considered the seriousness of the offences and the need for deterrence. The court found that the sentence was excessive and allowed the appeal in part. The court set aside the District Court's declaration relating to time spent in custody and directed that the applicant had been in pre-sentence custody for a total of 590 days. The court also added a recommendation for post-prison community based release after one year and four months of the sentence.

The appeal was allowed in part and the sentence was modified. The court declared that the applicant had been in pre-sentence custody for a total of 590 days and directed that no time was to be taken as imprisonment already served. The court also added a recommendation for post-prison community based release after one year and four months of the sentence. The registrar was directed to advise the chief executive of corrective services in writing of these declarations and their details.

Orders

Orders of the court

1.Leave to appeal granted

2.Appeal allowed in part

3.Set aside the declaration of the District Court relating to time spent in custody, and in lieu thereof declare and direct as follows:

“Declare that the applicant was held in pre-sentence custody between 18 July 2003 and 24 November 2003, a period of 130 days; between 15 April 2004 and 1 September 2004, a period of 140 days; and between 5 January 2005 and 24 November 2005, a period of 324 days, a total time in pre-sentence custody of 590 days.

Declare that no time is taken to be imprisonment already served under any of these sentences.

Direct that the registrar advise the chief executive (corrective services) in writing of these declarations and their details.”

4.Add to the sentence of the District Court: “Recommend that the applicant be eligible for post-prison community based release after serving one year and four months of the foregoing period of imprisonment, namely on 24 March 2007.”

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Edie [2006] QCA 111
PARTIES:	R v EDIE, Allan Mark (applicant/appellant)
FILE NO/S:	CA No 338 of 2005 DC No 1524 of 2004 DC No 2763 of 2004 DC No 2764 of 2004 DC No 3366 of 2005 DC No 3367 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2006
JUDGES:	McMurdo P, Williams JA and Fryberg J Separate reasons for judgment of each member of the Court, McMurdo P and Fryberg J concurring as to the orders made, Williams JA dissenting in part
ORDERS:	1.Leave to appeal granted 2.Appeal allowed in part 3.Set aside the declaration of the District Court relating to time spent in custody, and in lieu thereof declare and direct as follows: “Declare that the applicant was held in pre-sentence custody between 18 July 2003 and 24 November 2003, a period of 130 days; between 15 April 2004 and 1 September 2004, a period of 140 days; and between 5 January 2005 and 24 November 2005, a period of 324 days, a total time in pre-sentence custody of 590 days. Declare that no time is taken to be imprisonment already served under any of these sentences. Direct that the registrar advise the chief executive (corrective services) in writing of these declarations and their details.” 4.Add to the sentence of the District Court: “Recommend that the applicant be eligible for post-prison community based release after serving one year and four months of the foregoing period of imprisonment, namely on 24 March 2007.”
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - where the applicant pleaded guilty to a total of 141 offences over a period of 18 months, the vast majority involving burglary - where the applicant was on bail and on probation when many of the offences were committed - in the applicant’s favour was his co-operation with authorities and his youth - where effectively, the applicant was given a head sentence of seven years and four months with no recommendation for post-prison community based release - whether in all the circumstances the sentence was manifestly excessive Criminal Code 1899 (Qld), s 651 Penalties and Sentences Act 1992 (Qld), s 161, s 161(1), s 161(3A), s 161(3B), s 161(3C), s 161(4A), s 189, s 189(2)(b) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292, considered R v Kunst [2002] QCA 400; [2003] 2 Qd R 98, considered R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999, considered R v Wishart and Jenkins [1994] 2 Qd R 421, considered
COUNSEL:	The applicant/appellant appeared on his own behalf C W Heaton for the respondent