R v Evans - [2010] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

R v Evans [2010] QCA 30

PARTIES:

R
v
EVANS, Richard David
(applicant)

FILE NO/S:

CA No 251 of 2009
DC No 1225 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2010

JUDGES:

Chief Justice and Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted;

2.   Appeal allowed;

3.   Set aside the sentence of three years imprisonment and substitute a sentence of 12 months imprisonment, to be served cumulatively on the sentence imposed on the applicant on 18 July 2007.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of entering premises – where applicant committed the offence whilst on parole – where applicant sentenced to three years imprisonment made cumulative upon the earlier sentence – where applicant had a significant previous criminal history – where the subject offence was a minor example of offences of that kind – whether sentence manifestly excessive.

Corrective Services Act 2006 (Qld), s 209(1)

COUNSEL:

J Sharp for the applicant
D C Boyle for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the orders proposed by her Honour, and with her reasons.

KEANE JA: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the orders proposed by her Honour and with the reasons set out by her Honour for making those orders.

HOLMES JA: On 23 September 2009, the applicant was sentenced, after a trial, to three years imprisonment in respect of one count of entering premises with intent. He seeks leave to appeal that sentence, which was made cumulative upon another sentence of three years imprisonment imposed on him on 18 July 2007.

The entering of premises with intent occurred when the applicant went into a carport in order to steal from a utility parked there. The owners of the property saw him on the driveway, looking at the vehicle before walking away; soon after, one of them apprehended him with his upper body inside the vehicle, one of the windows of which had been left down. As was later discovered, the applicant had removed a wallet left in the driver’s side door compartment; it was found on the seat with its contents strewn about, but no property was actually stolen. When asked what he was doing, the applicant said that he was looking for a friend. The owner of the house detained him for a short period, demanded identification and took possession of his wallet before letting him go. The…

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.

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Details

Case: [2010] QCA 30
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of R v Evans involved the applicant, who had been convicted of entering premises while on parole. The applicant had a significant criminal history, which was considered during sentencing. The court sentenced the applicant to three years imprisonment, to be served cumulatively on the earlier sentence imposed on 18 July 2007. The applicant appealed against the sentence, arguing it was manifestly excessive. The appeal was brought before the court, which was tasked with determining whether the sentence imposed was appropriate given the circumstances of the case.

The primary legal issue before the court was whether the sentence of three years imprisonment was manifestly excessive. The court considered the nature of the offence, the applicant's criminal history, and the principle of proportionality in sentencing. The court had to weigh the seriousness of the offence against the applicant's previous criminal conduct and determine whether the sentence was disproportionate. The court also needed to consider whether the sentence was inadequate in the circumstances, particularly given the applicant's history of reoffending while on parole.

The court found that the sentence of three years imprisonment was manifestly excessive. The offence, while serious, was a minor example of offences of that kind, and the applicant's significant criminal history did not justify such a lengthy sentence. The court considered that a sentence of 12 months imprisonment, to be served cumulatively on the earlier sentence, was more appropriate. The court allowed the appeal and set aside the original sentence, substituting it with a sentence of 12 months imprisonment.

The court granted the applicant leave to appeal against the sentence, allowed the appeal, and set aside the original sentence. In its place, the court imposed a sentence of 12 months imprisonment, to be served cumulatively on the sentence imposed on 18 July 2007. The court's decision highlighted the importance of proportionality in sentencing and the need to consider the individual circumstances of each case.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted;

2. Appeal allowed;

3. Set aside the sentence of three years imprisonment and substitute a sentence of 12 months imprisonment, to be served cumulatively on the sentence imposed on the applicant on 18 July 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Evans [2010] QCA 30
PARTIES:	R v EVANS, Richard David (applicant)
FILE NO/S:	CA No 251 of 2009 DC No 1225 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2010
JUDGES:	Chief Justice and Keane and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted; 2. Appeal allowed; 3. Set aside the sentence of three years imprisonment and substitute a sentence of 12 months imprisonment, to be served cumulatively on the sentence imposed on the applicant on 18 July 2007.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of entering premises – where applicant committed the offence whilst on parole – where applicant sentenced to three years imprisonment made cumulative upon the earlier sentence – where applicant had a significant previous criminal history – where the subject offence was a minor example of offences of that kind – whether sentence manifestly excessive. Corrective Services Act 2006 (Qld), s 209(1)
COUNSEL:	J Sharp for the applicant D C Boyle for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent