R v F - [1999] QCA 131

99.131

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 29 of 1999
THE QUEEN
v.

SIMON CHARLES FISHER Applicant

BRISBANE

..DATE 16/04/99

JUDGMENT
PINCUS JA: The applicant, who was born on 14 April 1982, applies
for leave to appeal against sentence, the offence in question being
that of entering a dwelling and stealing. This offence was
committed in August 1998 when the applicant was 16 and he was
sentenced on 29 January this year. The applicant and another person
entered the window of a house and stole jewellery said to be worth
about $15,000 most of which was recovered. An insurance company
paid out $5,000 in compensation for the unrecovered jewellery.

The applicant pleaded guilty but had not, earlier than that, been cooperative with the police. He gave them two false names. It should be noted that there was no charge of breaking although the owner said a window had been forced. The matter must be approached on the basis that the applicant entered the premises through an open window.

There was a pre-sentence report stating that the applicant's history of compliance with community-based orders had been poor, that he had been breached for re-offending on three of his previous probation orders and breached for non-compliance with two of his community service orders. These orders were imposed in respect of previous offences, which were fairly numerous. There had been six probation orders made and six orders for detention. The offences previously committed included breaking and entering, robbery with violence in company, stealing, assault, wilful damage and receiving.

The offences the primary judge, Judge Brabazon Q.C., had to consider were principally the entering and stealing but there was also a charge of failing to give the correct name and address. Judge Brabazon Q.C. imposed a sentence of six months detention in respect of the entering and stealing charge.

It was argued below on behalf of the applicant, by counsel who appeared at that stage, that the offence in question which was committed on 30 August 1998 should be regarded as part of a series of offences dealt with by Judge Pack on 25 September 1998. The

purpose of that argument was to convince Judge Brabazon Q.C. that
Judge Pack would not have imposed any additional sentence if the
present matter had been before him. The offences with which Judge
Pack dealt on 25 September 1998 were unlawful use of a motor
vehicle, five charges of wilful and unlawful damage, three charges
of stealing, an assault, three charges of entering a dwelling and
committing an indictable offence and a charge of receiving. In
respect of those offences his Honour imposed an order for probation
of two years. I note that the offences themselves had been
committed over a substantial period of time, some years.

Judge Brabazon QC, the primary judge in the present case, said that the applicant was not a suitable candidate for orders of the kind made by Judge Pack and that the offence before Judge…

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 F

Details

AGLC: R v F [1999] QCA 131
Case: [1999] QCA 131
Decision Date: 16/04/1999

CaseChat Overview and Summary

The applicant, Simon Charles Fisher, applied for leave to appeal against his sentence for the offence of entering a dwelling and stealing. The offence was committed in August 1998 when Fisher was 16 years old, and he was sentenced on 29 January of the following year. The court was asked to consider whether the sentence was manifestly excessive and whether it was appropriate for the second sentencing court to consider events that occurred after the first sentencing hearing. Fisher had a history of non-compliance with community-based orders and had breached several previous probation and community service orders.

The main legal issue was whether the sentencing judge, Judge Brabazon QC, should have considered the events that occurred after the first sentencing hearing when determining Fisher's sentence. The applicant argued that the sentencing judge should have followed the approach set out in Mill, which required the judge to consider what sentence would have been imposed if all the offences had been committed in one jurisdiction and sentenced at the same time. The applicant also argued that the sentence was manifestly excessive.

The court held that a second sentencing court is not limited to considering only the facts that occurred at the earlier date when dealing with an offence that had occurred and was being processed before the first sentence was imposed. In this case, the sentencing judge had the advantage of a report that recommended against community-based orders, which was an intervening circumstance that should be considered. The court also found that the sentence of six months detention was not manifestly excessive.

The application for leave to appeal against sentence was dismissed, and the sentence imposed by Judge Brabazon QC was upheld. The court held that the sentencing judge was not obliged to ignore the intervening circumstance of the report recommending against community-based orders and that the sentence was appropriate.

Orders