R v Fripp - [2003] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fripp [2003] QCA 4

PARTIES:

R
v
FRIPP, Kim Gordon
(applicant)

FILE NO/S:

CA No 345 of 2002
DC No 2644/02
DC No 1535/02
DC No 1874/02
DC No 2055/02

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

29 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

29 January 2003

JUDGES:

McPherson and Davies JJA and Mullins J
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Application for leave to appeal against sentence is dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – judgment and punishment – sentence –
factors to be taken into account – miscellaneous matters –
remission, parole and prisoner classification – effect of parole
recommendation – whether relevant that prison may not give effect to recommendation

COUNSEL:

The applicant appeared on his own behalf
CW Heaton for the Crown

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: This is an application for leave to appeal against an effective sentence of imprisonment for 4 years with a recommendation for parole after two years which was imposed in the District Court in September last year following a plea of guilty to 10 counts of indictable offences and seven summary charges. There was an additional summary offence as to which the applicant was admonished and discharged.

The indictable and some or all of the summary offences were committed during the period from 16th October 2000 to 15th April 2002, most of them in or after November 2001. Stated broadly, all of the indictable offences involved motor vehicles except for two involving drugs. There were six counts of unlawful use of different motor vehicles and two counts of stealing vehicles or their parts. The vehicles were taken from places where the owners had left them outside their homes or places of work. Most of the vehicles were recovered shortly afterwards, some in a damaged condition. The most serious offences were, as the learned sentencing Judge observed, counts 8 and 10 which were charges of dangerous driving. In each of those instances in April 2002 when directed by police to stop or pull over, the applicant sped off, involving the police in chases in the course of which the applicant attained speeds of 130 km/h or 140 km/h in the 60 km/h zones and in traffic conditions which involved a considerable risk of death or serious injury to the driving public. Because of the danger presented to members of the public, the police were forced to give up the chase; but later succeeded in catching up with the applicant, in one case apparently pursuing him on foot with police dogs.

Count 10 arose out of such a case. On 15th April 2002 the complainant Mrs Sargeant was driving her vehicle out of a suburban supermarket at about 10 in the morning when the applicant collided…

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 Fripp

Details

AGLC: R v Fripp [2003] QCA 4
Case: [2003] QCA 4
Decision Date: 29 January 2003

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal against the sentence imposed by the trial judge. The appellant, Fripp, was convicted of a serious criminal offence and the trial judge sentenced him to a term of imprisonment. The respondent, the Crown, did not oppose the application for leave to appeal but the court found that there were no arguable grounds for appeal. The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive or whether it fell within the range of reasonable sentences that could be imposed for the offence committed.

The court considered the factors that the trial judge had taken into account in imposing the sentence, including the gravity of the offence, the appellant's criminal history, and the need to deter the appellant and others from committing similar offences. The court also considered the parole recommendation made by the Board of Corrections, which recommended that the appellant be eligible for parole after serving a certain proportion of his sentence. However, the court found that the fact that the prison may not give effect to the parole recommendation was not relevant to the question of whether the sentence was manifestly excessive. The court concluded that the sentence imposed by the trial judge was within the range of reasonable sentences that could be imposed for the offence and that there were no arguable grounds for appeal.

The application for leave to appeal against the sentence was dismissed. The court emphasised that the sentence imposed by the trial judge was not manifestly excessive and that the appellant had not demonstrated that there were any arguable grounds for appeal. The court also noted that the fact that the prison may not give effect to the parole recommendation was not relevant to the question of whether the sentence was manifestly excessive. The court's decision was based on a careful consideration of the factors that the trial judge had taken into account in imposing the sentence and a comparison of the sentence with other sentences that had been imposed for similar offences.

Orders

Orders of the court

Application for leave to appeal against sentence is dismissed

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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CITATION:	R v Fripp [2003] QCA 4
PARTIES:	R v FRIPP, Kim Gordon (applicant)
FILE NO/S:	CA No 345 of 2002 DC No 2644/02 DC No 1535/02 DC No 1874/02 DC No 2055/02
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	29 January 2003
DELIVERED AT:	Brisbane
HEARING DATE:	29 January 2003
JUDGES:	McPherson and Davies JJA and Mullins J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Application for leave to appeal against sentence is dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judgment and punishment – sentence – factors to be taken into account – miscellaneous matters – remission, parole and prisoner classification – effect of parole recommendation – whether relevant that prison may not give effect to recommendation
COUNSEL:	The applicant appeared on his own behalf CW Heaton for the Crown
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent